Terms of Use: Full Platform

Last Updated: 4 February 2022

Digital Assets Distribution and Technology Terms and Conditions

THE PARTIES AGREE AS FOLLOWS:

  1. INTERPRETATION
    1. The following definitions apply to the Agreement:
      1. Agreement”: means the Commercial Form together with these Terms and Conditions.
      2. Access Protocols”: means the user log-in credentials, together with the network link required to enable Authorised Users to set their password, necessary to access, and have active Access Protocols for, the COMPANY Platform.
      3. Advanced Value”: has the meaning given to that term in Clause 9.1.
      4. Affiliate”: means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
      5. Anonymised”: means anonymised data, including Buyer Data, such that any individual/entity to whom the data relates cannot be identified, directly or indirectly, by COMPANY or any third party.
      6. Authorised Users”: means those Personnel of Buyer who are authorised by Buyer to access the COMPANY Products. .
      7. Brand”: means a retailer or other Digital Asset issuer that makes Digital Assets available for sale from time to time through the COMPANY Products..
      8. Brand Content”: means any and all content, data, media, information, designs, images or other materials (including all Intellectual Property Rights relating thereto or subsisting therein) that is owned by and/or licensed from the relevant Brand.
      9. Business Day”: means any day which is not a Saturday, Sunday or public holiday in the United Kingdom and on which the banks are open for business in London.
      10. Buyer”: means the entity identified as such in the Commercial Form.
      11. Buyer Customer”: means a customer of Buyer that makes available the Buyer Platform to End Users for the purpose of purchasing and distributing Digital Assets via the COMPANY API.
      12. Buyer Data”: means any data, information or other content (including the names and email addresses of any Recipients) that is inputted by or on behalf of Buyer (including by Authorised Users) to the COMPANY Platform or via the COMPANY API.
      13. Buyer Float”: means the credit balance available to Buyer for the purchase of Digital Assets. 
      14. Buyer Platform”: means the Buyer’s platform which may be made available by Buyer Customers to End Users for the purpose of purchasing and distributing Digital Assets via the COMPANY API.
      15. Commercial Form”: means the Commercial Form signed by the Parties, which incorporates these Terms and Conditions.
      16. COMPANY”: means The Voucher Market Limited (t/a WeGift), a company incorporated and registered in England with company number 09281949 whose registered office is at 1st Floor, Buckhurst House, 42-44 Buckhurst Avenue, Sevenoaks, Kent, England, TN13 1LZ.
      17. COMPANY API”: means the application programming interface made available by COMPANY to Buyer for integration of the Buyer Platform with the COMPANY Technology, together with any COMPANY Data accessed or made available via it.
      18. COMPANY Data”: means any data, media, information or other content that is accessible via the COMPANY Technology (excluding any Buyer Data and including the Brand Content).
      19. COMPANY Platform”: means COMPANY’s web-based software-as-a-service platform owned, operated and/or licensed by COMPANY, which may be used to purchase Digital Assets and distribute them to the Recipients, together with any COMPANY Data comprised therein or accessed thereby.
      20. COMPANY Products”: means (i) the COMPANY Platform, and any website and application or software used to access the COMPANY Platform; and/or (ii) the COMPANY API, as selected in the Commercial Form.
      21. COMPANY Technology”: means the COMPANY Products, together with any and all technology and software owned or used by COMPANY, any associated processes, materials, tools, and business methods relating thereto, including, in each case any and all (a) updates thereto; (b) documentation relating thereto; (c) Intellectual Property Rights therein or thereto; and (d) any benchmarking, analytics or technical data relating to the performance or operation thereof.
      22. Contract Year”: means each period of one (1) year commencing on and including the Commencement Date and each anniversary thereof during the Term.
      23. Consumer Price Index”: means the Consumer Price Index published by the UK Office for National Statistics.
      24. Customer Success Manager”: means the person identified in the Commercial Form or such other person appointed by COMPANY from time to time.
      25. Digital Asset”: means an electronic gift card, voucher or other digital assets with a predefined Face Value, which is made available, from time to time, by a Brand for purchase via the COMPANY Products, and which may be used, subject to any terms and conditions issued by the relevant Brand, to make transactions online [or in store] with the relevant Brand or network of retailers selected by the relevant Brand up to the value assigned to the electronic gift card, voucher or other digital asset.
      26. Effective Date”: means the date of execution of the Commercial Form by COMPANY or Buyer (whichever is the latter)
      27. End Users”: means any individuals authorised by Buyer Customers to access the Buyer Platform for the purpose of purchasing Digital Assets. For the avoidance of doubt, an End User may be a Recipient if the End User purchases Digital Assets for themselves.  
      28. Face Value”: means the predefined face value in a specified currency of a Digital Asset as shown on the COMPANY Platform or through the COMPANY API.
      29. Fees”: means any or all of the fees and charges set out or referred to in the Commercial Form, including the Subscription Fees and the Support Fees. 
