Organisation Terms and Conditions for The Give Shop Limited

Company number 14066461
(Effective from July 2022)

IT IS AGREED:
GENERAL T&CS

1. APPLICATION OF T&CS

These Terms and Conditions (T&Cs) govern the agreement between us and you as the ‘Organisation’. These T&Cs do not apply to our agreement with Customers or Sponsors, rather those agreements are governed by our separate terms and conditions.

2. DEFINITIONS etc.

2.1 Definitions

Unless the context otherwise requires, the following definitions apply in these T&Cs and any other document forming part of this Agreement:

Account means a Customer’s account created through our App and/or Website allowing Customers to use, and access features, deals and offers from the Sponsors, through the App and/or Website.

Account Application means the document titled ‘Account Application – Organisations’ completed by you on our standard form (or any other form accepted by us, including the electronic form or process made available via our Website pursuant to which you signed up with us) that refers to these T&Cs and has been accepted by us.

Additional Costs means any fees or charges for additional items or services provided at your request (including in respect of Promotions, additional marketing or other initiatives undertaken by us at your express request (such as where we promote your organisation in priority to other organisations in our App to increase your chances of a Customer nominating you as the Nominated Organisation) or reasonably required as a result of your breach 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 provides Customers with access to information in respect of Sponsors and pursuant to which Customers can designate which Organisations they would like to nominate to receive a Contribution, amongst other things.

Branding means any trade marks, service marks, trade or business names, copyrights, slogans, logos, designs and other identifiers (whether registered or not) and any Intellectual Property Rights in the foregoing.

Business Day means a day which is not a Sunday, Saturday, public holiday or bank holiday in England or Wales.

Contribution means, in respect of an Eligible Purchase where you are the Nominated Organisation, the sum that is payable to you in accordance with this 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.

Customer means:

(a) in respect of an Eligible Purchase, the relevant person that has an account with us (including an account created via our App) and who has made the Eligible Purchase;

(b) otherwise, any individual who has an account with us (including an account created via our App).

Eligible Purchase means the relevant purchase of goods, services or other products that satisfies all of the following:

(a) the purchase was from a Sponsor (but excluding any Exclusive Sponsor who has not nominated you to receive contributions);

(b) the purchase was by a Customer who has nominated you as the Nominated Organisation in respect of the purchase;

(c) the Sponsor has paid us an amount equal to the Contribution plus the Sponsor Fees in respect of the purchase; and

(d) the payment for the purchase was made by the Customer with a Mastercard, Visa or other payment facility that is expressly approved by us in writing for this purpose.

Exclusive Sponsor means a Sponsor that has designated itself as an ‘Exclusive Sponsor’ (and are treated as such) in accordance with the Sponsor Agreement at the time of the Eligible Purchase, which refers to a Sponsor who can nominate the Organisations that may receive contributions.

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 facilitates payments to us from the Sponsor.

Marketing Services means the marketing, administrative and related services that we will provide to Sponsors from time to time in accordance with the Sponsor Agreements (which may include displaying the Sponsor in our App).

Nominated Organisation means the organisation that the Customer has nominated to receive the contributions via the App (or by another means permitted by us in writing), at the time of making an Eligible Purchase (if any).

Non-Exclusive Sponsor means a Sponsor, but only if they are not an Exclusive Sponsor at the time of the Eligible Purchase.
Our Policies means our standard practices that apply to the use of the App and our services, as amended from time to time.

Price means the total amount paid or payable by a Customer to the Sponsor with respect to the 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 Customers (whether via the App or otherwise) in respect of you or your organisation that we have agreed to advertise in accordance with these T&Cs.

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 organisations (which may include you).

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)

Website means giveshop.co.uk or such other website hosted by us for the purposes of these T&Cs.

you and your means you, the person named in the Account Application or Acknowledgement as the ‘Organisation’ and includes the person we are contracting with under this Agreement if that is a different person. 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

(a) This Agreement consists of the following documents:

(i) the Account Application, including any special terms that apply to you;

(ii) the Acknowledgement confirming your association with iSponsor as an Organisation; and

(iii) these T&Cs.

