A. Unless expressly agreed otherwise, these terms and conditions including any documents incorporated herein (together, this “Agreement”) set out the terms on which the applicable “&Open Contracting Entity” (as determined in accordance with Clause 10.9), “&Open”, “we”, “us”, “our”) will provide You (defined below), with:
i) access to the &Open On-Demand gifting platform (the “OD Platform”); and
ii) the facility for you to place Gift Order(s) (defined below) to purchase Gifts (defined below) for onward distribution to your Gift Recipients (defined below) from third party vendors and related services specified herein (together, the “Services”).
B. This Agreement comes into effect when you accept this Agreement within the OD Platform, or if earlier, when you take any step to create a client account for and/or use all or a portion of the OD Platform or Services (the “Effective Date”).
C. “You” (or “you” or “your” “Customer” “Client”) means the business, company or legal or natural person acting in their business capacity that creates a client account on the OD Platform.
D. “Gift(s)” includes products, services, experiences, events, charitable donations and any other tangible or intangible gifts which Vendors may offer on the OD Platform and for which you can place an order (“Gift Order”).
E. Although we perform the Services, all Gifts displayed on the OD Platform are offered by the third party vendor(s) (“Vendors” or “Suppliers”) as listed beside the Gift(s) on the OD Platform. Accordingly, you acknowledge and agree that &Open is acting solely as a sales agent or representative for the Vendor(s) in relation to the sale of Gift(s) by Vendor(s) to you and that any contract for the purchase of a Gift via the OD Platform (each a “Gift Contract”, incorporating any information that may be set out in an email to you confirming the Vendor’s acceptance of your Gift Order and these terms and conditions) is a contract entered into between you and the applicable Vendor as principal. Without limiting the generality of the foregoing, you acknowledge and agree that &Open is not a party to any Gift Contract and shall have no liability under or in relation to any Gift Contract.
F. We may supplement or amend this Agreement from time to time. You will be subject to the version of this Agreement in force at the time you place your Gift Order. You are responsible for reviewing the then-current version of this Agreement prior to placing any Gift Order. If you disagree with any change, then you must immediately stop using the OD Platform and the Services. If there is any inconsistency between these terms and conditions and any other document incorporated herein, these terms and conditions shall prevail.
1.1 Subject to your continuing compliance with this Agreement including the payment of the Fees, we hereby grant to you (and your Customer Users (defined below) and any Gift Recipient (s)(if applicable)) a limited. non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services during the Term, solely for the purpose of enabling you to view, order and purchase Gifts (as agreed with you and ordered under Clause 2) from Vendors for supply to Gift Recipients. You are responsible for the acts and omissions of: (a) each person that uses the Services on your behalf or who uses the access credentials (whether or not such usage is with your permission) created by you or your authorised user(s) via the OD Platform (all such persons referred to as “Customer Users” or “Team Mates”); and (b) each Gift Recipient that you elect to receive a Gift. We reserve the right to limit access to your OD Platform account to a maximum number of Customer Users. Wherever this Agreement puts an obligation on you, it includes an obligation on you to procure that all Customer Users and any Gift Recipient (s)(if applicable) abide by that obligation.
1.2 You agree to use the Services solely for business purposes, and in accordance with all applicable laws and regulations and not do, or omit to do, anything that would put us in breach of any applicable law or regulation. In particular, you agree not to upload or submit via the OD Platform any information that (i) infringes the copyright, trade mark or any other IPRs (as defined in Clause 4.1) of any third party; (ii) is false, inaccurate, misleading, defamatory or libellous content; or (iii) is offensive or may constitute hate speech or promotes discrimination or violence. 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; (c) create any derivative work of the OD Platform or any portion thereof; or (d) obtain unauthorised access to our computer systems or take part in any action interfering with the performance of the Services. You agree to use the Services solely in accordance with any acceptable use policy which we may issue from time to time.
1.3 Where the Gifts ordered include alcoholic beverages and you and/or Gift Recipient are based in the United States of America, the following provisions shall apply for the purposes of US alcohol laws:
1.3.1 We are a platform used by various Vendors who are licensed, where required by U.S. law, to sell alcohol on our OD Platform. This Agreement governs the purchase and redemption of alcoholic products as Gifts through our OD Platform.
1.3.2 We are a platform that provides the tools for you to purchase the value of a Gift of alcohol for your Gift Recipient that may be redeemed at Vendor’s sole discretion in compliance with applicable alcohol laws.
1.3.3 We do not package, ship, sell or otherwise fulfil orders for alcoholic beverages in the United States. The Vendor fulfilling the Gift Order will be identified during the checkout process and the gift redemption process. The Vendor identified is solely responsible for the sale and fulfilment of alcoholic beverages purchased using our OD Platform.
1.3.4 The submission of any gift fulfilment request of alcohol on our OD Platform does not create a contract between us, You and/or the Gift Recipient. No Vendor will be obligated to fulfil any Gift Order for alcohol until such Vendor has confirmed and accepted the Gift Recipient’s redeemed Gift Order. Vendors using our OD Platform reserve the right to limit or change the available quantity of or discontinue any alcohol Gift.
1.3.5 Your funds are processed in compliance with U.S. alcohol laws, including ensuring Vendor has required control of the funds until the transaction is completed.
1.3.6 Where possible, we recommend providing a business or commercial address for the shipping address. If Vendor accepts and processes the Gift Recipient’s redeemed Gift Order, most state alcohol laws in the United States will require that a person over the legal drinking age of 21 sign for receipt of the package. It is important that accurate shipping information is provided during the Gift Order and/or redemption process (as the case may be).