      30. Fraudulent Events”: has the meaning given to that term in Clause 10.1(b).
      31. GCV”: means the cumulative Face Value of all Digital Assets purchased by Buyer in since Effective Date.
      32. Initial Term”: means the period set out in the Commercial Form.
      33. Intellectual Property Rights”:  means all copyright and related rights, patents, rights to inventions, utility models trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
      34. Link”: means the unique code associated with each Digital Asset ordered via a COMPANY Product;
      35. Commencement Date”: has the meaning set out in the Commercial Form.
      36. Losses”: means all losses, liabilities, damages, costs, claims, charges, demands, actions, proceedings and expenses (including legal and professional fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties).
      37. New Agreement”: has the meaning given to that term in Clause 2.2.
      38. Notice Period”: means the minimum period required to terminate the Agreement at the end of the Initial Term or the then-current Renewal Term as set out in the Commercial Form.
      39. Order”: means an order for one or more Digital Assets placed by Buyer via the relevant COMPANY Product.
      40. Personnel”: means a Party’s employees, agents, consultants or contractors. 
      41. Reactive Feature”: means the option identified as such in the Commercial Form.
      42. Recipients”: means the recipients of one or more Digital Asset(s) identified by Buyer as part of an Order.
      43. Renewal Term”: means a period equal to the Initial Term.
      44. Special Terms”: means any terms set out in the section “Special Terms” of the Commercial Form.
      45. Subscription Fees”: means the fees set out in the Commercial Form.
      46. Support Fees”: means the fees set out in the Commercial Form for the provision of the Support Services.
      47. Support Ticket”: has the meaning given to that term in Clause 5. 
      48. Term”: means the Initial Term and any Renewal Term(s).
      49. Terms and Conditions”: means these terms and conditions.
      50. Unspent Value Feature”: means the option identified as such in the Commercial Form.
      51. Unspent Value Percentage”: has the meaning given to that term in the Commercial Form.
    2. To the extent not defined in this Clause 1, the capitalised terms set out in the Commercial Form shall have the meaning given to them therein.
    3. References to “Clauses” in the Agreement are references to the clauses of these Terms and Conditions and references to “Paragraphs” are to the paragraphs of the Schedules to the Agreement.
    4. A “person” includes a natural person, corporate or unincorporated body and that person’s legal and personal representatives, successors or permitted assigns.
    5. Any reference to the Agreement terminating shall, where the context requires, include a reference to the Agreement terminating by expiry of the Term.
    6. Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular and references to one gender are references to the other genders.
    7. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. 
    8. The words “include” and “including” (or similar) shall be construed as illustrative only and shall not limit the sense of the description, definition, phrase or term(s) that comes before the relevant term.
    9. Any reference to an English legal term for any action, remedy, method or judicial proceedings legal document, legal status, court, official, or any other legal concept shall, in respect of any other jurisdiction than England be deemed to include the legal term which most nearly approximates in that jurisdiction to the English legal term.
    10. Any reference to the “Parties” means COMPANY and Buyer and “Party” shall mean one of them.
    11. In the case of any inconsistency, conflict or ambiguity between any of the provisions of these Terms and Conditions and the Commercial Form, the provisions of these Terms and Conditions shall prevail, except with regards to any Special Terms, which shall prevail over these Terms and Conditions.
  2. COMMENCEMENT AND DURATION
    1. Unless terminated earlier pursuant to Clause 21, the Agreement shall commence on the Commencement Date and continue for the Initial Term and automatically renew for further successive Renewal Terms at the end of the Initial Term and at the end of each Renewal Term, unless either Party gives written notice to the other Party not later than the Notice Period before the end of the Initial Term or a Renewal Term to terminate the Agreement at the end of the Initial Term or that Renewal Term. 
    2. Subject to Clause 2.3, if, after the effective date of termination of the Agreement pursuant to Clause 2.1, the COMPANY Platform is accessed by or on behalf of Buyer (regardless of whether Digital Assets are purchased), Buyer shall be deemed to have entered into a new Commercial Form on the same terms of the immediately preceding Commercial Form and subject to the Terms and Conditions (the “New Agreement”) with the exception of the following terms:
      1. the Effective Date and the Commencement Date of the New Agreement shall be the date the COMPANY Platform is accessed by or on behalf of Buyer; and
      2. the Subscription Fees, the Support Fees and the Cost per Digital Asset shall be determined in accordance with the COMPANY’s then current rate card. 
    3. Clause 2.2 shall not apply in the event of termination of the Agreement by COMPANY pursuant to Clause 21.
  3. USE OF COMPANY PLATFORM 
    1. This Clause 4 shall apply if the COMPANY Platform option is selected in the Commercial Form.
    2. Subject to Buyer’s and its Authorised Users’ continuing compliance with the Agreement (including payment of all Fees due and payable in accordance with Clause 3), COMPANY hereby grants Buyer a personal, non-exclusive, non-transferable right for its Authorised Users to access and use the features and functions of the COMPANY Platform during the Term for the purpose of purchasing Digital Assets and distributing such Digital Assets to the Recipients.  