(b) To the extent the law permits, no other terms or conditions (including those contained in any document submitted by you) will form part of this Agreement nor create any enforceable rights against us.

(c) If there is any conflict between the documents that make up this Agreement, then the documents will rank in the order they are listed in in clause 2.2 (unless the relevant provision in the document expressly provides to the contrary).

2.3 When you are bound by this Agreement

You will be bound by this Agreement on the earlier of the following:

(a) when you or your representative submits an Account Application (or any other documents forming part of this Agreement) to us; or

(b) when, at your request, we complete an Account Application for you or input your details into our App or our systems.

However, we are not bound by this Agreement until we accept your Account Application or Acknowledgement in writing or otherwise confirm in writing that we are bound by this Agreement in writing. If we start acting under this Agreement without you providing a duly completed and signed Account Application, you will still be obliged to perform your obligations under this Agreement and will promptly sign and complete an Account Application or Acknowledgement on request.

3. ONBOARDING & TERM

3.1 Term

This Agreement will continue until it is terminated in accordance with these T&Cs.

3.2 Conditions Precedent

(a) We are not required to provide (and you are not entitled to receive) any Contributions unless you have satisfied the following conditions (Conditions Precedent) and we have confirmed you have done so in writing:

(i) you have completed an Account Application or provided your Acknowledgement or otherwise accepted an Account Application prepared by us;

(ii) you have provided all documents and other information requested by us for your onboarding, including providing documents to verify your identity (regardless of whether you are an incorporated entity) in accordance with Our Policies or any applicable laws and have confirmed whether or not you are registered (or required to be registered) for VAT;

(iii) you have provided us with your logo (or similar images or Branding) and a brief description of your organisation for inclusion in the App and for publication on our Website (to the extent required by us) (noting it is your responsibility to ensure that such information is accurate and that you have authority to use and provide such information); and

(iv) you have provided us with appropriate bank account details to enable us to transfer the Contributions to you from time to time (it is your responsibility to ensure that such information is accurate and that you have authority to provide such information).

(b) If you have not satisfied the Conditions Precedent within 60 days of the date an Account Application is completed, then we may immediately terminate this Agreement by notice in writing.

4. HOW OUR BUSINESS WORKS

4.1 Our affiliation with you

(a) Once you have satisfied all the Conditions Precedent, we will make your organisation available in our App for Customers to nominate as their ‘Nominated Organisation’ (which may be via a drop-down selection field in the App or other means).

(b) As part of our services, we may also promote your organisation in other ways, such as on our Website, social media channels and on blogs.

(c) If we see an opportunity to market your organisation, we may contact you to discuss particular marketing initiatives. We will discuss the scope of the initiatives with you and whether an Additional Cost is payable for the initiatives.

(d) If you instruct us to undertake any additional marketing initiatives and we have advised you that there is an Additional Cost for doing so, then we will undertake those initiatives and you will be obliged to pay the Additional Cost. However, unless you agree to us undertaking the marketing initiatives and to paying the Additional Costs, you are not liable for any Additional Costs for marketing initiatives that we undertake for your benefit.

(e) Any marketing or advisory services we provide to you are of a general nature only and we are not obliged to provide specific services for your organisation, unless you have requested us to do so and you have paid the required Additional Costs.

(f) Unless the parties agree in writing to the contrary, we are authorised to promote our affiliation with you to Customers, as part of the marketing services that we provide to Sponsors and to the public generally. We will adhere to any specific requirements notified to us by you in writing in respect of such promotions.

4.2 Promotions

(a) We may agree in writing to display Promotions to Customers or authorise you to use features in the App that allow you to display Promotions through our App. Promotions may include EDMs, advertisements or other features in the App that encourage Customers to nominate you as their Nominated Organisation.

