Master General Service Agreement

1 – INTERPRETATION

The definitions and rules of interpretation in this clause apply in this Agreement.

“Agreement” means the terms and conditions set out in the Insertion Order, the Reward Programme Form and this Master General Service Agreement.

“Anonymised Aggregated Data” means a data set used by the Company that has been processed to remove any direct or indirect identifiers rendering it incapable of identifying individuals or entities.

“Applicable Channels” means the platforms through which the Retailer Offers can be accessed by End Users. This could include online, in-store, or both, as defined in the Insertion Order (IO)​ .

“Applicable No. of Stores” means the total number of physical locations where the Retailer Offers can be redeemed, as specified in the IO.

“Applicable Offer Structure” means [the specific details of the Retailer Offer, including whether it applies to first-time users, minimum and maximum spending thresholds, and other key conditions, as outlined in the IO.

“Budget Cap” refers to either [the cap agreed between the parties at which point the Retail Partner shall be invoiced if such Budget Cap is reached prior to the end of the Month] OR [the maximum amount the Retail Partner has agreed to pay in Rewards, at which point the Retailer is to be consulted] as set out in the Insertion Order where applicable.

“Business Day” means a day other than a Saturday, Sunday or public holiday, in England when banks in London are open for business.

“Confidential Information” means information which is identified as confidential or proprietary by either party or by the nature of which is clearly confidential or proprietary.

“Commission” means the percentage (%) as set out in the Insertion Order for the relevant Offer Period, based on the Commission Criteria, which shall be due to the Company on each and every qualifying Transaction undertaken by the End Users registered on the Relevant Reward Programmes. It shall be inclusive of the Rewards due to the End Users and the fee due to the Company. This percentage may be changed from time to time by agreement between the parties and a revised Reward Programme Form being issued by the Company to the Retail Partner documenting the same and the duration for which it is applicable. For the avoidance of doubt, such percentage shall always be greater than 5%.

“Commission Criteria” means the criteria the Commission is subject to as set out in the Insertion Order.

“Data Protection Legislation” means all applicable data protection and privacy laws and regulations in force from time to time in the United Kingdom, including but not limited to the UK General Data Protection Regulation (UK GDPR), the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 (PECR), and any other national implementing laws, regulations, and secondary legislation, as amended or updated from time to time, as well as any rules, regulations, and guidance issued by the Information Commissioner’s Office (ICO) or other relevant regulatory authorities concerning the use of Personal Data, including the privacy of electronic communications.

“Due Date” refers to fourteen (14) days from the receipt of the Month Report, unless a different period is specified in the IO.

“Effective Date” means the date of the last signature of the Agreement and shall apply to the entire Agreement, including any Insertion Order and Reward Programme Form executed in connection with it. 

“Go Lives Date” means the date the first Reward Programme goes live as set out in the Reward Programme Form.

“End User” means a consumer who has registered their Nominated Card with a Reward Programme in order to benefit from the Retailer Offer when making purchases at the Retail Partner store(s) and/ or online where applicable as per the offer details provided by Retail Partner in the IO. For the avoidance of doubt this will be applicable unless the Retail Partner states that is not in the Retail Offer conditions on the Reward Programme(s).

“Extended Reward Programme Term” refers to an additional rolling thirty (30) day period during which the Agreement remains in effect beyond the Initial Term, as set out in the Insertion Order.

“Initial Reward Programme Term” means the term as set out in the Insertion Order form agreed between the parties to be effective from the Go Live Date.

“Insertion Order” (also referred to as “IO”) means a document or electronic form issued by the Company and executed by the Retail Partner, which outlines terms that are bespoke to the Retail Partner. This includes, but it is not limited to, details of the Retail Partner, details of the relevant Reward Programmes the Retail Partner would like to be listed on, commercial information, and any key contract terms. The IO should be read in conjunction with all other documents that form part of this Agreement.

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. 

“Merchant ID Data” means a unique identification number used to authorise and authenticate Transactions initiated by End Users who wish to redeem Rewards at the Retail Partner. It enables the Company and its Tracking Partner to accurately record and track the Transactions, ensuring proper accounting, reconciliation, and reporting.

“Month” means a calendar month.

“New Publisher Approval” indicates whether the inclusion of a new publisher in the Reward Programme requires automatic or explicit consent from the Retail Partner, as specified in the IO.

“Nominated Card(s) or Account(s)” means any eligible payment card or account (as specified in the relevant End User terms and conditions applicable to the Reward Programme) registered by an End User with a Reward Programme to receive Rewards.

“Offer Period” means the period the Commission percentage is valid for, as set out in the Reward Programme Form.

“Payment Terms” means the time period within which the Retail Partner must make payments to The Reward Collection, in accordance with the Due Date, as outlined in the IO.

“Payment Types” means the method by which commissions are paid to The Reward Collection, either through direct payments or via an affiliate network in accordance with clauses 4.3.5 to 4.3.9 (inclusive), as stated in the IO.

