The agreement is comprised of the following documents (collectively referred to as the Agreement unless expressly stated otherwise). If a conflict arises between any of the following documents, the following order of precedence shall apply:

·        the Order Form; and

·        these Terms and Conditions.

 

1                   Definitions and Interpretation

1.1                In this Agreement (save where the context otherwise requires) the following words shall have the following meanings:

 

Business Day:

means a day other than a Saturday, Sunday or bank or public holiday in Ireland or the United Kingdom;

Business Hours:

means the period from 9.00 am to 5.00 pm (local UK time) on any Business Day;

Commission:

means the fee payable by the Partner to the Service Provider for a Transaction, which shall be the amount equal to the Commission Rate multiplied by the Revenues for such Transaction divided by 100;

Commission Rate:

means, in respect of each Transaction, the rate (expressed as a percentage) set out in the Order Form;

Confidential Information:

means information in any form or medium whether disclosed orally or in writing before or after the date of this Agreement (together with any reproductions of such information) relating to the business affairs, personnel, finances, systems, processes, methods of operation, plans, products, developments, trade secrets, know how, customers or suppliers of a Party or any member of its group; Personal Data of the Parties and Users (if any); and the terms of this Agreement;

Contract Start Date:

has the meaning given to it in the Order Form;

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing, and appropriate technical and organisational measures:

has the meaning given to it in the Data Protection Laws;

Data Processing Details:

means the details of processing, including the list of Sub-processors, which is found in Schedule 1;

Data Protection Laws:

means

(a)  all applicable data protection and privacy legislation in force from time to time in the UK, including:

                              i) the retained EU law version of the General Data Protection Regulations (EU 2016/679 (UK GDPR);

                             ii)  the Data Protection Act 2018 and regulations made thereunder;

                            iii) Privacy and Electronic Communications Regulations (SI 2003/2426) as amended; and

(b)  in member states of the European Union the General Data Protection Regulation (EU 2016/679) (EU GDPR) and the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and all relevant member state laws or regulations giving effect to or corresponding with any of them; and

(c)  any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority;

Extended Period:

has the meaning given to it in clause 7.3;

Fees:

means (i) any Promotion Fees, and (ii) any Commission, in each case as set out in the Order Form;

Initial Period:

has the meaning given to it in the Order Form;

Notice Period:

has the meaning given to it in the Order Form;

Offer Link:

means the URL which provides a hyperlink directly to the pages of the Partner’s Website, as set out in the Order Form, and any replacement URLs agreed between the Service Provider by the Partner in writing from time to time;

Offer Page:

means the offer page created by the Service Provider as part of the Services, approved by the Partner and hosted on the Service Provider’s Website, which displays the Offer Link and any applicable Redemption Method;

Order Form:

means the Order Form setting out the Partner’s order for Services, as agreed between, and signed by, the Parties;

Payment Period:

has the meaning given to it in the Order Form;

Quarter:

means a period of three consecutive months, the first Quarter beginning on the Contract Start Date (unless otherwise agreed between the parties in writing);

Partner’s Website:

means those Partner’s sites, the details of which are set out in the Order Form, and any future version or replacement of these sites;

Promotion:

means the promotion which is part of the Services;

Promotion Fees:

means the promotion fees payable by the Partner to the Service Provider and which are set out in the Order Form;

Redemption Method:

means any of QR code, discount code, email address, call-back form or other redemption method relating to the Partner’s offers and discounts, as agreed between the Parties;

Relevant Requirements:

means all applicable laws, statutes, and regulations relating to (i) anti-slavery and human trafficking, including the Modern Slavery Act 2015; and (ii) anti-bribery and anti-corruption, including the Bribery Act 2010;

Revenues:

means in respect of each Transaction, the revenues received by the Partner from the Users, inclusive of any VAT and any other tax;

Service Provider’s Website(s):

means the Service Provider’s site dedicated to the provision of the Services, and any future version or replacement of this site;

Services:

means the services set out in the Order Form;

Statement:

means the statement to be provided by the Partner in accordance with clause 3.4;

Sub-processor:

means each of the sub processors set out in the Data Processing Details and any additional or replacement sub processors appointed in accordance with this Agreement;

Term:

means the Initial Period and any Extended Period;

Transaction:

means a contract or a purchase of any products or services offered for sale on the Partner’s Website, which has been entered into by a User who has either (i) clicked through directly to the Partner’s Website from the Offer Page; or (ii) used a Redemption Method; and

User:

means a person or user who has entered into a Transaction.