1.3.7 Once Vendor fulfils an order, it may be difficult to make any changes or modifications to the delivery process. If a Gift cannot be delivered to the address provided during the gift redemption process, additional fees may apply for either redelivery attempts and/or returning the alcohol shipment to the Supplier. It is the responsibility of the Vendor and Gift Recipient to obey all applicable local, state and federal laws regarding the possession, use and sale of alcoholic products fulfilled using our OD Platform.
1.3.8 By placing an alcoholic Gift Order in the US, all parties represent that they are using the OD Platform in a lawful manner.
1.4 Where the Gifts ordered include alcoholic beverages and You and/or Gift Recipient are based in Ireland or the UK, the following provisions apply:
1.4.1 You confirm and warrant to Vendor and &Open that You and the Gift Recipient are of legal age to purchase and consume alcohol;
1.4.2 You acknowledge that the Gift Recipient may be required to produce official age verification documents prior to delivery being completed and if such documentation is not provided the Vendor (or its delivery agent on behalf of the Vendor) reserves the right to refuse to deliver the applicable alcohol gift and to cancel the Gift Order (in whole or solely in respect of the alcohol Gifts (as appliable));
1.4.3 You acknowledge that the Vendor and its delivery agents reserve the right not to deliver alcohol Gifts to an unattended premises, or to a premises where there is only a person below the legal age for purchase of alcohol;
1.4.4 You acknowledge that laws relating to the permitted hours of selling or delivering alcohol may restrict the time of day or days on which Gift Orders for alcohol can be accepted or confirmed by Vendor, or delivery completed by Vendor or its delivery agents; and
1.4.5 The Vendor reserves the right in its sole discretion to refuse to accept Gift Orders or to cancel Gift Orders for alcohol where the Vendor or its delivery agent has any reason to suspect that the sale or delivery of alcohol or any particular quantity of alcohol or to any particular Gift Recipient would be in breach of laws relating to the sale of alcohol.
1.5 We reserve the right to: (a) monitor your use of the Services in order to ensure your compliance with this Agreement, any acceptable use policy or any other policy we may issue from time to time, and for the purposes of improving the operation and functionality of the Services and your use of them; (b) at our discretion, without prejudice to our other rights and remedies, suspend, limit or withdraw your access to the OD Platform and the Services and/or remove or block content you have posted or shared, including: (i) for technical reasons relating to the performance and/or security of the Services; (ii) where we are entitled to exercise a right of termination pursuant to this Agreement; or (iii) if continuing to provide the Services would or is likely to infringe upon the IPRs (as defined in Clause 4.1) or other rights of ours or any third party (including, without limitation, any Vendor(s)); or (iv) as a result of non-payment under Clause 3.2.
1.6 We will take reasonable steps to ensure appropriate availability and performance of the OD Platform and to fix OD Platform related issues you report to us via email to: firstname.lastname@example.org (about:blank), however, to the extent permissible under applicable laws we provide the Services on an “as is”, “where-is” and “as available” basis. Without limiting the generality of the foregoing, we do not warrant, represent nor undertake that the Services or OD Platform will: (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.
1.7 In addition to Clause 1.6, where we offer you access to, and you choose to avail of or use, new features, services, products, or integrations, that are beta versions (“Beta Feature”), you acknowledge and agree that the Beta Feature is provided without warranty of any sort (including as to merchantability or fitness for purpose) and that your use of the Beta Feature is entirely at your sole risk. We reserve the right to discontinue or modify a Beta Feature at any time without notice. Any feedback you provide to us about the Beta Feature may be used by us in accordance with Clause 7.4.
2.1 You may order Gifts for one or more recipients (“Gift Recipient”) by placing a Gift Order through the OD Platform. Each Gift Order you place shall be deemed to be an offer by you to purchase the Gifts from the relevant Vendor on the terms and conditions of this Agreement. No Gift Order shall be deemed to be accepted by the Vendor (or by us as agent for the Vendor) until we as the sales agent or representative for the Vendor have advised you that such Gift Order is accepted (by such means as issuing to you a payment request (or bill) or payment receipt in respect of the Gift Order or other means).
2.2 While the Vendor(s) will use reasonable endeavours to fulfil any Gift Order properly submitted via the OD Platform, neither we nor any Vendor can guarantee the availability of Gifts or the delivery of Gifts at a particular time and/or to any requested location. We reserve the right to offer the Gift Recipient substitute gifts up to the price set out in the Gift Order when the chosen Gifts are not available, delivery of the requested Gift is not reasonably available to the location of the Gift Recipient or when you or the Gift Recipient have requested a change to the Gift Order after it is placed via the OD Platform.
2.3 The price for each Gift is noted on the OD Platform’s product information page (“Gift Price”), while any associated shipping and delivery charges will be shown to you within the “check out” area of the OD Platform (“Shipping Fees”)(Gift Price and Shipping Fees shall hereinafter be collectively referred to as “G&S Fees”). If the &Open Contracting Entity is &Open Gifts Limited, the Gift Price is (a) inclusive of VAT (or any equivalent sales tax which may be applicable) and (b) inclusive of other taxes, levies, and costs, including insurance and packaging. If the &Open Contracting Entity is &Open Gifts Inc, the Gift Price and the Shipping Fees are exclusive of any applicable US sales tax, which will be added at the rate required by applicable law. Prices may be in Euros, GB pounds or US dollars as shown on the OD Platform depending on your location and /or your selected settings when using the OD Platform.
