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ZAFFO SERVICES TERMS
Introduction
The following terms and conditions (“Agreement”) are effective from the Effective Date (as defined below) and constitute the agreement between CAPEN LIMITED, trading as Zaffo (a company registered in England and Wales, registered number 08141955) whose registered office is at c/o Wem & Co, Savoy House, Savoy Circus, London, W3 7DA (“CAPEN”) and you, a society registered in the UK or the EU, or unincorporated association with charitable aims, as detailed in the information provided by you during the Registration process) (“Society”). If you are acting on behalf of a Society then you represent that you have the authority to enter into this Agreement on behalf of that Society. By agreeing to these Zaffo Service Terms, you confirm that you have read these terms and conditions, understand them and agree to be legally bound by them and that by doing so, you make an offer to CAPEN which is subject to acceptance by CAPEN.
BACKGROUND AND PRINCIPLE OBJECTIVES
(A) CAPEN is licensed by the UK Gambling Commission as an external lottery manager with licence number (Type F, Remote) (000-036257-R-317724-008) (the “Operating Licence”), permitting it to manage raffles and lotteries on behalf of organisations promoting society lotteries.
(B) CAPEN also manages raffles and lotteries on behalf of societies based in the European Union (EU).
(C) CAPEN has developed and owns a software platform and hosts the website (as defined below) as a fundraising and supporter recruitment tool to assist non-commercial societies to raise money from raffles, prize draws, competitions and lotteries.
(D) CAPEN and the Society have agreed that pursuant to the terms and conditions of this Agreement, CAPEN will provide draw management, fundraising and such other services as are necessary to enable the Society to carry out such raffles, prize draws, competitions and lotteries (the Draw or Draws).
(E) The Society wishes to appoint CAPEN to provide the Services (as defined below) to the Society and on acceptance by CAPEN, CAPEN agrees to provide such Services on the terms set out below.
THE PARTIES AGREE as follows:
1.1 In this Agreement the following terms shall have the following meanings:
“Agreement” has the meaning set out above;
“AUP” means CAPEN’s acceptable use policy relating to the use of the Site;
“Commencement Date” means the date on which CAPEN commences providing the Services and has been agreed between the Parties to be the same as the Effective Date;
“Commission” means the payment by Society to CAPEN being a percentage of the Proceeds as detailed in Schedule 2;
“Confidential Information” means any information relating to the subject matter of this Agreement including the existence and terms of this Agreement, User Data and other information relating to business, statistical and financial matters which is disclosed by one Party (“Disclosing Party”) to the other Party (“Recipient”) which is either marked ‘Confidential’ or ought reasonably to be considered as confidential;
“Data Protection Legislation” means all applicable laws and regulations relating to the processing of Personal Data and privacy including the EU Data Protection Directive (95/46/EC), the Electronic Communications Data Protection Directive (2002/58/EC) and the EU’s General Data Protection Regulation (2016/679/EC), including all law and regulations implementing or made under them, any amendment or re-enactment of them and, where applicable, the guidance and codes of practice issued by applicable Regulatory Bodies; “Data Controller” has the meaning given in the Data Protection Legislation; “Data Processor” has the meaning given in the Data Protection Legislation;
“Effective Date” means the date on which Registration by the Society is completed (as detailed below);
“Entrant” means an individual entrant to a prize draw having purchased one or more entries;
“Fees” means the Service Fee and Commission;
“Intellectual Property Rights” means copyright, patents, trademarks, service marks, design rights, rights in databases, moral rights, and other intellectual property rights in each case whether registered or unregistered and including any applications for the foregoing and all other similar rights anywhere in the world and the term “Intellectual Property” shall be construed as the subject matter of Intellectual Property Rights; “Marks” means in relation to a Party, the trademarks, trade names, logos, signs and devices of that Party, in the case of CAPEN as set out in Schedule 3 and in the case of Society Marks, any trade names, logos, signs and devices owned by the Society or by a third party which the Society provides to CAPEN for use in connection with Prizes;
“Materials” means in relation to a Party, all Intellectual Property in any medium whatsoever, owned by or licensed to that Party, in the case of CAPEN as described in Schedule 3 and in the case of Society Materials, any Intellectual Property owned by the Society or by a third party which the Society provides to CAPEN for use in connection with Prizes;
“Prize” means goods, services or cash provided by Society to be used in a Prize Draw
“Prize Draw” means a raffle, lottery, competition or prize draw which is hosted and run by CAPEN on the Site;
“Proceeds” means the monetary proceeds received by CAPEN on behalf of Society from Entrants through the Site;
“Random Number Generator” (RNG) means the system by which a sequence of numbers or symbols is generated that cannot be reasonably predicted better than by a random chance;
“Registration” means the process by which Society provides information to CAPEN through the Site relating to the Society and to the Services required by Society, which process is completed when CAPEN in its absolute discretion sends written confirmation to the Society that CAPEN agrees to provide the Services to the Society on these Terms.
