Customer Terms and Conditions
The Give Shop Limited
Company number 14066461
(Effective from July 2022)
IT IS AGREED:
- APPLICATION OF T&Cs
These Terms and Conditions (Customer T&Cs) govern the agreement between us and you as the ‘Customer’. These T&Cs do not apply to our agreement with Sponsors or Organisations, rather those agreements are governed by our separate terms and conditions.
2. DEFINITIONS ETC.
2.1 Unless the context otherwise requires, the following definitions apply in these T&Cs and any other document forming part of this Agreement:
Account means your account created through our App and/or Website with us and, where the context permits, includes any third party account that we accept is an ‘Account’ for the purposes of this Agreement.
Agreement is defined in clause 2.2.
App means a software application made available by us from time to time for use on an electronic device (such as a mobile phone, tablet or website application) which allows you to have access to information in respect of Sponsors and pursuant to which you can designate which Organisations you would like to nominate to receive Contributions, amongst other things.
Business Day means a day which is not a Sunday, Saturday, public holiday or bank holiday in London, England or in the relevant city where our principal place of business of our Related Entity is if you signed up with our Related Entity.
Contribution means, in respect of an Eligible Purchase, the sum that is payable to the Nominated Organisation in accordance with this Agreement and the Organisation Agreement, which is generally equal to the Contribution % multiplied by the Price.
Contribution % means, in respect of the Eligible Purchase, the percentage determined in accordance with the relevant Sponsor Agreement, which (when applied to the Price) will calculate the Contribution to be made in respect of the Eligible Purchase.
Electronic Direct Marketing (EDM) means electronic direct marketing initiatives (which may be commercial or non-commercial) that we undertake from time to time, which may include email, in-App or other electronic send-outs or notifications (including push notifications) to you, other users of our App and persons on our mailing/marketing lists.
Eligible Payment Method or Eligible Payment Card means any Visa, MasterCard or American Express credit or debit card in your individual name and which is eligible to become a Linked Card as determined by us and our Service Providers from time to time, which is specified by you in the App at as your ‘Linked Card’ at the time of making the Eligible Purchase.
Eligible Purchase means the relevant personal purchase of goods, services or other products by you that satisfies all of the following at the time of the purchase:
(a) you have a current Account with us and this Agreement has not been terminated;
(b) the purchase was from a Sponsor and we have a Sponsor Agreement in place that covers the purchase, and the purchase meets the requirements of any offer from the Sponsor
(c) if the Sponsor is an Exclusive Sponsor, your Nominated Organisation is one of the Organisations also nominated by that Exclusive Sponsor to receive contributions;
(d) you made payment for the purchase via an Eligible Payment Method specified in your Account at the time of the purchase.
Exclusive Sponsor means a Sponsor that has designated itself to be an ‘Exclusive Sponsor’ (and is treated as such) in accordance with the Sponsor Agreement at the time of the Eligible Purchase, which refers to a Sponsor who can chose to limit the Organisations that may receive contributions from purchases of the Sponsor’s goods, services and other products, which may be displayed under the ‘Your Exclusive Sponsors’ section in the App.
Intellectual Property Rights means all present and future intellectual property rights of any nature, anywhere in the world, including:
(a) any patents, designs, trade marks (whether registered or common law trade marks), copyright or trade secrets; and
(b) any invention, discovery, trade secret, secret process, know how, computer software or confidential, scientific, technical or product information,
and any right to use (or otherwise exploit), or to grant the use of, or to be the registered owner or user of, any of them.
Intermediary means any other business (such as a marketing or referral business) that acts an intermediary between us and the relevant Sponsor and who may enter into agreements with us from time to time on behalf of the Sponsor or in respect of purchases from a Sponsor.
Linked Card means an Eligible Payment Card that meets the requirements of this agreement and that you nominated pursuant to this agreement for use in connection with participation with purchases from Organisations.
Nominated Organisation means the relevant Organisation you nominate to receive contributions via the App (or by another means permitted by us in writing) that is current at the time of making an Eligible Purchase (if any).
Organisation means an organisation (which may be a club, charity, charitable trust, not-for-profit or any other organisation or person) who we have an agreement with (or that we otherwise make contributions to from time to time) in respect of purchases of goods, services or other products with Sponsors by customers who have our App.
Organisation Agreement means our agreement(s) with the relevant Nominated Organisation.
Our Policies means our standard practices that apply to the use of the App and our services, as amended from time to time.
Payment Card Network means a network participating in our App for the purposes or processing payments, which may include Visa, MasterCard and American Express.
Price means the total amount paid or payable by you to a Sponsor with respect to an Eligible Purchase (inclusive of any VAT the Sponsor may charge, unless we determine otherwise).