    3. Buyer is solely responsible for all activities that Authorised Users undertake on the COMPANY Platform. Buyer shall immediately notify COMPANY of any unauthorised use of any Authorised User’s Access Protocols. 
    4. COMPANY will not be liable for any Losses arising from Buyer’s failure to ensure each Authorised User maintains the confidentiality of its Access Protocols, including in respect of any Fraudulent Events.
    5. Buyer shall ensure that:
      1. only Authorised Users access the COMPANY Platform; and
      2. each Authorised User maintains the confidentiality of the Access Protocols.
  4. USE OF COMPANY API
    1. This Clause 5 shall apply if the COMPANY API option is selected in the Commercial Form.
    2. Subject to Buyer’s continuing compliance with the Agreement (including payment of all Fees due and payable in accordance with Clause 3), COMPANY hereby grants Buyer a personal, non-exclusive, non-transferable licence to use the COMPANY API during the Term to:
      1. integrate the COMPANY API with the Buyer Platform; and
      2. display COMPANY Data received via the COMPANY API within the Buyer Platform, for End Users to purchase Digital Assets and distribute such Digital Assets to the Recipients. 
    3. Buyer is solely responsible for: 
      1. the operation and security of the Buyer Platform; and
      2. all activities that Buyer Customers and End Users undertake on the Buyer Platform. 
    4. COMPANY will not be liable for any Losses suffered by Buyer as a result of activities that End Users undertake on the Buyer Platform, including in respect of any Fraudulent Events.
    5. Buyer may only make available the Digital Assets within and as an integral part of the Buyer Platform.
    6. Without prejudice to Clause 15, Buyer hereby grants COMPANY a limited, non-exclusive, non-transferable and royalty-free licence to use the Buyer Platform, any Intellectual Property Rights and any other data, information, software or technology made available to COMPANY by Buyer solely as may be necessary for COMPANY to perform its obligations under this Clause 5.
  5. SUPPORT SERVICES
    1. Subject to Clause 1.1, COMPANY shall provide reasonable assistance to Buyer in relation to the use of the COMPANY Product selected in the Commercial Form and the purchase and distribution of Digital Assets, including by providing access to, or making available to, Buyer, the COMPANY’s knowledge bank and any documentation relating to the relevant COMPANY Product (the “Support Services”). Buyer shall log a support ticket using the support form (the “Support Ticket”) if it requires any such assistance. COMPANY shall provide the Support Services during normal office hours on Business Days. .
    2. Buyer shall, and shall ensure that any End Users and Recipients shall, direct any queries concerning the specific Digital Assets to the relevant Brand. 
  6. DIGITAL ASSETS
    1. Subject to Clauses 7.2 to 7.5, COMPANY shall make available Digital Assets for purchase by Buyer via the COMPANY Product selected in the Commercial Form. 
    2. Subject to Clause 9, the purchase by Buyer of Digital Assets is subject to Buyer having sufficient Buyer Float. Buyer may increase the value of the Buyer Float by making a payment to COMPANY. The value of the Buyer Float shall increase by an amount equivalent to the amount paid to and received by COMPANY pursuant to this Clause 7.2
    3. Buyer shall pay, using the available Buyer Float, the Digital Asset Fee in respect of each Digital Asset purchased by it via the relevant COMPANY Product and the value of the Buyer Float shall decrease by an equivalent amount.
    4. Subject to Clause 7.5, once Buyer has placed an Order and paid for the Order in accordance with Clause 7.3, COMPANY shall deliver, on behalf of Buyer, the Links to the Digital Assets to the email addresses of the Recipients provided by Buyer when placing the relevant Order.
    5. Buyer acknowledges and agrees that:
      1. Buyer shall be solely responsible for ensuring the correct email addresses of the Recipients are provided when placing an Order and COMPANY shall have no responsibility for: 
        1. failure to deliver a Digital Asset due to incorrect email address; or 
        2. delivery of a Digital Asset to an incorrect email address or Recipient; 
      2. the Digital Assets are subject to availability and COMPANY reserves the right, at any time, to: 
        1. impose quantity limits on any Order;
        2. reject or delay the delivery of all or any part of an Order or place other restrictions on an Order for certain reasons including: 
          1. unavailability of the Digital Assets from the relevant Brand; 
          2. downtime or other technical issues at the Brand’s processor which prevent the issuance or delivery of the Digital Assets;
          3. insufficient Buyer Float;
          4. actual or reasonably suspected unauthorised access to the COMPANY Technology via the Buyer’s systems; or 
          5. actual or reasonably suspected fraud via the Buyer’s systems ;
        3. discontinue and/or vary the type and number of Digital Assets available for purchase via the COMPANY Products;
        4. cease offering Digital Assets issued by a Brand;
      3. once the Recipient has clicked on the Link, the relevant Brand’s terms and conditions apply to the Digital Asset; and
      4. once an Order is placed, Buyer shall not be entitled to a refund (whether in full or in part) in respect of the Order or part of it, unless the refund is due to an error caused by COMPANY as determined by COMPANY acting reasonably or to the extent provided by Clause 8.2 if applicable. For the avoidance of doubt, Buyer shall be solely responsible for any refunds it gives to End Users and/or Recipients and no refunds shall be due by COMPANY to End Users and/or Recipients.
