Content and Obligations

1. 1. The Service User warrants and represents that:
      1. it is an Agent, Online Agent or Developer and that it does not act as a consumer in relation to the Contract;
      2. any individual who has signed and/or otherwise agreed to these Service User Terms (as updated from time to time) on its behalf has the requisite corporate authority to contract on behalf of that Service User;
      3. Content will comply with all applicable laws (including, but not limited to, the Equality Act 2010), regulations and codes of practice in the United Kingdom and any compliance guidelines published or made available by Mycaribbean Home from time to time, will not be defamatory, misleading, discriminatory or infringe any copyright, trade mark or other intellectual property rights or rights of any third party whatsoever and will not contain any Personal Data;
      4. any Video Content will:
         1. be of a good quality in Mycaribbean Home’s reasonable opinion and comply with the Video Content Criteria;
         2. only contain images related to the relevant property;

• not contain telephone numbers or email addresses other than Mycaribbean Home contact details;

1. not contain any Personal Data;
2. not contain any promotion of the Service User, except for its own logo; and
3. not contain any advertisements of any other products or services of the Service User or any third parties, except for a ‘powered by’ logo of the production company.

For the avoidance of doubt, Video Content displayed on the Service User’s own profile page may contain promotion of other services that the Service User provides;

1. any Photograph Content will:
   1. be of a good quality in Mycaribbean Home’s reasonable opinion and comply with the Photograph Content Criteria;
   2. only contain the Service User’s profile photograph(s) or images related to the relevant property;

• not contain telephone numbers or email addresses other than Mycaribbean Home contact details;

1. not contain any Personal Data;
2. not contain any promotion of the Service User; and
3. not contain any advertisements of any other products or services of the Service User or any third parties;

1. it is responsible for the integrity of the Content which is in all respects true, complete and accurate to the best of the Service User’s knowledge and belief and the Service User shall promptly update or correct Content on becoming aware of any errors or inaccuracies and shall provide such assistance as Mycaribbean Home shall reasonably require to identify and remedy any unauthorised use of Content;
2. within no more than 3 Business Days of:
   1. a property going “under offer”;
   2. a sale or leasing contract being entered into in respect of a property; or

• the property being taken off the market,

the Service User will either alter the status of the property details in the upload provided to Mycaribbean Home so that it may be displayed as “under offer” “sold” or “let” as appropriate on the Website(s) or will remove the property from the upload provided to Mycaribbean Home so that it is no longer displayed on the Website(s);

1. it has the authority to market the properties in the Content;
2. it holds all necessary authorities, consents and licences necessary to use, display, reproduce, publish the Content and has authority to and grants Mycaribbean Home (and its Group Companies) a licence of the Content on the terms set out in clause 3.2;
3. it has read and will abide by all notices posted on the Website(s) from time to time that are relevant to the provision of the Services;
4. each of its branch offices will only upload details of properties they have received instructions for specifically at each branch office location, and that no branch office will upload details of properties originating from any other branch office location;
5. it shall not use Mycaribbean Home’s name, the name of any Group Company or any Logos, trade or services marks of Mycaribbean Home or the Group in a defamatory or derogatory manner or in any way that might bring Mycaribbean Home, the Group or its directors or employees into disrepute nor shall the Service User misuse or deface (or allow to be misused or defaced) any Marketing Materials provided to it;
6. it will abide by any applicable industry code of conduct, recommendations or guidelines issued by any relevant trade organisation, including the National Landlords Association and the Residential Landlord’s Association, and will abide by all applicable laws and regulations applying to or affecting Service Users including, but not limited to, Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008;
7. it will provide a contactable telephone number and shall ensure that the majority of calls made to that telephone number are answered in person. Where a trackable telephone number has been allocated to the Service User by Mycaribbean Home, the Service User will use this number to enable Mycaribbean Home to effectively monitor Leads delivered to the Service User and take no actions that would interfere with such monitoring, and the Service User agrees that Mycaribbean Home and its suppliers may record all telephone calls for the purposes of monitoring Leads delivered or replaying Leads to Service Users; and
8. it shall ensure that only its authorised persons have access to the Services and the Upload Systems and that where it provides Content via the Upload Systems it shall only do so in a format compatible with any technical specifications issued by Mycaribbean Home from time to time. The Service User 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.