Promotion means a short-term offer, promotion or advertisement made by us to you (whether via the App or otherwise) in respect of a Sponsor or Organisation that have agreed to advertise in accordance with these T&Cs.
Service Provider means a person retained by us to act on our behalf to provide, or to assist us in providing, the App and our services, including each Payment Card Network and Fidel Limited (Fidel).
Sponsor means the relevant person who has an agreement with us (including via an Intermediary) to provide Marketing Services for their benefit and pursuant to which they (or an Intermediary on their behalf) have agreed to make contributions to us for payment to Organisations.
Sponsor Agreement means our agreement(s) with the relevant Sponsor (or Intermediary) who paid us the monies in respect of the Contribution.
Sponsor Fees means the fees we receive from the Sponsor (or an Intermediary) for the Marketing Services we provide to the Sponsor in accordance with the Sponsor Agreement.
VAT means value added tax.
we, us and our means The Give Shop Limited (company number 14066461) or its related entity nominated from time to time (each a Related Entity).
Website means www.giveshop.co.uk or such other website hosted by us for the purposes of these T&Cs.
you and your means you, the person who has created an Account with us (whether via the App or otherwise) (including the person whose details are specified as the holder of the Account in the App). If there is more than one such person, it means each of them separately and every two or more of them jointly.
2.2 Documents comprising this Agreement
2.3 When you are bound by this Agreement
You will be bound by this Agreement as soon as you sign up to create an Account with us to view or use the App. Your access and use of the App constitutes your agreement to be bound by these T&Cs and the Agreement, which establishes a contract between you and us. If you do not agree to these T&Cs, you must not access or use the App or any of our other services. Notwithstanding clause 2.2, we are not bound to perform any obligations imposed on us under this Agreement until we accept your Account in writing or otherwise confirm in writing that we are bound by this Agreement. If we start acting under these T&Cs without you agreeing to these T&Cs, you will still be obliged to perform your obligations under these T&Cs.
3. ONBOARDING & TERM
This Agreement will continue until it is terminated in accordance with these T&Cs.
3.2 Conditions Precedent and Onboarding Process
(a) We are not required to grant you access to the App or our services or pay any contributions in respect of your purchases with a Sponsor unless you have satisfied the following conditions (Conditions Precedent):
(i) you have provided us with your contact details (including your name, email address, location and any other information the App indicates are mandatory information) and any other information stated in the App;
(ii) you have completed the account creation process via the App, including you receiving a confirmation email that your Account has been created and you entering any verification or other codes sent to your email in the App to activate your Account;
(iii) you have provided details of your Eligible Payment Method in the manner provided for in the App;
(iv)if required by the App, you have specified the Organisations that you would like to receive contributions with respect of your purchases with Sponsors; and
(v) if requested, you have provided us with any other information or documentation that we require in connection with your use of the App or your dealings with us.
(b) We may choose to notify you of whether you have satisfied the Conditions Precedent or not, but any failure for us to notify you that you have satisfied the Conditions Precedent should not be taken as an admission that you have satisfied the Conditions Precedent.
(c) If you have not satisfied the Conditions Precedent within 60 days of the date you have downloaded the App, then we may immediately terminate this Agreement by notice in writing.
4. HOW OUR BUSINESS WORKS
4.1 Which Organisation will receive a Contribution
(a) The way our business and the App works is that you, as the user of the App and the one making the purchase, have the power to determine which Organisation receives the contribution in respect of your purchase from a Sponsor. You do this by specifying your Nominated Organisation via the App (or in another manner acceptable to us), which at the date of these T&Cs is referred to as your ‘default’ organisation. You may update your Nominated Organisation from time to time via the App.
(b) Generally, the Contribution will be paid to your Nominated Organisation that you have selected at the time you make the Eligible Purchase, as that is when our systems match your payment details with the payment to the Sponsor and when our system checks the App to see who your Nominated Organisation is.
(c) However, if you have recently changed your Nominated Organisations and there are delays in the processing of the payment or a failure in our systems, then there could be circumstances where the Contribution is credited to the Organisation you nominated shortly prior to or after the time of the Eligible Purchase. While we will use our best endeavours to ensure this does not occur, you acknowledge that these errors may occur from time to time and that we are not liable to you in respect of any claims for such errors.
(d) If, at the time of an Eligible Purchase, you have not specified the Organisation that is to receive your contributions or you have nominated us to determine which organisation is to receive contributions, then:
(i) we will determine, in our discretion and from time to time, which organisation receives the Contribution in respect of your Eligible Purchase, which may depend on any statements we have made to the public or you in respect of a period (but we are not bound by any such statements to the extent the law permits); and
(ii) the organisation that we determine under paragraph (i) above will be considered the ‘Nominated Organisation’ in respect of that Eligible Purchase for the purposes of this Agreement and we will pay the Contribution to them in accordance with our agreement with them.