    6. Buyer shall bear all fees, costs and charges incurred by Buyer and/or imposed by a third party when making payments to COMPANY to increase the value of the Buyer Float in accordance with Clause 7.2.
    7. Buyer acknowledges that COMPANY does not warrant, represent, endorse, support or guarantee the completeness, truthfulness, accuracy, reliability, performance, fitness for purpose or any other attributes of any Brand Content, nor shall COMPANY be responsible for reviewing or attempting to verify the accuracy or currency of any Brand Content. 
    8. To the fullest extent permitted by law, COMPANY expressly disclaims any and all express or implied terms of any nature relating to the Brand Content.  
  7. ADVANCED VALUE 
    1. COMPANY may, in its absolute discretion, agree to increase the value available to Buyer in the Buyer Float by a certain amount (the “Advanced Value”) which, for the avoidance of doubt, may not be the full amount requested by Buyer pursuant to Clause 9.3 if: 
      1. the Buyer Float is insufficient to pay for an Order; and
      2. there is a delay with regards to the payment made by Buyer to COMPANY to increase the Buyer Float in accordance with Clause 7.2, provided that Buyer: 
      3. has made the payment to COMPANY to increase the value of the Buyer Float in accordance with Clause 7.2;
      4. provides written evidence of confirmation of the bank transfer to COMPANY to increase the value of the Buyer Float, by at least the value of the Advanced Value. 
    2. Any Advanced Value shall be owed as a debt by Buyer to COMPANY. Until such time as the Advanced Value is repaid to COMPANY, COMPANY shall be entitled to:
      1. decrease the value of the Buyer Float by an amount equal to the Advanced Value; and/or 
      2. require Buyer to pay to COMPANY on demand an amount equal to the Advanced Value.
    3. Buyer shall raise a request for Advanced Value by sending an email to their Customer Success Manager with [email protected] and [email protected] in copy. 
  8. BUYER OBLIGATIONS
    1. Buyer shall:
      1. comply with the Brand’s terms and conditions applicable to the Digital Assets issued by such Brand and purchased by Buyer and ensure that such terms and conditions are conveyed to the Recipients of the Digital Assets; 
      2. Obtain prior written approval from the relevant Brand(s) in accordance with Clause 10.4 in the event that Buyer [or a Buyer Customer] intends to:
        1. purchase Digital Assets for promotional and/or marketing activities; 
        2. make Digital Assets available for purchase or use Brand Content as part of promotional and/or marketing activities (including in respect of offering a discount in respect of a certain Brand or category of Digital Assets);
        3. amend the template of a Digital Asset as made available by COMPANY via the COMPANY Products. 
      3. take all necessary steps to prevent unauthorised access to the COMPANY Platform or COMPANY Technology via the use of the COMPANY API, unauthorised or fraudulent Orders, the unauthorised or fraudulent purchase or use of Digital Assets, and the unauthorised or fraudulent use of any Advanced Value (the “Fraudulent Events”); 
      4. comply with all applicable laws and regulations with respect to its activities under the Agreement and the operation of the Buyer Platform; 
      5. obtain and maintain all necessary licences, consents, and permissions necessary for Buyer and its contractors and agents to comply with the Agreement; and
      6. upon request by COMPANY: 
        1. provide COMPANY with true and accurate information about the reasons for purchasing Digital Assets and distributing such Digital Assets to the Recipients; and 
        2. take all necessary steps to establish the existence and the identity of the Recipients of the Digital Assets.
    2. Upon request by a Brand, COMPANY may disclose to such Brand any necessary information relating to Buyer and any of its Orders, and Buyer hereby consents to such disclosure.
    3. Buyer shall indemnify, defend and hold COMPANY and its officers, directors, employees and agents harmless from and against any and all Losses arising from or in connection with a Fraudulent Event. 
    4. In order to obtain the Brand’s prior written approval in respect of Clause 10.1(b), Buyer shall email its Customer Success Manager with [email protected] in copy and provide sufficient details of any amendments to the template of the relevant Digital Assets, the intended marketing and/or promotional activity, the relevant Digital Assets, the period and duration of the promotional activity and any other information requested by COMPANY and/or the Brand. Buyer acknowledges and agrees that any such approval shall be at the Brand’s absolute discretion and subject to any conditions or requirements imposed by the Brand.
  9. OWNERSHIP
    1. As between the Parties, COMPANY retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to the COMPANY Technology (subject only to Clause 15.1 in respect of any Buyer Data comprised therein). 
