A. Unless expressly agreed otherwise, these terms and conditions including any schedules and annexes attached hereto (“Ts&Cs”) shall apply to each order form entered into between the customer entity identified therein (“Client”, “you”, “your”) and &Open Gifts Limited, an Irish Corporation with registered number 599378 with its registered office at 13 St. Clare’s Avenue, Harold’s Cross, Dublin 6W, Ireland (“&Open”, “we”, “us”, “our”) (each an “Order Form”).
B. These Ts&Cs and attached Order Form (together, the “Agreement”) come into effect on the Effective Date (as at the top of this document) and set out the terms on which we will provide you with: (i) access to the &Open gifting platform (the “Platform”); and (ii) the related products and services specified herein, (together, the “Services”).
C. This Agreement may be supplemented, amended or replaced from time to time, by mutual written agreement. Unless expressly agreed otherwise in the relevant Order Form or On- Demand Gift Submission, if there is any inconsistency between these Ts&Cs and an Order Form or Gift Submission, these Ts&Cs shall prevail.
1.1 Subject to your continuing compliance with the terms of this Agreement and the payment of the Fees, we hereby grant to you (and your employees and contractors) a non-exclusive, non-transferable, non-sublicensable, revocable licence to access and use the Services in the Region (as defined in the Order Form) from the Effective Date until the termination or expiry of this Agreement (the “Term”), solely for the purpose of enabling you to provide gifts (as agreed with you and ordered under Clause 2.2 (“Gifts”)) to recipients in the Region.
1.2 You shall ensure that the number of persons using the Platform does not exceed the Authorised Users. You agree to use the Services solely in accordance with all applicable laws and to not do, or omit to do, anything that would put us in breach of applicable law. Save to the extent that such restrictions are not enforceable under applicable law, you agree not to (and not to attempt to): (a) sell, copy, duplicate, rent, lend, distribute, transfer or assign under a sublicence all or any part of the use of the Services; (b) decompile, reverse engineer, disassemble, modify or otherwise try to discover any source code used in the performance of the Services; or (c) obtain unauthorised access to our computer systems or take part in any action interfering with the performance of the Services.
1.3 If you request changes (including customisations) to the Platform, implementation of such shall be at our sole discretion, subject to the payment by you of any relevant Implementation Fees described in Clause 3.1(e) and subject to Clause 4.1. You agree to provide us (and our subcontractors) with such assistance and access to information systems or tools (including via APIs) as required to perform the Services (including implementation services) and to otherwise meet our obligations hereunder.
1.4 We reserve the right to monitor your use of the Services in order to ensure your compliance with this Agreement, and for the purposes of improving the operation and functionality of the Services and your use of them. We reserve the right at our discretion, without prejudice to our other rights and remedies to suspend, limit or withdraw your access to the Services, including: (a) for technical reasons relating to the performance and/or security of the Services; (b) where we are entitled to exercise a right of termination pursuant to this Agreement; or (c) if continuing to provide the Services would or is likely to infringe upon the intellectual property rights (“IPR”) or other rights of any third party.
1.5 We will take reasonable steps to ensure appropriate availability and performance of the Platform and to fix Platform related issues you report to us via email to: email@example.com, however, to the extent permissible under applicable laws we provide the Services on an “as is” and “as available” basis; and do not warrant, represent nor undertake that the Services shall: (a) be uninterrupted, secure, free of errors, omissions, defects, software viruses or other bugs; (b) be compatible with your IT environment; (c) not be subject to hacking or other attacks and/or failures of, software, data and/or transmission networks; or (d) that the Services will meet your requirements.
2.1 During the Term, we shall use reasonable efforts to supply such quantities of Gifts as you may order for delivery in the Region(s) under Gift Orders accepted by us in accordance with this Clause 2.
2.2 You may order Gifts by placing an order through the &Open Marketplace (a “Gift Order”). While we will use reasonable efforts to meet any Gift Order properly submitted, we cannot guarantee the availability of Gifts and reserve the right to offer substitute gifts where the chosen Gifts are not available subject to prior consultation with you. We shall only deliver Gifts to recipients in the Region, unless otherwise agreed in writing. We will invoice you for each Gift Order upon the same being accepted by us in accordance with Clause 2.2 and you shall pay for each Gift Order prior to any Gift in such Gift Order being made available for distribution. Risk in the Gifts passes to you when the Gift is delivered (as evidenced by our third party carrier’s delivery records) to the relevant Gift recipient.
3.3 You agree to pay the amounts identified in the Order Form (“Fees”) in accordance with this Clause 3, which may include any combination of the following. Unless otherwise stated below, Fees shall be based on our rate card provided to you from time to time and invoiced in accordance with the below for each relevant service:
a. “Handling Fees” to be defined.
b. “Gift Fees”, in respect of the price for Gifts purchased by you as identified in an accepted Gift Order, invoiced upon our acceptance of the relevant Gift Order.
c. “Fulfilment Fees” in respect of us arranging the fulfilment and shipping of Gift(s) to a recipient, invoiced monthly in arrears on the last business day of the relevant month in which we provide the relevant service.