(e) Despite the above, we allow Sponsors to decide whether they are an Exclusive Sponsor (which refers to a Sponsor who gets to choose the Organisations that it wants contributions to be paid to), so if you make a purchase with an Exclusive Sponsor and your Nominated Organisation is not one of the Organisations that the Exclusive Sponsor has also nominated to receive contributions, then your purchase will not be an Eligible Purchase.
(f) While we have endeavoured to design the App on the basis that the App will only display non-Exclusive Sponsors and Exclusive Sponsors whose chosen Organisations include your Nominated Organisation (so that you know when a purchase will be an Eligible Purchase and contribution will be paid to your Nominated Organisation), there may be circumstances where Exclusive Sponsors are displayed in the App and your Nominated Organisation is not one of the Organisations they have selected to receive contributions (including where you have recently changed your Nominated Organisation and the App has not updated to reflect that change or due to failures in our systems). To the extent the law permits, you release us, any Service Provider (including Fidel) and any Payment Card Network, from any liability for allowing Sponsors to be displayed in the App where your purchase with them does not lead to a contribution being paid to your Nominated Organisation.
4.2 How the amount of the Contribution is calculated
(a) The amount of any Contribution that we may make in respect of your Eligible Purchase will be calculated in accordance with the Sponsor Agreement, which will generally be determined by multiplying the Contribution % to the Price. We will reasonably determine the precise amount of the Contribution (including by reference to what aspects of the Price include VAT). For example, generally for an Eligible Purchase where the Price is £100 (including VAT) and the Sponsor’s Contribution % is 6% at the time, then the Contribution will be £6.00 (plus any applicable VAT). Sponsors are entitled generally to change their Contribution % by notice to us from time to time.
(b) The Contribution % will generally be the % displayed in the App in respect of the relevant Sponsor (which at the date of these T&Cs is generally the ‘Sponsorship %’ displayed in the App or any replacement term used in the App). However, , for the avoidance of doubt, the Contribution % but does not include any discount %, rather that % relates to any discounts the Sponsor may choose to provide you for purchasing the Sponsor’s products if your purchase with them is an Eligible Purchase). We endeavour to ensure that the relevant percentage specified in the App equals the Contribution % that we are legally entitled to charge the Sponsor under the Sponsor Agreement. However, if our Sponsor Agreement provides for a different Contribution % to that displayed in the App, the Contribution % provided for in the Sponsor Agreement will determine the amount of any Contribution to be paid based on the Price.
4.3 When Contributions are paid
(a) We only pay a Contribution to the Nominated Organisation if we receive payment from the Sponsor of the corresponding amount plus the other fees we charge to the relevant Sponsor. That is, we do not guarantee that the Contribution will be paid to the Nominated Organisation if we are not paid by the Sponsor.
(b) We will pay the Contribution to the Nominated Organisation in accordance with our agreement with the relevant Nominated Organisation, which generally provide for payment to be made within 15 days of the end of the month in which we receive the corresponding payment from the Sponsor.
4.4 Purchases from Sponsors
(a) As we are merely a technology service provider, you acknowledge that the Sponsor is solely responsible for all transactions with you, including in respect of the quality and Price of any products you have purchased and managing any disputes with you (including in respect of any refunds).
(b) We are not in any way liable for any claims made by you in connection with any Eligible Purchase (or any other purchase of products from a Sponsor) or any failure on the Sponsor’s part to adhere to any agreement with you or any applicable laws (such as consumer guarantees).
(c) A purchase made by you will not be considered an ‘Eligible Purchase’ if it is not a retail purchase, and any cash withdrawal, cash advance, card check transaction, instant loan or similar transaction will not be considered an ‘Eligible Purchase’.
(d) You agree not to raise any claims against us, any Service Provider nor any Payment Card Network, nor seek to make us, any Service Provider or any Payment Card Network liable in connection with any dispute that you have with a Sponsor in respect of any purchase you have made with them.
4.5 Payment methods
(a) At the time these T&Cs were adopted, our systems may only be able to match purchases you have made with Sponsors by reference to any Visa or Mastercard details you have expressly notified to us via the relevant part of the App for that purpose (which is referred to as the ‘Eligible Payment Method’ in these T&Cs and, at the date these T&Cs were adopted, is under the ‘Linked Cards’ part of the App).
(b) If you make a purchase with a Sponsor via a means other than the Eligible Payment Method, then no contributions will be made in respect of your purchase with the Sponsor. That is because we can only match your purchases with the Eligible Payment Method of our Sponsors where you have made the purchase with the approved Eligible Payment Method advised to us via the App at the time of the purchase.
