Customer Terms and Conditions for iSponsor USA, Inc.

(Effective from 24 January 2024) IT IS AGREED:

ORGANIZATION T&CS

APPLICATION OF ORGANIZATION T&CS

1. 1. These Terms and Conditions (T&Cs or the ‘Agreement’) govern the agreement between ‘us’ and ‘you’ (each as defined in clause 2) as the organization (‘Organization’).  These T&Cs do not apply to our agreement with Customers or Sponsors, rather those agreements are governed by separate sets of terms and conditions.

2. DEFINITIONS, ETC.

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 Platform allowing Customers to use, and access features, deals and offers from the Sponsors, through the Platform.

Account Application means the document titled ‘Account Application – Organizations’ completed by you on our standard form (or any other form accepted by us in writing for applying for our services as an Organization, including the electronic form or process made available via our Website pursuant to which you may have 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 with respect to Promotions, additional marketing or other initiatives undertaken by us at your express request (such as where we promote your Organization in priority to other organizations in our Platform to increase your chances of a Customer nominating you as the Nominated Organization) or reasonably required as a result of your breach of this Agreement.

Agreement is defined in clause 1.

Platform 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 with respect to Sponsors and pursuant to which Customers can designate which Organizations 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 Dover, Delaware, United States.

Contribution means, with respect to an Eligible Purchase where you are the Nominated Organization, 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, with respect to 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 with respect to the Eligible Purchase.

Customer means:

(a) with respect to an Eligible Purchase, the relevant person that has an Account with us (including an Account created via our Platform) and who has made the Eligible Purchase;

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

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 Organization with respect to the purchase; 

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

(d) the payment for the purchase was made by the Customer with a Mastercard, Visa, American Express or other credit card processor, company and/or 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 Organizations that may receive contributions.

GST means any sales tax, goods and services tax, value added tax, transaction or consumption tax, or similar tax on a good or service, direct or indirect, (without regard to any input tax credit) including, where relevant, any related interest, penalties, fines or other charges to the extent they relate to a good or service under this Agreement.

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 Platform).

Nominated Organization means the organization that the Customer has nominated to receive the contributions via the Platform (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 Platform and our services, as amended from time to time.

Payment Card Network means a network participating in our Platform for the purposes or processing payments, which may include Visa, MasterCard and American Express or any other applicable credit card company of whom iSponsor utilizes services.

Price means the total amount paid or payable by a Customer to the Sponsor with respect to the Eligible Purchase (inclusive of any GST 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 Platform or otherwise) with respect to you or your Organization that we 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 Platform and our services, including each Payment Card Network, Fidel Limited (Fidel) and the Rakuten Card Linked Offer Network. iSponsor is free to replace Fidel and/or RCLON with any other similar Service Provider at its sole discretion.

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 organizations (which may include you).

Sponsor Agreement means our agreement(s) with the relevant Sponsor (or Intermediary) who paid us the monies with respect to 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.

we, us and our means iSponsor USA, Inc.

Website means https://isponsor.co 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 ‘Organization’ 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.

2.1 Documents comprising this Agreement

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 as an organization of iSponsor; and

(iii) these T&Cs.

To the extent the law permits, no other terms or conditions (including those contained in any document submitted by you) other than as stated in this clause 2.1 will form part of this Agreement nor create any enforceable rights against us. 

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 2.1 (unless the relevant provision in the document expressly provides to the contrary).

2.2. 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 Platform 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, at your request, 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:

1. 1. 1. (i) you have completed an Account Application or provided your Acknowledgement or otherwise accepted an Account Application prepared by us;
      2. (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;
      3.  
      4. (iii) you have provided us with your logo (or similar images or Branding) and a brief description of your Organization for inclusion in the Platform and for publication on our Website (to the extent required by us) or other similar identifying information or data (noting it is your responsibility to ensure that such information is accurate and that you have authority to use and provide such information); and
      5.  
   2.  
   3.  
   4. (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). 
2. 1.  
   2.  
   3.  
   4. (b) If you have not satisfied the Conditions Precedent, 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 Organization available in our Platform for Customers to nominate as their ‘Nominated Organization’ (which may be via a drop-down selection field in the Platform or other means).  

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

(c) If we see an opportunity to market your Organization, 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 Organization, 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 and/or Sponsors, 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 with respect to such promotions. 

4.2 Promotions

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

(b) You acknowledge that at the time these T&Cs were adopted, the Platform has limited functionality and we may not be able to implement your requested Promotions.  Any display of Promotions is for your convenience only and we are not responsible for any transactions which do not process with the desired Promotion.

