These Terms set out the basis upon which the Supplier will license the use of its Software Application “CouponBank”.
The Supplier has created for retailer campaign and owns and controls the rights in and to the software known as CouponBank. The Software Application allows retailers to create coupon campaigns/offers for customers, manage the campaigns and coupons; provides such retailers with statistics and information regarding the coupons campaigns; enables customers of the retailers to scan, bank and/or share coupons and use the coupons for the offers set out by the retailers. The Software allows retailers to check-in their customers into their business for tracking customer loyalty.
By submitting an Offer or by accepting these Terms, or using the Software Application the User agrees to contract on the basis of these Terms and in doing so agrees that they prevail over any other terms which the User may seek to impose or introduce, including (without limitation) any terms set out in or relating to any purchase order, acceptance or acknowledgement issued by the User.
Any person submitting an Offer, or making any other representation, on behalf of the User represents and warrants that they have the legal right and authority to bind the User to the terms of the Agreement.
The Agreement supersedes all and any previous agreements in relation its subject matter, including (without limitation) any related non-disclosure agreements previously entered into by the parties.
1.1 The following definitions and rules of interpretation apply in the Agreement.
- Acceptable Use Policy: the Supplier’s acceptable use policy.
- Activation Date: the date on which the Software is activated for use by the Application User.
- Agreement: the agreement between the User and the Supplier comprising of these Terms and any documents specifically referred to or incorporated into these Terms.
- Application Software/Software: the software application known as CouponBank.
- Application Users/User: users of the Application Software including the Customer and the Retailer.
- Business Day: a day other than a Saturday, Sunday or public holiday in England.
- Cloud Software: the cloud based software to manage and deliver content to the Software Application.
- Confidential Information: all and any confidential information (in whatever form) whether or not marked as such including but not limited to commercial, financial, marketing and technical information relating to the disclosing party’s business, services, products, clients, consultants, employees, suppliers, finances, proprietary computer software, website, know how, trade secrets, intellectual property, future product plans, future project plans and documentation in any form or medium whatsoever whether disclosed orally or in writing relating to any of the foregoing (including copies thereof).
- Customer: the legal person (whether company, partnership, individual or otherwise), using the Software Application to receive, scan, view, use, benefit from, save and share offers provided by Retailers via the Software Application.
- Customer Data: the data provided and/or input by the User or on the Customer’s behalf in connection with the Agreement.
- Data Protection Laws: the UK Data Protection Act 2018 and GDPR and applicable data protection legislation.
- Fees: the licence fees paid by the Retailer.
- Licence: the licence of the Software granted under clause 2.1.
- Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
- Offer: the offer made by the Customer to acquire the campaign coupon invitation made by the Retailer.
- Order: the binding order formed when the Retailer accepts the Customer Offer, either expressly or by acting in accordance with the Offer.
- Personal Data: as defined in the Data Protection Laws.
- Renewal Period: the period described in clause 3.
- Retailer: the business, individual, organisation, company or partnership providing offers to its goods and/or services through the CouponBank campaigns via the Application Software.
- Supplier: E-Smart Solutions Limited incorporated and registered in England and Wales with company number 3758209 whose registered office is at Maghull Business Centre, 1 Liverpool Road North, Maghull, England L31 2HB.
- Term: 12 months from the Activation Date and the Renewal Period.
- Terms: these software licence terms.
- Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2.1 In consideration of the payment of the Licence Fees by the Retailer the Supplier grants the Retailer a non-exclusive licence for the use of the Software during the Term. The Customer is granted a non-exclusive licence to use the Software.
2.2 In relation to scope of use:
- (a) the User may not use the Software other than as specified in clause 2.1 without the prior written consent of the Supplier and the User acknowledges that additional fees may be payable on any change of use approved by the Supplier.
- (b) except as expressly stated in this clause 2, the User has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Retailer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Retailer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction.
2.3 The User may not use any information provided by the Supplier or obtained by the User during use of the Software to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.5 The User shall not, without the prior written consent of the Supplier:
- (a) sub-license, assign or novate the benefit or burden of the Licence in whole or in part;
- (b) deal in any other manner with any or all of its rights and obligations under the Agreement;
- (c) access all or any part of the Software in order to build a product or service which competes with those of the Supplier.
2.6 The User shall:
- (a) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, shall promptly notify the Supplier; and
- (b) pay, for broadening the scope of the licences granted under the Agreement to cover any unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
2.7 The rights provided under this clause 2 are granted to the User only and, unless otherwise agreed in writing by the Supplier, shall not be considered granted to any subsidiary or holding company of the User or any associated or affiliated company.
Following the initial 12 month period the licence shall continue for the Retailer on rolling 12 month continuous periods.
The Supplier provides the Software as a platform in which the Retailer can provide offers and campaigns and the Customer can readily access Retailer offers and campaigns. The Supplier is not liable or responsible for the delivery and/or compliance with those campaign offers. The contract with respect to any campaign offers is between the Retailer and Customer.