(c) Please note that we do not process payments in respect of Eligible Purchases (or any other purchase you make with a Sponsor), rather any payments for the goods, services or other products of a Sponsor will be processed by (or on behalf of) the Sponsor. Despite the Sponsor facilitating payment in respect of any purchases you make with them, we require details of your Eligible Payment Methods so that we can match your purchases with the Sponsor to determine whether an Eligible Purchase has occurred and to link any Eligible Purchase you have made to your Nominated Organisation to facilitate the payment of a Contribution to them in respect of your Eligible Purchase.
(d) We will keep the details of your Eligible Payment Methods confidential and will only disclose them to the extent required to give effect to this Agreement, to our Service Providers, our Organisation Agreements, Sponsor Agreements or as otherwise required by law. You may delete details of your Eligible Payment Methods via the App, but such deletion should not be taken as an agreement on our part to permanently erase such Eligible Payment Methods (unless you specifically request this in writing and we confirm same), as we may require details of your Eligible Payment Methods to verify Eligible Purchases you have made in the past or assist in resolving any dispute with you, Sponsors or Organisations. However, if you want to opt out of transaction monitoring on your cards, then please notify us in writing and we will do so where required by law or any schemes relating to transaction monitoring by which we are bound.
(e) We currently use Fidel and the Payment Card Networks (including Visa, Mastercard, and American Express) to monitor card transactions for your participation in our program and App. Your agreement to the various Terms & Conditions (T&Cs) authorises Fidel and the Payment Card Network to monitor the transactions made with your registered Linked Card at participating merchants and Sponsors to confirm Eligible Purchases. The data collected from Fidel includes your registered card identifier, merchant/Sponsor’s location, transaction date/time and amount.
(f) By registering a payment card in connection with transaction monitoring (including by specifying a Linked Card via the App), you authorise us to share your payment card information with Payment Card Networks (including Visa, Mastercard and American Express) so they know you have enrolled. You authorise the Payment Card Networks to monitor transactions on your Linked Card(s) to identify Eligible Purchases in order to determine whether you have qualified for or earned an offer on your Linked Card, and for Payment Card Networks to share such transaction details with us and participating merchants/Sponsors to ascertain whether an Eligible Purchase has been made and to enable your Linked Card offer(s) and provide offers that may be of interest to you. You may opt-out of transaction monitoring on the Linked Card(s) you have registered by navigating to your settings menu to remove your Linked Card(s)
(g) We may in our sole discretion, remove any Linked Card or refuse any request of a Linked Card, if you attempt to link a card that falls outside the Eligible Payment Method, including but not limited to prepaid cards of any kind whether or not they are processed via Visa or Mastercard.
(h) We are not under any obligation to determine the eligibility of any card prior to you making a link request pursuant to this agreement or via the App, and we and the Service Providers shall have the right to remove any such card from eligibility at any time and for any reason. Not all Visa, MasterCard, and American Express cards are eligible for registration as a Linked Card (including PIN based purchases on debit cards. Debit transactions should be put through as a credit and/or authorised). Visa, MasterCard, and American Express corporate cards, Visa, MasterCard, and American Express purchasing cards, non-reloadable prepaid cards, government-administered prepaid cards (including EBT cards), healthcare (including Health Savings Account (HSA) or Flexible Spending Account (FSA) or insurance prepaid cards, Visa Buxx, and Visa-, MasterCard-, and American Express- branded cards whose transactions are not processed through the Visa payment system, MasterCard payment system, and/or American Express payment system are not Eligible Payment Methods.
As part of our operations, we may provide you with reports or notifications from time to time (whether via the App, by email or otherwise) advising you of matters such as the details of your Eligible Purchases and the Contributions that have been made in respect of your Eligible Purchases, the Sponsors who funded those Contributions and other matters. In this regard:
(a) despite any indications in such reports or notifications, each Contribution will be paid to the Nominated Organisation in accordance with the Organisation Agreement with them (so payment may not have been made at the time you receive the report or notification); and
(b) if you have any queries or concerns with any reports or notifications sent to you by us, please contact us via our Website.
4.7 The Leaderboard on the App
(a) By signing up to the App, you agree to be featured on the ‘Leaderboard’ which will be used to keep track of and display a ranking of the users of the App and the contributions made in respect of their purchases with our Sponsors. The Leaderboard rankings may be based on each Organisation or otherwise.
(b) The Leaderboard will display maters such as your display name (which may vary from your legal name), the Contributions made to Organisations in respect of your Eligible Purchases and other matters determined in our discretion.
(c) You expressly consent for your name, profile picture, details of Contributions (including the amount of Contribution for each Organisation and the total Contributions made on your behalf for all Organisations) to appear on the App and on the Website for marketing purposes, including by displaying such matters on the ‘Leaderboard’ on the App and our Website.