(b) You acknowledge that at the time these T&Cs were adopted, the App has limited functionality and we may not be able to implement your requested Promotions.

(c) If we agree in writing to a particular Promotion or if the App allows you to advertise Promotions through features in the App, you must (and you alone are responsible for) the fulfilment and the defining of any Promotions offered by you to Customers and any Promotions must be consistent with all applicable laws and Our Policies (if any). You are also responsible for any Additional Costs in connection with the Promotions, which may be notified to you via the App or by us in writing.

(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.

4.3 In what circumstances will you receive a Contribution?

(a) The way our business and the App works is that the Customer is the person who has the power to determine which organisation receives the contribution in respect of a purchase from a Sponsor. The Customer does this by specifying their Nominated Organisation via the App (or in another manner acceptable to us). The Customer may update their Nominated Organisation from time to time, including immediately prior to an Eligible Purchase.

(b) Generally, the Contribution will be paid to the Nominated Organisation selected by the Customer at the time the payment for the Eligible Purchase is processed, as that is when our systems match the Customer’s payment details with the payment to the Sponsor and when our system checks the App to see who the Customer’s Nominated Organisation is.

(c) However, if the Customer has recently changed their Nominated Organisation 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 that the Customer 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, the Customer has not specified the organisation that is to receive contributions or has 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 that Customer’s Eligible Purchase (or any part of the contribution), which may be you or another organisation and may depend on any commitments we have made to the public or Customers in respect of a period; and

(ii) the organisation that we determine under paragraph (i) above will be considered the ‘Nominated Organisation’ in respect of the contributions payable to organisations for the purposes of this Agreement and we will pay the contribution to them in accordance with our agreement with them.

(e) Exclusive Sponsors may change the organisations that may receive contributions in accordance with the Sponsor Agreement, which generally requires 7 days’ written notice of the change. Accordingly, if you want an Exclusive Sponsor to add you as one of the organisations that can receive contributions, you should encourage them to give us as much notice as possible.

4.4 Amount of Contributions

(a) The amount of any Contribution payable to you in respect of an Eligible Purchase will be calculated in accordance with the Sponsor Agreement by reference to the Contribution % and the Price paid by the Customer in respect of the Eligible Purchase. While the amount of the Contribution will generally be equal to the Contribution % multiplied by the Price, we will reasonably determine the precise amount of the Contribution (including by reference to what aspects of the Price include VAT).

(b) Sponsors are generally entitled to change their Contribution % by notice to us in accordance with the Sponsor Agreement.

(c) The Contribution % will be advertised in the App to Customers (which at the date of these T&Cs is generally the ‘Sponsorship %’ displayed in the App), so they know what percentage of the Price will be paid to their Nominated Organisation. The Contribution % in the App excludes any Sponsor Fees, so the Customer will know the amount that will be paid to you if you are their Nominated Organisation.

(d) For example, for an Eligible Purchase where the Price is £100 (including VAT) and the Sponsor’s Contribution % is 6% at the time, the Contribution will generally be £6.00 (plus any applicable VAT).

4.5 Reporting

(a) As part of our services, we may provide you with reports from time to time advising you of matters that may include the Customers who have made Eligible Purchases, the Contributions made to you in a period, the Sponsors who funded those Contributions and other matters.

(b) We are under no responsibility to advise you of the Sponsors or the Customers’ who have elected to Contribute to your organisation at the time of an Eligible Purchase or otherwise.

4.6 When your Contributions are paid

(a) We will only pay you a Contribution if we receive payment of a corresponding amount plus the Sponsor Fees from the Relevant Sponsor. That is, we do not guarantee that the Contribution will be paid to you if we are not paid by the Sponsor.

(b) We will pay the Contribution to you within 15 days of the end of the month in which we receive payment of the corresponding amount and the Sponsor Fees from the Sponsor.
4.7 Invoices and VAT

(a) In these T&Cs references to VAT also include references to any other indirect transaction taxes or consumption taxes, including any value added tax, goods and services tax, sales tax or similar tax, wherever imposed.