3.4 All payments made under this Agreement shall be made without set-off or deduction, in the currency stated on the relevant Order Form by wire transfer to our nominated bank account (save with respect to Platform Fees which shall be made via Direct Debit or automated card payment as agreed), within 30 days of the date of invoice. Except where the contrary is stated in an Order Form, all Fees are exclusive of applicable taxes and we may charge applicable taxes at the prevailing rate on any Fees. All Fees are stated exclusive of any additional taxes, levies or fees that may apply to the Services, which will be borne by you. If you do not make payment of any Fees as and when due, then: (a) interest shall accrue on the full amount outstanding at the rate of 4% above the base lending rate of Euribor from time to time, from the due date until the date of actual payment; and (b) we may suspend your access to the Services (or any of them).
4.1 We own full right, title and interest in and to all IPR in the Services (including the Platform). Nothing in this Agreement shall operate to transfer ownership of any IPR: (a) belonging to you or us prior to the Effective Date; or (b) in any items which are independently developed by you or us otherwise than under this Agreement. Any IPR that we develop in connection with this Agreement (including any updates, upgrades, enhancements, modifications or customisations made to the Services) will be owned by us. All data (excluding Personal Data) generated as a result of your use of and our performance of the Services and all related systems (including the Platform) shall be and remain vested in us.
4.2To the extent that you provide us with any IPR or data relating to your business in connection with our provision of the Services, including relating to your (or your affiliates’) products, customers, gifts, technical information, project plans, business processes, plans, strategies or financial data (“Client IPR”), you hereby grant to us a non-exclusive, worldwide, transferable, perpetual licence, royalty free (including the right to sublicence our affiliates and third party service providers) to use, adapt, translate, copy and analyse such Client IPR for the purposes of providing and improving the Services, including incorporating such Client IPR (including your logos) into the design of Gifts and the Platform and for co-marketing purposes. You represent and warrant that such use of the Client IPR will not infringe or violate the rights of any third party.
4.3You hereby indemnify, keep indemnified and hold harmless us from and against any and all losses, damages, costs, expenses and other liability (including any legal costs) suffered or incurred by &Open, its directors, employees, representatives, contractors or subcontractors as a result of any third party dispute, claim, demand or action against &Open arising from: (a) your use of the Services; and/or (b) &Open’s use of the Client IPR under this Agreement.
4.4You acknowledge that the Services incorporate certain third party IPR and information and that you will comply with any terms and conditions that are imposed from time to time on &Open and its licencees in relation to the same, as such terms and conditions will be notified by us to you in writing.
4.5Neither party shall publish or use the name or logo of the other party without obtaining prior written approval from the other party, except as permitted by this Agreement or required to perform its obligations under this Agreement.
5.1 Each party warrants and represents that it is duly organised and existing under the laws of its respective jurisdiction and has obtained all such authorisations, consents, notifications and approvals required to fulfil its duties and to exercise its rights under this Agreement.
5.2 You represent, warrant and undertake that: (a) you have all such authorisations, consents, notifications and approvals required to provide the Platform to gift recipients; (b) you will not (and will not suffer or permit any third party to) use the Platform in a manner that would cause any party to be party to any unlawful act or transaction; and (c) you will procure that only your authorised employees, contractors and gift recipients will access and use the Platform.
5.3 Except as stated in this Clause 5, we exclude to the fullest extent permitted by law, all express, implied, statutory and customary warranties, terms and conditions including as to the merchantability, fitness for any particular purpose or otherwise with respect to the Services or any Gifts.
6.4 Subject to Clause 6.2, &Open’s maximum aggregate liability, whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of, or in connection with, this Agreement shall in no circumstance exceed the total Fees paid under this Agreement in respect of the 12 month period prior to the event giving rise to the first claim.
6.5 Nothing in this Agreement shall exclude or in any way limit any liability for fraud, fraudulent misrepresentation, death or personal injury caused by negligence, or any other liability to the extent the same may not be excluded or limited as a matter of law.
6.6 Subject to Clause 6.2, &Open shall in no event be liable whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of, or in connection with, this Agreement for: the loss, accuracy or completeness of Client Data; any loss of revenue, sales, profit, business, goodwill or anticipated savings (in each case whether direct or indirect); or any special, indirect, punitive or consequential loss.
6.7 Any claim under this Agreement by you must be brought within 120 days of the relevant cause of action arising. Failure to do so will render the claim null and void.
7.8 Each party agrees to hold all information of a confidential nature (whether or not marked as such and including written and oral information) of the other party (“Confidential Information”) in strict confidence and shall not, without the prior written consent of the other party, disclose to any third party such Confidential Information or use it in any way, commercially or otherwise, except in connection with the performance of this Agreement and only to those persons who have a need to know and are bound by obligations of confidentiality no less protective in all material respects than those set forth in this Agreement.
