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Member Agent Terms & Conditions

Updated September 2021

Definitions

In these Member Agent Terms and Conditions the following definitions apply:

Access Rights – the Member Agent’s access rights to the Boomin Platform as set out in the Agreement

Account Manager – An employee of Boomin who is responsible for securing, supporting and managing the relationship with Member Agents and prospective Member Agents

Agent – means an estate agent, lettings agent (solicitor agents in Scotland) and/or commercial property agent

Agreement – means a contract for Services between Boomin and the Member Agent governed by these Member Agent Terms and Conditions.

Applicable Activity means:

  • registering, editing and updating Applicants
  • maintaining and updating search criteria for Applicants
  • booking, rearranging and cancelling viewings and valuations
  • preparing and submitting valuation reports for valuations
  • recording feedback after viewings
  • recording offers, negotiations, sales agreed subject to contract, fall throughs, lets agreed and move ins
  • confirmation of instruction of an Agent
  • recording price changes
  • recording the dates for exchange of contracts and completion of a sale or let

Applicants - anyone who is interested in a Property or being introduced to similar properties that may become a Property in the future.

Boomin – a trading name of PD Innovations Limited (Company Number 12090160) of 59- 61 Charlotte Street St Pauls Square, Birmingham, West Midlands, England, B3 1PX

Boomin Branches – the Branches or Virtual Branches that the Agent sets up on the Boomin Platform

Boomin Platform – the platform made available by Boomin to Member Agents for the management of their relationship with customers.

Boomin Valuation – a valuation booked with a Member Agent on the Site

Boomin Viewing – a viewing booked with a Member Agent on the Site

Confidential Information – means all information relating to a Party that is proprietary or confidential and is either clearly labelled as such or would by its nature reasonably be considered to be confidential, including all information relating to a Party’s business, affairs, strategies, trade secrets, products, services, pricing, suppliers, customers, partners, financial or other affairs or commercial relationships

Charges – means the fees and costs agreed in writing between Boomin and the Member Agent

Content – means any data (personal or otherwise), information, content, Intellectual Property or other materials, including all information and other data relating to Properties, uploaded to the Site or made available by, on behalf or on the instruction of, the Member Agent to Boomin

Data Protection Legislation – means all applicable data protection legislation, including the General Data Protection Regulation (Regulation (EU) 2016/679), the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003 and in each case as may be amended, updated or replaced from time to time

Developer – means a property developer, agencies which act on behalf of a property developer, housing associations, companies or agencies which operate within the retirement property market and all other agencies, companies and property developers which deal with the marketing of properties (except for Agents and Online Agents)

Development – means a newly built property development, or a newly converted building where there has been a change of use to residential usage from something other than residential usage (for example an office building converted into flats), which carries some form of new build warranty and is classed as ‘new’ for mortgage purposes

Gold Member – a Member who is not a Platinum Member

Launch Period – from the launch date of Boomin and ending 12 months later

Lead – means either an email or telephone call received by the Member Agent from any person who has contacted the Member Agent using the contact form or contact details supplied on the Site to include any booked valuations or viewings

Live Property Advert – an advert for a Property where full property particulars have been uploaded

Logo – means the Boomin logo or any other logo Boomin may from time to time provide to the Member Agent

Member Agent – means the Agent, Online Agent or the Developer set out in the Agreement who has agreed to the Services for the Boomin Branches and to operate in accordance with these terms and conditions

Member Agent Account – a password protected account on Boomin where the Member can access the Services

Member Agent’s Data – means all data uploaded to the Site by the Member Agent or otherwise made available by the Member Agent to Boomin in connection with the
Agreement, including data that constitutes Content and any data derived from Content
Member Agent Terms and Conditions these member agent terms and conditions
New Agreement has the meaning given in Clause 7.4

Normal Business Hours – means 9am to 5pm on Working Days

Onboarding Process – the process set out in Clause 3 of these Member Agent Terms and Conditions or such other process for onboarding Member Agents to the Boomin Platform as may be notified to prospective Member Agents from time to time

Online Agent – means an estate agent, lettings agent (solicitor agent in Scotland) and/or commercial property agent that primarily operates via a website (rather than a physical branch) and/or does not operate through a local office network

Party – means Boomin or the Member Agent respectively and the term ‘Parties’ means both Boomin and the Member Agent.

Personal Data – has the meaning given to it in the Data Protection Legislation

Platinum Member – a Member Agent who is either using the Boomin Platform or a CRM that has been integrated with the Boomin Platform for all the Applicable Activity

Portal Sites – third party portal sites with whom Boomin has a commercial agreement in place

Portal Upload Services – transmission of data by Boomin to Portal Sites

Property – a property or land that a Member Agent has been instructed to sell or let

Relevant Requirements – all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including the Bribery Act 2010

Services – means the Services to be provided by Boomin to the Member Agent as set out in the Agreement and which may include any or a combination of the following in addition to those Services that are available to Gold and Platinum Members:

  • A process facilitating the upload by the Member Agent of Property details to the Site, including use of the Upload SystemsUse of the Boomin Platform
  • Displaying the Member Agent’s Properties on the Site
  • Providing the Member Agent with a listing within the agent directory on the Site
  • Providing Leads to the Member Agent
  • Providing reports and access to reporting tools to the Member Agent
  • Providing advertising services to the Member Agent
  • Any other services provided by Boomin from time to time

Site – means the Site located at Boomin.com and any other site whose domain is owned or controlled or powered by Boomin and via which Services are provided which includes Boomin’s Customer Relationship Management system (CRM)

Start Date – means the start date of the Agreement

Upload Systems – means any system made available by Boomin to the Member Agent to facilitate the uploading of Content to the Site

Working Day – means any day other than Saturday, Sunday or a public holiday in England

1. About us

1.1

Company details. Boomin is a trading name of PD Innovations Limited (company number 12090160) a company registered in England and Wales and its registered office is at 59-61 Charlotte Street St Pauls Square, Birmingham, West Midlands, England, B3 1PX. Its trading address is its registered office address. Our VAT number is 331 9151 22. Boomin operates the website Boomin.com

1.2

Contacting Boomin. To contact Boomin telephone its customer service team on 0121 295 2429 or e-mail [email protected] . For how to give Boomin formal notice of any matter under the Agreement see Clause 13.

2. Our Agreement with You

2.1

Entire agreement. The Agreement is the entire agreement between the Member Agent and Boomin and supersedes any previous arrangement, understanding or agreement between the Parties in relation to its subject matter. The Member Agent acknowledges that it has not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement. The Agreement applies to the exclusion of any other terms that the Member Agent seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2

Language. These Member Agent Terms and Conditions are made only in the English language.

2.3

Member Agent copy. The Member Agent should print off a copy of these Member Agent Terms and Conditions, or save them to its computer, for future reference.

3. Onboarding Process

3.1

Once an Agent has agreed to become a Member Agent, the Account Manager will require full details of the Boomin Branches, including the manager of each Boomin Branch, whereupon they will create a Member Agent Account and the Onboarding Process will commence.

3.2

Once the Member Agent Account has been created, an Order Confirmation incorporating these Member Agent Terms and Conditions will be digitally sent to the Member Agent who will be invited to read and confirm acceptance of the Order Confirmation. The Member Agent should check the Order Confirmation carefully before signing it as it will be responsible for ensuring the Order Confirmation is complete and accurate.