2.4 We are entitled to charge you service fees for access to and use of the OD Platform and arranging the supply of the Gifts identified in the Gift Order, at the rate of 5% of the Gift Price (“Handling Fee” or “Service Fee”). If the &Open Contracting Entity is &Open Gifts Limited, the Service Fee is inclusive of VAT; if the &Open Contracting Entity is &Open Gifts Inc, the Service Fee is exclusive of any applicable US sales tax, which will be added at the rate required by applicable law. The Gift Price, Shipping Fees and the Service Fee are collectively referred to as the “Fees”. In exceptional cases, you acknowledge and agree that the Fees charged to you under Clause 3 may vary including as a result of: (a) any mispriced Gifts; (b) any variation in delivery charges based on your location; (c) variations in VAT, sales or use tax and/or imposition of import duties when a Gift Recipient is located in a jurisdiction different to Vendor or Customer, and (d) pricing variations due to the availability of third party vendors.
2.5 In compliance with various marketplace facilitator statutes enacted by various states within the United States, &Open Gifts Inc. may be deemed to be acting as a “marketplace facilitator” as it pertains to online seller transactions on the OD Platform. As applicable, &Open Gifts Inc. may be a registered sales tax vendor (or the equivalent) in various states, territories and countries. Further, when applicable, &Open Gifts Inc. may be required to calculate, collect and remit sales tax and/or VAT.
2.6 You (or a Customer User) must provide us with your credit or debit card details (the “Gift Payment Method”) when prompted in order to place your Gift Order. On the placement of each Gift Order, you hereby authorise us to contact each Gift Recipient (as the case may be) to offer the Gift Recipient the Gift you have selected (the “Gift Recipient Communication”) and charge the Gift Payment Method in accordance with this Agreement. For the avoidance of doubt, you are fully responsible for any and all Gift Orders made by You and by any of your Customer Users whether with your knowledge or permission or not.
3.1 The applicable &Open Contracting Entity may issue you with a payment request (or bill) for the Fees applicable to each Gift under the Gift Orders at the time a Gift is dispatched to the Gift Recipient. &Open may make this payment request (or bill) available to you in the payment area via the OD Platform, or other delivery method. The Fees identified in the payment request shall be charged to your Gift Payment Method by the applicable &Open Contracting Entity in accordance with Clause 3.2 below. Unless expressly agreed otherwise, all Fees must be paid in the currency specified in the payment request (or bill) (Euros or GB pounds if the applicable &Open Contracting Entity is &Open Gifts Limited or U.S. dollars if the applicable &Open Contracting Entity is &Open Gifts Inc.).
3.2 You hereby authorise us: (a) to charge the Gift Payment Method for all Fees for Gift(s) dispatched to the Gift Recipient(s) immediately upon the dispatch of the Gift(s); and (b) if the first payment request to the Gift Payment Method is not successful, to make two (2) further attempts to process the payment of Fees using the Gift Payment Method. If our final attempt is not successful: (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 identified in the payment request until the date of actual payment; (b) we may suspend your access to the Services (or any of them); and (c) thirty (30) days from the original due date, we are entitled to claim the full amount outstanding together with the accrued interest calculated in accordance with this Clause 3.2. If we are unable to charge your Gift Payment Method for any requested Fees, we reserve the right to suspend, limit or withdraw your access to the Services and to decline to redeem any further Gifts on your customer account until payment of all outstanding Fees has been made. We may issue you with a receipt once payment of the Fees has been completed and make this available to you in the payment area of the OD Platform, or by other delivery method.
3.3 Risk and title in the Gifts pass directly from the relevant Vendor to the Gift Recipient when the Gift is delivered (as evidenced by the Vendor’s or their third party carrier’s delivery records) to the relevant Gift Recipient. Delivery of Gifts is managed by Vendors and they are solely responsible for the dispatch and delivery of redeemed Gifts. For digital and charitable Gifts, delivery will be effected by the relevant Vendor email to the Gift Recipient.
3.4 If you order an unusually large quantity of Gifts which does not correspond to the typical needs of an average customer, we reserve the right to do any of the following: (a) charge your Gift Payment Method when you make the Gift Orders, rather than upon dispatch of the Gifts; and (b) refuse any relevant Gift Orders; and/or (c) remove or limit access to your &Open account on the OD Platform until the matter is resolved to our mutual satisfaction. If we decide to exercise our rights under Clause 3.5 (a) or (b) or (c), then we will notify you by email, by a pop-up notification when making the Gift Order or other reasonable means.
3.5 All payments made under this Agreement shall be made without set-off, counterclaim, deduction or withholding, unless such deduction or withholding is required by applicable law, in which event you will pay such additional amounts so that the persons entitled to such payments will receive the amount that such persons would otherwise have received but for such deduction or withholding.
4.1 In this Agreement “IPR” means any patent, copyright, trade mark, service mark or trade name, right in software, right in design, right in databases, image right, moral right, right in an invention, right relating to passing off, domain name, right in confidential information (including trade secrets) or right of privacy, and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extensions thereof, in each case whether such rights exist now or which will exist in the future in Ireland, the United States of America or in any other country in the world.
4.2 As between you and us, and save as expressly set out in this Agreement, we own full right, title and interest in and to all IPR in the Services (including the OD Platform). Nothing in this Agreement shall operate to transfer ownership of any IPR: (a) belonging to you or us or any Vendor; or (b) in any items which are independently developed by you or us or any Vendor otherwise than under this Agreement (save: (i) where you create such items, to the extent that such items incorporate the IPR of us or a Vendor; and (b) where we or a Vendor creates such items, to the extent that such items incorporate your IPR). 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 OD Platform) shall be and remain vested in us.