(d) For the avoidance of doubt, the Leaderboard will not display which Sponsor you made Eligible Purchases from, instead the Leaderboard will only specify the amount of the Contributions made to each Organisation on your behalf or an anonymised transaction value).
(a) By creating an Account, you agree that we (or our affiliates) may send you EDMs as part of the normal business operation of your use of the App.
(b) You agree that neither us nor our affiliates are required to include an unsubscribe message/option in such EDMs. You also agree that you cannot opt-out from receiving EMDs via the App (although you can opt-out of our email messages (nor can you opt-out of messages or notifications regarding transactions relating to Eligible Purchases or Contributions. These communications are important for your experience. If we allow you to opt-out of any EMDs or other notification, you acknowledge that opting out of may impact your use of the App.
(a) Where we display Promotions to you, the Sponsor or Organisation to whom the Promotion relates is solely responsible for the fulfilment and the defining of any Promotions offered to you. We are not liable for any offers or other matters relating to a Promotion.
(b) You acknowledge and agree that at the time these T&Cs are adopted, the App has limited functionality and therefore any Promotions displayed in the App that relate to in-store or other discounts may not function as displayed or intended., the Sponsor must and is solely responsible for the fulfillment and defining of the Promotions made to you.
(c) Where unclear, you must seek the Sponsor’s written confirmation that it will honour any discounts displayed in the App prior to making any purchase with them, as we do not guarantee that any discounts will be honoured by the Sponsor.
(d) We may remove Promotions from the App or our other marketing channels once the agreed period for any Promotions expire or if we receive complaints from Customers or others in respect of the Promotions.
(e) We may create promotional codes that may be redeemed for features or benefits related to the App and/or a Sponsor or Organisation’s products, subject to any additional terms that are established on a per promotional code basis (Promo Codes). You agree that Promo Codes:
(i) must be used for the intended audience and purpose, and in a lawful manner;
(ii) are not valid for cash, may expire prior to your use and may be disabled by us at any time for any reason without liability;
(iii) may not be duplicated, sold or transferred in any manner, or made available to the general public;
(iv) are only valid for redemption with the relevant Organisation or Sponsor to which they relate and are always subject to any additional conditions imposed by the relevant Organisation or Sponsor to which they relate; and
(v) may only be used pursuant to the specific terms that we or the relevant Sponsor or Organisation establish for such Promo Code.
(f) We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that we reasonably determine or believe that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these T&Cs.
4.10 Reviews or feedback and Your Content
We may permit you from time to time to make available to us through the App content or information in respect of a Sponsor or Organisation. which may include feedback, reviews or other material (Your Content). By providing us with Your Content (including by submitting Your Content via the App), you:
(a) must ensure that Your Content is true, accurate and not misleading (including by way of omission) and is not otherwise defamatory, libellous, unlawful, obscene or otherwise in breach of Our Policies, as determined in our absolute discretion;
(b) grant us an irrevocable, perpetual, royalty-free, transferrable licence to use, copy, modify, create derivative works of, distribute, publish, display or otherwise exploit in any manner Your Content in all formats and channels we see fit, without reference or notice to you;
(c) represent and warrant that you are the sole and exclusive owner of (or otherwise have all rights, licences and agreements required to grant us the licence to use) Your Content as contemplated by these T&Cs;
(d) represent and warrant that the provision of Your Content and any use of Your Content by us does not infringe any third party’s Intellectual Property Rights, any obligations in respect of privacy or any other laws; and
(e) acknowledge that we may remove Your Content from the App at any time and for any reason, but that we are not obliged to review or otherwise consider Your Content.
5. ACKNOWLEDGEMENTS AND OTHER OBLIGATIONS
5.1 Your Account
You acknowledge and agree at all times that:
(a) in order to use the App or receive most of our services, you must register for and maintain an active personal user Account;
(b) you must be a natural person who is at least 18 years of age to create an Account or to use the App and you may only possess one Account (unless we agree otherwise in writing);
(d) you must keep your information relating to your Account (including any Eligible Payment Methods) accurate, complete and up-to-date and any failure of you to do so may result in, among things, your purchases with a Sponsor not being Eligible Purchases and us not making contributions to your Nominated Organisation; and
(e) you are responsible for all activity that occurs under your Account and you agree to maintain the security and secrecy of your Account username and password at all times.