4. Our Services

4.1

License. Subject to the terms of the Agreement and Boomin’s receipt of the applicable Charges, Boomin hereby grants to the Member Agent a non-exclusive, royalty-free, non-transferable, revocable right to access and use the Site, the Upload Systems and
the Boomin Platform solely for the purposes of: (i) uploading, updating, maintaining and removing Content, as appropriate; (ii) communicating and managing its relationship with customers and potential customers that are users of the Site; and (iii) otherwise obtaining the benefit of the Services and performing its obligations in accordance with the Agreement.

4.2

Monitoring of Use. Boomin reserves the right to monitor the Member Agent’s use of the Site and Services from time to time, including without limitation with respect to its compliance with the terms of the Agreement. Where such monitoring reveals that the
Member Agent’s Access is non-compliant with any of the terms of the Agreement, Boomin reserves the right to suspend the Member Agent’s access to the Site and the Services.

4.3

Descriptions and illustrations. Any descriptions or illustrations on Boomin’s Site are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the contract or have any contractual force.

4.4

Compliance with specification. Subject to Boomin’s right to amend the specification (see Clause 4.5), it will supply the Services to the Member Agent in accordance with the specification for the Services appearing on the Site at the Start Date in all material respects.

4.5

Changes to specification. Boomin reserves the right to amend the specification for the Services and to modify the Site, Boomin Platform and Upload Systems, if required by any applicable statutory or regulatory requirement or if such amendment or modification will not materially affect the nature or quality of the Services and it will notify the Member Agent in advance of any material amendment or modification.

4.6

Reasonable care and skill. Boomin warrants to the Member Agent that the Services will be provided using reasonable care and skill.

4.7

Time for performance. Boomin will use all reasonable endeavours to meet any performance dates specified in these Members Agent Terms and Conditions, but any such dates are estimates only and failure to perform the Services by such dates will not give the Member Agent the right to terminate the Agreement.

4.8

Leads. Boomin does not guarantee the quantity or quality of Leads. No refunds or credits will be given by Boomin for failure to provide a certain number of Leads.

4.9

Gold Membership. This level of membership is available to those Member Agents that are not Platinum Members.

4.10

Platinum Membership. This level of membership is available to those Member Agents who are using the Boomin Platform or a CRM that has been integrated with the Boomin Platform for all the Applicable Activity.

4.11

Matchmaker. Enables the introduction of Matchmaker Homeowners to Member Agents where there is a match with a Matchmaker Buyer.

4.12

SmartVal.This product is available for those Member Agents that have agreed to take part in this innovative valuation tool. If you are not yet signed up to SmartVal please contact [email protected]

When a Boomin customer chooses SmartVal they can see a list of local agents referenced on a map that are online and available.

The customer can choose up to three of the agents that are displayed and the chosen agents are then contacted via email and SMS. The agent has 5 minutes in which to accept the SmartVal request otherwise the customer is provided with an option to select another agent.

The SmartVal request notification is sent to all agents within the branch that are registered for SmartVal. It will go to the first agent within the branch that accepts it. The agent can accept or decline the request.

For any branch there can only be one SmartVal in progress at any one time.

Once the agent has accepted the request they have 15 minutes to complete and send the valuation.

Once the customer has opened their SmartVal the customer’s contact details are made available within the agent hub.

A customer is only allowed a maximum number of 3 SmartVal’s within any 3 month period.

Once a customer has opened their SmartVal Boomin will encourage the customer to book a full face to face valuation with their chosen agent.

From Mondays’ up to and including Saturdays’ agents are automatically set to online at 9am each morning unless they select otherwise. They then remain online until being automatically set to offline at 5.30pm. They have an option at 5.30pm to extend their availability to 10pm.

Boomin will notify the agent at 8.50am that they are going to be switched on and at 5.20pm that they are going to be switched off unless the agent selects the option of remaining available until 10.00pm at which point they are automatically switched off.

Throughout the day agents can manually toggle themselves offline and back online as it suits them via their agent hub dashboard page, but we encourage agents to be available all day.

Where an agent has marked themselves as available but they fail to comply with the time limits set to provide a SmartVal, Boomin reserves the right to consider one of the following actions against the relevant branch so that they cannot accept a SmartVal:

  • Initiate a 60 minute lock out for the first occasion in any 24 hour period
  • Initiate a 24 hour lock out for the second occasion in any 24 hour period
  • Initiate a suspension for the third occasion in any 24 hour period
  • Permanently remove the agent from SmartVal

4.13

Portal Upload Services.

(a) Subject to this Clause 4.12, the Member Agent may opt for Boomin to transmit data to additional Portal Sites;

(b) In the event the Member Agent wishes for Boomin to transmit data to additional Portal Sites the default information uploaded to such sites will consist of: one description box; room information; images; price; property type; and full brochure, linking through to a standard webpage brochure;

(c) The Member Agent acknowledges and agrees that: use of the Portal Upload Services is only for data transfer to Portal Sites and for no other purpose; and use by the Member Agent of the Portal Upload Services shall at all times be in accordance with the terms of the Agreement;

(d) Boomin shall use commercially reasonable endeavours to keep the Portal Upload Services available for 95% of the time, except for:

  • (i) planned maintenance carried out during the maintenance window of 22.00 to 02.00 hours UK time;
  • (ii) unscheduled maintenance performed outside Normal Business Hours, provided that Boomin has used reasonable endeavours to give Member Agents at least 3 Normal Business Hours’ notice in advance; and
  • (iii) times when the Services may be unavailable due to failure, outages or other unavailability of the power supply, internet connection or other services, hardware or equipment, which are outside of Boomin’s control.

(e) The Member Agent acknowledges that to provide the Portal Upload Services, the Member Agent may need to provide Boomin with remote access to the Member Agent’s computer systems from time to time. Should such access be required, the Member Agent agrees to provide Boomin with the same.

5. Your Obligations

5.1

The Member Agent shall:

(a) co-operate with Boomin in all matters relating to the Services;

(b) provide Boomin with such information and materials as it may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

5.2

The Member Agent warrants and represents that:

(a) it is an Agent, landlord or developer and that it does not act as a consumer in relation to the Agreement and it has not and will not misrepresent the nature of its business to Boomin;

(b) any individual that has agreed to these Member Agent Terms and Conditions on its behalf has the requisite authority to contract on behalf of the Member Agent;

(c) it will at all times act with honesty, transparency and integrity. The Site must never be used, amongst other things, to manipulate false interest or viewings on Properties which would have a negative impact upon the business of other Member Agents and/or
adversely affect Site users. Boomin expects Member Agents at all times to fully adhere to the relevant codes of their independent property redress schemes. On any breach of this Clause 5.2 by the Member Agent, Boomin shall have the right to immediately terminate the Agreement under Clause 18 [Termination] or to downgrade the Member Agent’s membership from Platinum Member to Gold Member, where applicable.