4.3 To 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 (“Customer IPR”), you hereby grant to us, our parent and our affiliates a non-exclusive, worldwide, transferable, perpetual licence, royalty free (including the right to sublicense to our third party service providers (which shall include our Vendors)) to use, adapt, translate, copy and analyse such Customer IPR for the purposes of providing and improving the Services, including incorporating such Customer IPR (including your logos) into the design of Gifts (if applicable) and the OD Platform and for co-marketing purposes. You represent and warrant that such use of the Customer IPR will not infringe or violate the rights (including the IPR) of any third party.
4.4 Vendors and/or their licensors (if applicable) own the IPR in Gifts displayed on the OD Platform including, but not limited to, the trademarks, logos, brand names and designs of goods and services offered as Gifts. Nothing in this Agreement shall operate to transfer ownership of any Vendor or their licensors' IPR (“Vendor IPR”) to you, and you warrant that you will not infringe or misuse any Vendor IPR.
4.5 You hereby indemnify, keep indemnified and hold harmless &Open, each of its affiliates and subsidiaries and each of their respective officers, directors, employees, representatives, contractors, successors and assigns (collectively, “&Open Indemnified Parties”) from and against any and all losses, damages, costs, expenses and other liability (including any legal costs) suffered or incurred by any such &Open Indemnified Parties as a result of: (i) any third party dispute, claim, demand or action arising from (a) your use of the Services (including the OD Platform) including any use by any Customer User(s) and/or Gift Recipient(s), (b) &Open’s use of the Customer IPR under this Agreement and/or (c) your infringement or misuse of any Vendor IPR; and (ii) your failure to pay any amounts owed to Vendor or &Open under this Agreement.
4.6 You acknowledge that the Services incorporate certain third party IPR and information and that you will comply with any terms and conditions from time to time in relation to the same, as such terms and conditions will be notified by us to you in writing.
4.7 You may not publish or use the &Open name or logo without obtaining our prior written approval, except as permitted by this Agreement or required to perform your obligations under this Agreement. Unless you specifically notify us otherwise in writing, we may identify you as an &Open customer and use your brand name and logo on our OD Platform, in publicity materials and when communicating with other potential customers.
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 us with Gift Recipient(s) details and to access our OD Platform; (b) you are using the OD Platform for the purposes of your trade, business, profession or craft and are not a consumer (as that expression is defined in article 2(1) of Directive 2011/83/EU) or otherwise as defined under applicable law (c) you will not (and will not suffer or permit any Customer User, Gift Recipient or third party to) use the OD Platform in a manner that would cause any party to be party to any unlawful act or transaction; and (d) you will procure that only your authorised Customer Users and Gift Recipients will access and use the OD Platform.
5.3 Except as expressly stated in this Clause 5 and to the fullest extent permitted by applicable law, we exclude and disclaim on behalf of ourselves and each Vendor, all express, implied, statutory and customary warranties including any implied warranties of merchantability, fitness for any particular purpose, non-infringement, continuous operation or that the OD Platform, Services or Gifts will be suitable for your requirements.
6.1 Subject to Clause 6.2 and 6.3, &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 Service Fees paid under this Agreement in respect of the 12 month period prior to the event giving rise to the claim.
6.2 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.
6.3 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: (a) the loss, accuracy or completeness of Client Data (as defined below); (b) any loss of revenue, sales, profit, business, goodwill or anticipated savings (in each case whether direct or indirect); or (c) any special, incidental, exemplary, indirect, punitive or consequential loss or damage.
6.4 As &Open is acting as a sales agent or representative for the Vendor in relation to the supply of Gifts, &Open shall in no event be liable to you or to any Gift Recipient whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of the sale or supply of Gifts by the Vendor to you or to any Gift Recipients (or otherwise in relation to any Gift Contract). Further, you acknowledge that any claim in respect of any Gifts being faulty, not in compliance with the Gift Order or not in conformity with law shall be solely a matter between you and the Vendor.
6.5 Subject to Clause 6.2, the applicable Vendor’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, each Gift Contract shall in no circumstance exceed the total G&S Fees payable in respect of the applicable Gift Contract.
6.6 Any claim under this Agreement by you must be brought within twelve (12) months of the relevant cause of action arising. Failure to do so will render the claim null and void.
7.1 You are responsible for: (a) maintaining the confidentiality of your &Open account (including any passwords or other login details); (b) any information you make available to the account, whether or not it is of a confidential nature; (c) restricting access to your account as necessary to protect your confidential or sensitive information; and (d) to the extent permitted by applicable law, you agree to accept responsibility for all activities that occur under your account.
7.2 You must take all necessary steps to ensure that your &Open account is kept secure and must inform us immediately if you have any reason to believe that your account is being, or is likely to be, used in an unauthorised manner. You are responsible for ensuring that the details you provide us with are correct and complete, and for informing us of any changes to the information you have provided. You can access and update the information you have provided to us, including your account settings, via the applicable user function on your account in the OD Platform.
7.3 To the extent we provide you with any information of a confidential nature, you shall not, without our prior written consent, disclose to any third party such confidential information or use it in any way, except in connection with placing Gift Orders under and in accordance with this Agreement.
7.4 You agree that we are permitted to share with our affiliates any information you upload or submit via the OD Platform or otherwise make available to us, and to use such information as required in order to (i) perform our obligations under this Agreement; (ii) make the Services and OD Platform available to you; (iii) improve or develop the Services and OD Platform and (iv) comply with applicable laws and regulations, including complying with any disclosure or announcement required by law or any supervisory, regulatory, governmental or anti-trust body.
8.1 The Parties agree that the data processing terms set out in Schedule 1 (the terms of which are expressly incorporated into this Agreement) apply to the extent &Open processes Personal Data on your behalf.