    2. Buyer will not acquire any right, title or interest in or to the COMPANY Technology (subject only to the limited licences granted under Clause 4.1) and COMPANY reserves all rights therein and thereto not expressly granted in the Agreement.
  10. RESTRICTIONS
    1. Notwithstanding anything to the contrary in the Agreement, no Personnel that Buyer may engage from time to time which is employed by any party that COMPANY reasonably deems to be its competitor shall be permitted to access the COMPANY Products.
    2. Without affecting any other right or remedy available to it, in the event that COMPANY determines (acting reasonably) that any Authorised User is employed by any party that COMPANY reasonably deems to be its competitor, it may: 
      1. deactivate the user account of that Authorised User and disable any associated Access Protocols; and 
      2. permanently and irretrievably destroy the user account of the deactivated Authorised User.
    3. Buyer shall not, nor shall it instruct or permit, procure, enable or request any third party (including its Authorised Users, Personnel, Buyer Customers and End Users) to, take any action designed or intended to:
      1. use the COMPANY Technology (or any part thereof) in any manner or for any purpose that is inconsistent with the Agreement;
      2. provide or otherwise make the COMPANY Technology (or any part thereof) available to any third parties other than to Authorised Users;
      3. use the COMPANY Technology (or any part thereof) to: 
        1. create, market or distribute any product or service that is competitive with the COMPANY Technology or any other part of the COMPANY Technology; or
        2. act as a service bureau on behalf of, or otherwise provide processing or services support to, any third party; 
      4. introduce to the COMPANY Technology any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as such terms are commonly understood in the software industry) or any other equivalent code, software routine or instructions designed or intended to disrupt, disable, harm or otherwise impede in any manner the operation of the COMPANY Technology or any device or system owned or controlled by COMPANY or any third party, or which otherwise may damage or destroy any data or file; 
      5. modify, copy, resell, rent, lease, sub-licence, load, merge, adapt or translate the whole or any part of the COMPANY Technology (or any part thereof);
      6. contest, challenge or otherwise make any claim or take any action adverse to COMPANY’s ownership of, or interest in, the COMPANY Technology (or any part thereof); 
      7. re-use, disseminate, copy, or otherwise use the COMPANY Technology (or any part thereof) in a way that infringes, misappropriates, or violates any Intellectual Property Rights or other right of COMPANY or any third party; or 
      8. remove, alter, obscure COMPANY’s trade mark, copyright notice or any other proprietary notice from the COMPANY Technology (or any part thereof).
      9. interfere with the proper working of the COMPANY Technology; 
      10. circumvent, disable, or interfere with security-related features of the COMPANY Technology or features that prevent or restrict use, access to, or copying the COMPANY Technology, or that enforce limitations on use of the COMPANY Technology;
      11. impose (or which may impose, in COMPANY’s sole discretion) an unreasonable or disproportionately large load on the COMPANY Technology; or
      12. reverse engineer, decompile, unbundle, disassemble, or create derivative works based on, the whole or any part of the COMPANY Technology unless, and to the limited extent that, applicable laws of Buyer’s jurisdiction require COMPANY to give Buyer the right to do so to obtain information necessary to render the COMPANY Technology interoperable with other software; provided, however, that Buyer must first request such information from COMPANY, and COMPANY may (in its sole discretion) either provide such information to Buyer or impose reasonable conditions on such use of the source code for the COMPANY Technology to ensure that COMPANY and its licensors’ proprietary rights in the source code for the COMPANY Technology are protected.
  11. WARRANTIES
    1. Each Party warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of the Agreement the requisite power, capacity and authority to enter into the Agreement and to carry out the obligations under the Agreement
  12. BUYER DEPENDENCIES 
    1. In order to permit COMPANY to provide the COMPANY Technology in accordance with the terms of the Agreement, Buyer shall ensure that:
      1. all Authorised Users have installed, and access the COMPANY Platform via, a supported version of the internet browsers and operating systems that are listed in any documentation provided by COMPANY as supported by COMPANY from time to time; 
      2. it has an internet connection with adequate bandwidth for Authorised Users to access and use the COMPANY Platform;
      3. it shall maintain connectivity to the extent necessary to prevent network performance degradation; 
      4. the Buyer Platform complies with any relevant specifications provided by the COMPANY from time to time;
      5. it shall implement and maintain effective security polices and procedures to prevent unauthorised disclosure of Access Protocols and unauthorised access to the COMPANY Technology; 
      6. it shall obtain or procure all authorisations, instructions and/or permissions as may be necessary for COMPANY to provide Authorised Users with access to the COMPANY Platform; and
      7. it shall make available to COMPANY its employees and other staff members (in such number and with such level of seniority) as may be reasonably required in the circumstances to address any issue with the implementation, provision or cessation of access to the COMPANY Technology.
    2. COMPANY shall be relieved from any failure to comply with its obligations to provide the COMPANY Technology to Buyer, if and to the extent that COMPANY can demonstrate that such failure was caused by Buyer’s failure to meet any obligation or dependency on Buyer outlined in Clause 14.1. 