“Publisher” means each entity responsible for creating, managing, and promoting a Programme.

“Relevant Reward Programme” means the Reward Programmes chosen by the Retail Partner and as listed in the Insertion Order.

“Retailer Information” means all information provided by the Retail Partner to the Company to be included on each of the Retail Partner chosen Reward Programmes in order to provide End Users with information about the Retailer including the Retailer Offer and any relevant conditions it is subject to.

“Retailer Offer” means the percentage offer depicted on the Relevant Reward Programmes which the End User benefits from in the form of Rewards when they have undertaken any eligible Transaction with the Retail Partner.

“Retailer Partner” means the party defined as the Retail Partner in the Insertion Order.

“Rewards” means the amount payable by the Reward Programme to an End User when they undertake an eligible Transaction where they benefit from the Retailer Offer. It is calculated by applying the percentage of the Retailer Offer to the total transaction amount and it is subject to the relevant Reward Programme and Retailer Offer terms and conditions. 

“Reward Programme” means End User- facing loyalty programmes in particular the Relevant Reward Programmes, each of, which enable End Users to register with them in order to access and use the Retailer Offers listed on such platform to obtain Rewards.

“Reward Programme Term” means the duration the Retailer Offer(s) will be included on each of the Relevant Reward Programmes as set out in the Insertion Order.

“Refund(s)” means any amount refunded by the Retail Partner to an End User in accordance with the Retail Partner’s applicable terms and conditions for the supply of goods and/or services, excluding any ex-gratia payments. Refunds cannot be excluded across all Reward Programmes or Publishers, as not all can accommodate this. Therefore, refunds should only be deducted for programmes that provide refund data “Services” is defined in the Background section.

“Segment Type Definitions” means categories of End Users based on their purchase history as set out in the IO.

“Services” refers to card linked offer aggregation and reporting, which is the Company’s sole service as defined in the Background, section (A) of this Agreement.

“Supplier(s)” means a third party engaged or to be engaged by the Company (directly or indirectly) from time to time to provide any services in connection with the Services provided by the Company and the Relevant Reward Programmes, including, but not limited to Tracking Partners, and/or payment cards providers.

“Term” means the term of the entire Agreement including the Master Services Agreement, Insertion Order and Reward Programme form as set out in clause 2.

“Territories” means the geographical areas, regions, or markets specified in the IO, where the services under this Agreement are to be provided, promoted, or made available. Any changes or updates to the defined Territories shall be reflected in an amended IO, as agreed upon by the Parties in writing. 

“Tracking Partner” means a third party nominated by the Company to track and report the Transaction.

“Transaction(s)” means any payment made by a End User to the Retail Partner using a Nominated Card or   Account.

“End User(s)” means any End User that has registered a Nominated Card or Account with a Reward Programme.

2 – TERM AND REWARD PROGRAMME TERM

2.1 The Term of this Agreement shall be in force and effect from the Effective Date and will remain in force until terminated in accordance with clause 10.  

1. The Reward Programme Term will begin on the Go Live Date specified in the Reward Programme Form. Upon the expiration of the Initial Reward Programme Term this Agreement shall automatically renew for successive periods of the Extended Reward Programme Term unless and until terminated in accordance with the terms of this Agreement.

3 – COMPANY’S WARRANTIES AND OBLIGATIONS

1. The Company represents and warrants that: (i) it has the full power and authority to enter into this Agreement, and perform its obligations hereunder, and (ii) its performance of this Agreement does not and will not violate any agreement to which it is a party.
2. Except as expressly stated in this Agreement, the Company makes no warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose or any other type of warranty. The Company specifically disclaims all such warranties to the fullest extent permitted by law.
3. The Company agrees to use reasonable endeavours to provide the Services by establishing appropriate technological and other arrangements with the Reward Programmes, including arrangements with the Suppliers.

3.4 The Company provides no guarantees or undertakings in respect of:
 
3.4.1 the availability of the Services at all times during the Term of this Agreement;
 
3.4.2 the types of payments cards or accounts that may be registered by the End Users as Nominated Cards or Accounts and used to complete Transactions with the Retail Partner; and/or
 
3.4.3 any volume of Transactions achieved by the Retail Partner in connection with the Services.

3.5   The Company shall request the Relevant Reward Programme(s) to ensure it has a lawful basis for sharing Transaction data with the Retail Partner. This includes, where necessary, ensuring an obligation on the part of the Relevant Reward Programme(s) to secure explicit consent  from each End User at the point of programme enrolment, to share their Transaction Data with the Retail Partner, any necessary Tracking Partner, and the Company. The Company shall bear no liability whatsoever for the collection, use, or handling of End User data by the Retail Partner.