8.2 To the extent &Open or its parent or affiliates Processes Personal Data or Personal Information as a Controller or Business, such Processing is governed by the &Open Privacy Notice and the entity identified as such in the Privacy Notice from time to time shall be the Controller or Business. Please see the current Privacy Notice available here. The Privacy Notice is subject to change at any time without notice.
8.1 For the purposes of this Agreement, “Personal Data”, “Personal Information”, “Processes”, “Processing” “Controller”, and “Business” shall have the definitions given in Schedule 1.
9.1 This Agreement is effective from the Effective Date and shall continue in full force and effect, unless terminated in accordance with this Clause 9, for as long as you use and have access to any portion of the OD Platform or Services (“Term”).
9.2 Either party may terminate this Agreement immediately on written notice to the other in the event of any breach by the other party to 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.
9.3 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 15 days’ written notice from us to pay the relevant overdue fees; or (b) by providing you with written notice of termination no less than thirty (30) days prior to the effective date of termination. You may terminate this Agreement by providing us with written notice of termination no less than thirty (30) days prior to the effective date of termination.
9.4 Termination by us under Clauses 9.2 or 9.3(a): (i) shall not entitle you to a refund of any Fees already paid or payable by you to us prior to the effective date of termination; and (ii) shall be without prejudice to our right to recover damages in relation to the termination or circumstances thereof.
9.5 In the event that this Agreement is terminated or expires, for whatever reason: (a) you must immediately: (i) cease using the relevant Services and de-register your &Open account using the method provided in the relevant user area (if applicable); (ii) pay all Fees payable in respect of Services and/or Gifts dispatched up to the effective date of termination or expiry and for Gifts ordered prior to termination or expiry that are redeemed and/or dispatched after termination or expiry; and (iii) return (or on our request, destroy) any of our confidential information within your possession or control (including any copies); and (b) subject to the provisions of Schedule 1, we shall use commercially reasonable efforts within 30 days following the effective date of termination or expiry to remove and destroy all content and data uploaded on the OD Platform by you or a Customer User for the purpose of the Services (“Client Data”), unless we are required by applicable laws or any governmental or regulatory authority to keep a copy of the same.
9.6 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, this Clause 9 sets out the only grounds on which this Agreement may be terminated prior to its expiry.
10.1 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.
10.2 Force Majeure. &Open and/or Vendor (if applicable) shall not be liable for failure or delay in performing any of its obligations under this Agreement and/or the Gift Contract if such failure or delay is due to any event outside of our reasonable control or the reasonable control of the Vendor(s) or any of our or their respective contractors.
10.3 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.
10.4 Entire Agreement. This Agreement sets out the entire agreement and understanding between you and &Open in respect of the OD Platform and the Services, 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. Both parties acknowledge and agree that (a) nothing in this Agreement shall affect, supersede or override any agreement (written or otherwise) between you or any of your affiliates and &Open or its parent or its affiliates in respect of our enterprise services and (b) any agreement for the purchase of enterprise services between the parties shall be separate and distinct from this Agreement. 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, provided that nothing in this Agreement shall limit or exclude any party’s liability for fraud.
10.5 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 (including creating a charge over or otherwise disposing of any of our rights) to any third party including but not limited to any of our affiliates or to any entity that purchases all or substantial portion of our business or the OD Platform, and to the subcontracting of any element of the Services to any third party.
10.6 Waiver and Amendment. Save in respect of Clause 6.5, 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.
10.7 No Partnership or Agency. Nothing in this Agreement constitutes, or shall be deemed to constitute, a partnership between &Open, Vendor and you, nor make either you or &Open the agent of the other party.
10.8 Notices. Notices, reports and communications may be sent to each party via electronic mail, in the case of &Open to email@example.com and in the case of you to the email address, you provide to us when setting up your &Open user account. Notices will be deemed received at the time of email transmission.
10.9 &Open Contracting Entity. If your principal place of business is in the United States of America, then you are contracting with &Open Gifts Inc., a Delaware Corporation with an address located at 77 Van Ness Ave, Ste 101 – 1079, San Francisco California CA 94102. If your principal place of business is anywhere in the world other than the United States of America, then you are contracting with &Open Gifts Limited, an Irish company, with registered number 599378 and registered address at 13 St. Clare’s Avenue, Harold’s Cross, Dublin 6W, D6W HH74, Ireland.
10.10 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, unless you are contracting with &Open Gifts Inc., in which case it shall be governed by and construed in accordance with the laws of the State of Delaware. 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, unless you are contracting with &Open Gifts Inc., in which case the parties irrevocably agree that the federal courts located in the Northern District of California shall have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with the foregoing.
1.1 For the purposes of this Schedule, the following expressions have the following meanings unless the context requires otherwise:
1.1.1 “Applicable Data Protection Laws” means (i) the Applicable EU/UK Data Protection Laws and (ii) the Applicable US Privacy Laws;
1.1.2 “Applicable EU/UK Data Protection Laws” means (a) the General Data Protection Regulation 2016/679 (the “GDPR”); (b) the Privacy and Electronic Communications Directive 2002/58/EC; (c) the UK Data Protection Act 2018 (“DPA”), the UK General Data Protection Regulation as defined by the DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (together with the DPA, the “UK GDPR”), and the Privacy and Electronic Communications Regulations 2003; and (d) any relevant law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument which implements any of the above or which otherwise relates to data protection, privacy or the use of personal data, in each case as applicable and in force from time to time, and as amended, consolidated, re-enacted or replaced from time to time;
1.1.3 “Applicable US Privacy Laws” means (a) the California Consumer Privacy Act, Cal. Civ. Code §1798.100 et seq. and its corresponding regulations (the “CCPA”) and any amendment or successor law thereto, including the California Privacy Rights Act (“CPRA”); (b) the Virginia Consumer Data Protection Act Va. Code Ann. § 59.1-571 et seq. and its corresponding regulations (the “VCDPA”) ; (c) the Colorado Privacy Act S.B. 21-190 § 6-1-1303(7) (the “CPA”); (d) the Utah Consumer Privacy Act (the “UCPA”) and its corresponding regulations; and (e) other US federal, state, or local laws, rules and regulations regarding privacy and/or governing the collection, use, disclosure or storage of Personal Information and/or Personal Data that may be collected, processed or disclosed in connection with this Agreement, in each case as may be amended, consolidated or superseded from time to time;
1.1.4 “Client” means You, the business, company or legal or natural person as identified in clause (C) of the On-Demand Client Terms and Conditions.