“Registration process” means the process of entering into this agreement, either via an online form, by ticking the box to say you agree, or by signing and returning these terms as a document.
“Regulatory Bodies” shall mean those government departments and regulatory, statutory and other bodies, entities and committees which, whether under statute, rule, regulation, code of practice or otherwise, are entitled to regulate, investigate or influence the matters relating to the security of data, personal data and privacy;
“Service” and “Services” means the services to be provided by CAPEN as specified by the Society in the course of Registration and set out in the main body of Schedule 1;
“Service Fee” has the meaning given in Schedule 2;
“Site” means the website owned by CAPEN and located at URL (http://zaffo.com);
“Society Site” means the website owned by CAPEN and located at URL (http://”yourraffle”.zaffo.co.uk) or any website used by the society for the sale of Prize Draw entries;
“Subscription Fee” means the periodic fee payable in relation to the services as set out Schedule 1; “Term” means the Initial Term and all Renewal Periods;
“Territory” means the United Kingdom or the EU;
“User” means either an Entrant or visitor to the Site;
“User Data” means personal information relating to a User;
1.2 Clause headings are used in this Agreement for ease of reference only and shall not affect interpretation; references in this Agreement to Clauses and Schedules are to clauses and schedules of this Agreement; references to Paragraphs shall be to the paragraphs in the relevant Schedule; words in this Agreement denoting the singular shall include the plural and vice versa; words importing a gender include every gender and references to persons include an individual, company, corporation, firm or partnership.
1.3 References to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to it as from time to time amended, consolidated or re-enacted and includes all instruments or orders made under such enactment.
1.4 In the event of any conflict or ambiguity in the provisions of the Clauses and the Schedules, the Clauses shall take precedence over the Schedules.
2.1 This Agreement shall take effect from the Effective Date and subject to Clauses 15 and 16, shall continue in force for a term of one (1) year (“Initial Term”) following the Commencement Date on which these terms are accepted online and shall be automatically renewed on expiry of the Initial Term for a period of twelve (12) months (“Renewal Period”) or at the end of a Renewal Period for further Renewal Periods.
3.1 In consideration of the payment of the Fees by Society, CAPEN shall provide the Services to Society from the Commencement Date for the Term.
3.2 Subject to Clause 8.2, CAPEN may host Society’s Materials and Society’s Marks anywhere within the Site or Society Site or any website used by the Society for the sale of Prize Draw entries at its discretion.
3.3 CAPEN may in its discretion feature the Society’s Prize Draw campaigns on https://zaffo.com (Capen Site), unless otherwise instructed by the Society.
3.4 CAPEN shall be permitted to conduct scheduled maintenance and emergency maintenance of the Site or Society Site or any website used by the society for the sale of Prize Draw entries at any time provided that CAPEN shall use reasonable endeavours to conduct scheduled maintenance between 01:00 GMT to 08:00 GMT during normal business days and at any time on holidays and weekends. Society acknowledges and agrees that the Site or Society Site or any website used by the society for the sale of Prize Draw entries may not be available for public access during these maintenance periods provided CAPEN uses reasonable endeavours to minimise unavailability of the Site during such scheduled maintenance.