(d) it shall only use the Upload Systems to upload Content relating to Properties in respect of which it has all necessary permissions to market and shall not upload Content relating to any properties or land which it has not been instructed to sell or let. Further, the Member Agent shall ensure that it holds all necessary authorities, consents and licences necessary to use, display, reproduce and publish the Content on the Site and that it has the authority to grant Boomin a licence of the Content on the terms set out in Clause 5.3;

(e) all Content will: (i) comply with all applicable laws (including but not limited to the Equality Act 2010), regulations and codes of practice in the UK; (ii) not be defamatory, threatening, harassing, fraudulent, offensive, obscene, discriminatory or sexually explicit and will not promote unlawful violence; (iii) not infringe any copyright, trade mark or other intellectual property rights or rights of any third party whatsoever; (iv) not contain any personal data; and (v) comply with Boomin’s Acceptable Use Policy;

(f) where it provides images to be shown with the Property that the Member Agent or its client are marketing, such images will:

  • (i) be only of the Property being offered for sale or let;
  • (ii) be of good quality in Boomin’s reasonable opinion;
  • (iii) not contain telephone numbers or email addresses other than Boomin’s contact details;
  • (iv) not contain any personal data; and
  • (v) not contain any advertising or promotional material relating to the Member Agent or any third parties;

(g) all Content is true, accurate and complete to the best of its knowledge and that it is fully responsible for the integrity of all such Content. Where a Member Agent becomes aware of any errors or inaccuracies in the Content, it shall promptly correct that Content and further shall provide Boomin with such assistance as is reasonably required to identify and remedy any unauthorised use of that Content.

(h) any data it provides to Boomin will be provided:

  • (i) in accordance with any specifications and/or in the format that Boomin specifies; and
  • (ii) in such a way as not to interfere with the operation of Boomin’s Platform or compromise anyone whatsoever’s experience of or have a detrimental effect on the quality of the Boomin Platform;

(i) only authorised persons have access to and use of the Boomin Platform and the Upload Systems and that it will promptly notify Boomin of any unauthorised access or use;

(j) it will comply with:

  • (i) all UK legislation and other regulatory and compliance standards that are applicable to a business of the same or a similar nature to those of the Member Agent’s business within the UK such as, without limitation, the Estate Agents Act 1979, The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 as amended; and
  • (ii) if the Member Agent or its clients or both (as appropriate) operate outside the UK, with all applicable legislation and other regulatory and compliance standards in all other relevant jurisdictions;

(k) it complies and its data complies with all UK legislation that applies to the marketing of property or land such as, without limitation, the Consumer Protection from
Unfair Trading Regulations 2008, the Business Protection from Misleading Marketing Regulations 2008, The Housing Act 2004 and The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007, as well as the British Code of Advertising, Sales and Promotion and Direct Marketing (11th Edition) as updated or amended from time to time and the Control of Misleading Advertising
Regulations 1988 (as amended) and any other regulatory and compliance standards that may from time to time apply in respect of the Member Agents and their data, regardless of whether such legislation directly applies to the Member Agent. The Member Agent will comply with any applicable code of conduct, recommendations or guidelines issued by any relevant trade organisation of which it is a member, including but not limited to, the National Association of Estate Agents, The Property Ombudsman, The Property Redress Scheme, National Landlords Association, the Residential Landlord’s Association and the Association of Residential Letting Agents;

(l) it will respond to communications sent to the Member Agent or Boomin Branches as soon as possible. For written communications (including emails, SMS messages and messages / notifications sent within the Boomin Platform), the Member Agent shall use all reasonable endeavours to respond to these on the day of receipt (if received during Normal Business Hours) and in any event by noon the following Working Day. For telephone calls and voice messages, the Member Agent will use all reasonable endeavours to respond to these within 2 working hours of receipt (if received during Normal Business Hours) and in any event by noon the following Working Day;

(m) each of the Boomin Branches will only upload details of Properties they have received instructions for specifically at that Boomin Branch and will not upload details of Properties originating from any other branch location, including other Boomin Branches;

(n) where a Property has gone under offer, has a sale or leasing contract entered into or is removed from the market, it will ensure that the status of the Property is
changed from ‘Available’ to the correct corresponding property status of either: ‘SSTC’; ‘SSTCM’ (Scotland); ‘Under Offer’; ‘Reserved’; or ‘Let Agreed’. In the event that a sale has completed, a Property is tenanted, or the Member Agent is no longer instructed in connection with the Property, the Member Agent will promptly notify Boomin to enable
the property to be removed from the Site. In each of the scenarios in this Clause 5.2(n) the Member Agent must submit the date the relevant event took place;

(o) it will ensure that the Boomin diary for each of the branch staff in each of the Boomin Branches who carry out viewings and valuations for its customers is accurate, never misleading and always kept up to date. If it becomes apparent that the Member Agent is regularly cancelling or re-arranging appointments, valuations and / or viewings without good reason (in the reasonable opinion of Boomin), Boomin reserves the right to suspend the Services, to downgrade the Member Agent’s membership from Platinum Member to Gold Member (where relevant) or to terminate the Agreement in accordance with Clause 18.4;

(p) it will ensure that all of its employees, agents and representatives who have access rights to the Site only use the Site in accordance with the Agreement and that all such access rights are promptly withdrawn on suspension or cessation of their employment or engagement, or where their continued use of the Site has or could give rise to a breach of the Agreement;

(q) it shall not use the Logo, Boomin’s name or any trade or services marks of Boomin in a defamatory or derogatory manner or in any way that might bring Boomin, its Directors or employees into disrepute, nor shall the Member Agent misuse or deface, or allow to be misused or defaced, any branding or marketing materials provided to it by Boomin;

(r) where the Member Agent provides Content via the Upload Systems, it shall only do so in a format compatible with any technical specifications issued by Boomin from time to time. The Member Agent further agrees to use this format to display details of the
Property only, as laid out, and not to use these areas to advertise ancillary company information;

(s) it shall not knowingly transmit, send or upload to the Site any Content or other material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; and

(t) except to the extent expressly permitted by applicable law or under the Agreement, it shall not:

  • (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute, decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any portion of the Site, the Boomin Platform or the Upload Systems, in any form of media or by any means; or
  • (ii) sub-license, sell, lease, distribute, exploit or make available the Site, the Boomin Platform or the Upload Systems to any third party.

5.3

The Member Agent or its licensors own all right, title and interest in the Content and shall ensure the legality and non-infringement of the Content. The Member Agent grants to Boomin a worldwide, non-exclusive, royalty free, perpetual and irrevocable licence to copy, reproduce, display, sell, publish, adapt and otherwise use the Content and any data or other information derived therefrom, including the Member Agent’s Data, in each case in any available format, for the purposes of the Agreement and for any other purpose whatsoever (including entering into agreements with third parties for the provision of the Content). This licence shall survive termination of the Agreement. The Member Agent agrees that Boomin may, but shall not be required to, identify the Member Agent as the source of the Content on the Site or in any other medium through which the Content or any derivative thereof is published or displayed.