5. CHARGES AND PAYMENT
5.1 The Retailer shall pay the Fees to the Supplier in accordance with this clause 5.
5.2 The Retailer shall on or prior to the Effective Date provide to the Supplier valid, up-to-date and complete payment details or approved purchase order information acceptable to the Supplier and any other required valid, up-to-date and complete contact and billing details.
5.3 The Retailer will pay all Fees in accordance with the terms set out in the applicable Agreement or Order in advance of the licence. By entering into the Agreement, the Reatiler hereby commits to payment of the Fees for the full term of the Agreement, including (without limitation) the payment of fees for the additional services.
5.4 If the Supplier has not received payment in accordance with the terms of the Agreement the Supplier may, without prejudice to any other rights and remedies and without liability to the User, suspend access to all or part of the Software (as applicable) and the Supplier shall be under no obligation to provide any or all of the Software while the payment(s) concerned remain unpaid.
5.5 All amounts and fees stated or referred to in the Agreement:
- (a) shall be payable in pounds sterling unless otherwise;
- (b) are non-cancellable and non-refundable;
- (c) are payable in full, net of all charges, and without set-off, deduction or withholding; and
- (d) are exclusive of value added tax or other local taxes, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
5.6 The Supplier shall be entitled to increase the Fees upon 90 days’ prior notice to the Retailer. Any changes to the fees for additional services and travel expenses shall be notified in writing.
6. SUPPLIER’S WARRANTIES & OBLIGATIONS
6.1 The Supplier shall, at the Supplier’s option, do one of the following:
- (a) repair the Software;
- (b) replace the Software; or
(c) terminate the Licence immediately by
- notice in writing to the User and refund any of the Licence Fees paid by the Retailer as at the date of termination (less a reasonable sum in respect of the Retailer’s use of the Software to the date of termination),
provided the User supplies all information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.
6.2 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement. The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
6.3 The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
6.4 The Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
6.5 The Supplier provides no warranty as to the accuracy of any content.
7. USER OBLIGATIONS
7.1 The User shall:
- (a) provide the Supplier with:
- (i) all necessary co-operation in relation to the Agreement; and
- (ii) such documents, data, drawings, plans, diagrams, designs, reports, specifications or other information as the Supplier may reasonably require in order to provide the CouponBank services, including but not limited to Customer Data, security access information and configuration services, and ensure all information is complete, true and accurate in all material respects;
- (b) appoint a representative, who shall have the authority contractually to bind the Retailer on matters relating to the Supplier services;
- (c) make available such Retailer staff and applicable sub-contractors or suppliers (if any) as may be required for the Supplier to provide the services;
- (d) carry out all other responsibilities as required in a timely and efficient manner;
- (e) ensure that the Users they honour the agreements made between the Retailer and Customer;
- (f) obtain and maintain all licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement;
- (g) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
- (i) comply with all applicable laws and regulations (including Data Protection Laws) with respect to its activities under the Agreement.
7.2 The User acknowledges that the Supplier’s ability to provide the services depends on the Customer satisfactorily complying with the obligations stated in this Agreement and that should the User delay or fail to perform any such obligations then the Supplier will not be liable in any way for any delay, loss or damage, cost increase or other consequences arising from such failure.
7.3 The User shall not access, store, distribute or transmit any Viruses, or breach the terms of the Supplier’s Acceptable Use Policy. The Supplier reserves the right, without liability and without prejudice to its other rights, to disable the User’s access to any material that breaches the provisions of this clause.
7.4 The User shall not upload any content onto the Supplier’s Software and/or platform.
8. DATA AND SECURITY
8.1 The User shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Supplier shall not upload any data without the prior consent of the User. The Supplier shall have the right to remove content at its sole discretion.
8.2 The User warrants that it owns all rights in the Customer Data and that the Supplier’s use and processing of the Customer Data in accordance with the Agreement will not infringe third party rights. The Customer hereby grants the Supplier the non-exclusive worldwide right and licence to process, copy, store, transmit, display, print, view and otherwise use the Customer Data.
8.3 Unless backup arrangements are agreed in writing, the Supplier is not responsible for maintaining backup copies of any Customer Data. The User accepts full responsibility in respect of the security and backup of any and all Customer Data and for the security and safety of its systems and software. The Supplier’s liability in relation to any data loss, corruption or security will be limited to that resulting from its failure to comply with any contractual commitments given and the Supplier does not otherwise accept responsibility in those respects.
- (a) the Supplier acknowledges that the personal data will be stored inside the EEA or the country where the Customer and the Users are located in order to carry out the Supplier services;
- (b) the User shall ensure that it is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Agreement on the Customer’s behalf;
- (c) the User shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
- (d) the Supplier shall process the personal data only in accordance with the terms of the Agreement and any lawful and reasonable instructions given by the User from time to time; and
- (e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
8.5 The User accepts that the processing of electronic communications is a fundamental requirement for the provision of the Supplier services and the User therefore consents to the Supplier’s interception and storage of electronic communications and Customer Data in connection with the Supplier services. The Customer accepts that electronic communications involve transmission over the Internet, and over other networks, which are outside the Supplier’s control. The Customer accepts the risk associated with electronic communications and the possibility that they may be accessed by unauthorised parties and agrees that the Supplier is not responsible for any related delay, loss or damage.