3.5 CAPEN may, acting reasonably, suspend access to all or any part of the Site or Society Site or any website used by the society for the sale of Prize Draw entries when it is necessary to prevent unavailability of such sites, harm to such sites and/or other material adverse consequences to such sites.
3.6 CAPEN may, acting reasonably, accept or reject the registration of any User or any entry to any Prize Draw made by an Entrant when it is absolutely necessary to do so to prevent material adverse consequence to the Prize Draw, Entrant, Site, Society Site and/or CAPEN.
4.1 CAPEN shall collect all proceeds and shall in respect of such money, as soon as is reasonably practicable after its receipt and in any event not later than the expiration of 24hours after that receipt pay the Society proceeds into a Paypal account in the name of the Society in accordance with the details provided by the Society.
4.2 The Society agrees that for the purpose of Clause 4.1, following CAPEN’s receipt of such Proceeds, payment of such Proceeds to the account held in the name of the Society in accordance with Clause 4.1 above shall be net of Capen commission as set out in Schedule 2.
5.1 By agreement with the Society, CAPEN shall hold Prize Draws on the Site or Society Site or any website used by the Society for the sale of Prize Draw entries, details of which shall be branded with Society’s Marks and Society’s Materials.
5.2 CAPEN undertakes to maintain in full force and effect all the insurance policies set out in Schedule Four.
5.3 The Society shall at its cost reasonably promote the Prize Draws, such promotion may include:
(a) in the Society’s reasonable discretion sending an email to all persons within the Society’s marketing database who have consented to receive marketing emails from the Society;
(b) promoting such Prize Draws by including a link to the Prize Draw from the Society’s website; and
(c) promoting such Prize Draws using social media channels.
5.3 In respect of each Prize Draw, the Society shall determine the date of the draw and the price at which entries to such Prize Draws are sold to Entrants.
5.4 Where a Prize Draw has been administered by CAPEN and where it is agreed that CAPEN shall determine the winners. CAPEN shall inform the Society of the contact details of the winning Entrants in order that the Society can fulfil prizes.
5.5 Where requested by the Society, CAPEN shall conduct the draw or draws using a Random Number Generator approved by the UK Gambling Commission, or in compliance with the relevant Gambling and Lotteries legislation of the EU; or CAPEN shall provide details of all the entrants into the Prize Draw to the Society in order that the Society can conduct a non-remote draw.
5.6 CAPEN shall provide the Society access to a secure reporting dashboard, from which they can download a complete and accurate record of all player data captured on their behalf.
5.7 CAPEN undertakes to the Society that it shall:
6.1 In registering with Zaffo, the Society shall as soon as reasonably practicable following the Effective Date provide to CAPEN:
(a) proof of the Society’s Licence;
(b) details of the game(s) the Society wishes to promote;
(c) the Society Paypal Account to which proceeds should be paid.
6.2 Society shall ensure that at all times during the Term the information provided by or on behalf of Society, including Society’s Materials and Society’s Marks, is accurate and up to date, comply with applicable laws and regulations and CAPEN’s AUP and does not infringe Intellectual Property Rights or other rights of any person.
6.3 Society shall ensure the highest of social responsibility standards in relation to marketing of the prizes draws and accepts all liability for marketing, including ensuring that the marketing adheres to all marketing and promotional restrictions, as required under the LCCP, the UK Fundraising Regulator or any other regulator in the territory where the society is located;
7.1 In consideration of the Services, Society shall pay the Fees set out in Schedule 2
7.2 CAPEN shall submit an invoice to the Society in respect of the Commission on Proceeds paid to the Society during such month together with VAT as applicable. Commissions are taken at source.
7.3 CAPEN shall make available to the Society a weekly report containing particulars of the Proceeds and Commission for that week and shall on request make available to an authorised officer of the Society at a reasonable notice and at a reasonable time any books, documents or other records (howsoever kept) which relate to Society and which are kept for the purposes of this Agreement.