3.6 The Company is authorised to source the Merchant ID Data directly on the Retail Partner’s behalf.

3.7 In the event that any Merchant ID Data is sourced directly by the Company, prior to or during a campaign, unless otherwise stated in writing by the Retail Partner, such Merchant ID Data will be included in the campaign for the purpose of tracking Transactions and calculating Commissions.

3.8 The Company shall endeavour to update Merchant ID Data associated with the Reward Programmes within thirty (30) days of receipt of any notification of a change in writing from the Retail Partner.

3.9 The Reward Programme will credit the Rewards to each applicable End User’s account upon receiving the Commission from The Company. The availability, use and redemption of the Rewards by the End User shall be governed by the applicable Reward Programme’s End User terms and conditions. 

3.10 The Company shall use reasonable endeavours to promote the Retail Partner across any Reward Programmes, including the Relevant Reward Programmes and others associated affiliates and business partner networks, in connection with the Services by publishing the name and logo of the Retail Partner and such information about the Retail Partner as may be reasonably expected to bring the Retail Partner to the attention of the End Users (“Marketing Activities)”. The Retail Partner agrees to grant the Company a license to carry out such Marketing Activities. The Retail Partner shall provide such assistance and Retailer Information Data may be reasonably required by the Company in relation to the Services.

3.11 The Company shall issue the Retail Partner with the Reward Programme Form to notify them of the Go Live Date. This form may be amended from time to time, and the Company shall provide the Retail Partner with a revised version whenever changes are made.

4 – REWARDS, COMMISSION AND REPORTING

4.1 Commission

4.1.1 In consideration for the Service provided by the Company and inclusion of the Retail Partner on each of the Relevant Reward Programmes, the Retail Partner agrees to pay the Commission.

  Each Month, the Company shall provide the Retail Partner with a report and statement that sets forth the following details (“Month Report”):
 
4.1.1.1 where provided by a Reward Programme, a record of all Transactions completed during the preceding Month, including: (i) the amount of the Transaction; (ii) the date and time of the Transaction; and (iii) the last four (4) digits of the End User’s payment card;

4.1.1.2   where provided by a Reward Programme, any Refunds issued by the Retail Partner in that Month, specifying the amount refunded for each Refund;
 
4.1.1.3 where provided by a Reward Programme, any Refunds issued by the Retail Partner in respect of any Transactions completed in any preceding Month, detailing the amount refunded for each Refund; and
 
4.1.1.4 the Commission due  of each Transaction concluded during that Month.

4.1.2 The information and data provided under clause 4.2 shall be anonymised and shall not include any personal data and/or other sensitive or Confidential Information of the End Users.

4.1.3 The provision of data is provided at the sole discretion of the Company or Tracking Partner, including but not limited to, Visa, Mastercard and American Express. The Company disclaims all liability for the accuracy, completeness, or reliability of any data provided, and shall not be held responsible for any errors, omissions, or inaccuracies in such data. The Company’s role is limited to facilitating access to this data and does not extend to any guarantee or warranty concerning its content.

4.1.4 All transactions listed in any statement provided pursuant to this clause are tracked, verified and validated by Tracking Partner(s) and card payment schemes including, but not limited to, Visa, Mastercard and/or American Express. The Retail Partner acknowledges and agrees that the transactions need not be verified by either party for the purposes of calculating the Commission.

4.1.5 The Commission includes all Rewards and all charges payable to the Company under this Agreement.

4.2 Commission Change 

4.2.1 Any request to modify commission rates must be submitted in writing with at least thirty (30) days’ notice prior to the conclusion of the Offer Period. All communications regarding such changes shall be conducted through the Reward Programme Form. The Company reserves the right to approve or reject the proposed modification. Following the review and approval of the proposed change, the Company will issue an updated Reward Programme Form to the Retail Partner via email, which will reflect the revised commission structure.

4.2.2 If the Reward Programmes rejects the proposed commission change, the Company reserves the right to decline the proposed modification. In the event of any inconsistency or conflict between the terms of the Insertion Order (IO) and the Reward Programme Form, the terms of the Reward Programme Form shall prevail.

4.3 Billing

4.3.1 All amounts payable by the Retail Partner exclude amounts in respect of value added tax which the Retail Partner shall additionally be liable to pay to the Company at the prevailing rate (if applicable).

4.3.2 All amounts due under this Agreement shall be paid in full within fourteen (14) days of receipt of invoice, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

4.3.3 Pursuant to the Late Payments of Commercial Debts (Interest) Act 1998, the Company will be entitled to claim interest on any overdue Commission at the rate of eight percent (8%) above the base rate of the Bank of England.

4.3.4 Additionally, under the Late Payments of Commercial Debts (Interest) Act 1998, the Company will also be entitled to a fixed sum per overdue invoice by way of compensation, in accordance with the applicable legislation.

4.3.5 This clause establishes the mutual understanding between the parties regarding the use of affiliate platforms, including but not limited to Impact Radius, Awin, Webgains, Share A Sale, Partnerize, Commission Junction, TradeDoubler, and PepperJam (hereinafter collectively referred to as “Affiliate Platforms”), exclusively for billing purposes.