1.1.5 Where Applicable EU/UK Privacy Laws apply, “Controller”, “Data Subject”, “Personal Data”, “Process”, “Processed”, “Processing” or “Processor” shall each have the meaning as set out in the relevant Applicable EU/UK Data Protection Laws and their cognate terms shall be construed accordingly;
1.1.6 “Controller to Processor Clauses” means, as relevant, the standard contractual clauses for the transfer of Personal Data to third countries set out in Commission Decision 2021/914 of 4 June 2021 specifically including Module 2 (Controller to Processor), or any equivalent clauses issued by the relevant competent authority of the UK in respect of transfers of Personal Data from the UK, in each case as in force and as amended, updated or replaced from time to time;
1.1.7 “Processor to Processor Clauses” means, as relevant, the standard contractual clauses for the transfer of Personal Data to third countries set out in Commission Decision 2021/914 of 4 June 2021 specifically including Module 3 (Processor to Processor), or any equivalent clauses issued by the relevant competent authority of the UK in respect of transfers of Personal Data from the UK, in each case as in force and as amended, updated or replaced from time to time;
1.1.8 “Third Country” means (i) in relation to Personal Data transfers subject to the GDPR, any country outside of the scope of the data protection laws of the European Economic Area, excluding countries approved as providing adequate protection for Personal Data by the European Commission from time to time; and (ii) in relation to Personal Data transfers subject to the UK GDPR, any country outside of the scope of the data protection laws of the UK, excluding countries approved as providing adequate protection for Personal Data by the relevant competent authority of the UK from time to time.
1.1.9 Where Applicable US Privacy Laws apply, the terms “Business”, “Consumer”, “Controller”, “Personal Data”, “Personal Information”, “Processor”, “Service Provider”, “Sell”, and “Share”, shall have the same meanings as set forth in the Applicable US Privacy Laws and their cognate terms shall be construed accordingly. For purposes of this Addendum, “US Personal Data” shall be construed to mean Personal Data (as defined under Applicable US Privacy Laws) and include “Personal Information” as that term used in the CCPA/CPRA. “US Data Subject” shall be construed to mean and include “Consumers” as that term is used in the CCPA/CPRA.
2.1 To the extent &Open Processes Personal Data (as those terms are defined under Applicable EU/UK Data Protection Laws) on behalf of the Client pursuant to this Agreement as further set out in Annex A, and such Processing is governed by Applicable EU/UK Data Protection Laws, the parties agree that Client is acting as the Controller and &Open is acting as the Processor, and &Open shall:
2.1.1 Process the Personal Data only on documented instructions from Client, unless required to Process such Personal Data by applicable law to which &Open is subject; in such a case, &Open shall inform Client of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest. For the avoidance of doubt such instructions include the Agreement and any directions or orders issued via the OD Platform and include an instruction to share data with Suppliers where necessary to effect a Gift Order;
2.1.2 ensure that its personnel are authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
2.1.3 implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation and the nature, scope, context and purpose of the Processing as set out in Annex B or otherwise agreed and documented between the parties from time to time;
2.1.4 taking into account the nature of the Processing, assist the Client by appropriate technical and organisational measures, insofar as this is possible, in the fulfilment of the Client’s obligation to respond to requests for exercising the rights of a Data Subject (as defined under Applicable EU/UK Data Protection Laws) as laid down in the Applicable EU/UK Data Protection Laws;
2.1.5 promptly notify the Client in writing upon becoming aware of any breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise Processed by &Open. &Open shall be obliged to provide the Client with all information necessary for compliance with the Client’s relevant obligations pursuant to Applicable EU/UK Data Protection Laws;
2.1.6 assist the Client in ensuring compliance with the obligations to: (i) implement appropriate technical and organisational security measures; (ii) notify (if required) Personal Data breaches to relevant competent authorities and/or individuals; and (iii) conduct data protection impact assessments and, if required, prior consultation with relevant competent authorities;
2.1.7 at the choice of the Client, delete or return all the Personal Data to the Client after the end of the provision of services relating to Processing, unless any applicable law to which &Open is subject requires storage of the Personal Data;
2.1.8 upon written request from Client, provide information as is reasonably necessary to Client to demonstrate compliance with the obligations laid down in this Schedule as they apply to Personal Data (as defined under Applicable EU/UK Data Protection Laws), and permit Client upon reasonable prior written notice and at Client’s cost, and subject to a duty of confidentiality, to have access to the appropriate part of &Open’s facilities at a time agreed during ordinary business hours and in a manner which is not disruptive to &Open or its business, to enable Client (or their authorised auditor) to inspect or audit the same for the purposes of monitoring compliance of &Open’s obligations under this Schedule; and
2.1.9 immediately inform Client if, in its opinion, an instruction of Client infringes the Applicable EU/UK Data Protection Laws
2.2 To the extent that the US Personal Data identified in Annex A is shared by Client with &Open and such Processing (as defined under Applicable US Privacy Laws) is governed by Applicable US Privacy Laws (“US Client PD”), the parties agree that:
2.2.1 &Open shall be a Service Provider for purposes of the CCPA/CPRA;
2.2.2 &Open shall be a Processor for purposes of the VCDPA, CPA and UCPA;
2.2.3 Client shall ensure, and hereby represents and warrants, that any US Personal Data (including US Client PD) has been collected, secured, maintained and disclosed in accordance with Applicable US Privacy Laws;
2.2.4 &Open shall collect, use, access, retain, and disclose US Client PD only at the direction of Client, and only to the extent strictly necessary to perform the services for Client under this Agreement, for the business purposes set forth in Annex A, including to share with any Vendor in order to fulfil and deliver Client Gift Orders, or as otherwise permitted by this Agreement or required by law. Client is disclosing the US Client PD to &Open only for the specified purposes, and &Open shall not retain, use or disclose the US Client PD for any other commercial purpose except as expressly permitted by Applicable US Privacy Laws. Upon request by Client, &Open shall transfer all US Client PD to Client or otherwise dispose of such US Client PD as instructed in writing by Client.
