TERMS OF USE
IT IS AGREED:
1 INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Partner Agreement.
Competitor Service: means a web-based platform whose primary purpose is to offer benefit schemes to residential tenants and/or landlords, agents, housing authorities or local councils in the form of a collection of discounts or exclusive offers only available through the benefit scheme;
Customer: means anyone who is considered by the Client to be a Customer which includes but is not limited to Tenants, Landlords, Purchasers, Block Management Companies etc and on behalf of whom the Subscriber is purchasing (Premium Service) or being granted (Basic Service) a Licence Data Protection Legislation: means the Data Protection Act 2018, the EU Data Protection Directive 95/46/EC, the EC Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (when in force) (“GDPR”), the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable, any guidance notes and codes of practice issued by the European Commission and applicable national regulators including the UK Information Commissioner;
Partner Agreement: means this partner agreement;
Fees: means the Fees as set out in clause 4 payable by the Partner in respect of the Premium Service;
Intellectual Property Rights: all intellectual property rights on a world-wide basis whether currently in existence or otherwise and whether vested or contingent including (without limitation) copyright, design rights, database rights, rights in any domain names, registered designs, patents, trade marks, trade names, signs and other designations provided the foregoing are of a proprietary nature and all similar rights whether registered or otherwise (including, without limitation, all extensions, reversions, revivals and renewals thereof). The above shall include, in relation to registrable rights, any applications made or rights to make applications in respect of any such rights;
Licence(s): means a licence or licences to access and use the Website and the “Vaboo Premium” functionality of the Services;
Order Form: the order form setting out specific details of the Premium Service ordered by the Partner and Fees payable in respect of those Services;
Services: the White Label Service including both the Basic (Free) or Premium service (Paid), as applicable to the Partner and as set out in Schedule 1 of this Agreement;
Trademark: the registered mark “Vaboo”;
Vaboo Marks: means the Trademark, unregistered trade marks of Vaboo, trading names of Vaboo and promotional literature provided by Vaboo from time to time to the Subscriber; and
Website: means www.vaboo.co.uk.
1.2 Unless the context otherwise requires references to a person includes a legal person (such as a limited company) as well as a natural person;
a) the words “include” and “including” shall be construed without limitation; and
b) any enactment includes any subordinate legislation made from time to time under it and is to be construed as references to that enactment as from time to time amended or modified or any enactment for the time being replacing or amending it.
2 PARTNER SERVICES
2.1 In consideration of the Partner entering into this Partner Agreement and payment of the relevant Fees by the Partner to Vaboo, Vaboo shall provide the Services as indicated in the Order Form and more particularly described in Schedule 1 to the Partner.
2.2 The Services shall be provided with reasonable skill and care and in accordance with the time scale agreed by Vaboo with the Partner, though time shall not be of the essence.
2.3 The Partner shall only use the Services for the purpose of its relationship with Vaboo and to promote the benefits of Vaboo to its tenants or customers.
3 LICENCES
3.1 Each Licence is conditional upon the creation of a valid payment mechanism for the Fees for the Licence unless on the Free Basic Service
3.2 For the duration of the Term Vaboo shall grant premium access to the Website and “Vaboo Premium” to the number of Customers a Licence has been bought for by the Partner.
3.3 In the case of the Basic Services, for the duration of the Term Vaboo shall grant basic access to the Website (but not premium access including access to “Vaboo Premium”) to all the Partner’s Customers
3.4 Vaboo shall enable each Customer to create user names and passwords by emailing each Customer a link to set up on the Website. Vaboo shall provide an email helpdesk service for Tenants to assist with logging into the Website. Such usernames shall expire when the term on the Licence they relate to expires or this entire Partner Agreement is terminated. Licences are not transferable from one Tenant to another.
3.5 Customers may be obliged to accept an end-user agreement for the Website before they can use the Website.
3.6 For the avoidance of doubt, Vaboo accepts no liability to the Partner for Customers’ use of the Website, or for Customers’ subsequent contractual relationships with Vaboo partners featured on the Website from time to time.
4 FEES
4.1 There is no charge for the Vaboo Basic service whilst you list with OnTheMarket. Costs only apply if the Partner requires to upgrade to the Premium Service. The Fees shall be payable as set out below in this Clause 4 where relevant and applicable to the premium service
Branch subscription fees*
First branch (per month) £30
Further branches (per month) £25 250 - 500 users - £ 0.30
Note: *OTM Shareholder Agents: Fixed branch fee of £20 per branch per month
User fees
up to 250 users - £ 0.50
250 - 500 users - £ 0.30
500 - 1000 users - £ 0.25
1000 + users - £ 0.20
4.2 If a minimum number of months are agreed for a Licence then the Partner must pay the minimum number of months of Fees agreed to on a monthly basis where relevant to the service, with no right to cancellation or refund.