4.3.6 The parties acknowledge that the Affiliate Platforms listed, but not exhaustively, in clause 4.3.5 above are utilised solely for billing and financial transactions related to this Agreement.

4.3.7 In the event that separate agreements are executed to facilitate billing activities on the platforms, it is expressly agreed that this Agreement shall supersede any conflicting terms in those individual agreements.

4.3.8 This Agreement, including this clause, shall take precedence over any terms and conditions embedded within the standard agreements of the Affiliate Platforms, whether agreed prior or subsequent to this Agreement.

4.3.9 The Company reserves the right to forgo the use of any billing methods pertaining to Affiliate Platforms and utilise alternate methods to recover any payable amounts under this Agreement at any time, including, but not limited to, direct invoicing.

5- OFFSET CLAUSE

5.1 The Company reserves the right to offset any amounts due to the Retail Partner under this Agreement against any amounts that may be owed by the Retail Partner under this Agreement or any other agreement between the Parties. This offset may include, but is not limited to, any amounts related to payments, reimbursements, damages, or other financial obligations. The Company shall provide written notice to the other Party detailing the amounts and basis for the offset. The offset shall be applied at the Company’s sole discretion and only to the extent necessary to satisfy the owed amounts, and any remaining balance shall be paid in accordance with the terms of this Agreement.

6 – RETAIL PARTNER’S WARRANTIES, LIABILITIES AND INDEMNITIES

6.1        The Retail Partner warrants and represents that:

6.1.1 it has full power and authority to carry out the actions contemplated under this Agreement;
 
6.1.2 its entry into and performance under this Agreement will not infringe upon any third party Intellectual Property Rights or breach any obligations to third parties;
 
6.1.3 it has obtained all approvals and consents required to supply goods and/or services to the End Users and to receive the Transactions; and
 
6.1.4 it shall comply with all applicable laws and regulations in connection with its obligations under this Agreement.

6.2     The Retail Partner agrees to promptly provide the Company with the details of all Merchant ID Data for all its retail outlets (including any online and/or mobile application stores) and to promptly provide regular updates of any changes to such details to enable the Company to update its systems accordingly.

6.3 The Retail Partner agrees to uphold all offers, promotions, and commitments made with any Reward Programme throughout the Reward Programme Term. This obligation shall include maintaining the terms and conditions of any such offers as originally agreed upon with the Reward Programme, unless otherwise mutually agreed in writing by the Retail Partner and the Company. The Retail Partner acknowledges that this commitment is essential to the integrity of the Reward Programme and agrees that any failure to honour such offers may result in termination of this Agreement in accordance with clause 10.

6.4      The Retail Partner will:  

6.4.1 ensure that any End User account and login details created by, or provided to the Retail Partner are used solely by individuals duly authorised by the Retail Partner, and will take necessary measures to keep these User accounts and login details secure and treated as confidential; and

6.4.2     inform the Company of any anticipated problems of a material nature in connection with its obligations under this Agreement, its ability to supply its goods and/or services to the End Users and/or its ability to accept the Nominated Cards and/or process the Transactions.

6.5 The Retail Partner hereby acknowledges and agrees that the availability of the Services depends on the availability and willingness of the Suppliers to provide certain services, including the provision of data in respect of the Transactions, and the willingness of the End Users to make purchases from the Retail Partner.

6.6 The Retail Partner shall notify the Company and its End Users of any budgetary constraints that need to be applied to a Relevant Reward Programme before its availability to End Users. Such constraints shall only be implemented upon the written consent of the Publisher and/or the Reward Programme. Where the parties mutually agree, a Budget Cap shall be put in place. In the event a Budget Cap is instituted, it shall be subject to approval by the Company and the Reward Programme and will take effect thirty (30) days from the date of such approval, unless otherwise stipulated in writing, including via email.

1. The Retail Partner shall be liable for any damages, losses, costs, or expenses arising from or in connection with its performance or non-performance under this Agreement, including but not limited to, any breach of its obligations hereunder, up to the full extent of the losses incurred by the Company, regardless of the cause of action or theory of liability, whether in contract, tort (including negligence), or otherwise.

1. The Retail Partner acknowledges and agrees that the provision of the service is dependent on accurately notifying the Tracking Partners and/or Publishers of the Retail Partner’s Merchant ID Data. This is essential for effectively tracking Transactions conducted by the End Users. The Retail Partner is responsible for ensuring the accuracy and completeness of this data. The Retail Partner shall be solely responsible for ensuring the accuracy, completeness, and timeliness of the Merchant ID Data provided. Any errors or inaccuracies in the Merchant ID Data shall be promptly corrected by the Retail Partner, and the Retail Partner shall bear full responsibility for any consequences arising from such errors or inaccuracies, including but not limited to, the failure to properly track Transactions and/ or the tracking of incorrect transactions.