2. The Service User grants Mycaribbean Home and the Group a non-exclusive, royalty free, perpetual licence to copy, reproduce, display, sell, publish, adapt and otherwise use the Content or data or other information derived therefrom for any purpose whatsoever (including entering into agreements with third parties for the provision of the Content or data derived therefrom). This licence shall survive termination of the Contract, but (for the avoidance of doubt) shall have no effect on the Service User’s rights (or its licensor’s rights, as applicable) in respect of such Content or data, save to the extent specified herein. The Service User agrees that Mycaribbean Home and any Group Company may, but shall not be required to, identify the Service User as the source of the Content on the Website(s) or in any other medium through which the Content or any derivative thereof is published or displayed.
3. Mycaribbean Home:
   1. may in its absolute discretion, at any time, remove, cause to be removed or decline to display any Content on the Website(s) which fails to comply with the terms of this Contract, and shall notify the Service User of such decision either prior to, or at the time of, the relevant Content being removed or rejected;
   2. may without prejudice to Mycaribbean Home’s right as set out in clause 3.3(a) above, require the Content to be amended at any time if Mycaribbean Home considers or has reason to believe that the Service User is in breach of the Contract or any applicable law or regulation or where it deems in its absolute discretion the Content to be of poor quality in terms of presentation, information provided or otherwise; and
   3. reserves the right to charge the Service User for additional fees or in a manner it deems appropriate or on a per property basis if Mycaribbean Home has reason to believe that Content uploaded by any of the Service User’s branch offices is in breach of clause 3.1(k) above.
4. The Service User acknowledges and agrees that:
   1. it will continue to be bound by these Service User Terms irrespective of whether:
      1. the individual who has signed and/or agreed to the Service User Terms on its behalf subsequently ceases to be employed or otherwise engaged by the Service User or subsequently ceases to be authorised to act on behalf of the Service User; or
      2. the whole or substantially whole of the Service User’s assets are sold or transferred to a different legal entity;
   2. neither Mycaribbean Home nor any Group Company shall be under any obligation to monitor or censor the Content that appears on the Website(s) but Mycaribbean Home reserves the right for itself (and the Group) to do so;
   3. neither Mycaribbean Home nor any Group Company is responsible for any error or omissions in any Content;
   4. as part of the Services the Service User may be provided with access to data including that derived from the content and data provided by Mycaribbean Home’s Service Users and other third parties. Mycaribbean Home takes reasonable care to ensure that such data is accurate and up to date but makes no representation or warranty about the accuracy or completeness of such data and the data is not intended to be, and must not be treated by a Service User as, comprehensive but an aggregation of the content and data available to Mycaribbean Home at the time of provision and available to the Service User in accordance with its level of Service Usership;
   5. technological failure may impede the provision of the Services or prevent access to all or any part of the Content displayed on the Website(s) or to the Upload Systems. Mycaribbean Home makes no representation or warranty that the Website(s), the Services, the Content or the Upload Systems will be accessible or available at all times, or that the whole or any part of the Website(s), Services, the Content or Upload Systems will be free from error and while Mycaribbean Home will make reasonable endeavours to notify the Service User in advance, it may suspend temporarily or alter the operation of the Website(s), Services or the Upload System without notice to the Service User;
   6. it is responsible for and will pay all telecommunications and internet access charges incurred by it when using the Website(s);
   7. transmission of data over the internet can be subject to delays and errors and can cause corruption of data for which neither Mycaribbean Home nor any Group Company shall be responsible;
   8. from time to time Mycaribbean Home shall be entitled to increase the fees payable by the Service User in the event that, following an assessment by Mycaribbean Home, it is determined by Mycaribbean Home that the number of properties displayed on the Website on behalf of the Service User has increased such that the number of properties exceeds the average for Service Users of a similar type. In assessing the number of properties and the applicable average for these purposes:
      1. an Agent’s properties (and those of other Agents) shall be assessed on a per-branch basis by reference to an appropriate geographical area;
      2. a Developer’s properties (and those of other Developers) shall be assessed on a per-Development basis;