(b) On request, you agree to issue us an invoice (which will be a tax invoice if you are registered or required to be registered for VAT) for any Contribution we have, or will be making, to you.

(c) If a party makes a supply to another party under, or in connection with, this Agreement, then (unless the consideration is expressly stated to be inclusive of VAT) the consideration for that supply is VAT exclusive.

(d) In addition to paying consideration for a supply (unless the consideration is VAT inclusive) the person making the payment must:

(i) pay to the supplier an amount equal to any VAT for which the supplier is liable on that supply, without deduction or set-off of any other amount; and

(ii) make that payment as and when the consideration must be paid or provided.

(e) The recipient need not pay VAT unless the recipient has received a tax invoice (or an adjustment note) for that supply.

(f) If a party provides payment for a claim or a right to claim under or in connection with this Agreement (for example, for a breach of any warranty or for reimbursement of any expense) that gives rise to a liability for VAT, the provider must pay, and indemnify the claimant against, the amount of that VAT (except any amount for VAT for which that party is entitled to an input tax credit).

(g) We are registered for VAT and will notify you if we cease to be so registered. If you are registered for VAT, then you acknowledge that you are so registered and will notify us if you cease to be registered;

5. ACKNOWLEDGEMENTS & OTHER OBLIGATIONS

5.1 Acknowledgements

You acknowledge and agree that:

(a) displaying your organisation on the App will be in a general sense only;

(b) we receive Sponsor Fees from Sponsors and provide Marketing Services to Sponsors;

(c) we may have agreements with Intermediaries and Intermediaries may receive fees or commissions from Sponsors;

(d) our right to promote our affiliation with you under this Agreement is granted in consideration for us paying you the Contributions in accordance with this Agreement;

(e) it is your responsibility to discuss, within your organisation, our business and the benefits associated with signing up with us;

(f) if a Sponsor is an Exclusive Sponsor, you will only receive a Contribution where the Exclusive Sponsor has nominated you as one of the organisations that it will make contributions to and where the Customer has also nominated you as their Nominated Organisation at the time payment for the Eligible Purchase is processed by our systems; and

(g) we do not make any guarantee in relation to the amount of Contributions you might end up receiving as this will depend on the number of Customers using the App, the number of Customers who nominate you to receive Contributions as at the time of their Eligible Purchase and the geographic locations from which the Customers are aware of you or your organisation.

(h) any person who signed an Account Application or submitted an online form to sign up with us on your behalf (and any ‘Representative’ stated in your Account Application) is duly authorised to bind you in respect of all matters that may arise in connection with this Agreement;

(i) at the date these T&Cs are adopted, the App has limited functionality and you (as an Organisation) may not have access to the App. However, if the App is updated to grant you access, then you must comply with all terms and conditions stated in the App and must ensure that only your authorised personnel access the App on your behalf;

(j) we may notify Sponsors and Customers of the Contributions made to you, including by posting such notices via the App;

(k) if our App allows for Customers to review your organisation, we may share such reviews and information via our App or with Sponsors who may provide your Contributions. However, we are not publishers of any such Customer feedback nor can you make a claim against us in respect of any feedback;

(l) we are not obliged to promote your organisation, whether in priority to any other organisation or otherwise, and we may cease promoting your organisation if you breach this Agreement or Our Policies;

(m) we may remove material displayed in the App in respect of you or your organisation if we determine that any of the material is inaccurate, misleading or contrary to Our Policies;

(n) we may update Our Policies by displaying the changes on our website, by notice to you or via the App;

(o) we are not obliged to display your organisation on the App at all times (including in circumstances where the App is not functioning or where you have not provided us with the information we require in order to fulfil our obligations under this Agreement or our obligations to Sponsors or Customers);

(p) we do not hold any monies (whether payments received by Sponsors or Contributions for you) on trust, rather the relationship you will have with us (and our relationship with the Sponsors) is purely that of independent contractors and debtor/creditor;
and you are not entitled to withhold any payments to, or make any claim against, us in connection with the above matters, to the extent the law allows.