  13. BUYER DATA  
    1. As between the Parties, all Intellectual Property Rights in and to Buyer Data shall vest in Buyer upon their creation absolutely and COMPANY shall not obtain any right, title or interest in the Buyer Data whatsoever, except that COMPANY shall be permitted to use the Buyer Data in accordance with the licence granted in Clauses 15.2 and 15.3.
    2. Buyer hereby grants to COMPANY a non-exclusive, worldwide, royalty-free licence, irrevocable during the Term, to use the Buyer Data for the purposes described in and anticipated by the Agreement for COMPANY to provide the services described in the Agreement. 
    3. Notwithstanding any other provision of the Agreement, Buyer hereby grants to COMPANY a non-exclusive, sublicensable, transferable, perpetual, irrevocable, worldwide license to use Buyer Data in an Anonymised and aggregated form for the purpose of enabling COMPANY to monitor, assess and analyse the performance of the COMPANY Technology.
    4. COMPANY shall not be responsible for any loss, destruction, alteration or disclosure of Buyer Data caused by any third party. 
    5. Buyer warrants and represents on an ongoing basis that, and undertakes that, throughout the Term it shall have, the necessary rights, power, consents and authority to transmit Buyer Data to COMPANY under, and in the fashion described in, the Agreement and to grant COMPANY the licences to use Buyer Data in Clauses 15.2 and 15.3.
    6. Buyer shall indemnify, defend and hold COMPANY and its officers, directors, employees and agents harmless from and against any and all Losses arising from or in connection with, Buyer’s breach of the warranty, representation and/or undertaking given in Clause 15.5.  
    7. Buyer will be responsible for maintaining back-up copies of all Buyer Data residing in or relying in any way on the COMPANY Technology.
  14. DATA PROTECTION
    1. The Parties shall comply with their respective obligations set forth in Annex One (Data Processing Agreement) to these Terms and Conditions.
    2. In the case of any inconsistency, conflict or ambiguity between any of the provisions of these Terms and Conditions and the Data Processing Agreement, the provisions of the Data Processing Agreement shall prevail in preference to these Terms and Conditions.
  15. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
    1. Subject to the remainder of this Clause 17, COMPANY shall indemnify Buyer from and against Losses incurred by Buyer as a result of amounts awarded in judgment or settlement of any third party claim or proceeding against Buyer that Buyer’s use of the COMPANY Products, within the scope of the rights of use granted to Buyer under the Agreement, infringes the Intellectual Property Rights of a third party (“IPR Claims”). 
    2. Buyer shall notify COMPANY in full, accurate and complete detail in writing promptly after it becomes aware of any event or any allegation, claim, demand, proceeding or other action, which it believes may give rise to a claim for indemnification under Clause 17.1 (an “Indemnified Claim”). 
    3. Buyer shall: 
      1. allow COMPANY sole authority to control the defence and settlement of any Indemnified Claim;
      2. provide COMPANY with all reasonable cooperation in the defence of such Indemnified Claim; and 
      3. not settle or compromise any Indemnified Claim or make any admission of liability without the express prior written consent of COMPANY.
    4. Notwithstanding Clause 17.1 or any provision of the Agreement to the contrary, COMPANY shall have no liability whatsoever to Buyer in respect of any IPR Claims based on or arising directly or indirectly as a result of: 
      1. Buyer exceeding the scope of any right, licence or consent to use the COMPANY Products under the Agreement; 
      2. any use of the COMPANY Products not in accordance with the Agreement; 
      3. a breach by Buyer or any third party of any of the restrictions outlined in Clause 12;  
      4. any use of the COMPANY Products in combination with other products, hardware, equipment, software or data not expressly authorised by COMPANY to be used with the COMPANY Products; or
      5. any modification of the COMPANY Products by any person other than COMPANY or its expressly authorised agents or any third party that performs any element of the services described in the Agreement for or on behalf of COMPANY.  
  16. CONFIDENTIAL INFORMATION
    1. In the Agreement, “Confidential Information” means any information that is clearly labelled or identified as confidential or ought reasonably to be treated as being confidential and includes the Buyer Data, COMPANY Technology, any screenshots of the operation of the COMPANY Products, any of COMPANY or its Affiliates’ or the COMPANY Products’ methodologies. 
    2. Confidential Information excludes any information which:
      1. is or becomes publicly known other than through a breach of the Agreement;
      2. was in the receiving Party’s lawful possession before the disclosure;
      3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
      4. is independently developed by the receiving Party and that independent development can be shown by written evidence; or
      5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    3. Each Party will hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party unless that third party is subject to an equivalent duty of confidentiality.  
    4. Neither Party will use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
    5. Each Party will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its Personnel in breach of the terms of the Agreement.
    6. This Clause 18 will survive termination of the Agreement.
  17. MARKETING
    1. Buyer acknowledges and agrees that COMPANY may include the Buyer’s name and a description of the technology and services provided to Buyer under the Agreement, in case study marketing content, lists of or references to any of COMPANY’s clients on its website and/or in proposals, and in other marketing materials.