(c) If we agree in writing to a particular Promotion or if the Platform allows you to advertise Promotions through features in the Platform, 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 Platform or by us in writing.  

(d) We may remove Promotions from the Platform or our other marketing channels once the agreed period for any Promotions expire or if we receive complaints from Customers or others with respect to the Promotions or have reasonable belief that the Promotion is in violation of any applicable law or regulation.

4.3 In what circumstances will you receive a Contribution? 

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

(b) Generally, the Contribution will be paid to the Nominated Organization 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 Platform to see who the Customer’s Nominated Organization is.  

(c) However, if the Customer has recently changed their Nominated Organization 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 organization that the Customer nominated shortly prior to or after the time of the Eligible Purchase.  While we endeavor 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 with respect to any claims for such errors. 

(d) If, at the time of an Eligible Purchase, the Customer has not specified the organization that is to receive contributions or has nominated us to determine which organization is to receive contributions, then:

(i) we will determine, in our discretion and from time to time, which organization receives the contribution with respect to that Customer’s Eligible Purchase (or any part of the contribution), which may be you or another organization; and

(ii) the organization that we determine under paragraph (i) above will be considered the ‘Nominated Organization’ with respect to the contributions payable to organizations 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 organizations 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 organizations 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 with respect to an Eligible Purchase will be calculated in accordance with the Sponsor Agreement by reference to the Contribution % and the Price paid by the Customer with respect to 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 GST).

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

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

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 Organization 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 GST

(a) On request, you agree to issue us an invoice for any Contribution we have, or will be making, to you.

(b) If a party provides a good or service to which any GST applies to another party under, or in connection with, this Agreement, then (unless the consideration is expressly stated to be inclusive of GST) the consideration for that good or service is GST-exclusive.  

(c) In addition to paying consideration for a good or service (unless the consideration is GST-inclusive) the person making the payment must:

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

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

(d) The recipient need not pay GST unless the recipient has received a tax invoice (or an adjustment note) for that good or service or such GST is otherwise included as explicit and separate line item(s) in the applicable invoice.

(e) 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 GST, the provider must pay, and indemnify the claimant against, the amount of that GST.

5. ACKNOWLEDGEMENTS AND OTHER OBLIGATIONS

5.1 Acknowledgments

You acknowledge and agree that:

(a) displaying your Organization on the Platform 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 Organization, 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 organizations that it will make contributions to and where the Customer has also nominated you as their Nominated Organization 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 Platform, 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 Organization.

(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 with respect to all matters that may arise in connection with this Agreement;

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

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

(k) if our Platform allows for Customers to review your Organization, we may share such reviews and information via our Platform 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 with respect to any feedback;

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

(m) we may remove material displayed in the Platform with respect to you or your Organization if we determine that any of the material is inaccurate, misleading or contrary to Our Policies or applicable law or regulation;

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

(o) we are not obliged to display your Organization on the Platform at all times (including in circumstances where the Platform 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;

(q) 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; 

(r) we are not obliged to complete Contributions from Customers where such Contribution would violate any local, state or federal laws or regulations governing nonprofit, charity, or election-related donations or solicitations and may limit functionality, visibility and/or access to your Organization in our Platform  by Customers in some instances to comply with such laws and regulations; and

(s) certain transactions may not be deemed Eligible Purchases where such purchases are PIN-based purchases, purchases initiated through identification technology that substitutes for PIN, payments through other payment methods (such as a digital wallet or a third-party payment Platform where the Customer may choose their Visa, MasterCard, or American Express card as a funding source but does not present their card directly to the merchant), payments of existing balances, balance transfers, or transactions that are not processed or submitted through the Visa U.S.A., MasterCard, and American Express payment systems, and any other transactions that are not Eligible Transactions under iSponsor policies or the policies of any applicable credit card company or processor; iSponsor shall have no liability to you or any third party in any event with regard to these purchases that are not Eligible Purchases.

1. 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 Organization are validly established and have all required authorisations, consents, licenses, permits, registrations, and approvals to conduct your business and collect Contributions;

(c) we are authorised to promote your Organization via the Platform and doing so will not infringe any restrictions imposed under the documents constituting your Organization 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 Organization in accordance with all applicable laws (including any laws with respect to fundraising for community purposes or charities, the Foreign Corrupt Practices Act and applicable anti-bribery and anti-corruption laws 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 Organization, 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 Platform 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 Platform 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 and you acknowledge and agree that such reliance is occurring and reasonable.