4.3 The Fees are stated exclusive of VAT or any equivalent sales tax (unless otherwise stated) which shall also be payable by the Partner at the rate prevailing from time to time.
4.4 Interest shall accrue on late payments at the annual rate of 5% above the then base rate of Barclays Bank plc, calculated daily.
4.5 The Fees shall be paid in full and without set-off. The Fees shall be due on their due date, which is the day of the month the relevant Subscription Page was completed.
5 GRANT OF LICENCE TO USE VABOO MARKS
5.1 For the duration of the Term the Partner is granted a non-exclusive, worldwide, royalty-free licence to display the Vaboo Marks on its website, premises and marketing materials (including property specifications) solely for the purpose of advertising the Partner’s offering of the Website to Tenants, landlords or clients and potential residential tenants, landlords or clients of the Partner.
5.2 The Partner may not sub-contract or transfer this licence to any third party.
5.3 The Partner acknowledges and agrees that Vaboo and/or its licensors own all Intellectual Property Rights in the Website and the Vaboo Marks.
5.4 The Partner acknowledges and agrees that it will not, whether during the Term or at any time after termination of this Agreement in any way question or dispute the legal and beneficial ownership by Vaboo of the Intellectual Property Rights in the Website or the Vaboo Marks.
5.5 All goodwill accruing from use of the Vaboo Marks by the Partner shall accrue to the exclusive benefit of Vaboo.
6 DATA PROTECTION
6.1 The Parties will act as data controllers in common in relation to the Shared Personal Data as defined under Schedule 2 of this Agreement.
6.2 Each Party is a separate and independent Controller of the Shared Personal Data which it discloses or receives for the Agreed Purposes as set out in Schedule 2 of this Agreement. As such, Vaboo uses the Shared Personal Data, collected via the use of its Sites and/or the provision of its Services in accordance with the purposes explained in its Privacy Policy under this agreement, which is located on the Website
6.3 Each Party must ensure compliance with applicable national Data Protection Legislation in relation to the Shared Personal Data at all times during the Term of this Agreement.
6.4 Each party shall be individually and separately responsible for complying with the obligations that apply to it as a Controller under the applicable Data Protection Legislation.
6.5 The Parties shall comply with the terms of the Controller to Controller Clauses attached at Schedule of this Agreement. In the event of conflict between any of the terms of this Agreement and Schedule 2, the terms of Schedule 2 will prevail.
6.6 In the event the data protection law or approach to compliance of the United Kingdom and the law applicable to Partner may conflict, the requirements of the country that necessitates stricter or additional requirements to protect data subjects’ privacy and personal data shall be applied.
7 CONFIDENTIALITY
7.1 Each of the parties acknowledges that, whether by virtue of and in the course of this Partner Agreement or otherwise, it shall receive or otherwise become aware of the Confidential Information of the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
7.2 Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.
7.3 Confidential Information shall exclude information which:
a) at the time of receipt by the recipient is in the public domain;
b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
c) is lawfully received by the recipient from a third party on an unrestricted basis; and/or
d) is already known to the recipient before receipt hereunder.
7.4 Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to keep the other party’s Confidential Information secure and protected against theft, damage, loss or unauthorised access. Neither party shall at any time, whether during the term of this Partner Agreement or at any time thereafter, without the prior written consent of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations hereunder.
7.5 Each of the parties undertakes to disclose the other party’s Confidential Information only to the extent to which, such disclosure is necessary for the purposes contemplated under this Partner Agreement.
7.6 Neither party shall be in breach of this Clause 5 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
7.7 The terms of and obligations imposed by this Clause 5 shall survive the termination of this Partner Agreement for any reason.
8 MUTUAL OBLIGATION
Neither party shall make any public comment about the other party which a reasonable person might consider to be derogatory, degrading or that might bring the other party into disrepute.
9 NON-COMPETE
The Partner agrees that, in relation to any of its current or prospective tenants or landlords for which it lets or manages residential property, it shall not enter into any agreement with, or register with a website of, a third party a Competitor Service.
10 INDEMNITY
The Partner shall indemnify Vaboo against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Partner’s unauthorised or unlawful use of the Website or breach of this Partner Agreement
11 LIMITATION OF LIABILITY
11.1 Nothing in this Partner Agreement shall exclude or in any way limit either party’s liability for fraud, for death or personal injury caused by its negligence, under Clause 8 or any other liability to the extent the same may not be excluded or limited as a matter of law.