5.2 General acknowledgements
You acknowledge and agree at all times that:
(a) the App and any of our other products or services are provided ‘as is’ and ‘as available’ and we provide no assurances that your access to the App will be uninterrupted or error free;
(b) the App (or any other material made available to you by us) may be made available or accessed in connection with third party services and content (including advertising or where you create an Account via these third parties, such as Google or Facebook) that we do not control, different terms or policies may apply to your use of such third party services and content and we do not endorse (nor are we liable for) any such third party services or content;
(c) further terms or conditions may apply to certain features of the App or any of our other services or products (or any part of them), such as policies for a particular Promotion, requirements for selecting the Organisations that you may want contributions to be made to and limits on Eligible Purchases, and such further terms and conditions are in addition to (and form part of) these T&Cs for the relevant purpose and will prevail over any inconsistent provisions in these T&Cs unless specified otherwise;
(d) we provide marketing and other services to Sponsors and Organisations, Sponsors may pay fees to us (in addition to an amount representing any Contribution that may be made) and those fees are generally determined as a percentage of the Price (as well as other fees being payable for additional services we offer Sponsors);
(e) some Sponsors may operate under a franchise model, whereby individual franchisees may be Sponsors whereas other franchisees in the network may not be Sponsors, so you must ensure that the relevant business that you are purchasing products from is a Sponsor for the purposes of these T&Cs prior to making any purchase that you consider is an Eligible Purchase;
(f) we may have agreements with Intermediaries and Intermediaries may receive fees or commissions from Sponsors;
(g) if a Sponsor is an Exclusive Sponsor, the Nominated Organisation will only receive a Contribution where the Exclusive Sponsor has nominated it as one of the organisations that it will make contributions to and where you have also nominated an Organisation as a Nominated Organisation at the time payment for the Eligible Purchase is processed by our systems, Services Providers and Payment Networks; and
(h) you must act in good faith in respect of the use of the App and your dealings with us and you will cooperate with us (including providing all information and documents we reasonably require) in order to ensure you are doing so and as we may otherwise require to verify your identity and details of any Eligible Purchase or Contribution;
(i) we may restrict your access to the App or any of our other services or products (or any part of them) immediately and without notice, including where we suspect that you have (or are likely to) breach these T&Cs or Our Policies, where we need to do so in order to prevent harm that may arise from such access or where it is necessary to do so in order for us to comply with any Sponsor Agreement, Organisation Agreement or applicable law;
(j) you must ensure that all information you have provided to us (including via the App or otherwise) is complete, accurate, up to date and not misleading (including by way of omission) and promptly notify us if any such information is inaccurate, incomplete, out of date or misleading (as we rely on you in this regard);
(k) if we restrict your access to the App or any of our other services or products (or any part of them), then we may treat purchases you make during any period of such restriction as not being considered Eligible Purchases for the purposes of this Agreement;
(l) we are not a charity or not-for-profit, rather we are business that provides Marketing Services to Sponsors and facilitate contributions to Organisations in respect of certain purchases made with those Sponsors by those who use our App;
(m) despite anything in the App to the contrary (including allowing you select your Organisations or displaying Sponsors), we are not fundraising or seeking monies for any particular charitable cause or community purpose (however described);
(n) functions and other matters relating to the App may change from time to time in our absolute discretion, and it is your responsibility to ensure that you update any information contained in the App (including your Eligible Payment Methods and chosen Organisations) in response to such changes;
(o) if you dispute a purchase with a Sponsor (including where you charge-back a payment made on a credit card), then we may not pay the contribution in respect of your purchase to your Nominated Organisation (as the Sponsor may not pay us the monies in respect of the contribution);
(p) you will comply with Our Policies in effect from time to time and this Agreement, and we may update Our Policies by displaying the changes on our website, by notice to you or via the App;
(q) we do not hold any monies received from Sponsors on trust, rather the relationship between us, the Sponsors, the Organisations and you is purely that of independent contractors and debtor/creditor;
(r) you are responsible for obtaining access to the App and all networking and hardware matters relating to such access, that you may be liable for fees or charges from your service provider if you access the App from a wireless or network device and that we do not guarantee that the App will be accessible on all hardware; and
(s) you may be liable for fees and charges in respect of your chosen Eligible Payment Method (including interest or transaction fees to your Payment Card Network as well as yearly or fixed fees) and we have no liability in respect of such matters,
and you are not entitled to make any claim against us in connection with the above matters, to the extent the law allows.
You represent and warrant to us, throughout the term of this Agreement (including during any onboarding or Account creation process), that:
(a) you have full power and authority to enter into this Agreement and perform all your obligations under it;
(b) all information provided to us in connection with this Agreement and your onboarding is true, correct, up-to-date and not misleading (including by way of omission);
(c) you are not relying on us making a Contribution to your Nominated Organisation when making the decision to make an Eligible Purchase; and
(d) you are duly authorised to provide us with the details of any Eligible Payment Methods you have included in the App, each of the Eligible Payment Methods are held by you personally (and are not of another person) and the Eligible Payment Methods are current and valid.