• an Online Agent’s properties (and those of other Online Agents) shall be assessed by reference to appropriate geographical areas;

and in any event an assessment will be made by reference to any relevant guidelines issued by Mycaribbean Home from time to time. Any increase in fees will be calculated on either a per-property or per-Development basis so as to fairly reflect the increase in the volume of the Service User’s displayed properties;

1. Mycaribbean Home may limit the number of photographs that may be displayed by the Service User to 20 images per property;
2. in providing the Services, and in order to provide information about other products and services, Mycaribbean Home and the Group Companies may, unless otherwise agreed in writing by Mycaribbean Home and the Service User, contact the Service User by post, telephone, electronic means, including e-mail and other electronic media and the Service User shall maintain a valid working e-mail address for each of its branch offices, head offices, regional offices and development offices and shall immediately notify the Company of any change of e-mail addresses;
3. it shall for the duration of the Contract, take reasonable steps to promote the Website(s) to its customers and display any Marketing Materials provided by Mycaribbean Home at its premises, provide a link on its website to the Website(s) and include the Logo in its sales and advertising materials. For the purpose of carrying out these obligations only, Mycaribbean Home grants the Service User a non-exclusive licence for the duration of the Contract to use, display and copy the Logo, Mycaribbean Home name and any trade or services marks used by Mycaribbean Home or the Group and copyright (or other intellectual property rights) contained in the Marketing Material; and
4. all intellectual property rights in the Services, technology supporting the Services (including the Upload System) and the Website(s) vest in Mycaribbean Home and/or its licensors/sub-contractors and that the Service User has no rights in, or to, such intellectual property other than the right to use the same in accordance with the Contract. For the avoidance of doubt, save to the extent otherwise specified in the Contract, all intellectual property rights in the Content shall remain vested in the Service User (or its licensors, as applicable).

5. Any third party, purporting to act as agent for or on behalf of a prospective Service User, contracting with Mycaribbean Home for the provision for Services warrants and represents that it has the full and valid authority of that prospective Service User to bind it and to the extent that:
   1. that third party exceeds its authority; and/or
   2. the prospective Service User refuses to such pay any Fees or charges,

that third party shall be liable, on an indemnity basis, for all Fees and any other charges due hereunder.

6. The Service User shall not publish, disclose, reproduce or create any derivative works from any information obtained pursuant to the Service User’s use of the Services unless expressly agreed in writing by Mycaribbean Home.
7. The Service User shall promptly notify Mycaribbean Home if there is any increase or decrease in the number of branch offices operated by the Service User.
8. The Service User shall promptly notify Mycaribbean Home in writing in the event:
   1. there are no longer any properties left for sale or rent in a Development; or
   2. it decides that a Development should no longer be listed for any reason.

Fees

1. Subject to any express terms in the Order Form, Fees (plus VAT and any other taxes or duties thereon) and any other charges due hereunder shall be paid by the Service User in accordance with these Service User Terms and Conditions.
2. Mycaribbean Home may determine and shall invoice the Service User in advance (or in arrears for Services provided either on a “one-off basis” or on a “Pay per Lead” basis) on or around the 1st day of each month and the invoice shall become payable 14 calendar days after the invoice date.
3. The Service User shall pay the Fees to Mycaribbean Home by direct debit (or by such other method as may be agreed in writing by Mycaribbean Home) on the due date to such account as Mycaribbean Home may from time to time advise and where payment is to be made by direct debit the Service User hereby authorises Mycaribbean Home (or a Group Company on its behalf) to collect the payment on the due date. A Force Majeure Event shall not relieve a party of its duty to pay the Fees as they fall due under this Contract up to the date of termination and no refunds of Fees paid in advance shall be payable as a result of a Force Majeure Event.