    2. Buyer shall, within thirty (30) days from the Effective Date, provide a written testimonial to COMPANY.
  18. LIMITATION OF LIABILITY
    1. Nothing in the Agreement limits or excludes liability of Buyer to pay COMPANY any sums due under the Agreement.
    2. This Clause 20 sets out COMPANY’s entire financial liability (including any liability for the acts or omissions of its Personnel) to Buyer:
      1. arising under or in connection with the Agreement;
      2. in respect of any use made by Buyer of the COMPANY Technology, any services or any part of them; and
      3. in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
    3. Except as expressly and specifically provided in the Agreement, each Party disclaims all terms, warranties and conditions (whether express or implied) relating to the subject matter hereof (including, in respect of COMPANY, in relation to the COMPANY Technology, any services, their use and the results of such use).
    4. Nothing in the Agreement limits or excludes the liability of either Party for: 
      1. death or personal injury caused by its negligence; 
      2. fraud or fraudulent misrepresentation; 
      3. the indemnity under Clause 10.3; 
      4. the indemnity under Clause 15.6; or
      5. any other act, omission, or liability which may not be limited or excluded by applicable law.
    5. Subject to Clause 20.4, COMPANY shall not in any circumstances be liable to Buyer whether in contract, tort (including for negligence), breach of statutory duty (howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
      1. any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
      2. any loss or corruption of data or information (whether direct or indirect);
      3. any loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); 
      4. the Buyer’s failure to comply with any applicable law, regulation (including financial services regulation) or code of best practice as a result of, or in relation to, its use of the COMPANY Technology;
      5. any use of any Access Protocols by any third party; 
      6. any loss or liability (whether direct or indirect) resulting from a Fraudulent Event; 
      7. any loss or liability (whether direct or indirect) to the extent it arises directly or indirectly from a delay or failure caused by Buyer, its Authorised Personnel or a third party acting on behalf of Buyer; or
      8. any loss or liability (whether direct or indirect) under or in relation to any other contract.
    6. Subject to the remainder of this Clause 20, COMPANY’s total aggregate liability in each Contract Year (whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise) arising in connection with the performance or contemplated performance of the Agreement shall under no circumstances exceed £100,000.
  19. TERMINATION
    1. Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if the other Party:
      1. the other Party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so; 
      2. the other Party’s conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement; or
      3. becomes insolvent or unable to pay its debts (as defined in section 123 of the Insolvency Act 1986), proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets, suffers the presentation of any petition, the making of any order shall or the passing of any resolution for its winding up (except for the purposes of a bona fide solvent amalgamation or reconstruction), bankruptcy or dissolution, otherwise proposes or enters into any composition or arrangement with its creditors or any class of them, ceases to carry on business or claims the benefit of any statutory moratorium, or undergoes any similar or equivalent process in any jurisdiction.
    2. The Parties acknowledge and agree that failure by Buyer to pay any sums when due shall constitute a “material breach” for the purposes of Clause 21.1(a).
    3. Without affecting any other right or remedy available to it, Buyer shall have the right to terminate the Agreement pursuant to the “Fees and Payment Terms” section of the Commercial Form. 
  20. CONSEQUENCES OF TERMINATION
    1. On termination of the Agreement:
      1. notwithstanding Clause 3, Buyer shall promptly (and in any event within ten (10) Business Days of the date of termination) pay COMPANY any outstanding balances owing to COMPANY under the Agreement or relevant part thereof (including any Advanced Value); 
      2. COMPANY shall, subject to Clause 22.4 and with the exception of an amount equal to any Advanced Value, return an amount equivalent to the value of any remaining Buyer Float to Buyer within twenty (20) Business Days of the date of termination;
      3. any and all licences, permissions and authorisations granted to Buyer and/or its Authorised Users by COMPANY under the Agreement will terminate automatically; and
      4. each Party will on request of the other Party promptly return all Confidential Information received from the other Party, together with all copies, or certify in writing that all such Confidential Information and copies thereof have been destroyed.
    2. Any obligation to return, destroy or permanently erase Confidential Information outlined in Clause 22.1(d) shall not apply:
      1. in respect of Buyer Data that COMPANY may be entitled to retain pursuant to Clause 15.3;
      2. in respect of one (1) copy of Buyer Data, that COMPANY may be entitled to retain as necessary to comply with any legal, regulatory, judicial, audit, or internal compliance requirements; and
      3. to any Confidential Information or Buyer Data that is retained by COMPANY on electronic back-up media made in the ordinary course of business and from which it cannot readily be isolated from other information and deleted, provided that, in each case, the applicable provisions of the Agreement relating to data security and Confidential Information shall continue to apply to any such Confidential Information and/or Buyer Data. 