2.2.5 Under no circumstances may any US Client PD be Sold or Shared by &Open or retained, used or disclosed outside of the direct business relationship between &Open and Client, except as permitted by Applicable US Privacy Laws and the Agreement;
2.2.6 &Open agrees to comply with Applicable US Privacy Laws with respect to the US Client PD, including providing the same level of privacy protection as required by Client under those laws, cooperating with Client in responding to and complying with US Data Subject requests, and implementing reasonable security procedures and practices appropriate to the nature of the US Client PD Processed (as defined under Applicable US Privacy Laws) by &Open. Client shall have the right to take reasonable and appropriate steps to ensure that &Open uses the US Client PD in a manner consistent with Client’s obligations under Applicable US Privacy Laws. Upon request and/or notice by Client, &Open shall take reasonable steps to stop and remediate any unauthorized uses of the US Client PD and/or verify compliance with US Data Subject requests. &Open shall notify Client no later than five (5) business days after it makes any determination that it can no longer meet its obligations under the Applicable US Privacy Laws in relation to the US Client PD;
2.2.7 &Open shall inform Client of any US Data Subject request received by &Open pursuant to Applicable US Privacy Laws in relation to US Client PD and shall provide reasonable assistance to Client in responding to such requests. Client shall inform &Open of any US Data Subject request made pursuant to Applicable US Privacy Laws in relation to US Client PD that &Open must comply with and provide &Open with information necessary for &Open to comply with the request;
2.2.8 &Open has implemented and shall maintain (and &Open’s subcontractors have implemented and shall maintain) at its sole expense a comprehensive data security program which will include reasonable and appropriate technical, organizational, environmental, security and other safeguards to protect against any actual threats or hazards to the confidentiality, integrity, or availability of US Client PD, and against the destruction, loss, alteration of, and unauthorized access to, US Client PD in &Open’s possession or control;
2.2.9 If &Open discloses any US Client PD to any third party or subcontractor as permitted herein (including any Vendor), &Open will ensure that the third party or subcontractor is subject to a written agreement requiring compliance with Applicable US Privacy Laws, including requiring the same level of data privacy protection and information security with respect to the US Client PD as required hereunder;
2.2.10 &Open shall promptly notify Client of any actual breaches of security that may result in the unauthorized collection, access, use or disclosure of any US Client PD within &Open’s possession and shall take commercially reasonable steps to assist Client in relation to the investigation and remedy of any such breach of security regarding US Client PD within &Open’s possession.
3.1 Client hereby grants &Open general written authorisation to engage the sub-processors set out at Annex C. Such sub-processors may be engaged directly by &Open or by its parent or affiliate. Client further confirms that any Supplier on the OD Platform who manages a Gift Order placed by Client shall also act as a sub-processor for the purposes of this Agreement and the Processing detailed in Annex A and Client consents to the engagement of such a Supplier as a sub-processor.
3.2 &Open shall give Client notice of the appointment of any new sub-processors (excluding a new Supplier on the OD Platform) by updating the list of sub-processors set out in Annex C.
3.2.1 Client may reasonably object to such appointments within 10 days of such notice for important reasons relating to data protection which have been proven to &Open.
3.2.2 If Client does not object pursuant to Clause 3.2.1 of this Schedule, then the sub-processor shall be deemed accepted.
3.2.3 If Client objects pursuant to Clause 3.2.1 of this Schedule, Client will give &Open the opportunity to make a change in the service or recommend a commercially reasonable change to Client’s configuration to avoid processing of Personal Data by the objected-to new sub-processor without unreasonably burdening Client.
3.2.4 If the Client objects in accordance with this Section 3.2 and &Open cannot ascertain a solution agreeable to the Client pursuant to Clause 3.2.3 of this Schedule, both parties agree that &Open is entitled to terminate the Agreement on reasonable notice.
3.3 &Open shall ensure that it has a written agreement in place with all sub-processors which contains obligations on the sub-processor which are no less onerous on the relevant sub-processor than the obligations on &Open under this Agreement.