11.2 Subject to Clause 11.1, Vaboo shall not be liable to the Partner in contract or tort (including negligence) for any loss of revenue, loss of profit, loss of business opportunity or indirect or consequential loss however so caused.
11.3 Vaboo’s liability to the Partner for any loss in contract or tort (including negligence) shall be limited to £5,000.
11.4 The express terms of this Partner Agreement are in lieu of all Vaboo’s warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, including any condition of satisfactory quality or fitness for a particular purpose whether or not any purpose has been notified to Vaboo, all of which are hereby excluded to the fullest extent permitted by law.
11.5 The Parties agree that the limitations and exclusions of liability contained in this Partner Agreement are reasonable in view of the nature and extent of the obligations accepted by each Party under this Partner Agreement and that this Clause 11 prevails over all other clauses in this Partner Agreement
12 TERM AND TERMINATION
12.1 For the Free basic service, there is no contract and no tie-in period and you can terminate at any point Partners can upgrade at any time to the Premium service at which point the fees, terms and termination period are as outlined herein.
12.2 This Partner Agreement shall commence on the Effective Date and shall continue for the Term, unless terminated earlier as provided in this Clause 12
12.3 For the Premium Service, unless otherwise agreed this Agreement shall continue for a minimum twelve-month period from the effective date. Either party may terminate this agreement with at least three months notice from month 9 or later.
12.4 Either party may terminate this Partner Agreement or any Licence:
a) immediately upon written notice to the other party in the event of any material breach of this Partner Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or
b) immediately upon written notice to the other party if the other party shall cease carrying on business in the normal course, or shall call a meeting of its creditors or make a proposal for a voluntary arrangement within Part I of the Insolvency Act 1986 or for any other composition or scheme of arrangement with (or assignment for the benefit of) its creditors, or shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or other similar officer is appointed in respect of all or any part of its business or assets, or if a petition is presented or a meeting is convened for the purpose of considering a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or it is the subject of an administration order.
12.5 On termination of this Partner Agreement for any reason:
Vaboo shall cancel all Licences paid for by the Partner; Vaboo may remove any Partner branded page on the Website; the Partner shall promptly remove any Vaboo Marks from its website, premises and marketing materials; each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13 FORCE MAJEURE
13.1 Neither party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”).
13.2 Force Majeure Events shall include but not be limited to the following:
a) unavailability of third party telecommunications or services;
b) strikes, lock-outs or other industrial action (other than strikes, lock-outs or other industrial action of any contractors of the party seeking to rely on the Force Majeure Event);
c) civil commotion, riot, invasion, war (whether declared or not) or threat of or preparation for war;
d) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
e) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
f) compliance with any law or governmental order, rule, regulation or direction.
13.3 The party whose performance is affected by a Force Majeure Event shall, within two (2) Business Days of becoming aware of the Force Majeure Event, provide a written notice to the other party, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed.
13.4 If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any Force Majeure Event continues for a period of or exceeding two (2) months, the non-affected party shall have the right to terminate this Partner Agreement forthwith on written notice to the affected party. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
14 WAIVER
No waiver of any term of this Partner Agreement is valid unless it is in writing and signed by an authorised person of the party giving the waiver. A waiver is only valid for the specific situation for which it was sought. All remedies provided for in this Partner Agreement are cumulative and in addition to and not in lieu of any other remedies available to either party in equity
15 ASSIGNMENT & SUB-CONTRACTING
15.1 The Partner may not assign its rights or obligations hereunder unless Vaboo gives its written consent, such consent not to be unreasonably withheld or delayed.
15.2 Vaboo shall be entitled to assign or sub-contract its rights and obligations under this Partner Agreement provided that, in the case of sub-contracting, it shall be responsible for the acts, omissions or defaults of the sub-contractor as if they were the acts, omissions or defaults of Vaboo.
16 NOTICES
16.1 Any notice under or in connection with this Partner Agreement shall be in writing and
shall be delivered personally, sent by recorded delivery to the addresses given in the Order
Form or by email to the Contact email in the Order Form.
16.2 Any notice shall be deemed to be duly served: if delivered personally, on delivery; if sent by recorded delivery three (3) days after posting or if sent by email during normal business hours, immediately on transmission or outside normal business hours, on the following business day.