5.4

The Member Agent acknowledges and agrees that:

(a) Boomin shall be under no obligation to monitor or censor the Content that appears on the Site but reserves the right to do so should it so choose;

(b) Boomin is not responsible for any errors or omissions in Content;

(c) as part of the Services, the Member Agent may be provided with access to data including that derived from content and data provided by Boomin’s other member agents and other third parties. Boomin takes reasonable care to ensure that such data is accurate but makes no representation or warranty about the accuracy or completeness of such data. Any such data is not intended to be, and must not be treated by a Member Agent as, comprehensive, but an aggregation of the content and data available to Boomin at the time it is provided and made available to the Member Agent in accordance with its level of membership;

(d) the provision of the Services or access to the Site may be impeded by technological failure or other events. Boomin makes no representation or warranty that the Site, Services, Content or Upload Systems will be accessible or available at all times or free from errors and omissions and while Boomin will make reasonable endeavours to notify the Member Agent in advance, it may temporarily suspend or alter the operation of the Site, Services or the Upload System without notice to the Member Agent;

(e) the Member Agent is responsible for and will pay it’s own telecommunications and internet access charges incurred whilst using the Site;

(f) transmission of data over the internet can be subject to delays and errors and can cause corruption of data for which Boomin shall not be responsible;

(g) Boomin can impose a limit on the number of photographs that may be displayed for each Property;

(h) for the duration of the Agreement it shall take reasonable steps, as agreed between the parties, to promote the Site to its customers, including displaying any marketing materials provided by Boomin at its premises, providing a link to the Site on its website/s and including the Logo in its sales and advertising materials. For the purpose of carrying out these obligations only, Boomin grants the Member Agent a non-exclusive licence for the duration of the Agreement to use, display and copy the Logo, Boomin’s name and any trade or services marks used by Boomin and copyright (or other property intellectual rights) contained in the Marketing Material in accordance with any terms specified by Boomin;

(i) it will not publish, disclose, reproduce or create any derivative works from any information obtained pursuant to the Member Agent’s use of the Services, unless expressly agreed in writing by Boomin;

(j) where it advertises Properties within a Development on the Site, it shall promptly withdraw the Development from the site where there are no longer any Properties left for sale or rent in a Development or the Development should no longer be listed for any reason. The Member Agent may give written notice to Boomin to terminate the part of its Agreement relating to the applicable Development (but no other part of its Agreement) at the end of the calendar month following the month in which Boomin receives notification.

5.5

(a) Boomin may in its absolute discretion (acting reasonably), at any time and without notice to the Member Agent, remove, cause to be removed or decline to display any Content on the Site;

(b) Boomin may, without prejudice to its right in Clause 5.5(a), require the Content to be amended at any time if Boomin (acting reasonably) considers or has reason to
believe that the Member Agent is in breach of the Agreement or any applicable law or regulation, or where it deems, in its absolute discretion (acting reasonably), the Content to be of poor quality in terms of information provided, presentation or otherwise;

(c) Boomin will use reasonable endeavours to ensure that, except where it is manually updating the Member Agent’s Content pursuant to the Member Agent’s instructions, updates to the Member Agent’s Content provided to Boomin will appear on the Site within 24 hours of receipt or as soon as reasonably practicable thereafter;

(d) Boomin reserves the right to charge the Member Agent additional fees if Boomin has reason to believe that Content uploaded by any Boomin Branch is in breach of Clause 5.2(m);

5.6

If Boomin’s ability to perform the Services is prevented or delayed by any failure by the Member Agent to fulfil any obligation listed in Clauses 5.1 - 5.4 (Default):

(a) Boomin will be entitled to suspend performance of the Services. Should it allow, at its absolute discretion, the Member Agent to remedy its Default, and to rely on such Default, until remedied, to relieve Boomin from the performance of the Services, in each
case to the extent such Default prevents or delays performance of the Services. In certain circumstances, including but not limited to the Member Agent’s dishonest use of the Services, the Default may entitle Boomin to immediately terminate the Agreement under Clause 18 (Termination) or to downgrade the Member Agent’s membership from Platinum Member to Gold Member (where applicable);

(b) Boomin will not be responsible for any costs or losses the Member Agent sustains or incurs arising directly or indirectly from Boomin’s failure or delay to perform the Services; and

(c) it will be the Member Agent’s responsibility to reimburse Boomin on written demand for any reasonable costs or losses Boomin sustains or incurs arising directly or indirectly from the Default.

5.7

When a Member Agent confirms that their customer has instructed the Member Agent to list their property they should ensure that they have already complied with their obligations in respect of Anti Money Laundering legislation, the Estate Agency Act and the Energy Performance of Buildings (Certificates and Inspections)(England and Wales) Regulations 2007 as amended.

6. Services in UK only

6.1

Boomin only provides the Services to Agents based in the UK and only in respect of Properties located in the UK.

6.2

An agreement for the Services may be entered into with an Agent based outside the UK, but only where the provision of Services is to an entity based within the UK and only in respect of Properties located in the UK.

7. Charges

7.1

In consideration of Boomin providing the Services after the Launch Period the Member Agent must pay Boomin’s Charges.

7.2

During the Launch Period Services will be provided to the Member Agent free of charge provided that the Member Agent observes strict compliance with these Member Agent Terms and Conditions.

7.3

Three months prior to the end of the Launch Period, the Member Agent will be advised of the Charges that will apply after the Launch Period and any applicable changes to these Member Agent Terms and Conditions.

7.4

A new Agreement will be sent to a person who has the appropriate authority on behalf of the Member Agent to enter into the Agreement and confirm acceptance of the Charges and Member Agent Terms and Conditions (New Agreement). For the purposes of the New Agreement, all references in these Member Agent Terms and Conditions to ‘the Agreement’ shall be deemed to be references to the ‘New Agreement’. On the 12 month anniversary of the commencement of the ‘New Agreement’, and annually thereafter, the Agreement will be automatically renewed unless the Member Agent serves notice in accordance with clause 18.3.

7.5

If the Member Agent wishes to change the scope of the Services, either before or after entering into the New Agreement, and Boomin agrees to such change, Boomin will modify the Charges accordingly, on notice to the Member Agent.

7.6

Boomin takes all reasonable care to ensure that the Charges stated for the Services are correct at the time when the relevant information was entered into the system.

7.7

The Member Agent shall promptly notify their Account Manager if they wish to increase or decrease the number of Boomin Branches. Where this impacts on Charges, Boomin will notify the Member Agent of the new Charges providing thirty (30) days’ notice, which will apply thereafter.

7.8

Boomin shall be entitled to increase the Charges payable by the Member Agent in the event that the number of properties displayed on the Site has over the prior three month period exceeded on average the maximum number of properties per branch agreed in advance between the Member Agent and Boomin in writing. In the event that an increase in Charges applies the Member Agent will pay an additional fee equivalent to the fee being charged to the Member Agent for a single branch. Boomin shall provide thirty (30) days’ notice of any increase in charges which will apply thereafter.

7.9

At the end of the initial 12 month term entered into by the Member Agent following the Launch Period, and on an annual basis thereafter, Boomin reserves the right to increase the Charges by giving forty-five (45) days’ notice to the Member Agent. If no such notice is given, Boomin reserves the right, in any event, to increase the Charges on an annual basis with effect from each anniversary of the Start Date of the ‘New Agreement’, in line with the percentage increase in the Retail Prices Index in the preceding twelve (12) month period.

7.10

The Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services, the Member Agent must pay Boomin such additional amounts in respect of VAT, as are applicable.

7.11

It is always possible that, despite Boomin’s reasonable efforts, some of the Services on Boomin’s Site may be incorrectly priced. Where the correct Charges for the Services are less than the Charges stated on Boomin’s Site, Boomin will only charge the Member Agent the correct, lower amount. If the correct Charges for the Services are higher than the Charges stated on Boomin’s Site, Boomin will contact the Member Agent in writing as soon as possible to inform it of this error and will give the Member Agent the option of continuing to purchase the Services subject to the correct Charges or cancelling the Agreement.