7.4 All amounts referred to in this Agreement are exclusive of VAT and where such VAT is required to be paid by applicable law, shall be payable at the appropriate rate on the same date as the payment to which it relates, subject to the production by CAPEN of valid invoices giving the necessary details of the taxable supply.
7.5 If any sum payable under this Agreement which is not the subject of a bona fide dispute is not paid by the due date then the party to which payment is due reserves the right to charge interest at a rate of three (3) % per annum above the Bank of England base rate from time to time on any payment or part payment overdue calculated from the due date. Both parties acknowledge and agree that the interest payment set out in this Clause 7 is, in the context of the activities contemplated under this Agreement, a “substantial remedy” (as this expression is used in the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from time to time).
7.6 In the event that CAPEN wishes to change the basis for calculating the Fees, CAPEN shall give Society at least one (1) month prior written notice of the proposed changes. In the event that Society does not accept the proposed changes, Society shall promptly notify CAPEN which notice shall be deemed to be notice to terminate for convenience pursuant to clause 15.3 provided that the proposed changes shall not take effect during the notice period. In the event that Society does not so notify CAPEN, Society is deemed to accept the revised Fees which shall be effective on the day following the expiry of the one month notice period.
8.1 Each Party (“Licensor”) grants to the other Party (“Licensee”) a revocable, royalty-free, non- transferable, non-exclusive licence (with no right to sub-licence) for the Term to use the Materials and Marks of the Licensor in the Territory to implement this Agreement in accordance with its provisions and so far as may be required for the proper exercise of its rights and performance of its obligations under this Agreement.
8.2 Each party (“Using Party”) agrees that it shall only use Marks provided by the other Party (“Owning Party”) for the purpose of this Agreement, without alteration, in strict accordance with guidelines or instructions of the Owning Party and for the sole benefit of the Owning Party. The Using Party shall not challenge or assist others in challenging the validity of such Marks or attempt to register in any jurisdiction any confusingly similar marks.
8.3 Nothing in this Agreement shall operate to transfer title in a Party’s Marks or Materials to the other Party. Intellectual Property Rights in anything created by a Party during the Term shall be vested in that Party provided that ownership of Intellectual Property Rights in anything derived from or incorporating a Party’s Materials shall belong to the Party owning the original Materials.
9.1 In relation to the parties’ rights and obligations under this Agreement, the Society and CAPEN agree that the Society is the “controller” and CAPEN is the “processor”, as defined in the Data Protection Legislation, in respect of any Personal Data.
9.2 The Parties shall at all times comply with applicable Data Protection Legislation. Neither Party shall do, nor cause or permit to be done, anything which may result in a breach of the Data Protection Legislation by the other Party.
9.3 Without limiting paragraph 9.2 above, CAPEN warrants, represents and undertakes to the Society that in respect of any Personal Data supplied by the Society to CAPEN, CAPEN shall:
9.4 For the purposes of this clause 9 the following terms shall have the following meanings:
Data Protection Legislation: has the meaning given in clause 1.1 above;
Data Subject: shall have the meaning set out in the Data Protection Legislation;
Permitted Recipient: means any person to whom CAPEN is permitted to make, and does make, available any Society Data in accordance with the terms of this Agreement, including any Sub- Contractors;
Personal Data: shall have the same meaning as set out in the Data Protection Legislation and for the purposes of this Agreement, “processing” has the meaning given to that term in the Data Protection Legislation and “process” and “processed” shall have a corresponding meaning;
Personal Data Breach: means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
Society Data: means any data (including Personal Data), information, text, drawings or other material (in whatever form and on any medium including all electronic, optical, magnetic and tangible media) relating to the Society or its customers, suppliers or personnel which is:
(a) supplied or made available to CAPEN, its Staff and/or its Permitted Recipients by or on behalf of the Society;
(b) obtained by CAPEN, its Staff and/or its Permitted Recipients for the Services or the fulfilment of CAPEN’s’ obligations under this Agreement, or otherwise in the possession, custody or control of CAPEN; or
(c) created, generated, transmitted, stored or processed by CAPEN, its Staff and/or its Permitted Recipients as a part, or as a result, of the Services;
Staff: means the employees, officers, independent contractors (and affiliates of any independent contractors and their staff), agency workers and agents in each case of CAPEN and/or of any Permitted Recipient of any such company engaged in connection with the Services and/or this Agreement;
Sub-Contractor: the third parties that enter into a Sub-Contract with CAPEN; and
Sub-Contract: any contract or agreement or proposed contract or agreement between CAPEN and any third party whereby that third party agrees to provide to CAPEN the Services or any part thereof of facilities or services necessary for the provision of the Services or any part thereof or necessary for the management direction or control of the Services or any part.