5.4 Intellectual Property Rights
You acknowledge and agree at all times that:
(a) any use of the App by you or persons on your behalf must be strictly for non-commercial use, unless we have agreed otherwise in a separate written agreement;
(b) the App, all our services and content remain owned by us (or our licensors) and you obtain no rights in the App or any other services or content of us, any Sponsor or any Organisation, rather by complying with these T&Cs and in accordance with these T&Cs you receive a limited, non-exclusive, non-sublicensable, non-transferrable and revocable licence to access and use the App on your personal device solely for the purposes contemplated by these T&Cs (and any other rights are expressly reserved by us);
(c) you may not use any Intellectual Property Rights displayed in the App (including any Sponsor’s trade mark) nor may you remove any notices relating to Intellectual Property Rights displayed in the App;
(d) you must not seek to reproduce, reverse engineer, decompile, modify, prepare derivate works based upon, distribute, licence, sell, transfer, publicly display or perform or otherwise broadcast any part of the App or any of our other products or services (including any materials displayed therein); and
(e) you must not cause or launch any programs or scripts for the purposes of scraping, indexing, surveying, data mining or any similar matters in respect of the App or any of our services, nor may you attempt to gain unauthorised access to or impair any aspect of the App or its related systems or networks.
5.5 Allocation of risk
(a) We promise that the App will be: (i) free from material defects; (ii) of satisfactory quality; and (iii) fit for purpose. If the App doesn’t comply with this, please contact us as soon as possible. We will then discuss with you your options for a repair, or replacement.
(b) To the extent the law permits, you indemnify, hold harmless and defend (at our option) us, our Service Providers, the Payment Card Networks and their respective officers, employees, contractors and agents from and against any and all claims, liabilities, losses, costs, charges or expenses (including legal fees on an indemnity basis) that may be incurred or otherwise arise in connection with any dispute that arises with a Sponsor regarding a purchase you have made with them, your breach of this Agreement (including any warranties or your obligation to comply with any third party terms), your breach of any applicable laws or your negligence. Your liability under this indemnity will be reduced proportionately to the extent that our negligence caused or contributed to the relevant claim, liability, loss, cost, charge or expense.
(c) To the extent the law permits, in no event will we, any Service Providers or Payment Card Networks be liable for any claim for any indirect, exemplary, special or consequential damages or for any loss of business, data profits (including any damages for loss of business), even if we have been notified of the possibility of same.
6.1 Method for termination
(a) Either party may terminate this Agreement:
(i) for any reason by providing the other party with 30 days’ written notice;
(ii) if the other party is in breach of this Agreement and such breach is incapable of remedy or is not remedied within 14 days of receipt of written notice requiring the breach to be remedied.
(b) If you are in breach of this Agreement, we may restrict or suspend your access to the App and our systems.
(c) For the avoidance of doubt, deletion of the App or your Account does not amount to termination of this Agreement.
6.2 Consequences of termination
(a) The termination of this Agreement does not prejudice any of your obligations or our rights that expressly or impliedly survive termination of this Agreement (including our rights in respect of Intellectual Property Rights) or any liability arising in respect of any past breach.
(b) If this Agreement is terminated, then your right to access the App immediately creases and we will continue to pay any Contributions in respect of your Eligible Purchases made prior to the termination of this Agreement in accordance with this Agreement, the Sponsor Agreement and the Organisation Agreement.
7. GENERAL PROVISIONS
7.1 Disputes and Complaints
If a dispute arises between the parties, the parties will endeavour to resolve the dispute in good faith. To notify us of a dispute, you must send us a complaint through to the “Contact Us” tab on the Website or through the Help Centre in the App (if the functionality of the App allows you to do so).
Any notice, demand, termination procedure or other communication relating to this Agreement may be either sent by email or post, or be personally served or left at the relevant party’s address for service, which, in our case, is the address specified in these T&Cs and in your case, is the address provided to us when created your Account or sign-up questionnaire via the App or Website. We may provide notices via those methods or via the App or any portal on our website. Any reference in this Agreement to you providing ‘notice’ means a written notice.
(a) Your personal and confidential information will not be disclosed except to the extent the disclosure:
(i) is required by law, court order or rules of a stock exchange;
(ii) is made to your legal or professional advisers who are bound by obligations of confidence; and
(iii) is consented to us in writing by you.
(b) For the avoidance of doubt, nothing in this clause restricts us from marketing you or your Nominated Organisation in the App or in connection with our marketing services provided to Sponsors, nor does it prevent us from publicising any affiliation with you (if we choose to do so).
(c) In the event of a legal dispute, any proceedings, including documents and briefs submitted by either party, correspondence from a mediator, and correspondence, order and awards issued by an arbitrator, will remain strictly confidential and shall not be disclosed to any third party without the express written consent from us.