7.12

Boomin will not process the New Agreement until it has the Member Agent’s instructions to do so. If Boomin is unable to contact the Member Agent using the contact details provided during the Onboarding Process, it will treat the Agreement as cancelled and notify the Member Agent in writing.

7.13

If Boomin mistakenly accepts and processes the New Agreement, where a pricing error is obvious and unmistakeable and could reasonably have been recognised by the Member Agent as mispricing, Boomin may immediately terminate the New Agreement on notice to the Member Agent and refund the Member Agent any sums already paid.

8. How to pay

8.1

Payment for the Services is in advance. Boomin will take the Member Agent’s first payment upon acceptance of the New Agreement and will take subsequent payments monthly in advance.

8.2

Payment for the Services is by direct debit unless another form of payment is agreed at Boomin’s discretion. The Member Agent’s designated bank account will be charged automatically each month.

8.3

Boomin will send the Member Agent an electronic invoice within seven days of the beginning of the month following payment. For any failed or cancelled payments, a £20 administration fee will be levied.

8.4

If the Member Agent fails to make a payment under the Agreement by the due date, then, without limiting Boomin’s remedies under Clause 18 (Termination), Boomin reserves the right to charge the Member Agent interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 8.4 will accrue each day at a rate of 4% a year above the Bank of England’s base rate from time to time, and at 4% a year for any period when that base rate is below 0%. Unpaid invoices may be referred to a debt collection agency and the Member Agent’s data (including personal data) may be shared with any such agencies in order to enforce payment. This may subsequently affect the Member Agent’s credit record and ability to secure credit.

9. Complaints

9.1

If a problem arises or the Member Agent is dissatisfied with the Services, it has the option to bring a complaint in line with Boomin’s comprehensive complaints policy.

10. Intellectual Property Rights

10.1

The Member Agent acknowledges and agrees that all intellectual property rights in or arising out of or in connection with the Services and the Site, including in the Boomin Platform and the Upload System, are owned by Boomin or its licensors, and the Member Agent has no rights in, or to, such intellectual property other than the right to use the same in accordance with the licence set out at Clause 4.1.

11. Limitation of Liability and Indemnities

11.1

The limits and exclusions in this Clause reflect the insurance cover limits that Boomin has been able to secure. The Member Agent is responsible for making its own arrangements for the insurance of any excess loss that is not covered by this Clause.

11.2

Nothing in the Agreement limits the liability of either of the Parties for:

(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1882 (title and quiet possession);
(d) any other liability which cannot be limited or excluded by law.

11.3

Subject to Clause 11.2, Boomin will not be liable to the Member Agent, 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 or revenue;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss or corruption of software, data or information;
(f) loss of or damage to goodwill; or
(g) any special, indirect or consequential loss.

11.4

Subject to Clause 11.2, Boomin shall not be liable for any losses caused by any breach of the Agreement by the Member Agent, or, by the Member Agent using, altering or manipulating any data provided by Boomin or changing the manner in which such data are represented.

11.5

Boomin shall have no liability under the Agreement to the extent any such liability is caused by use of the Site, Boomin Platform or Upload Systems contrary to Boomin’s instructions, or modification or alteration of the Site, Boomin Platform or Upload Systems by any party other than Boomin or its duly authorised contractors or agents.

11.6

The Member Agent shall indemnify and hold harmless Boomin against all losses and expenses incurred by it in relation to any third party claim arising from the provision of the Content or misuse by the Member Agent of the Content or Services or Site, including any claim that the Content infringes any intellectual property rights, except to the extent that the foregoing results directly from the negligence of Boomin.

11.7

Subject to Clause 11.2, Boomin’s total liability to the Member Agent arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the aggregate amount of Charges (excluding VAT) paid by the Member Agent in the three (3) months immediately preceding the month in which the cause of action arose. During the Launch Period Boomin’s total liability to the Member Agent, in accordance with this clause 11.7, will be £1,000 multiplied by the number of branches the Member Agent has on the platform.

11.8

Unless the Member Agent notifies Boomin that the Member Agent intends to make a claim in respect of an event that gives rise to a claim within the notice period, Boomin shall have no liability for that event. The notice period for an event shall start on the day on which the Member Agent became, or ought reasonably to have become, aware of the Member Agent having grounds to make a claim in respect of the event and shall expire three (3) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

11.9

Boomin accepts no liability or responsibility whatsoever for the accuracy of selection for profile of the Member Agent on the Site, or for the degree of prominence given to the Member Agent in respect of the products and services available to users of the Site, or for the number of times a Member Agent is profiled to any users of the Site. In the event that the Member Agent considers that it is not being profiled fairly in accordance with these Member Agent Terms and Conditions, then it must raise the matter with its Account Manager and Boomin will make all necessary checks and, where an error is found, make such adjustments necessary to the Boomin Platform to ensure that all Member Agents are being treated fairly

11.10

The Member Agent acknowledges that the Site may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third party websites and that it does so solely at its own risk. Boomin makes no representation or warranty and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third party website, or any transactions completed, and any contract entered into by the Member Agent, with any such third party. Any contract entered into and any transaction completed via any third party website is between the Member Agent and the relevant third party, and not Boomin. Boomin recommends that the Member Agent carefully reviews the terms of any such contract and refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third party website or completing any transactions with the relevant third party. Boomin does not endorse or approve any third party website, nor the content of any third-party website, nor any third-party products or services made available via the Site or the Services.

11.11

Nothing in these Member Terms and Conditions limits or affects the exclusions and limitations set out in Boomin’s Terms of Use.

11.12

All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement.

11.13

This Clause 11 will survive termination of the Agreement.

12. Confidentiality

12.1

The Parties each undertake that they will:

(a) treat as secret and confidential and not at any time disclose to any person any Confidential Information of the other Party, except as permitted by Clause 12.2;

(b) ensure proper and secure storage of the other Party’s Confidential Information and handle, preserve and protect the other Party’s Confidential Information using at least the same degree of care as it affords its own Confidential Information;

(c) immediately notify the other Party in writing where any unauthorised access, use or disclosure of any of the other Party’s Confidential Information has taken place or may take place, and take such steps as the other Party may reasonably require in relation to the same.

12.2

The obligations in Clause 12.1 shall not apply in relation to:

(a) information which is or becomes public knowledge other than as a result of a breach of Clause 12.1; or

(b) information which the receiving Party either knew prior to the other Party’s first disclosure of it or received from a third party entitled to disclose the same.

12.3

The Parties may each disclose the other’s Confidential Information:

(a) to such of their respective employees, officers, representatives, subcontractors and advisers to the extent they need to know such information for the purposes of exercising their respective rights or carrying out their respective obligations under the
Agreement. The Parties will each ensure that such employees, officers, representatives, subcontractors and advisers comply with this Clause 12; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.4

Each of the Parties may only use the other’s Confidential Information for the purpose of fulfilling its respective obligations under the Agreement.

13. Communications Between Us

13.1

References to “in writing” in these Member Agent Terms and Conditions include email.