3.4 To the extent &Open Gifts Inc. Processes Personal Data as those terms are defined under Applicable EU/UK Data Protection Laws on behalf of the Client pursuant this Agreement as further set out in Annex A and such Processing is governed by Applicable EU/UK Data Protection Laws, &Open shall comply with the data importer’s obligations set out in the Controller to Processor Clauses, which are hereby incorporated into and form part of this Agreement and:
3.4.1 For the purposes of Annex I of such Controller to Processor Clauses, the parties agree that the processing details set out in Annex A (Processing Details) to this Schedule shall apply;
3.4.2 for the purposes of Annex II of such Controller to Processor Clauses, the technical and organisational security measures set out in Annex B (Security Policy) to this Schedule shall apply; and
3.4.3 for the purposes of: (i) Clause 9 of such Controller to Processor Clauses, Option 2 (“General Written Authorisation”) is deemed to be selected and a notice period specified in Clause 3.2 of this Schedule shall apply; (ii) Clause 11(a) of such Controller to Processor Clauses, the optional wording in relation to independent dispute resolution is deemed not to be included ; (iii) Clause 13 and Annex I.C, the competent supervisory authority shall be determined based on situation of the Client or shall otherwise be the Irish Data Protection Commission; (iv) Clause 17, Option 1 is deemed to be selected and the governing law shall be Ireland; (v) Clause 18, the competent courts shall be the Courts of Ireland.
3.5 Client acknowledges and agrees that &Open may appoint a sub-processor to Process the Personal Data as those terms are defined under Applicable EU/UK Data Protection Laws in a Third Country, in which case &Open shall execute the Processor to Processor Clauses or a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under the Processor to Processor Clauses with such a sub-processor.
4.1 The parties agree to negotiate in good faith modifications to this Schedule if changes are required for &Open to continue to process the Personal Data (including US Personal Data) as contemplated by the Agreement in compliance with the Applicable Data Protection Laws or to address the legal interpretation of the Applicable Data Protection Laws, including (i) to comply with the GDPR or any national legislation implementing it, and any guidance on the interpretation of any of their respective provisions; (ii) the European Commission’s Standard Contractual Clauses or any other mechanisms or findings of adequacy are invalidated or amended, or (iii) if changes to the membership status of a country in the European Union or the European Economic Area require such modification, or (iv) if additional US federal, state, or local privacy laws or regulations are enacted or modified.
5.1 Client warrants that: (i) the legislation applicable to it does not prevent &Open from fulfilling the instructions received from Client and performing &Open’s obligations under this Schedule; (ii) its collection of Personal Data (including US Personal Data) has complied and will comply with Applicable Data Protection Laws, and (iii) it has complied and continues to comply with the Applicable Data Protection Laws, in particular that it has obtained any necessary consents or given any necessary notices, and otherwise has a legitimate ground to disclose the Personal Data (including US Personal Data) to &Open and to enable the Processing of the Personal Data (including US Personal Data) by &Open as set out in this Agreement.
Processing (including US Personal Data) Details
Subject matter of Processing: The provision of the Services and the performance of &Open’s other obligations under this Agreement.
Duration of Processing/Period of Retention: For the duration of this Agreement and for such period as required thereafter for &Open, its parent and affiliates to comply with any retention obligations imposed by law.
Nature and purpose of the Processing: &Open will process Personal Data as necessary to perform the Services described in this Agreement, including to fulfil and deliver Client Gift Orders and to comply with Client’s lawful instructions.
Categories of Data Subjects: Gift Recipients
Types of Personal Data: Personal Data concerning the Gift Recipient directly provided to &Open (or its parent or affiliates) by Client, which may take the following forms: (i) First name; (ii) Last name; (iii) Email address; and (vii) Country.
Special categories of personal data: Not applicable.
Frequency of transfer: When uploaded by Client or otherwise upon receipt of an order from Client.
Identity and contact details of the data exporter: Client, with contact details specified in the relevant &Open customer account area of the OD Platform.
Identity and contact details of the data importer: &Open, with contact details specified in clause 10.9.
At &Open, security is at the core of our platform and is our priority. We are committed to protecting the confidentiality, integrity and availability of our information systems and our client’s data. We are constantly improving our security controls and analysing their effectiveness to give you confidence in our solution.
Here we provide an overview of some of the security controls in place to protect your data. You can reach our security team at firstname.lastname@example.org.
1.1 Redundancy. All production databases and application servers are run with full redundancy, ensuring safe failover in the case of node failure.
1.2 Backups. All production databases are snapshotted daily.
1.3 Security Patch Management. &Open continually assess for known vulnerabilities and patch all systems, devices, operating systems, applications, and other software that process Personal Data.
1.4 Network Security. &Open operate a VPC-based firewall and network security technology in our server infrastructure. Traffic between Client and the OD Platform is always protected, authenticated, and encrypted.
1.5 Malicious Code Protection. All &Open staff run the latest anti-malware protection software on all workstations and have mandated scheduled malware monitoring and system scanning to protect Personal Data from anticipated threats or hazards.
1.6 Data Encryption. &Open use cryptographically secure protocols at all times to encrypt Personal Data when in transit, and at rest, All &Open staff devices utilise full-disk encryption, and &Open maintain an appropriate key management process, including access controls, key revocation processes, and key storage protocols (e.g., private keys must not be stored on the same media as the data they protect). The OD Platform’s web-accessible interfaces supports HTTPS and cannot be accessed over unsecured HTTP connections.
1.7 Disaster Recovery. &Open has disaster recovery plans in place, which include processes to ensure recovery of Personal Data from backup sources. &Open practice disaster recovery to ensure all processes work correctly.
1.8 Access Levels. The OD Platform has multi-user support with differential access based on roles assigned to Customer Users.
&Open store and process Personal Data in an AWS data centre. Our AWS data centre is reviewed by &Open regularly.
This Annex lists &Open’s current principal sub-processors applicable to the types of Personal Data listed in Annex A. This Schedule may change from time to time and &Open shall notify Client in accordance with this Agreement, of any changes. Any Supplier with whom &Open shares Personal Data pursuant to a Gift Order from Client shall also act as a sub-processor.
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