9. THIRD PARTY PROVIDERS AND CONTENT
The Supplier shall ensure that it has the right to use third party content that it suggests to the Customer as part of the use of the Application Software.
10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Supplier services the Software and the registered trade mark ‘CouponBank’. Except as expressly stated herein, the Agreement does not grant the User any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software or the trade mark.
10.2 The Supplier confirms that it has all the rights in relation to the Supplier Services and the Software as are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
10.3 The ‘CouponBank trade mark is owned by the Supplier and all rights therein are specifically reserved.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
- (a) is or becomes publicly known other than through any act or omission of the receiving party;
- (b) was in the other party’s lawful possession before the disclosure;
- (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
- (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
11.3 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 the Agreement.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The User acknowledges that details of the Software constitute the Supplier’s Confidential Information.
11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 This clause 11 shall survive termination of the Agreement, however arising.
11.8 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (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.
12.1 The User shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the User’s use of the Supplier services or the Software.
12.2 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
- (a) a modification of the Software by anyone other than the Supplier; or
- (b) the use of the Software in breach of the Agreement or in a manner contrary to the instructions given by the Supplier; or
- (c) the use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
13. LIMITATION OF LIABILITY
13.1 This clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, officers, agents and sub-contractors) to the Customer:
- (a) arising under or in connection with the Agreement;
- (b) in respect of any use made by the User of the Software and/or Supplier services or any part of them; and
- (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
13.2 Except as expressly and specifically provided in the Agreement:
- (a) the User assumes sole responsibility for the relationship and contracts between the Retailer and Customer. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the User in connection with the Software or Supplier servics, or any actions taken by the Supplier at the User’s direction; and
- (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement, including (without limitation) any implied term(s) as to satisfactory quality or fitness for purpose.
13.3 Nothing in the Agreement excludes the liability of the Supplier:
- (a) for death or personal injury caused by the Supplier’s negligence;
- (b) for fraud or fraudulent misrepresentation; or
- (c) for any other liability which may not be excluded or limited under applicable law.
13.4 Subject to clause 13.3:
- (a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for (i) any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or (ii) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
- (b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to 100% of the Fees paid or payable by the User during the 12 months immediately preceding the date on which the claim arose. For the avoidance of doubt, the said limit applies to all and any indemnities given by the Supplier.
14.1 Without prejudice to any other right, power or remedy and without liability, the Supplier reserves the right to limit or suspend the Supplier services:
- (a) if it is reasonably necessary to protect the interests of the User or the Supplier, or the interests of any third party (including other customers) and/or to protect the security or operation of the Supplier’s systems or network or those of its customers;
- (b) if the User breaches any of the terms of the Agreement or the Supplier reasonably believes the User has breached or is about to breach;
- (c) if the Retailer fails to pay any Fees when due;
- (d) if the User fails to cooperate regarding any suspected or actual breach of the terms of the Agreement; or
- (e) if required to do so by law or further to a request from any regulatory or governmental authority.
14.2 The Supplier may also temporarily suspend all or any part of the Supplier services or licence for the purpose of repair, maintenance or improvement of any systems. The Supplier shall use all reasonable endeavours to keep any such suspensions to a minimum and to carry out such works outside normal working hours wherever possible.
14.3 The Supplier shall not be liable for any suspension under the above circumstances and the User shall not be entitled to any setoff, discount, refund or other credit as a result of such suspension and/or disconnection.
15.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
- (a) the other party fails to pay any amount due on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
- (b) the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
- (c) the other party is or may be (in the reasonable opinion of the first party) unable to pay its debts or has a receiver, administrator, administrative receiver or liquidator or similar appointed or calls a meeting of its creditors or ceases for any other reason to carry on business
15.2 On termination of the Agreement for any reason:
- (a) all licences granted under the Agreement shall immediately terminate;
- (b) the Retailer shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the Supplier; and
- (c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
16. FORCE MAJEURE
The Supplier shall have no liability to the User under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the User is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions of any contract, the Terms shall prevail over any documents referred to or incorporated into the Terms.
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. RIGHTS AND REMEDIES
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
22. ENTIRE AGREEMENT
22.1 The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover, including (without limitation) any non-disclosure agreements previously entered into by the parties relating to the subject matter hereunder.
22.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
23.1 The User shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
23.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
24. NO PARTNERSHIP OR AGENCY
Each party confirms it is acting on its own behalf and not for the benefit of any other person. Nothing in the 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).
25. THIRD PARTY RIGHTS
The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
26.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes.
26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
27. GOVERNING LAW
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).