13.2

Any notice or other communication given by one of the Parties to the other under or in connection with the Agreement must be in writing and be delivered personally, sent by pre-paid first class post or other next Working Day delivery service, or email.

13.3

A notice or other communication is deemed to have been received:

(a) if delivered personally, on signature of a delivery receipt;

(b) if sent by pre-paid first class post or other next Working Day delivery service, at 9.00am on the second Working Day after posting; or

(c) if sent by email, at 9.00am the next Working Day after transmission.

13.4

In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

13.5

The provisions of this Clause will not apply to the service of any proceedings or other documents in any legal action.

14. Events Outside Our Control

14.1

Boomin will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under the Agreement that is caused by any act or event beyond its reasonable control (Event Outside Our Control).

14.2

If an Event Outside Our Control takes place that affects the performance of Boomin’s obligations under the Agreement:

(a) Boomin will contact the Member Agent as soon as reasonably possible to notify it of the Event Outside Our Control; and

(b) To the extent that Boomin is unable to perform its obligations under the Agreement due to the Event Outside Our Control, the performance of such obligations will be suspended and the any relevant time periods for performance of such obligations will be extended for the duration of the Event Outside Our Control. Where applicable, Boomin will arrange a new date for performance of the Services with the Member Agent after the Event Outside Our Control is over.

14.3

The Member Agent may cancel the Agreement affected by an Event Outside Our Control, which has continued for more than 30 days on written notice to Boomin. If the Member Agent opts to cancel, Boomin will refund the Charges the Member Agent has paid, less the Charges reasonably and actually incurred by the Member Agent for Boomin’s performance of the Services up to the date of the occurrence of the Event Outside Our Control.

15. Data Protection

15.1

Definitions and Interpretation

For the purposes of this Clause 15:

(a) the terms ‘process / processing’, ‘Controller’, ‘Processor’, ‘Personal Data Breach’, ‘Data Subject’ and ‘Supervisory Authority’ shall have the meanings given to them in the Data Protection Legislation;

(b) ‘Data Subject Request’ means a request made by a Data Subject to exercise any of their rights under the Data Protection Legislation;

(c) ‘GDPR’ means the General Data Protection Regulation (Regulation (EU) 2016/679);

(d) ‘Joint Controllers’ means two or more Controllers that jointly determine the purposes and means of processing Personal Data;

(e) ‘Principal Controller’ means the Party that is taking principal control of certain processing activities as Controller of the User Personal Data (vis-à-vis the other Party), if this is specified in the Agreement;

(f) ‘User Personal Data’ shall have the meaning given to it in Clause 15.3.

15.2
Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 15 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation.

15.3

The Parties acknowledge that for the purposes of the Data Protection Legislation, they each act as Controllers in respect of the Personal Data of individual users of the Site (‘User Personal Data’) and that they shall act as: (i) independent Controllers each separately determining the purposes for which they process User Personal Data (which shall generally be the case in respect of their processing of User Personal Data); and / or (ii) Joint Controllers in respect of specific aspects of the processing of User Personal Data where they jointly determine the purposes and means for which it is processed. There will also be circumstances where Boomin acts as a Processor of the User Personal Data on the Member Agent’s behalf, including where the Member Agent has created local profiles within Boomin’s Platform in respect of the Member Agent’s customers.

15.4

Controller to Controller Data Processing Terms

Without prejudice to the generality of Clause 15.2, where the Parties each act as Controllers with respect to the User Personal Data:

(a) the Member Agent will: (i) ensure that it has all necessary consents and notices in place to enable lawful transfer of User Personal Data to Boomin for the duration and purposes of the Agreement; and (ii) not process the User Personal Data in a manner that will or is likely to result in Boomin breaching its obligations under the Data Protection Legislation.

(b) The Member Agent shall be responsible for responding to requests, complaints and other communications that it receives from Data Subjects, Supervisory Authorities and other third parties in relation to the User Personal Data.

(c) The Member Agent agrees to provide such assistance as is reasonably required to enable Boomin to comply with requests, complaints and other communications that it receives from Data Subjects, Supervisory Authorities and other third parties in relation to the User Personal Data, within the time limits imposed by the Data Protection Legislation (where applicable).

(d) Where the Member Agent shares User Personal Data with Boomin, the Member Agent shall promptly inform Boomin if it becomes aware of any inaccuracies in or any updates required to such User Personal Data and the Parties shall work together to ensure that all necessary corrections and updates are made to that data as soon as reasonably possible.

(e) Where Boomin shares User Personal Data with the Member Agent, the Member Agent shall use such User Personal Data only for the purposes of providing services to its customers in connection with the letting, sale and/or purchase of Properties and any related communication with such customers, and not for any other purposes.

(f) It is the Parties’ intention that the Parties shall process Personal Data as independent Controllers, each with separate responsibilities for their respective processing activities.

(g) Notwithstanding Clause 15.4(f), should circumstances arise in which the Parties are Joint Controllers for the purposes of the Data Protection Legislation, then, without prejudice to Clauses 15.4(a) to (e), each Party’s responsibilities for compliance with their respective obligations under the Data Protection Legislation, in particular as regards the exercising of the rights of Data Subjects and the parties’ respective duties to provide information as referred to in Articles 13 and 14 of the GDPR, shall be determined as follows:

(i) The Parties shall store, process and transmit User Personal Data in order for Boomin to provide the Services and for the Member Agent to receive the benefit of the Services, to facilitate each Party’s communication with and provision of services to Data Subjects that are mutual customers of both Parties, for lawful marketing purposes and for the purposes of complying with their mutual obligations under the Agreement and under the Data Protection Legislation (‘Agreed Purposes’).

(ii) The Parties shall only process User Personal Data for the Agreed Purposes.

(iii) Each Party shall provide to the other Party the contact details of at least one staff member to be a point of contact and responsible manager for all issues arising out of the sharing of the User Personal Data, including (as applicable) the procedures to be followed in the event of a Personal Data Breach, maintaining a point of contact for and handling any Data Subject Request, and the regular review of the Parties’ compliance with the Data Protection Legislation.

(iv) Where agreed in writing between the Parties, or as specified in the Agreement, one Party may act as Principal Controller. The Principal Controller shall be responsible for compliance with the obligations under the Data Protection Legislation (including, without limitation, the measures set out in Article 5(1)(a) and Articles 13 and 14 of the GDPR) and with respect to the relevant processing shall perform such role to the same standard of care, diligence as if it were the sole Controller of the User Personal Data and shall, without limiting the foregoing, perform any specific obligations allocated as Principal Controller.

(v) The Member Agent agrees that Boomin may engage third party service providers and advisors to assist in the performance of the Agreement or for any other legitimate business purpose and that such third parties may have access to and process the
User Personal Data. Boomin shall be the Principal Controller with respect to any processing undertaken by such third parties and will ensure that such third parties will be contractually bound by the same data protection requirements as are contained within these Member Agent Terms and Conditions.

(vi) Except as provided in the Agreement or as required by applicable laws, the Member Agent shall not disclose User Personal Data to any third parties without Boomin’s prior written consent.