7.4 Force Majeure
If the performance of this Agreement (except for any obligation to pay) are prevented, restricted, interfered with or materially prejudiced by reason of circumstances beyond the reasonable control of the party obliged to perform it (including any Act of God, act of any governmental or competent authority, a pandemic or government response to a pandemic, the imposition of any new taxes, excise fees, tariffs or other mandatory charges or an increase in same, default of any kind under any contract to which we are a party), the party so affected (upon giving prompt notice to the other parties) shall be excused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use its best endeavours to avoid or remove the causes of non-performance and shall continue performance under this Agreement with the utmost despatch whenever such causes are removed or diminished. If such causes are not reasonably able to be overcome, then the parties will negotiate in good faith alternative arrangements for the performance of this Agreement or its termination.
7.5 Assignment of Agreement
(a) You must not assign any of your rights or obligations under this Agreement without our prior written consent.
(b) We may assign or otherwise deal with any of our rights or obligations under this Agreement without your consent, whether such assignment is to our Related Entities or any other third party. We may, in our discretion and to the extent the law permits, elect to transfer or novate this Agreement to a Related Entity (including one based in the country in which you are located), without your consent.
7.6 Variation and Waivers
(a) Any variation of or to this Agreement will not have any effect unless such variation is reduced to writing and signed off by us. However, we may update these T&Cs by providing not less than 30 days’ notice in writing to you (including by sending you a notification via the App) and the updated T&Cs will be deemed to apply from the expiry of such notice period. If you do not agree to the updated T&Cs, you may terminate this Agreement during that 30 day period and the termination will take effect on and from the expiry of that 30 day period.
(b) Any consent or approval required from us in connection with this Agreement must be in writing in order to be valid.
(c) Any failure by us to exercise any or all of our rights or powers under this Agreement at any time and for any period of time shall not constitute a waiver of any of our rights or powers arising pursuant to this Agreement.
Any documents forming part of this Agreement may be executed and exchanged in any number of counterparts, all of which will be taken together to constitute one and the same document.
7.8 Entire Agreement
To the extent the law permits, this Agreement represents the entire agreement between the parties in respect of the matters contemplated by this Agreement, and you acknowledge that you have not entered into this Agreement in reliance of, or as a result of, any promise, representation, statement, conduct or inducement of any kind relating to any matter in connection with this Agreement from us or our agents.
7.9 Third Parties
Your obligations under this Agreement may confer rights for the benefit of third parties (including our officers, employees and agents, our Service Providers and Payment Card Networks) and you will be deemed to have received notice of acceptance of the rights conferred on them (and will be prevented from denying same) when we provide you access to the App. We may also hold those rights on trust for those persons.
If any provision of this Agreement in favour of us exceeds what is permitted by law (Void Term), then the following provisions will apply:
(a) the Void Term shall be read down only to the extent required to ensure it is enforceable; and, if the unenforceability of the Void Term is not rectified by this provision;
(b) if the Void Term is unenforceable due to it imposing liability on you, then you shall only be liable to the extent that you caused or contributed to the liability;
(c) if the Void Term is unenforceable due to it releasing us from an obligation, we will still be liable to perform that obligation to the extent we either caused or contributed to the event giving rise to the obligation or breach of this Agreement or the terms implied by law that cannot legally be excluded; and
if the foregoing does not cure the invalidity or unenforceability, this Agreement will not include the Void Term and the remainder of this Agreement shall continue in full force.
- No Merger
Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that we may have against another party or any other person at any time.
- Governing Law
This Agreement, and any non-contractual obligations arising hereunder, is governed by the laws of England and Wales, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of England.
In this Agreement:
(a) headings used in these T&Cs are for convenience only and do not affect interpretation of these T&Cs;
(b) the provisions of this Agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for proposing or preparing this Agreement or the inclusion of the provision in it or because that party relies on a provision of the provision to protect itself; a
(c) a reference to a ‘claim’ or ‘claims’ includes all claims, actions, demands, liabilities, suits, proceedings, demands, costs, expenses or liabilities, whether present or future, fixed or ascertained and however arising;
(d) the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) are not to be construed as words of limitation and do not limit what else might be included nor does the incorporation of more than one obligation in a provision limit any other obligation contained in that provision,
(e) and unless the context otherwise requires:
(f) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(g) the singular includes the plural and vice versa and words importing a gender include every other gender;
(h) a reference to a clause or paragraph is a reference to a clause or paragraph of these T&Cs;
(i) a reference to a person includes a corporation, trust, partnership, unincorporated body, government agency, or other entity whether or not it comprises a separate legal entity;
(j) a reference to a party includes a reference to the party’s executors, administrators, successors, permitted substitutes, permitted assigns and, in the case of a trustee, includes any substituted or additional trustee;
(k) a reference to a document includes any agreement or other legally enforceable arrangement created by it (whether the document is in the form of an agreement, deed or otherwise) and includes a reference to any variation, replacement or novation of it; and
(i) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.