6.9 Accordingly, the Retail Partner undertakes to authorise card payment schemes including, but not limited to, Visa, MasterCard, and American Express, to:

6.9.1        share Transaction data with the Tracking Partner(s) on behalf of the Retail Partner;

6.9.2        send the Tracking Partner qualifying Transaction data of End Users, attached to any of the Retail Partner’s Merchant ID Data;

6.9.3 enable card-linked offer(s) and target offers that may be of interest to the End Users.

6.10 The Retail Partner wishes to commission the services and shall:

6.10.1 accept all Nominated Cards or Accounts for payments, including partial payments, at its retail outlets and, where applicable, online through its website(s), 3rd party payment providers and mobile application(s) for all goods and/or services provided by the Retail Partner. For the avoidance of doubt, the Retail Partner shall not be deemed to be in breach of this clause 3.10.1 if it refuses to accept a Nominated Card or Account from an End User due to reasonable suspicion of fraud or other unlawful activity;

6.10.2 pay the Commission to the Company in accordance with clause 4.1; and

6.11 If the Retail Partner fails to provide the necessary Retailer Information to the Company, the Company shall use reasonable endeavours to source such materials as needed to fulfil its conditions and warranties under this Agreement. However, the Retail Partner remains fully responsible for providing all required material, and any delays or issues arising from that failure to do so will not be the Company’s responsibility.

6.12      The Retail Partner shall not circumvent or attempt to circumvent the provisions of this Agreement by way of direct or indirect relationship with a Reward Programme introduced by the Company (and any existing relationships as of the Effective Date shall be deemed not to have been introduced by the Company).

6.13 The Retail Partner will be solely responsible for the payment of all third-party fees, including but not limited to card processing and transaction fees, incurred in connection with the Transactions. The Company shall have no obligation or liability in relation to any such third-party fees, and the Retail Partner shall bear all costs and responsibilities associated therewith.

6.14 The Retail Partner authorises the Company to obtain any Transaction data and information from each Supplier, Publisher, Reward Programme or Tracking Partner as reasonably required by the Company in relation to the provision of the Payments Programme.

6.15 The Retail Partner shall indemnify, defend, and hold harmless the Company and each of its officers, directors, employees, agents and contractors from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable legal fees) arising out or in connection with: (i) any breach by the Retail Partner of its representations, warranties, or obligations under this Agreement; (ii) any violation by the Retail Partner of applicable laws, regulations, or third-party rights, including intellectual property rights; and/or (iii) any claims or actions brought by third parties relating to the use of the Retail Partner’s Materials by the Company (except to the extent caused by the Company’s negligence) or the Retail Partner’s Materials; and/or (iv) any claim made against the Company by any User, Reward Programme, and/or Supplier arising out of or in connection with the performance or non-performance by the Retail Partner of its obligations under this Agreement. This indemnity shall not apply to the extent that a claim arises from the Company’s own negligence or wilful misconduct.

7 – LIMITATION OF LIABILITY

7.1 Nothing in this Agreement shall limit or exclude the Company’s liability to the extent that such liability cannot legally be limited or excluded, including, but not limited to, liability for:
 
7.1.1 death or personal injury caused by negligence;
 
7.1.2 fraud or fraudulent misrepresentation; or

1. any other liability that cannot be excluded or limited under applicable law.

7.2 Subject to clause 7.1, the Company shall not be liable to the Retail Partner, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of or damage to goodwill; (g) any fines, expenses or other losses arising from a breach by the Retail Partner of any applicable laws; (h) any ex gratia payment or sum paid in settlement of a claim without the Company’s prior written approval; or (i) any indirect, punitive or consequential loss.

1. Subject to clause 7.1, the Company’s total liability to the Retail Partner, whether arising in    contract, tort (including negligence), breach of statutory duty (except to the extent that such liability cannot be lawfully excluded or limited), or otherwise, in connection with this Agreement, shall be limited to the total  amount paid by the Retail Partner to the Company  under this  Agreement in the preceding  period of six (6) months.

8 – INTELLECTUAL PROPERTY

8.1 Each party owns and shall retain all right, title and interest in its own Intellectual Property Rights currently used, or which may be developed and/or used by it in the future.

8.2     The Retail Partner acknowledges that it has no right, title, or interest in any of the intellectual property owned by the Company, and nothing in this Agreement shall be construed as granting any such rights. Any enhancements, modifications, or improvements made to the technology by the Company shall remain the sole property of the Company.

8.3 The Retail Partner hereby grants the Company and the Retail Partner’s Relevant Reward Programmes a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Retail Partner’s Data for the duration of this Agreement and for the purpose of discharging the Company’s obligations in this Agreement. The Retail Partner acknowledges and agrees that the Company’s right to copy and modify the Retailer Data shall be upheld without denial, and the Retail Partner agrees to cooperate fully and in good faith whenever such rights are exercised.