Liability

1. All warranties and representations (whether express or implied) provided by Mycaribbean Home or any Group Company are, to the fullest extent permitted by law, excluded from the Contract.
2. Nothing in any Contract shall exclude or limit either party’s liability for:
   1. death or personal injury caused by that party’s negligence;
   2. fraud or fraudulent misrepresentation; or
   3. any other liability which cannot be excluded or limited by law.
3. Subject to clause 5.2:
   1. Mycaribbean Home and the Group Companies shall only be liable for direct losses arising out of or in connection with the Contract; and
   2. Mycaribbean Home and the Group Companies’ total liability to the Service User (whether in contract, tort or otherwise) arising out of or in connection with the Contract shall be limited to the aggregate amount of Fees (excluding VAT) paid by the Service User in the 3 months immediately preceding the month in which the Service User incurred the loss resulting in liability of Mycaribbean Home or the relevant Group Company. This liability may be further limited by the relevant Product Specific Terms and Conditions in respect of any claim relating to Services to which those Product Specific Terms and Conditions apply.
4. Neither Mycaribbean Home nor any Group Company shall be liable for any liability caused by:
   1. any breach of the Contract by the Service User; or
   2. the Service User using, altering or manipulating any data provided by Mycaribbean Home or changing the manner in which such data are represented.
5. The Service User shall indemnify Mycaribbean Home (and the Group) against all losses and expenses incurred by them in relation to any third party claim arising from the Content or misuse by the Service User of the Services, except to the extent that the foregoing results directly from the negligence of Mycaribbean Home (or any Group Company).
6. The Service User agrees that this clause 5 is fair and reasonable.

 

Confidentiality

1. Subject to clause 6.2, a party shall disclose information not in the public domain relating to the other only if:
   1. the person to whom the disclosure is made needs the information in order for the disclosing party to carry out its obligations under this Agreement; or
   2. the law so requires.
2. Mycaribbean Home will be permitted to issue announcements and releases relating to the Contract, the transactions contemplated by it, the identity of the Service User and the relationships between the parties without the prior consent of the Service User.

Termination and effect of termination

1. Each Contract shall commence in accordance with clause 1.1 and shall continue until terminated in accordance with these Service User Terms and Conditions. Save where an Initial Term or Minimum Term applies, the Contract shall continue for the Initial Term or Minimum Term (and if both apply for the longer of the two) (unless terminated in accordance with these Service User Terms and Conditions), after which the Contract shall automatically renew for successive periods of 12 months (each a “Renewal Term“).
2. Termination
   2021. During an Initial Term, Minimum Term or Renewal Term, Mycaribbean Home or the Service User shall only be entitled to terminate the Contract for convenience on at least one month’s notice, such termination to take effect on expiry of the Initial Term or Minimum Term (and if both apply on expiry of the last to expire of the two) or Renewal Term (as applicable).

         For example, if a Contract starts on 15 January 2020 and has an Initial Term of 12 months, a Service User cannot terminate the Contract until 14 January 2021. In order to terminate, the Service User must serve written notice on or before 15 December 2020.

Where no Initial Term or Minimum Term is specified in the Order Form, Mycaribbean Home or the Service User shall only be entitled to terminate the Contract for convenience on at least one month’s notice to the other party, such notice to expire at the end of a calendar month.

For example, a Service User may serve notice to terminate on 16 April 2020 but that notice shall not take effect until 31 May 2020 (being the last day of the calendar month following service of the notice).