1.2                In this Agreement (except where the context otherwise requires):

1.2.1             any reference to a clause, sub-clause, appendix, schedule or party is to a clause, sub-clause, appendix, schedule of or party to this Agreement;

1.2.2             headings are included for convenience only and do not affect the interpretation of this Agreement;

1.2.3             use of the singular includes the plural and vice versa;

1.2.4             use of any gender includes the other genders;

1.2.5             any reference to a person includes natural persons, firms, partnerships, companies, corporations, associations, and organisations;

1.2.6             any reference to a person includes that person’s legal personal representatives, successors, and assignees;

1.2.7             subsidiary and holding company have the meanings given to them by section 1159 Companies Act 2006;

1.2.8             all references to a statute shall be construed as including references to:

(a)                any statutory modification, consolidation or re-enactment (whether before or after the date of this Agreement) for the time being in force;

(b)                all statutory instruments or orders made pursuant to that statute;

(c)                any statutory provisions of which it is a consolidation, re-enactment or modification;

1.2.9             any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression is illustrative only and does not limit the sense of the words preceding those terms.

2                   Services

2.1                The Service Provider agrees, in exchange for the payment of Promotion Fees, to (i) create an Offer Page displaying the Offer Link and Redemption Method, and (ii) to promote such Offer Page on the Service Provider’s Website pages in accordance with the Order Form. Where Users enter into Transactions, the Partner shall, if agreed in the Order Form, pay a Commission to the Service Provider on those Transactions.

2.2                The Service Provider shall perform the Services and the Partner shall pay the Promotion Fees and Commission (as applicable), each as set out in the Order Form and in accordance with this Agreement.

2.3                The Service Provider will provide the Services in accordance with a time schedule to be agreed in writing between the Parties.

2.4                Subject to the Service Provider performing the Services in accordance with good industry practice, the Service Provider shall be entitled to provide the Services in the manner of its choosing.

2.5                The Partner shall ensure that, throughout the Term, Users receive offers and discounts which exceed publicly available offers and discounts in terms of value received. 

2.6                The Service Provider does not guarantee that any Transactions or other contracts will be concluded between the Users and the Partner. The Service Provider is not liable for Users’ solvency or their contractual conduct in relation to the Transactions (if any).

2.7                Nothing shall prevent the Service Provider from entering into discussions or agreements during the Term to provide services to any third party which are similar to the Services.

2.8                The Service Provider shall have no authority, and shall not hold itself out, as being authorised to negotiate or conclude contracts on behalf of the Partner, or otherwise bind the Partner or act as its agent in any way, and shall not do any act which might reasonably create the impression that the Service Provider is so authorised.

3                   Fees, statement and Payment

3.1                The Partner shall pay all invoices for the Fees within the Payment Period.

3.2                The Promotion Fees shall be paid by the Partner either at the date of signature of this Agreement or at the end of each Quarter, as agreed in the Order Form.

3.3                Where the Order Form provides for the payment of a Commission with regards to Transactions, clauses 3.4 to 3.5 shall apply.

3.4                The Partner shall provide a statement (the Statement) to the Service Provider promptly and within 5 Business Days of the end of each month (or Quarter, or other time period, as agreed in the Order Form) which shall include the total number and value of the Transactions and the calculation of the Commission due to the Service Provider in relation to such month (or Quarter, or other time period, as applicable).