8.4 The Retail Partner hereby grants the Company the authority to enter into an agreement with each Reward Programme on its behalf as deemed necessary for the purpose providing the services pursuant to this Agreement.

85 Any variations set out in an Insertion Order in accordance with clause 13.6, shall be agreed in writing between the Parties prior to the execution of the Insertion Order.

8.6 The Retail Partner will notify the Company in writing of any Reward Programmes it does not wish to be promoted.

8.7 The Retail Partner shall indemnify the Company against all liabilities, costs, expenses, damages and losses suffered or incurred by the Company arising out of or in connection with any claim made against the Company for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with, the receipt or use of the Retailer Data by the Company.
 

9 – EXCLUSIONS OF WARRANTIES

9.1 Other than as set out in this Agreement, the Services are provided to Retail Partners on an “AS IS” basis and the Company gives no representations, warranties, conditions or other terms of any kind in respect of the Services, whether express or implied, including, but not limited to, warranties of satisfactory quality, merchantability, fitness for a particular purpose, or non-infringement, which are hereby excluded to the full extent permitted by law.

1. The content provided through the Reward Programmes (including the Retailer Information) is provided by the Company as an agent on behalf of the Retail Partner in good faith on an “AS IS” basis. As such, the Company gives no representations or warranties that the content provided through the Reward Programmes is reliable, accurate, or complete. 

10 – RESTRICTIVE COVENANTS

10.1 Non-Solicitation:
The Retail Partner hereby covenants and agrees that, during the term of this Agreement and for a period of twelve (12) months thereafter, it shall not, without the prior written consent of the Company, directly or indirectly solicit, or attempt to solicit, any customer, client, or business partner of the Company, known to the Retail Partner as a result of this Agreement, including, without limitation, any participants in the Reward Programmes facilitated by the Company. Furthermore, the Retail Partner agrees that, during the term of this Agreement and for a period of twelve (12) months thereafter, it shall not, directly, or indirectly, solicit, induce, or attempt to hire any employee, contractor, or consultant of the Company who has engaged with the Retail Partner during the term of this Agreement, unless prior written consent is obtained from the Company.

10.2 Confidentiality and Use of Data:
The Retail Partner agrees that it will not use or disclose any confidential information, trade secrets, or customer data belonging to the Company, including any data obtained through Reward Programmes, for its own benefit or the benefit of any third party, both during the term of this Agreement and after its termination.

10.3 Enforceability:
The Retail Partner acknowledges that the restrictions in this clause are reasonable and necessary to protect the legitimate business interests of the Company, and any breach of these covenants may result in irreparable harm to the Company. In the event of a breach or threatened breach, The Company shall be entitled to seek injunctive relief and any other remedies available at law or in equity.

11 -TERMINATION

11.1 Without affecting any other rights or remedies, following completion of the Initial Reward Programme Term, either party may terminate the Reward Programme Term for any one or more of the Relevant Reward Programmes by providing thirty (30) days’ written notice following the end of an Offer Period and such termination shall take effect 30 days following the end of the current Offer Period as set out in the Reward Programme Form for such Reward Programme(s).

11.2 Alternatively, either party may terminate the entire Agreement immediately by giving written notice to the other party if:

11.2.1 the other party commits a material breach of any term of this Agreement which breach is irremediable or if such breach is remediable fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;

11.2.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company or limited liability partnership is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986, or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or being a partnership has any partner to whom any of the foregoing apply;

11.2.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

11.2.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party, being a company, other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

11.2.5 an application is made to the court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party being a company;

11.2.6 the holder of a qualifying floating charge over the assets of that other party being a company has become entitled to appoint or has appointed an administrative receiver;

11.2.7 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

11.2.8 the other party (being an individual) is the subject of a bankruptcy petition, application or order;

11.2.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;

11.2.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events in clause 11.2.2 to clause 22.2.9 (inclusive);

11.2.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

11.2.12 a member of key personnel of the other party, including, without limitation, the majority owner or sole representative of the Retail Partner, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.

11.3 Without affecting any other right or remedy available to it, the Company may terminate the  Agreement with immediate effect by giving written notice to the Retail Partner if:
 
11.3.1 the Retail Partner fails to pay any payment due under this Agreement on the Due Date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;
 
11.3.2 the Company is unable, for whatever reason, to continue to provide the Payments Programme.

11.4 Consequences upon termination of this Agreement for any reason:

11.4.1 any Commission in respect of any Transactions concluded prior to the termination date shall become immediately due and payable;
 
11.4.2 no refunds of Commission shall be due to the Retail Partner (other than Commission in relation to Refunds);
 
11.4.3 any licences granted under this Agreement shall cease automatically; 

11.4.4 each party shall return to the other party all equipment, materials and property belonging to and supplied by that other party in connection with this Agreement;

11.4.5 each party shall return to the other party all documents and materials (and any copies) containing the other party’s Confidential Information and, to the extent possible, erase any such Confidential Information from its computer system.