17 ENTIRE PARTNER AGREEMENT & RIGHTS OF THIRD PARTIES
17.1 This Partner Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. The Partner hereby warrants to Vaboo that it has not been induced to enter into this Partner Agreement by any prior representations whether oral or in writing, except as specifically contained in this Partner Agreement. The Partner shall not have any remedy in respect of any untrue statement made by Vaboo on which the Partner relied in entering into this Partner Agreement including any negligent misstatement (unless such untrue statement was made fraudulently) and the Partner’s only remedies shall be for breach of contract as provided for in this Partner Agreement.
17.2 The Parties confirm that they do not intend to confer any rights on third parties by virtue of this Partner Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply.
18 AUTHORITY
The relationship of the parties is that of independent contractors dealing at arm’s length. Except as otherwise stated in this Partner Agreement, nothing in this Partner Agreement shall constitute the parties as partners, joint venturers or co-owners, or constitute either party as the agent, employee or representative of the other, or empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other, and neither party shall hold itself out as having authority to do the same.
19 LAW AND JURISDICTION
This Partner Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts to resolve any dispute between them arising under or in connection with this Partner Agreement.
Schedule 1: SERVICES
Basic access to Vaboo platform for all Customers and staff, such access to include:
Access to basic savings and offers for Tenants;
Regular emails to Tenants on how to get the most from their account; and
Monthly prize draws for tenants.
Quarterly feedback to Partner on usage & NPS stats where available
Weekly branded emails to Partner customers with offers
Opportunity for Tenants to subscribe for Premium access including access to “Vaboo Premium”;
PART 2 – PREMIUM PACKAGE
As Basic Package plus:
Dedicated account manager
Custom links and dashboard tiles.
Add local businesses and existing products/offers.
Branded flyers.
Quarterly usage and data reports.
Annual Deep Dive reports.
Social Media and PR support.
Access to Vaboo Premium for all
Custom Survey option.
All Packages include client branding and logo.
SCHEDULE 2: Controller to Controller Clauses
DEFINITIONS
“Agreed Purposes”: the provision by Vaboo to Partner of the Services.
“Vaboo’s Privacy Policy”: the privacy policy made available at https://vaboo.co.uk/privacy-policy , as updated from time to time.
“Controller, processor, data subject, personal data, processing and appropriate technical and organisational measures” as set out in the Data Protection Legislation in force at the time.
“Data Discloser”: a party that discloses Shared Personal Data to the other party.
“Data Protection Legislation”: 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 or any successor legislation and any other directly applicable European Union regulation relating to data protection and privacy
“Permitted Recipients”: the parties to this Agreement, the employees of each party, any third parties engaged to perform obligations in connection with this Agreement.
“Shared Personal Data”: the personal data to be shared between the parties under Clause 1.1 of this Agreement. Shared Personal Data in relation to Tenants shall include the following categories of information relevant to the provision of Services referred to in Vaboo’s Privacy Policy from time to time):
a) Any data voluntarily submitted to Vaboo through website registration, including e-mail address, first name, last name, phone number, bank account information, work title and photograph;
b) Data that is transmitted to Vaboo by Partner which may include-mail address, first name, last name and phone number.
1. DATA PROTECTION
1.1. Shared Personal Data
This Clause sets out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
1.2. Effect of non-compliance with Data Protection Legislation
Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.
1.3. Particular obligations relating to data sharing
Each party shall:
a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
b) give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
c) process the Shared Personal Data only for the Agreed Purposes;
d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;
f) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
g) not transfer any personal data received from the Data Discloser outside the EEA unless the transferor: (i) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and (ii) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
1.4. Notwithstanding the generality of Clauses 1.2 and 1.3 Partner agrees, in respect of its own processing of the Shared Personal Data, to include in the notice referred to in Clause 1.3.b):
a) an explanation to the effect that the Shared Personal Data may be collected by, or shared with Vaboo; and
b) a clear link to Vaboo’s Privacy Policy. For the avoidance of doubt, the parties acknowledge that, in respect of the Shared Personal Data, Vaboo does not have a direct relationship initially with the data subjects to which the Shared Personal Data relates and the purpose of this Clause 1.4 is to ensure that all relevant data subjects receive and have access to a copy of Vaboo’s Privacy Policy.
1.5. Mutual assistance
Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall, in relation to their processing of the Shared Personal Data:
a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
b) promptly inform the other party about the receipt of any data subject access request;
c) provide the other party with reasonable assistance in complying with any data subject access request;
d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the personal data;
h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
i) maintain complete and accurate records and information to demonstrate its compliance with this Clause 1.5 and allow for audits by the other party or the other party’s designated auditor; and
j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.
1.6. Indemnity
Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it. The liability of Vaboo under this clause shall be subject to the limits set out in Clause 11.3 of this agreement