3.5                The Service Provider shall review the Statement and shall invoice the Partner for the Commission set out therein, unless the Service Provider disputes the content of the Statement, in which event the Service Provider shall invoice the Partner for the undisputed element of the Commission and give the Partner a separate statement setting out the Service Provider’s calculation of the Commission payable in respect of the previous month (or Quarter, or other time period, as applicable).  The Parties shall cooperate in good faith to resolve the dispute over the invoice promptly.

3.6                All Fees shall be payable to the Service Provider in the currency specified in the Order Form.

3.7                Unless otherwise specified in this Agreement, all sums payable under this Agreement are exclusive of value added tax or other applicable sales tax, which shall be for the account of the payor and added to the sum in question.

3.8                If the Partner fails to make any payment due to the Service Provider under this Agreement by the due date for payment, then, without limiting the Service Provider’s remedies under this Agreement, the Service Provider shall have the right to:

3.8.1             charge interest on the overdue amount at the rate of 2 per cent per annum above the then current Bank of England base rate accruing on a daily basis, from the due date for payment until the date of actual payment of the overdue amount, whether before or after judgment; and

3.8.2             suspend provision of the Services in whole or in part, including removing the Offer Page (including the Offer Link) from the Service Provider’s Website, until payment has been made.

3.9                Suspension of the Services in accordance with clause 3.8.2 does not constitute a breach of this Agreement by the Service Provider, and the Fees shall continue to accrue unless or until the effective date of termination in accordance with this Agreement.

3.10              The Partner shall keep separate accounts and records giving correct and adequate details to support the Statement.   The Partner shall permit the duly appointed representatives of the Service Provider at all reasonable times to inspect all such accounts and records and to take copies of them. For the avoidance of doubt, all rights in such records shall belong to the Partner.

4                   Obligations of the Partner

4.1                The Partner shall at all times act in good faith towards the Service Provider.

4.2                The Partner undertakes that the Offer Link on the Offer Page will link directly to the Partner’s Website.

4.3                The Partner agrees to provide to prospective Users (clicking through directly from the Offer Link displayed on the Offer Page) access to and use of the Partner’s Website in accordance with the Partner’s standard terms and conditions and privacy policy from time to time, and to apply any Discounts set out in the Order Form to any Transactions made by Users.

4.4                The Partner grants the Service Provider a non-exclusive, royalty free, non-transferable licence for the duration of the Term, for the purposes of the provision of the Services to display on the Service Provider’s Website the Partner’s name, logos, banners and other Partner content as agreed between the Parties.

4.5                The Partner authorizes the Service Provider to display the Offer Link on the Offer Page.

4.6                The Partner agrees to be responsible to the Users for (i) the content of any offers displayed on the Offer Page; (ii) any Discounts; and (iii) all liability arising out of the provision of the Partner’s services to the Users.

5                   Confidentiality 

5.1                Each Party shall treat the Confidential Information of the other Party as confidential and not disclose or use it other than for the purposes of this Agreement or as required by law.

5.2                The foregoing provision shall not prevent the disclosure or use by either Party of Confidential Information (i) to its employees, subcontractors or professional advisers who need to know such information for the purposes of this Agreement, provided they are subject to equivalent obligations of confidentiality to those contained in this clause; (ii) which was in the lawful possession of the receiving Party prior to disclosure under this Agreement, which is or becomes public knowledge other than by breach of this clause, or is independently developed; or (iii) if required to do so by law or by any public, governmental, supervisory or regulatory authority or by any legally binding order of any court or tribunal.

5.3                On termination or expiry of this Agreement, each Party shall (unless required otherwise by law or a regulatory authority) destroy or return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on Confidential Information.

5.4                This clause 5 shall survive termination of this Agreement.

6                   Data Protection

6.1                Both Parties acknowledge and agree that they will, at all times during the Term of this Agreement, comply with all applicable requirements of the Data Protection Laws in relation to the performance of their obligations under this Agreement.

6.2                The Parties agree not to share or transfer any Personal Data, save as provided in clauses 6.3 and 6.4.