11.5 Termination of the Agreement shall not affect either of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.

11.6 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect, including, but not limited to clause 1 (Interpretation), clause 4 (Rewards, Commission and Reporting), 6 (Retail Partner’s Warranties, Liabilities and Indemnities), 11.3 (Consequences upon termination of this Agreement for any reason) and clause 13 (General).

12 – Data Protection

12.1 Each party shall, at its own expense, ensure compliance with and assist the other party in complying with all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) the Data Protection Legislation. This clause is in addition to, and does not reduce, remove, or replace, any party’s obligations arising from such requirements.

12.2 For the purposes of this Agreement, “Transaction Data” refers to any data generated or collected as a result of the performance of transactions under this Agreement, including, but not limited to, payment information, transaction dates, amounts, End Users details, and customer information, where applicable.

12.3 All Transaction Data generated through the Reward Programmes under this Agreement shall be owned by the Retail Partner subject to the rights granted to the Company herein.

13.4 Each party agrees to use and process Transaction Data in compliance with all applicable UK laws, including but not limited to the Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR), as well as any other relevant data protection and privacy regulations.

12.5 Transaction Data shall be used and processed only for the purposes of fulfilling the contractual obligations outlined in this Agreement and shall not be used for any other purpose without the prior written consent of the other party.

12.6 Each party shall implement and maintain appropriate technical and organisational measures to protect Transaction Data against unauthorised or unlawful processing, accidental loss, destruction, or damage, ensuring a level of security appropriate to the risk, consistent with industry standards and applicable UK laws, including the Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR).

12.7 In the event of a data breach involving Transaction Data, the affected party shall promptly notify the other party in accordance with applicable UK data breach notification laws, including the requirements set out under the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018, and shall cooperate fully to mitigate the impact and address any regulatory requirements.

12.8 Transaction Data shall not be shared with or disclosed to any third party except as necessary to fulfill the obligations under this Agreement, or as required by law, with prior notice provided to the other party where permissible.

12.9 If any subprocessors are used to process Transaction Data, the engaging party must ensure that such subprocessors are bound by written agreements imposing data protection obligations that are no less protective than those set out in this Agreement.

12.10 Transaction Data shall be retained only for as long as necessary to fulfill the purposes of this Agreement, comply with legal obligations, or protect legitimate interests, in accordance with applicable UK laws, including the Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR).

12.11 Upon termination of this Agreement or upon the written request of the other party, the party in possession of Transaction Data shall securely delete or return such data, unless retention is required by applicable law.

13 – GENERAL

13.1 Authority

13.1.1 The Company shall not be a party to any contracts between an End User and the Retail Partner and shall have no responsibilities or liabilities for any obligations arising from the Retail Partner’s terms and conditions governing the supply of goods and/or services.

13.1.2 Each party acknowledges and agrees that it does not have the authority to bind the other party in any manner, including but not limited to contractual obligations with customers of the other party (such as End Users). Neither party shall claim or imply any such authority. Furthermore, the Company shall not be a party to any contracts between an End User and the Retail Partner related to the goods and/or services. The Company shall not have any rights or liabilities concerning such contracts, nor with respect to any goods and/or services supplied by the Retail Partner to the End User.

13.1.3 Neither party may provide to any third party any information or make any representation relating to the other party’s goods and/Services unless that information or representation is approved in writing by that party for use in those circumstances.

13.1.4 Each party shall at its own expense comply with all laws and regulations relating to its activities under this Agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.

13.1.5   Except as expressly provided in this Agreement, there are no conditions, warranties or other terms binding on the parties with respect to the actions contemplated by this Agreement. Any condition, warranty or other term in this regard that might otherwise be implied or incorporated into this Agreement, whether by statute, common law or otherwise, is, to the extent that it is lawful to do so, excluded from this Agreement.

13.2 Confidentiality

13.2.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by section 13.2.3.

13.2.2 For the purposes of this clause, ‘group’ means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

13.2.3 Each party may disclose the other party’s Confidential Information:

13.2.3.1 to its employees, officers, representatives, subcontractors, or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors, or advisers to whom it discloses the other party’s Confidential Information comply with this clause 13.1; and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.2.3.2 No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.

13.2.4 Subject to clause 13.2.5, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

13.2.5 The parties agree that each party may publicly reference the Retail Partner’s participation in the Payments Programme. Any such reference shall be made in a manner that does not bring the other party into disrepute or damage that party’s reputation.

13.2.6 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:

13.2.6.1 is or becomes publicly known other than through any act or omission of the receiving party;

13.2.6.2 was in the other party’s lawful possession before the disclosure;

13.2.6.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

13.2.6.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or

13.2.6.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

13.2.7 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available for use for any purpose other than as needed to perform its obligations under this Agreement during the Contract Term and for so long as the Confidential Information remains confidential.