This Clause 9 shall continue in full force and effect indefinitely after termination of this Agreement thereof.
10.1 During the term of this Agreement and following its expiry or termination the receiving Party (“Recipient”) shall (and shall procure that each of its employees, subcontractors and agents to whom Confidential Information is made available in accordance with this Agreement shall) keep secret and treat in the strictest confidence all Confidential Information and shall not use such Confidential Information except to implement this Agreement in accordance with its provisions and so far as may be required for the proper exercise of its rights and performance of its obligations under this Agreement.
10.2 The obligations under this Clause 10 shall not extend to any Confidential Information which the Recipient can demonstrate to the reasonable satisfaction of the other Party that:
(a) is required by law to be disclosed pursuant to an order from a court or other regulatory body having competent jurisdiction provided that the Recipient gives prompt notice to the other Party (“Disclosing Party”) of such order or process prior to any disclosure and consults with the Disclosing Party on the advisability of seeking a protective order or other means to preserve the confidential treatment of the Confidential Information and the disclosure is the minimum amount required to comply with such order; or
(b) is acquired from a third party who owes no obligation of confidentiality in respect of the relevant information; or
(c) is or becomes generally available to the public other than as a result of a breach of this Clause 10.3 The obligations of each Party in relation to Confidential Information contained in this Clause 10 shall survive the termination or expiry of this Agreement indefinitely.
11.1 Subject to Clauses 11.2 and 11.3, during the Term and for a period of 12 months thereafter, each Party (“Audited Party”) shall give the other Party (“Auditing Party”) access to the relevant records which relate to the Auditing Party and this Agreement (collectively “Records”), to the extent reasonably necessary to enable the Auditing Party to fulfil any legal, statutory or other reporting obligations, any requests made by a Regulatory Body or to determine the Audited Party’s compliance with its obligations in respect of this Agreement.
11.2 The Auditing Party shall (and shall procure that its auditors shall) at all times when undertaking an audit, comply with the Audited Party’s reasonable security and confidentiality procedures, shall take all reasonable steps to minimise any disruption which may be caused to the Audited Party’s business by such audit.
11.3 The Audited Party shall provide the Auditing Party and/or its auditors with all reasonable assistance in exercising their right of audit.
11.4 Save to the extent required by applicable law or regulation, by a Regulatory Body or as otherwise agreed between the parties, audits conducted in accordance with this Clause 11 may only be conducted once in a 12 month period on normal business days and is subject to the Auditing Party providing the Audited Party with no less than thirty (30) days prior written notice of its intention to carry out an audit.
11.5 Should any inspection or review reveal that CAPEN’s invoices for the audited period are not correct, CAPEN shall promptly reimburse Society for the amount of any overcharge or invoice Society for the amount of any undercharge.
11.6 Each party shall bear its own internal costs of such audit provided that the reasonable costs of any third party engaged in relation to such audit shall be paid by the Auditing Party.