5.2 Warranties

You represent and warrant to us, throughout the term of this Agreement and during any onboarding process, that:

(a) you have full power and authority to enter into this Agreement and perform all your obligations under it;

(b) you and your organisation are validly established and have all required authorisations, consents, licences and approvals to conduct your business;

(c) we are authorised to promote your organisation via the App and doing so will not infringe any restrictions imposed under the documents constituting your organisation or under any applicable law;

(d) if you are an individual, you are over 18 years old and if you are a body corporate then you are validly existing and in good standing under the laws of your incorporation;

(e) all information provided to us in connection with this Agreement and your onboarding is true and correct; and

(f) the identity of the person signing and authorising the Account Application or any online form on behalf of you must be either a director, president or treasurer or any such authorised representative who warrants to be duly authorised to sign on your behalf and who has legal capacity to enter into this Agreement on your behalf, as needed.

5.3 Your other obligations

At all times, you undertake to ensure that you (and your officers, employees, contractors and agents, where relevant) will:

(a) comply with Our Policies in effect from time to time and this Agreement;

(b) conduct your organisation in accordance with all applicable laws (including any laws in respect of fundraising for community purposes or charities and any privacy laws);

(c) notify us in writing when, or as soon as reasonably possible after, there is a change in ownership or control of you or your organisation, and you must give us reasonable assistance (including providing all documents we reasonably request) to enable us to make all necessary changes to this Agreement with you in light of any such change;

(d) ensure that any bank account information that you provide to us is accurate and remains up to date; and

(e) not provide us with any information or material, whether for inclusion in the App or otherwise, that infringes any third party’s Intellectual Property Rights, confidential information or that is otherwise unlawful or inconsistent with Our Policies, and that you own or have the right to provide all Branding, marketing and other material that is provided to us.

5.4 Accuracy of information

You must ensure that all information you have provided to us (including any information we have included about you in the App and our other marketing channels) 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. We rely on you in this regard.

5.5 Clawbacks and payment errors

(a) You acknowledge and agree that if we are required to refund monies to the Sponsor in respect of any Contribution (or potential Contribution) to you (including due to disputes over payments, clawbacks by the Sponsor for payments made by credit card, disputes with Customers etc.), then we may withhold the Contribution, seek reimbursement of the Contribution previously paid to you, off-set the disputed amount against any further Contributions that may fall due to you or otherwise recover the Contribution by any lawful means.

(b) We also reserve the right, in our discretion, to seek reimbursement from you if we discover a payment processing error and we may do so by invoicing you separately for that amount, debiting your card on file or your bank account pursuant to any direct debit request or authorisation or any other lawful means.

6. CONFIDENTIALITY, PRIVACY AND INTELLECTUAL PROPERTY

6.1 Confidentiality

In respect of the confidential or proprietary information of a party, the other party will:

(a) only use the confidential information for the purposes of giving effect to this Agreement and the arrangements contemplated by it;

(b) ensure that the confidential information is protected from unauthorised access or disclosure and that any person receiving the confidential information from the party ensures the confidentiality of the confidential information;

(c) not disclose confidential information of another party except to the extent the disclosure:

(i) is required by law, court order or rules of a stock exchange;

(ii) is made to that party’s legal or professional advisers who are bound by obligations of confidence;

(iii) is consented to in writing by the other party; and

(d) upon request of the other party, return or destroy the confidential information and all copies of it, except where that party needs to retain the information for the purposes of complying with (or enforcing) its obligations under this Agreement or at law.

For the avoidance of doubt, nothing in this clause restricts us from marketing you or your 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).

6.2 Privacy

(a) You will comply with all obligations of an ‘APP Entity’ (as defined in the Privacy Act 1988 (Cth) (Privacy Act) in respect of any matters arising in connection with this Agreement. You must not do anything which could cause us to breach any obligations we may owe under the Privacy Act or any other laws.