(vii) The Member Agent shall:

  • ensure that it has a lawful basis for all processing of the User Personal Data, in accordance with the GDPR;
  • give the information required by Articles 13 and 14 of the GDPR to any Data Subject whose User Personal Data may be processed under the Agreement;
  • not share any User Personal Data that is irrelevant or excessive with regard to the Agreed Purposes; and
  • ensure that the User Personal Data does not include any Special Categories of Personal Data as referred to in Article 9(1) of the GDPR.

(viii) Any Party that discovers a Personal Data Breach shall inform the relevant point of contact at the other Party as soon as possible and in any event within forty-eight (48) hours of discovery.

(ix) Where a Personal Data Breach occurs, the Parties shall co-operate in addressing it in an appropriate and timely manner, including by deciding whether notification to the relevant Supervisory Authority and/or communication to Data Subjects are required.

(x) Any Party that receives a Data Subject Request (the ‘informing Party’) which relates directly or indirectly to the processing of User Personal Data shall contact the relevant point of contact at the other Party (the ‘assisting Party’) as soon as possible and in any event within five (5) Working Days of receipt of the request providing a copy of the Data Subject Request and reasonable details of the circumstances giving rise to the request. The Parties agree to provide reasonable assistance as is necessary to each other to enable them to comply with Data Subject Requests and to respond to any other queries or complaints from Data Subjects.

(xi) In addition to providing the information referred to in Clause 15.4(g)(x), the informing Party shall inform the assisting Party if it intends to disclose User Personal Data in response to a Data Subject Request and will provide the assisting Party with the opportunity to respond before the User Personal Data is disclosed in response to a Data Subject Request.

(xii) Any Party that receives correspondence from a Supervisory Authority which relates to the processing of User Personal Data shall contact the relevant point of contact at the other Party as soon as possible and in any event within three (3) Working Days of receipt of the request. The Parties agree to provide reasonable assistance as is necessary to each other to enable them to respond to and comply with the correspondence from the Supervisory Authority.

15.5

Controller to Processor Data Processing Terms

Without prejudice to the generality of Clause 15.2, where Boomin processes any User Personal Data on the Member Agent’s behalf, including where a Member Agent creates ‘local profiles’ for its customers on the Boomin Platform:

(a) The categories of User Personal Data to be processed by Boomin and the processing activities to be performed under the Agreement are set out in Schedule 1 to these Member Terms and Conditions.

(b) The Member Agent shall ensure that its instructions and disclosures of User Personal Data to Boomin are lawful and the Member Agent acknowledges that Boomin is entitled to rely on the Member Agent’s instructions in respect of the processing of User Personal Data.

(c) Boomin shall:

(i) process the User Personal Data only on the documented written instructions of the Member Agent as set in this Agreement or as otherwise given by the Member Agent from time to time, unless Boomin is required by applicable law to otherwise process the User Personal Data. Where such processing is required by applicable law, Boomin shall promptly notify the Member Agent of this before performing the processing, unless those applicable laws prohibit Boomin from so notifying the Member Agent on important grounds of public interest;

(ii) ensure that it has in place appropriate technical and organisational security measures, to protect against unauthorised or unlawful processing of User Personal Data and against accidental loss or destruction of, or damage to, User Personal Data;

(iii) ensure that all personnel who have access to and/or process User Personal Data are obliged to keep the User Personal Data confidential; and

(iv) not transfer any User Personal Data outside of the European Economic Area unless there are appropriate safeguards in place in relation to the transfer;

(v) provide reasonable assistance to the Member Agent in responding to any request from a Data Subject and in ensuring the Member Agent’s compliance with its obligations under the Data Protection Legislation with respect to security, Personal Data Breach notifications, impact assessments and consultations with Supervisory Authorities or regulators, as may be required from time to time;

(vi) notify the Member Agent without undue delay on becoming aware of a Personal Data Breach, or if it receives any request or complaint from a Data Subject;

(vii) at the written direction of the Member Agent, delete or return User Personal Data and copies thereof to the Member Agent on termination of the Agreement unless required by applicable law to store the User Personal Data; and

(viii) maintain complete and accurate records and information to demonstrate its compliance with this Clause 15.5 and make these available to the Member Agent (or its third party appointees bound by appropriate obligations of confidentiality) as reasonably required.

(d) The Member Agent consents to Boomin engaging the sub-processors listed here [link to list of sub-processors], to process the User Personal Data on its behalf (‘Sub- processors’).

(e) Boomin will give notice to the Member Agent of any intended changes concerning the addition or replacement of any Sub-processor within a reasonable time prior
to implementation of such change. The Member Agent reserves the right (acting reasonably) to object to any such change and, if a reasonable resolution cannot be achieved by the Parties, to terminate the agreement on thirty (30) days’ notice to Boomin.

(f) Boomin will ensure that Sub-processors are subject to contractual obligations which are the same as or equivalent to those imposed on Boomin under the Agreement. Boomin will be responsible for the performance of its Sub-processors and will be liable for any breach of the Agreement by its Sub-processors.

15.6

DATA LICENCE

Without prejudice to any other provision of these Member Agent Terms and Conditions (and in particular without prejudice to the preceding provisions of this Clause 15,) in consideration of Boomin providing the Services, the Member Agent confirms and agrees that:

(a) Subject to Clause 15.6(c), Boomin may use the Member Agent’s Data during the term of the Agreement for the following purposes:

  • (i) data analysis, testing, research, statistical and survey purposes;
  • (ii) to improve the Services to ensure that the Site content is presented in the most effective manner for the Member Agent;
  • (iii) to allow the Member Agent to participate in interactive features of the Services when the Member Agent chooses to do so;
  • (iv) as part of Boomin’s efforts to keep the Services safe and secure;
  • (v) to measure or understand the effectiveness of advertising Boomin’s Services to the Member Agent and others, and to deliver relevant advertising to the Member Agent; and
    (vi) to make suggestions and recommendations to the Member Agent about goods or services that may interest the Member Agent.

(b) Subject to Clause 15.6(c), Boomin may share the Member Agent’s Data during the term of the Agreement with:

  • (i) selected third parties including business partners, suppliers and sub- contractors for the performance of any contract Boomin enters into with them or the Member Agent;
  • (ii) without prejudice to the generality of Clause 15.5(b)(i) above, selected third parties including business partners, suppliers and sub-contractors of Boomin where the Member Agent has requested and/or expressly given consent via automated checks within the Site for the sharing of the data by Boomin with the said third party;
  • (iii) any third party for statistical purposes where the data has been anonymised (and such data may be collated with other data that has been provided by persons other than the Member Agent); and
  • (iv) third parties where any asset sale or purchase or share sale or purchase is envisaged.

(c) For the purposes of this Clause 15.6, (i) references to “Member Agent’s Data” shall exclude the Personal Data of users of the Site; and (ii) all such data shall only be used by Boomin to the extent user identifiers (name, address, user credentials, etc.) have been removed prior to such use. This Clause 15.6(c) is without prejudice to any cookie policy or privacy policy Boomin may deploy in relation to its website www.boomin.com from time to time.

15.7

In providing the Services and in order to provide the Member Agent with information on other Boomin products and services, Boomin may, unless otherwise agreed in writing by Boomin and the Member Agent, contact the Member Agent by electronic means, including by email and other electronic media, and the Member Agent shall maintain a valid working email address for each of its Boomin Branches for such electronic contact purposes and shall immediately notify Boomin of any change of email addresses.