12.1 Society acknowledges that save to the extent expressed in this Agreement and as permitted by applicable law, CAPEN provides the Services on an “as is” basis and CAPEN makes no representations or warranties, either express or implied, of any kind: (a) with respect to the Service or Site (including its operation, content, information or materials); or (b) that the Services or Site are accurate, complete, current or that the Service will operate without interruption or be timely, secure or error free.
12.2 Subject to Clause 12.1 and save to the extent expressed in this Agreement, CAPEN disclaims all warranties, express or implied, of any kind with respect to the Service and its use including but not limited to satisfactory quality, fitness for purpose, non-infringement and availability, to the maximum extent permitted by law.
13.1 Nothing in this Agreement shall limit either Party’s liability for fraud, for death or personal injury caused by that Party’s negligence or the negligence of its employees or for any liability which cannot be excluded by applicable law.
13.2 Subject to Clause 13.1, neither Party shall be liable to the other Party for loss of profits, loss of revenue, loss of goodwill or damage to reputation, loss of anticipated savings or for any indirect or consequential loss or damages.
13.3 Subject to Clause 13.1, CAPEN shall not be liable for any loss arising in relation to such Prizes offered to Entrants for Prize Draws including, without limitation, any error or inaccuracy in the description of Prizes, damage to Prizes or damage caused by Prizes.
13.4 Subject to Clause 13.1 above but excluding liability under Clause 14 and obligations to make payments under Clause 7 of this Agreement, each Party’s aggregate liability to the other Party under this Agreement shall be limited to £2,000 per claim or series of claims to be capped at a maximum aggregate amount of £20,000.
14.1 Subject to Clauses 14.2 and 14.3 below, each Party (the “Indemnifying Party”), at its own expense shall defend or at its option settle, any claim, suit or proceeding (“Claim”) brought against the other Party (the “Indemnified Party”) by a third party and pay any liabilities, damages and costs awarded in any such suit or proceeding if the suit or proceeding is based on (a) the infringement of any Intellectual Property Rights of any third party to the extent attributable to the authorised use by the Indemnified Party of the Materials or Marks of the Indemnifying Party; or (b) the Indemnifying Party’s failure to comply with all applicable laws, rules and regulations.
14.2 The Indemnified Party shall provide the Indemnifying Party with: (a) full written notice as soon as practicable after it becomes aware of the Claim; (b) exclusive control over the defence and settlement of such claim including control of any negotiations or proceedings in connection with the Claim; and (c) proper and full information and assistance to settle or defend any such claim.
14.3 the Indemnified Party shall take reasonable steps to mitigate any loss or liability in respect of the Claim and not compromise or settle the Claim in any way without the Indemnifying Party’s written consent.
15.1 Each Party may terminate this Agreement immediately by giving written notice to the other Party if: (a) the other Party commits a material breach of this Agreement, provided that where such breach is capable of remedy the defaulting Party has been advised in writing of the breach and has not rectified it within thirty (30) days of receipt of such advice; or (b) the other Party goes into liquidation, ceases to do business, becomes insolvent (i.e. unable to pay its debts in the ordinary course as they become due) or is the subject of any liquidation or insolvency proceeding which is not dismissed within ninety (90) days or makes an assignment or arrangement for the benefit of creditors.
15.2 Without limiting its rights under Clause 15.1 above, CAPEN shall be entitled to terminate this Agreement immediately by written notice if the Society, where it is a registered Society, ceases to be a registered society or otherwise loses its charitable status.
15.3 Each Party may terminate this Agreement at any time during the Term by giving 3 months prior written notice to the other.
15.4 In the event of the Society canceling a draw as per the terms and conditions of that draw. A file of the entrants and their purchase history will be provided to the society to enable them to contact and refund the players directly. CAPEN accepts no liability for the refunds to players other than in respect of the transfer of the proceeds to the society and the provision of the relevant player data as held by CAPEN at the point of notification of the cancellation of the draw and the closure of the draw by CAPEN. All commissions as outlined in Schedule 2 will be charged to the date of the closure of the draw.