5.5 Allocation of risk

You acknowledge and agree to disclaim any and all express or implied warranties or guarantees you may have or may allege to have with regard to all goods and services of Sponsor, to the extent permitted by law. Where such guarantees apply to our products and services and liability for breach of any such guarantee can be limited, our liability (if any) arising from any breach of those guarantees is limited with respect to the supply of goods, to the replacement or repair of the goods or the costs of resupply or replacement of the goods or with respect to services to the supply of services again or cost of re-supplying the services again. You acknowledge that your acceptance of the disclaimers, waivers and restrictions in this clause 5.5 are a material inducement for us to enter into this Agreement, and that, absent your agreement to this clause 5.5, we would not enter into this Agreement with you.

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 costs and legal fees on an indemnity or other basis) or other damages (including but not limited to any special, indirect, consequential or punitive damages, lost profits, lost revenues or other incidental damages even if we have been notified of the possibility of same)  (‘Losses’) that may be incurred or otherwise arise in connection with any dispute that arises with iSponsor, a Sponsor regarding a purchase a Customer made with them or from whom you anticipated to receive credit for Contributions, 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. 

You acknowledge and agree that, to the fullest extent permitted under applicable law, in no event shall iSponsor and/or its affiliates, licensors and suppliers (including Payment Card Networks and payment processors) we be liable to you personally for Losses arising out of this Agreement or your use, inability to use, or the results of use of the Platform or any product or service of iSponsor applicable hereunder, including but not limited to your ability to receive or eligibility for Contributions. iSponsor expressly disclaims all warranties, express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for any particular purpose, and non-infringement. iSponsor and its affiliates, licensors and suppliers (including Payment Card Networks and payment processors) do not warrant the data, content, analytics, features or information provided through the iSponsor Platform or anywhere else, including without limitation transaction data or Customer submissions or other data provided by Customers, Sponsors, other Organizations, or other users, to be uninterrupted, accurate, secure, useful, or free of errors, viruses, or other harmful components.

You further understand and agree that we are not responsible or liable for your illegal, unauthorized, or improper use of information transmitted, monitored, stored or received using the Platform.

In no event will iSponsor and/or its affiliates’, contractors’, employees’, agents’, or third party partners’ or suppliers’ (including Payment Card Networks’ and payment processors’) total liability to you for all Losses arising out of or relating to these terms or your use of the any iSponsor service (whether in contract, tort including negligence, warranty, or otherwise) exceed the total amount of Contributions for which you have actually received or are eligible  hereunder in the preceding twelve (12) month period prior to the events giving rise to such claim or Losses.

5.6 Clawbacks and payment errors

(a) You acknowledge and agree that if we are required to refund monies to the Sponsor with respect to 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, and you agree to promptly pay and reasonably cooperate with our efforts to recoup such amounts.

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6. CONFIDENTIALITY, PRIVACY AND INTELLECTUAL PROPERTY

1. 6.1 Confidentiality

With respect to 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 (with such party’s consent in writing);

(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 Organization in the Platform 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 applicable privacy laws with respect to 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 applicable privacy laws 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 Platform, Our Policies, our Website, 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 all 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 Platform or any other materials that contain our confidential information or Intellectual Property Rights.

(c) You grant us a license 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 Platform 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 Platform, 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 license 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

7.1 Method for termination

(a) Either party may terminate this Agreement:

1. 1. 1. (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.

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   6. (b)If you are in breach of this Agreement, we may restrict or suspend your access to the Platform and our systems, and may cease advertising you and your Organization, by notice in writing.

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

 

1. 1. (d) For the avoidance of doubt, deletion of the Platform or the deletion of any Account you have with us does not amount to termination of this Agreement or refusal to abide by any modification to terms or provisions herein.

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 Platform (if the functionality of the Platform 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 provided to us when created your Account or sign-up questionnaire via the Platform or Website.  We may provide notices via those methods or via the Platform or any portal on our Website.  Any reference in this Agreement to you providing ‘notice’ means a written notice. 

8.3 Trust provisions

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

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4. (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 with respect to 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 favor 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 is governed by the laws of the State of Delaware, United States without regard to its choice-of-law provisions and each party irrevocably submits to the exclusive jurisdiction of the courts of  the State of Delaware, USA to the extent permissible by law and waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts.

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; 

(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:

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

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

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

(iv) 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;

(v) 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;

(vi) 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 

(vii) 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.