1. If Mycaribbean Home receives notification from a Service User under clause 3.8, the Service User may terminate the part of its Contract relating to the applicable Development (but no other part of its Contract) at the end of the calendar month in which Mycaribbean Home receives the notification.
2. Either party may terminate the Contract:
   1. immediately by giving written notice to the other party if the other party persistently breaches the Contract; or
   2. on 30 calendar days’ written notice to the other party if the other party is in material breach of this
3. Mycaribbean Home may terminate the Contract on 30 calendar days’ written notice to the Service User in the event that, in Mycaribbean Home’s reasonable opinion, the Service User’s financial position is such that the Service User’s capability to adequately fulfil its obligations under the Contract is in material jeopardy.
4. Without limiting their other rights, Mycaribbean Home (or any Group Companies on its behalf) may immediately suspend the Services or access to or temporarily remove any Content from the Website(s) (or cause any of those things to occur) if the Service User breaches the Contract and fails to rectify that breach immediately following receipt of notice from Mycaribbean Home requesting it to do so.
5. On termination of the Contract for whatever reason:
   1. all Fees and any other sums due from the Service User to Mycaribbean Home (or any Group Companies) shall immediately become payable and the Service User shall immediately pay Mycaribbean Home such sums in full;
   2. the licences referred to in clause 3.4(l) (or contained in any Product Specific Terms and Conditions) shall immediately terminate;
   3. the Service User shall immediately cease using the Services and permanently delete any access passwords for the Services or the Upload Systems; and
   4. without prejudice to clause 9.5(f), the Service User’s access to Content and all other data generated in connection with the Service User’s use of the Services shall cease;
   5. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract, which existed at or before the date of termination shall not be affected; and
   6. any provision of the Contract which is expressed as surviving the Contract or which is required to survive the Contract to give effect to it shall survive termination.

Force majeure

Neither party shall breach the Contract by reason of any delay or failure in performance resulting from a Force Majeure Event. However, if the Force Majeure Event continues to cause a party to need relief from the impact of its delay or failure for one month or longer, the other party may terminate the Contract immediately by giving notice to the affected party.

Compliance with Relevant Requirements

1. The Service User shall:
   1. comply with the Relevant Requirements;
   2. 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;
   3. have and shall maintain in place throughout the term of the Contract its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 13.1(b), and will enforce them where appropriate;
   4. promptly report to Mycaribbean Home any request or demand for any undue financial or other advantage of any kind received by the Service User in connection with the performance of the Contract;
   5. immediately notify Mycaribbean Home (in writing) if a foreign public official becomes an officer or employee of the Service User and the Service User warrants that it has no foreign public officials as officers or employees at the date of the Contract);
   6. on Mycaribbean Home’s request, certify to Mycaribbean Home in writing signed by an officer of the Service User, compliance with this clause 13 by the Service User. The Service User shall provide such supporting evidence of compliance as Mycaribbean Home may reasonably request.
2. Breach of this clause 13 shall be deemed a material breach.
3. For the purpose of this clause 13, 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.

 

Feedback and Complaints Procedure

1. Mycaribbean Home has a process in place to deal with concerns which Service Users may have, including concerns regarding the Contract or the Services.
2. To contact Mycaribbean Home with any concerns, the Service User should e-mail Service Users@Mycaribbean Home.co.uk. Mycaribbean Home will endeavour to acknowledge the e-mail within 2 Business Days of its receipt and, where necessary, will request any additional information as Mycaribbean Home may deem necessary to investigate the concern. Each complaint will be investigated and assessed by Mycaribbean Home as soon as possible thereafter.

General

1. Nothing in these Service User Terms and Conditions or any Product Specific Terms and Conditions is intended to establish an exclusive arrangement between the Service User and Mycaribbean Home (or any Group Companies) 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.
2. The Service User may not assign or otherwise create any interest in any of its rights and obligations under the Contract without the prior written consent of Mycaribbean Home.
3. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 15.3 shall not affect the validity and enforceability of the rest of the Contract.
4. No failure or delay by Mycaribbean Home or any Group Company provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the future exercise of that or any other right or remedy. No single or partial exercise of any right or remedy by Mycaribbean Home or any Group Company shall preclude or restrict the further exercise of that or any other right or remedy.
5. Any notice given to party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or by email to its nominated email address or webform as specified on the Order Form. Any notice will be deemed to have been received (i) if delivered by hand, on signature of a delivery receipt, (ii) if sent by pre-paid first-class post or other next working day delivery service, on the second Business Days after posting or at the time recorded by the delivery service, or (iii) if sent by email, at the time of transmission. This clause 15.5 does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.
6. Except for the Group Companies (who may enforce relevant provisions of the Contract), a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
7. The construction, validity and performance of the Contract and all non-contractual obligations arising from or connected with the Contract shall be governed by English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts to resolve any dispute between them.