16.1 Upon expiry or termination of this Agreement for any reason:
(a) all rights and obligations of the Parties shall cease to have effect immediately upon termination of this Agreement except that termin
ation shall not affect the accrued rights and obligations of the Parties at the date of termination; and
(b) all licenses granted under this Agreement shall terminate; and
(c) any Prize draws shall be closed and the Society shall notify all Entrants and shall return all entry proceeds in accordance with clause 15.4; and
(d) Society shall cease to be a Participating Society in any Open Prize Draws and shall notify all Entrants of that fact and return the amounts paid in respect of the entries purchased from such Entrants who had designated Society as the beneficiary of the entry proceeds;
(e) each Party shall immediately pay to the other all amounts due under this Agreement; and
(f) each Party shall, at the request of the other Party return to the other Party or destroy all Confidential Information received from such other Party; and
(g) CAPEN shall provide Society with copies of records retained by CAPEN in relation to Entrants in compliance with HMRC audit requirements and/or this Agreement provided that CAPEN shall continue to store such records to the extent necessary for its own regulatory compliance.
17.1 Save for a Party’s obligations to make payments when due, neither Party shall be deemed to be in breach of the Agreement or have any liability to the other in so far as it is prevented from performing its obligations under the Agreement by reason of any circumstances beyond its reasonable control provided that the that the affected Party shall promptly notify the other Party in writing of the cause, the likely duration and its effect on the performance of the affected Party’s obligations under these Society Terms and take reasonable steps to mitigate the duration and effect of the circumstances on its performance of its obligations under the Agreement.
18.1 This Agreement together with the Schedules to this Agreement sets out the entire agreement and understanding between the Parties and supersedes all prior agreements, understandings or arrangements (oral or written) in respect of the subject matter of this Agreement.
18.2 Each Party acknowledges that it has entered into this Agreement in reliance only on the representations, warranties promises and terms contained in this Agreement and, save as expressly set out in this Agreement, each Party shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
18.3 This Agreement shall be binding on and enure for the benefit of the successors in title of the Parties but, shall not be assigned or sub-contracted by any Party without the prior written consent of the other save that CAPEN shall be entitled to sub-contract development, payment processing and customer support functions to reputable service providers on notice to the Society. Any such third Party arrangement would include all responsibilities and indemnities as are currently agreed with CAPEN under this Agreement. CAPEN shall be entitled to assign the benefit of this Agreement to a bona fide purchaser of its business on notice to the Society.
18.4 No purported variation of this Agreement shall be effective unless it is agreed in writing by or on behalf of each of the Parties.
18.5 To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, it shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
18.6 No single or partial exercise, or failure or delay in exercising any right, power or remedy by any Party shall constitute a waiver by that Party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.
18.7 No announcement concerning the terms of this Agreement shall be made by or on behalf of any of the Parties without the prior written consent of the others, such consent not to be unreasonably withheld or delayed.
18.8 The relationship between the Parties is that of independent contractors and nothing in this Agreement is intended to, or should be construed as creating a partnership, agency, joint venture or employment relationship.
18.9 No term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party to it. 18.10 Any notice to a Party under this Agreement shall be in writing signed by or on behalf of the Party giving it and shall, unless delivered to a Party personally, be: left at, or sent by prepaid first class post or email to the address of the Party as set out in this Clause
18.10 or as otherwise notified in writing from time to time. For notices to CAPEN: (Address) CAPEN Limited, c/o Wem & Co, Savoy House, Savoy Circus, London, W3 7DA. For notices to Society: the address set out in this Agreement. A notice shall be deemed to have been served: (a) at the time of delivery if delivered personally; (b) forty- eight (48) hours after posting; (c) two (2) hours after transmission (confirmed by a delivery confirmation) if served by email during normal business hours of the recipient, and at the opening of the next normal business day if not sent during such normal business hours.
18.11 This Agreement shall be governed by and construed in accordance with either English or Irish law, as applicable. Each of the Parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the courts of England or Ireland, as applicable.