6.3                Where a User uses a call-back form set out on the Offer Page as a Redemption Method, the provisions of Schedule 1 shall apply, and the Parties agree that the Partner is the Controller and the Service Provider is the Processor with regards to any transfer of Personal Data.

6.4                Where the Service Provider processes the contact details of the Partner’s representatives in connection with the administration of this Agreement and the Services, it does so as a Controller.

6.5                Without prejudice to the generality of clause 6.1, the Partner will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data for the duration and purposes of this Agreement.

7                   Term and Termination

7.1                This Agreement shall start on the Contract Start Date.  Unless terminated earlier in accordance with its terms, this Agreement shall continue for the Initial Period, subject to in accordance with the provisions of clauses 7.2 and 7.3.

7.2                In respect of each Promotion, this Agreement shall continue for as long as that Promotion remains to be performed.

7.3                Where the Order Form provides for a Commission to be paid for Transactions, such Commission shall be payable and this Agreement shall continue for the duration of the relevant Initial Period. Upon the expiry of the relevant Initial Period, such Initial Period shall automatically extend (and Commission shall be payable) for successive periods of one month (each an Extended Period), provided that:

7.3.1             the Service Provider shall be entitled to review the Fees applying during the Extended Period, by giving to the Partner prior written notice not less than one month prior to the end of the Initial Period or the end of any preceding Extended Period (as the case may be); and

7.3.2             either Party may terminate the Agreement on giving prior written notice to the other Party which shall be not less than the Notice Period and which shall coincide with the end of the Initial Period or the end of the immediately preceding Extended Period (as the case may be).

7.4                The Service Provider may give written notice of not less than the Notice Period to the Partner to terminate this Agreement at any time, provided that it shall reimburse to the Partner the portion of the Promotion Fees which relates to the remainder of the Initial Period (or Extended Period, as the case may be) from the date of termination.

7.5                Without limiting its other rights or remedies, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:

7.5.1             the other Party commits a material breach of this Agreement (which shall include, for the avoidance of doubt, failure by the Partner to pay amounts due on the payment due date) and fails to remedy that breach (if capable of remedy) within 30 days of receipt of a notice requiring to do so; or

7.5.2             the other Party ceases, or threatens to cease, to carry on all or substantially the whole of its business, goes into liquidation or becomes bankrupt or makes any arrangement or composition with its creditors, or takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

8                   Consequences of Termination

8.1                Other than as set out in this Agreement, neither Party shall have any further obligation to the other under this Agreement after its termination.

8.2                Termination of this Agreement, howsoever arising, shall not affect:

8.2.1             the continuation in force of clause 3 and the Partner’s obligation to pay the Fees to the Service Provider in accordance with it; and

8.2.2             the accrued rights, remedies, obligations or liabilities of the Parties existing at termination.

8.3                Any provision of this Agreement which expressly or by implication is intended to continue in force on or after termination of this Agreement shall remain in full force and effect.

9                   Liability

9.1                Nothing in this Agreement shall limit or exclude either Party’s liability for:

9.1.1             death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

9.1.2             fraud or fraudulent misrepresentation; or

9.1.3             any other liability which cannot be excluded or limited by applicable law.

9.2                Subject to clause 9.1 neither Party shall in any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, for:

9.2.1             loss of profit, loss of enjoyment, depletion of goodwill, loss of anticipated savings, loss of goods, loss of contract, in each case whether direct, indirect or consequential; or

9.2.2             any indirect or consequential loss;

arising under or in connection with this Agreement.  

9.3                Subject to clauses 9.1 and 9.2, each Party’s aggregate liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall in no circumstances exceed the amount of Fees paid or payable by the Partner to the Service Provider in the prior twelve (12) months under this Agreement.

10                 force majeure

10.1              Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure to perform results from events, circumstances or causes beyond its reasonable control (save that no such events affecting the Partner shall excuse failure or delay in making any payment due under this Agreement). The time for performance shall be extended accordingly.

10.2              If the period of delay or non-performance continues for a period of 90 days, the Party not affected may terminate this Agreement by no less than 30 days written notice to the affected Party. 