    3. Any provision of the Agreement that either expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect, including: Clause 1 (Interpretation), Clause 3 (Fees), Clause 11 (Ownership), Clause 12 (Restrictions), Clause 15 (Buyer Data), Clause 18 (Confidentiality), Clause 20 (Limitation of Liability), Clause 22 (Consequences of termination), Clause 23.2(a) (Non-solicitation) Clause 24.5 (Waiver), Clause 24.6 (Rights and remedies), Clause 24.7 (Severance), Clause 24.8 (Entire agreement), Clause 24.9 (No partnership or agency), Clause 24.10 (Rights of third parties), Clause 24.11 (Notices), Clause 24.13 (Governing law), and Clause 24.14 (Jurisdiction).
    4. COMPANY shall have the right to set-off the Buyer Float against any amounts due to COMPANY by Buyer that remain unpaid after the period of ten (10) Business Days set out in Clause 22.1(a) prior to returning any remaining Buyer Float to Buyer pursuant to Clause 22.1(b).
    5. In the event of termination of the Agreement other than by Buyer pursuant to Clause 21.1, Buyer shall not be entitled to a refund in respect of any Fees paid by Buyer to COMPANY in advance. 
    6. Termination of the Agreement shall not affect 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 Agreement which existed at or before the date of termination.
  21. NON-SOLICITATION
    1. In this Clause 23:
      1. Covered Customer” shall mean any entity that was a customer of COMPANY at any one point during the Term; and
      2. Covered Brand” shall mean a Brand that was making Digital Assets available for purchase via the COMPANY Products at any one point during the Term.
    2. Buyer shall not for the Term of the Agreement: 
      1. solicit or entice or attempt to solicit or entice away from COMPANY any Covered Customers; and
      2. solicit for business, engage in or do business with, a Covered Brand in respect of the purchase by Buyer of Digital Assets directly from the Covered Brand.
  22. GENERAL 
    1. Force Majeure. No Party will be in breach of the Agreement nor liable for any failure to perform its obligations under the Agreement if that failure results from circumstances beyond its reasonable control (for the purposes of this Clause 24.1, a “Force Majeure Event”). If a Force Majeure Event continues for three (3) or more months, the unaffected Party may terminate the Agreement by giving thirty (30) days’ written notice to the other Party.
    2. Subcontracting. COMPANY may engage any third party to perform its obligations under the Agreement, provided that COMPANY shall remain fully liable to Buyer for the performance of such obligations (subject to the exclusions and limitations outlined herein).
    3. Assignment. Buyer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement, without the prior written consent of COMPANY.
    4. Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
    5. Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    6. Rights and Remedies. The rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
    7. Severance. If any provision or part-provision of the Agreement shall be held to be invalid, illegal, void 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 24.7 shall not affect the validity and enforceability of the rest of the Agreement. If one Party gives notice to the other of the possibility that any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
    8. Entire agreement. The Agreement constitutes the entire agreement and understanding between the Parties relating to the matters contemplated by the Agreement and supersedes all previous agreements (if any and whether in writing or not) between the Parties in relation to such matters. The Parties acknowledge and agree that, except as otherwise expressly provided for in the Agreement, they are not entering into the Agreement on the basis of, and are not relying on and have not relied on, any statement, representation, warranty or other provision (in any case whether oral, written, expressed or implied) made, given, or agreed to by any person (whether a Party to the Agreement or not) in relation to the subject matter of the Agreement, provided that nothing in the Agreement shall exclude any Party from liability for fraud or fraudulent misrepresentation.
    9. No Partnership or Agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
    10. Rights of Third Parties. A person who is not a Party to the Agreement shall not be entitled to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
    11. Notices. Any notice required to be given under the Agreement will be in writing and will be sent to the email addresses for contractual notices set out in the Commercial Form. Notices will be deemed to have been received at the time of transmission as shown by the sender’s records (or if sent outside business hours, at 9am on the first Business Day following dispatch). A Party may change its details given on the Commercial Form by giving written notice to the other Party.
    12. Counterparts. The Agreement (or any part thereof requiring signed execution) may be signed in any number of counterparts and by the Parties on separate counterparts, each of which, when executed and delivered by a Party, shall be an original and such counterparts taken together shall constitute one and the same agreement. Electronic copies of signatures by the authorised representatives of the Parties (e.g., PDF scans) are enforceable just as though they were original wet-ink signatures.
    13. Governing law. The Agreement and all matters arising from it (including any dispute relating to the existence, validity or termination of the Agreement or any contractual or non-contractual obligation) shall be governed by, and construed in accordance with, the laws of England and Wales.
    14. Jurisdiction. In relation to any legal action or proceeding to enforce the Agreement or arising out of or in connection with the Agreement (including any dispute relating to the existence, validity or termination of the Agreement or any contractual or non-contractual obligation) (for the purposes of this Clause 24.14, “Proceedings”) each of the Parties irrevocably submits to the exclusive jurisdiction of the courts of England and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that the Proceedings have been brought in an inappropriate forum provided that a judgment or order of any court may be enforced in any court of competent jurisdiction.