SCHEDULE 1 – THE SERVICES
The Services shall include the functionality associated with the selected package in this Schedule 1 below together with any additional functionality in the relevant Zaffo Services Exhibit to this Schedule.
1.1 Prize draws
(a) Users can win prizes by buying an entry and entering a Prize Draw run on behalf of a benefiting society or non-commercial society. Entrants may purchase entries to Prize Draws through the Society Site via Wallet, Visa or MasterCard Debit Card.
(b) CAPEN shall host details of the Prize draws on the site, the Society Site or any website used by the society for the sales of Prize Draw entries.
(c) CAPEN shall send an email or SMS to each Player on behalf of the Society in respect of each new entry in a format to be agreed with Society
(d) Where a Prize Draw has been held and where CAPEN agrees to make the draw, CAPEN shall provide the winning Entrants details to the society and, unless otherwise agreed, it is the Society’s responsibility to contact winners and fulfil prizes.
1.2 Zaffo standard online raffle and lottery services exhibit:
Zaffo Pro Services
Backoffice for three user
Live reporting dashboard with reports to download
Weekly proceeds report and invoice
Self service site Editor
Branded Ticket
Choose your own domain
Optin to Society
Zaffo.com Services
Backoffice for one user
Live reporting dashboard with reports to download
Weekly proceeds report and invoice
Self service site Editor
Zaffo campaign domain eg “campaign”.zaffo.com
2.1 Subject to Society’s compliance with Clause 6, CAPEN shall host the Society’s Materials and Society’s Marks in connection with Prize Draws on the Society Site, and may host the Society’s Materials and Society’s Marks in connection with Prize Draws on the Site.
3.1 CAPEN shall operate and maintain a Papal account to process Society prize draw payments and shall process the society proceeds on a daily basis.
4.1 CAPEN shall send an email to each Entrant on behalf of the Society in respect of each online entry.
4.2 CAPEN shall respond to enquiries from Users in relation to Prize draws only and shall refer to the Society all other enquiries relating specifically to the Society. CAPEN’s responses shall be by email or telephone (at CAPEN’s discretion) between 09:30 GMT to 17:00 GMT during normal business days.
4.3 CAPEN will offer Entrants to Zaffo Pro Service Societies the option to opt in to receive email correspondence from the Society when the entrant is originated on the Society Site or any website used by the society for the Prize Draw entries to any prize Draw.
4.3 CAPEN may offer entrants the opportunity to opt-in to communications from CAPEN..
5.1 CAPEN may in its discretion feature the Society’s campaigns on https://zaffo.com/ (the Site), unless otherwise instructed by the Society, where the Society’s service level permits the Society to opt-out of being featured on the Site.
5.2 CAPEN may in its discretion include a link from its home page or other pages on the Site to one or more pages on the Society’s website.
Customer Service: CAPEN provides email customer service to the Society and users of the Services. Where the Society requests reasonable technical or design amendments to the Society Site or any associated services, CAPEN shall act on such requests within 48 hours of notification.
Refunds: Customer service will refund players on notification from the Society. All refunds are to be paid by the society.
Chargebacks: Any chargebacks by the players will be paid by the society.
Compliance Reporting: Financial and player reporting for each draw.
Self-management of the Site by the Society: Where the Society opts to edit the Site directly.
Disclaimer: in the event that the Society manages the Site content themselves, CAPEN does not accept any responsibility for errors introduced to the Site by the Society. Such errors may result in the site being removed or hidden until such errors are rectified by the Society. CAPEN reserves the right to revoke editing rights if the Society introduces errors that negatively affect the Zaffo platform. The Society will be solely responsible and liable for any activity that occurs under their account while active on the Zaffo platform. The Society is responsible for keeping their password secure.
SCHEDULE 2 – FEES
SCHEDULE 3
MARKS AND MATERIALS
CAPEN Materials include but are not limited to CAPEN marks, emails, banners, widgets, buttons and other web functionality designed and or developed by or on behalf of CAPEN and comprised in the Services.
This agreement has been entered into on the date stated at the beginning of it.