11                 Audit

11.1              In addition to its obligations under clause 3.10, the Partner shall maintain true, correct, and identifiable records and accounts of all business and transactions effected pursuant to this Agreement, including any Transactions.  The Service Provider shall have the right up to once in any 12-month period, on ten (10) Business Days’ prior written notice to the Partner, during normal Business Hours, at the Partner’s cost, to audit the premises, books and records of the Partner to verify the Partner’s compliance with the provisions of this Agreement. 

11.2              The Service Provider’s internal audit department or its external auditors or any combination thereof may conduct or assist in any such audit. The Partner shall provide such assistance as the Service Provider may reasonably require in respect of such audit.

12                 General

12.1              Each Party shall comply with all applicable laws, including the Relevant Requirements.

12.2              The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. The rights and remedies provided by this Agreement are cumulative and (subject as otherwise provided) are not exclusive of any rights or remedies provided by law.

12.3              Except as set out in this Agreement, all warranties, clauses and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

12.4              Nothing in this Agreement shall be construed as establishing or implying any partnership, joint venture, or any relationship of employment or of principal and agent between the Parties, and neither Party shall, without the prior consent of the other Party, hold itself as in any way authorised to bind the other Party.

12.5              The Partner shall not assign or transfer any of its rights or obligations under this Agreement without the Service Provider’s prior written consent, which shall not be unreasonably withheld or delayed. The Service Provider shall be entitled to assign or transfer absolutely or by way of security (and in whole or in part), its rights or obligations hereunder. Notwithstanding any such assignment, the Service Provider shall remain liable for all its obligations hereunder.

12.6              No variation of this Agreement shall be valid unless made in writing and signed by an authorised representative on behalf of each of the Parties.

12.7              If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.

12.8              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 this Agreement.

12.9              The Service Provider reserves the right to make updates to these Terms and Conditions from time to time. If the Service Provider does so, it will notify the Partner by revising the date and the version number at the top of the Terms and Conditions and, in some cases, the Service Provider may provide the Partner with additional notice. Any such changes will not apply to any dispute between the Parties arising prior to the date on which the Service Provider posted the revised Terms and Conditions incorporating such changes, or when the Terms and Conditions otherwise become effective. The Partner is encouraged to look at the Terms and Conditions regularly.

12.10            If the Partner has any concerns regarding the updates made to the Terms and Conditions, the Partner can write to the Service Provider ([email protected]), within 30 days of the date that the updated Terms and Conditions were uploaded to the website, with a request that such updated Terms and Conditions shall not apply to the Services covered by an Order Form. If the Service Provider does not receive any communication from the Partner within the 30-day period, the Partner’s continued use of the Services after such update shall be deemed to constitute acceptance of the updated Terms and Conditions.

12.11            The Unfair Contract Terms Act 1977 prevents the Service Provider from making unreasonable updates to these Terms and Conditions and as such any updates the Service Provider does make to these Terms and Conditions shall not materially diminish the Partner’s existing rights and remedies available under the Terms and Conditions.

13                 Entire Agreement

13.1              This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement.

14                 Notices

14.1              Any notice given under or pursuant to this Agreement shall be in writing and (i) delivered by hand or sent by pre-paid first class post or other next working day delivery service to the address set out at the head of this Agreement for the attention of the Chief Executive (or as otherwise notified by that Party in accordance with this clause 14) or (ii) sent by email to the addresses set out in the Order Form (or an address substituted in writing by the Party to be served).

14.2              Any such notice shall be deemed to have been received:

14.2.1           if delivered by hand, at the time the notice is left at the proper address; and

14.2.2           if sent by pre-paid first-class post or other next working day delivery service, on the second Business Day after posting; and

14.2.3           if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

15                 Counterparts

15.1              This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute one agreement.

15.2              Transmission of an executed counterpart of this Agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Agreement. 

16                 Governing Law and Jurisdiction

16.1              This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales, and the Parties irrevocably submit to the exclusive jurisdiction of the English courts in respect of any such dispute or claim.