7.9 Notwithstanding the other provisions of this Clause 7, either party may, after consultation with the other party where practicable, and where not precluded by law or by a regulatory or governmental or other authority, disclose Confidential Information of the other party if and to the extent: (a) required by law or by any regulatory or governmental or other authority with relevant powers to which either party is subject or submits (whether or not the authority has the force of law); (b) required by its professional advisers, officers, employees, consultants, subcontractors or agents to provide their services (and subject always to similar duties of confidentiality); (c) that information is in or has come into the public domain through no fault of that party; (d) that information has been rightfully received from a third party not under obligation of confidentiality to the disclosing party and without breach of this Agreement; or (e) that information has been approved for release by written authorisation of the other party.
8.1 The Parties agree that the data processing terms set out at SCHEDULE 1 (the terms of which are expressly incorporated into these Ts&Cs) applies to the extent &Open processes Personal Data on your behalf.
8.2 To the extent, &Open Processes Personal Data as a Controller (as that term is defined in the Schedule), please see our Privacy Notice available here.
9.1 These Terms are Date Either party may terminate this Agreement immediately on written notice to the other in the event of any material breach by the other party of this Agreement, which breach, if remediable, is not remedied within 30 days of the non-defaulting party serving written notice requiring it to remedy such breach.
9.2 We may, without prejudice to any of our other rights or remedies, terminate this Agreement in whole or part immediately: (a) by written notice to you if you fail to pay any overdue amounts under this Agreement within 30 days’ written notice from us to pay the relevant overdue fees; or (b) by providing you with no less than 3 months’ written notice of termination.
9.3 Termination by us: (a) under Clauses 9.2 or 9.3(a) shall not entitle you to any Platform Fees already paid with respect to the relevant Initial Term or Renewal Term (as applicable); and (b) shall be without prejudice to our right to recover damages in relation to the termination or circumstances thereof.
9.4 In the event that this Agreement is terminated or expires, for whatever reason: (a) you must immediately: (i) cease using the relevant Services; (ii) pay all Fees payable in respect of Services and/or Gifts provided up to the date of termination or expiry; and (iii) return (or on our request, destroy) all of our Confidential Information within your possession or control (including any copies); and (b) we shall use commercially reasonable efforts within 30 days of termination or expiry to remove and destroy all content and data uploaded on the Platform by you or a user for the purpose of the Services (“Client Data”) (except any Personal Data which is dealt with in accordance with the Schedule) unless we are required by applicable laws or any governmental or regulatory authority to keep a copy of the same.
9.5 Any termination or expiry of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after termination. Unless mutually agreed otherwise in the Order Form, this Clause 9 sets out the only grounds on which this Agreement may be terminated prior to its expiry.
10.6 Interpretation. In this Agreement, any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
10.7 Force Majeure. &Open shall not be liable for failure or delay in performing any of its obligations under this Agreement if such failure or delay is due to any event outside of its reasonable control.
10.8 Severability. Each of the provisions in the Agreement are severable. In case any part of the Agreement should be considered as illegal, invalid or unenforceable, the remaining stipulations of the Agreement will continue to remain in full force and effect and will be interpreted and applied as if the section considered as unenforceable was not contained in the Agreement.
10.9 Entire Agreement. These Ts&Cs, together with each Order Form, set out the entire agreement and understanding between the parties in respect of the subject matter of this Agreement, and shall apply to the exclusion of any of your terms set out or referred to in, or appended to, any agreements or correspondence between the parties. Each party acknowledges that it is not relying on, and shall have no remedies in respect of, any undertakings, representations, warranties, promises or assurances (whether made innocently or negligently) that are not set forth in this Agreement.
10.10 Assignment. You may not, without the prior written consent of &Open, assign or transfer (including by way of novation) this Agreement or any of your rights or obligations hereunder to any third party. You hereby irrevocably consent in advance to &Open assigning or transferring (including by way of novation) this Agreement or any of its rights or obligations hereunder to any of its affiliates, and to the subcontracting of any element of the Services to any third party.
10.11 Waiver and Amendment. Save in respect of clause 6.4, no delay in exercising or non-exercise by any party of any of its rights, powers or remedies under or in connection with this Agreement shall operate as a waiver of that right, power or remedy. No modification or amendment to this Agreement shall be effective unless in writing and signed by both Parties.
10.12 No Partnership or Agency. Nothing in this Agreement constitutes, or shall be deemed to constitute, a partnership between the parties nor make a party the agent of the other party.
10.13 Notices. Notices, reports and communications may be sent to each party via electronic mail, in the case of &Open to firstname.lastname@example.org and in the case of you to the email address specified in the Order Form. Notices will be deemed received at the time of email transmission.
10.14 Third Party Rights. No third party will have the right to enforce any provision of this Agreement as a third party beneficiary or otherwise.
10.15 Governing Law and Jurisdiction. This Agreement and any non-contractual rights or obligations arising out of, relating to, or having any connection with it shall be governed by and construed in accordance with the laws of Ireland. The parties irrevocably agree that the courts of Ireland shall have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with the foregoing.