(b) We may share your contact and other information (and those of your officers, employees and agents) with third parties (including any Intermediaries) as reasonably necessary for the purposes of giving effect to this Agreement, your onboarding to our systems and at the request of a Sponsor who has paid us monies that funded the contributions to you.

6.3 IP

(a) You acknowledge that the App, Our Policies, any materials provided to you in connection with this Agreement, any Transaction Report and any Marketing Report, as well as all related materials and data, will be considered our confidential information and we will retain any Intellectual Property Rights in them.

(b) You will ensure that you and your employees, agents and contractors will not copy, modify, distribute, sell or otherwise deal with any of our confidential information or Intellectual Property Rights, nor will you reverse engineer (or attempt to extract the source code or any similar material) from our App or any other materials that contain our confidential information or Intellectual Property Rights.

(c) You grant us a licence to use your Branding in accordance with this Agreement on a royalty-free, non-exclusive, non-transferrable and limited basis for the duration of this Agreement.

(d) You must only use our Branding where we have expressly consented in writing. You must only use our Branding, the App and any other material we provide to you in connection with this Agreement to receive the benefits of the services we provide under this Agreement.

(e) We are permitted to use your Branding (and any other marketing or similar material you provide to us) in connection with our marketing services (including by display your Branding in our App, in EDMs or in other marketing materials) and for any other purpose agreed by you in writing or as permitted by this Agreement.

(f) You must not try to register, use or claim ownership or any rights in our Branding or our other Intellectual Property Rights, nor may you bring any claim against us (or any of our officers, employees or agents) on the basis that our use or exploitation of your Branding in accordance with this Agreement infringes your Intellectual Property Rights or any other rights.

(g) Each party reserves the right to revoke any licence to use its Branding if the party reasonably considers that the other party’s use of the Branding is prejudicial to its business, products or reputation or where the other party’s performance of its obligations under this Agreement falls below an acceptable standard.

7. 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, and may cease advertising you and your organisation, by notice in writing.

(c) If this Agreement is terminated, then we will continue to pay any Contributions in respect of Eligible Purchases made prior to the termination of this Agreement in accordance with this Agreement.

(d) For the avoidance of doubt, deletion of the App or the deletion of any account you have with us does not amount to termination of this Agreement.

8. GENERAL PROVISIONS

8.1 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).

8.2 Notices

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 specified in your Account Application 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.

8.3 Trust provisions

3.1 If you are the trustee of any trust (whether or not the trustee is listed in the Account Application or this Agreement), you:

(a) warrant that you have been properly appointed as the sole trustee of the trust, have not been replaced as the trustee and have properly exercised a power under the relevant trust deed to enter into this Agreement;

(b) enter into this Agreement and undertake all obligations in your personal capacity and in your capacity as trustee of any trust;

(c) warrant that you have the right to be indemnified out of the trust assets, in priority to the beneficiaries, for all liabilities that you may incur under this Agreement and undertake not to do anything that may result in the loss of its right of indemnity from the trust assets; and

(d) undertake to ensure that any new trustee (if one is appointed despite the provisions above) is bound by this Agreement or any variation of this Agreement.

8.4 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.

8.5 Assignment of Agreement

You must not assign any of your rights or obligations under this Agreement without our prior written consent. We may assign or otherwise deal with any of our rights or obligations under this Agreement without your consent.

8.6 Counterparts

Any documents forming part of this Agreement may be executed and exchanged in any number of counterparts, all of which taken together constitute one and the same document.

8.7 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 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.

8.8 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.

8.9 Severance

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 breached this Agreement or 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.

8.10 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.

8.11 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.

8.12 Interpretation

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, and unless the context otherwise requires:

(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

(f) the singular includes the plural and vice versa and words importing a gender include every other gender;

(g) a reference to a clause or paragraph is a reference to a clause or paragraph of these T&Cs;

(h) 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;

(i) 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;

(j) 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

(k) 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.