13.2.8 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

13.2.9   Each party shall use the same degree of care to protect the Confidential Information as it uses to protect its own most highly confidential information, but in no circumstances less than reasonable care.

13.2.10 At the time of expiration or termination of this Agreement, as applicable, or upon the other party’s request, each party agrees to promptly return or destroy any Confidential Information provided by the other party in connection with this Agreement.

13.3 Publicity and Announcements

13.3.1 Subject to the provisions set forth in Clause 13.3.2, no party shall make, or permit any third party to make, any public announcement or communicate in any manner with the media in any jurisdiction regarding the existence, subject matter, or terms of this Agreement, the broader transactions contemplated herein, or the relationship between the parties, without obtaining the prior written consent of the other party.

13.3.2 Unless the Retail Partner provides the Company with written notice to the contrary, the Retail Partner hereby grants the Company the right to utilise the Retail Partner’s name in printed materials, online content, multimedia advertising, and marketing collateral across any social media platforms, including, but not limited to, LinkedIn, for the purpose of disclosing that the Retail Partner is a client of the Company.

13.4 Counterparts

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

13.5 Force majeure

Other than in respect of the Commission payable by the Retail Partner under this Agreement, neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

13.6 Assignment and other dealings

13.6.1 The Retail Partner shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all its rights and/or obligations under this Agreement without the Company’s prior written consent.

13.6.2 The Company may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all its rights under this Agreement.

13.7 Entire agreement

13.7.1 This Agreement constitutes the entire understanding between the parties and supersedes and extinguishes all prior discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations, and understandings, whether written or oral, pertaining to its subject matter.

13.7.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty, whether made innocently or negligently that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

13.8 Variation

As set out herein, the Company reserves the right to make variations to this Agreement with written notice to the other party at least thirty (30) days in advance. Such notice shall include the details of the proposed variations. Any variation made in accordance with this provision shall be considered effective on the date specified in the written notice. No variation of this Agreement shall be effective unless it is in writing and provided with the required notice period.

13.9 Waiver

A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not: (i) waive that or any other right or remedy; or (ii) prevent or restrict the further exercise of that or any other right or remedy.

13.10 No partnership or agency

Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13.11 Severance

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

13.12 Notices

13.12.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.

13.12.2 A notice or other communication shall be deemed to have been received; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by or e-mail, one Business Day after transmission.

13.12.3 The provisions of this clause 13.12.3 shall not apply to the service of any proceedings or other documents in any legal action.

13.13 Remedies

The parties acknowledge and agree that damages alone would not be an adequate remedy for any breach of the terms of this Agreement. Accordingly, both parties shall be entitled, to the remedies of injunction, specific performance, or other equitable relief for any threatened or actual breach of the terms of this Agreement. 

13.14 Third party rights.

No person other than a party to this Agreement shall have any right to enforce any of its terms.

13.15 Governing Law and Dispute resolution 

13.15.1 Governing Law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it, its subject matter, or its formation shall be governed by and construed in accordance with the law of England and Wales. 

13.15.2 Dispute Resolution. In the event of any dispute arising out of or in connection with this Agreement including its performance, validity or enforceability, each party shall nominate a senior representative with the authority to negotiate and bind the party to a settlement. The parties shall attempt in good faith to resolve the dispute amicably through negotiation.

13.15.3 The parties agree that any dispute, controversy, or claim arising out of or in connection with this Agreement, including its interpretation, performance, or termination, may be resolved by either arbitration or litigation at the Company’s sole discretion.

13.15.4 Arbitration: In the event that the Company elects to resolve a dispute through arbitration, the parties agree to refer any dispute arising out of or in connection with this Agreement for final resolution by arbitration, conducted in accordance with the LCIA Rules, which are hereby incorporated by reference into this clause. The parties agree that:

(i) any dispute, arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration conducted pursuant to the LCIA Rules;

(ii) the arbitration shall be conducted by a sole arbitrator;

(iii) the seat or legal place of arbitration shall be London, England; and

(iv) the language of the arbitration proceedings shall be English. 

13.15.5 Litigation: In the event that the Company opts to resolve a dispute through litigation, the parties hereby agree that any dispute or claim, including but not limited to non-contractual disputes or claims, arising out of or in connection with this Agreement its subject matter, or its formation, shall be subject to the exclusive jurisdiction of the courts of England and Wales.

13.15.6  If the Retail Partner has already initiated court proceedings in relation to a dispute before the

Company has commenced arbitration proceedings, it is agreed that, on the demand of the Company, those court proceedings shall be discontinued by the Retail Partner within seven (7) days after the Company has commenced arbitration proceedings in respect of the dispute. The Company must deliver the demand for discontinuance within seven (7) days of service of the court proceedings by the Retail Partner on the Company and must commence the arbitration proceedings within fourteen (14) days of delivery of the demand for discontinuance.