16. Compliance with Laws and Policies

16.1

In performing its obligations under the Agreement, the Member Agent and Boomin shall comply and shall procure that each member of its company group complies with all applicable laws, statutes, regulations and codes from time to time in force.

16.2

Boomin may terminate the agreement with immediate effect by giving written notice to the Member Agent if the Member Agent commits a breach of Clause 16.1.

17. Anti-Bribery and Corruption

The Member Agent shall:

17.1

(a) comply with all applicable laws, statutes, regulations and codes relating to anti- bribery and anti-corruption including, but not limited to, the Bribery Act 2010;

(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

(c) have and shall maintain in place throughout the term of the Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements;

(d) immediately notify Boomin in writing if it becomes aware of any breach of this Clause or has reason to believe that it or any person associated with it has received a request or demand for any undue financial or other advantage in connection with the performance of the Agreement;

(e) immediately notify Boomin in writing if a foreign public official becomes an officer or employee of the Member Agent or acquires a direct or indirect interest in the Member
Agent’s business. The Member Agent warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of the Agreement; and

(f) within 12 months of the date of the Agreement, and annually thereafter, certify to Boomin in writing, signed by the Member Agent, compliance with this Clause 17 by the Member Agent and all persons associated with the Member Agent. The Member Agent shall provide such supporting evidence of compliance as Boomin may reasonably request.

17.2

The Member Agent shall ensure that any person associated with the Member Agent who is performing services in connection with the Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Member Agent in this Clause 17. The Member Agent shall be responsible for the observance and performance by such persons of the Relevant Requirements and the terms under this Clause 17 and shall be directly liable to Boomin for any breach by such persons of any of the Relevant Requirements or of any of the terms under this Clause 17.

17.3

Breach of Clause 17.1 shall be deemed a material breach whereupon Boomin may immediately terminate the Agreement.

17.4

For the purposes of this Clause 17, the meaning of ‘adequate procedures’ and ‘foreign public official’ and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of Clause 17.1(f), a person associated with the Member Agent includes, but is not limited to, any subcontractor of the Member Agent.

18. Termination

18.1

The Agreement shall continue until terminated in accordance with these Member Agent Terms and Conditions.

18.2

During the Launch Period, the Member Agent may terminate the Agreement for convenience or vary the Agreement to reduce [or increase] the number of Boomin Branches on a minimum of one (1) months’ written notice to Boomin.

18.3

During any subsequent Agreement (including the New Agreement) following the Launch Period, the Member Agent shall only be entitled to terminate the Agreement for convenience on at least one (1) months’ written notice to Boomin.

18.4
Without limiting any of its other rights, including its suspensions rights under Clause 5.6(a), Boomin may suspend the performance of the Services, downgrade the Member Agent’s membership from Platinum Member to Gold Member, or terminate the Agreement with immediate effect by giving written notice to the Member Agent if:

(a) the Member Agent commits a material breach of any term of the Agreement and, if such a breach is capable of remedy, the Member Agent fails to remedy that breach within thirty (30) days of being notified in writing to do so;

(b) the Member Agent fails to pay any amount due under the Agreement on the due date for payment and payment is not forthcoming within a further thirty (30) days of the due date;

(c) the Member Agent takes any step or action in connection with entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(d) the Member Agent suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;

(e) the Member Agent’s financial position deteriorates to such an extent that in Boomin’s reasonable opinion the Member Agent’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy; or

(f) the Member Agent is expelled from, or ceases to be a member of, a Government approved redress scheme (for example, The Property Ombudsman).

18.5

On termination of the Agreement for whatever reason, all Charges and any other sums due from the Member Agent to Boomin shall immediately become payable and the Member Agent shall pay Boomin in full without delay. Further, the Member Agent shall immediately cease using the Services and permanently delete any access passwords for the Services or the Upload Systems.

18.6

Boomin reserves the right to charge Member Agents an administration fee of £150 plus VAT per Boomin Branch or branch equivalent (in the case of an Agent or Online Agent respectively) or, in the case of a Developer, £150 plus VAT per Development, if having terminated the Agreement with Boomin, they wish to enter into another Agreement with Boomin within twelve (12) months of the termination.

18.7

Termination of the Agreement will not affect the Member Agent’s or Boomin’s rights and remedies that have accrued as at termination.

18.8

Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

18.9

The Member Agent acknowledges and agrees that it will continue to be bound by the Agreement irrespective of whether the individual who has signed and/or agreed to the

Agreement on its behalf subsequently ceases to be employed or otherwise engaged by the Member Agent or ceases to be authorised to act on behalf of the Member Agent. Further the Member Agent acknowledges and agrees to be bound by the Agreement where the whole or substantially the whole of the Member Agent’s assets are sold or transferred to a different legal entity.

19. Conflict

19.1

In the event of, and only to the extent of, any conflict arising between the provisions of these Member Agent Terms and Conditions and the Order Confirmation generated during the Onboarding Process, the following order of priority shall apply:

(a) Order Confirmation

(b) Member Agent Terms and Conditions

(c) any other agreement entered into between Boomin and the Member Agent.

20. General

20.1 ASSIGNMENT AND TRANSFER

(a) Boomin may assign or transfer its rights and obligations under the Agreement to another entity and will notify the Member Agent by posting on the Site or by such other written means as it deems fit, in the event that such an assignment or transfer takes place.

(b) The Member Agent may only assign or transfer its rights or obligations under the Agreement to another person if Boomin agrees to this in writing.

20.2

Variation. Any variation of the Agreement only has effect if it is in writing and signed by both Parties or their respective authorised representatives.

20.3

Waiver. No failure or delay by either of the Parties 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.

20.4

Severance. Each paragraph of these Member Agent Terms and Conditions operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.

20.5

Third party rights. The Agreement is between the Member Agent and Boomin. No other person has any rights to enforce any of its terms.

20.6

Exclusivity. Nothing in these Member Agent Terms and Conditions is intended to establish an exclusive arrangement between the Member Agent and Boomin nor any partnership or appoint either Party the agent of the other, or otherwise authorise either Party to commit the other in any way whatsoever. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

20.7

Governing law and jurisdiction. The Agreement is governed by English law and the Parties each irrevocably agree to submit all disputes arising out of or in connection with the Agreement to the exclusive jurisdiction of the English courts.

Description of data processing

The data processing activities carried out by Boomin under Clause 15.5 are as follows
Description of Services Provision of a licence to use the Upload Systems and the Boomin Platform. The Services include provision of Portal Upload Services, Upload Systems and onboarding of Gold and Platinum Member Agents
Subject-matter of Processing Provision of the Services and hosting of personal data in connection with the provision of the Services
Duration of Processing For as long as the services are provided
Nature and purpose of Processing Boomin provides the services to its Member Agents. These services enable Member Agents to store and view lead information and call recordings each of which includes personal data. Personal data will also be collected as part of the Onboarding Process. Personal data of the Member Agents customers will also be processed as part of the creation of a local profile
Type of Personal Data Lead information, call recordings, Member Agent employees names, telephone numbers and email addresses. Where Member Agents have created a local profile for their Customers, we shall process personal data such as names, addresses, telephone numbers and email addresses of those customers
Categories of Data Subjects Users of the Site who book valuations/viewings with Member Agents or by using telephone numbers provided on the Site. Member Agent employees and customers