SUPPLIER TERMS AND CONDITIONS

Platform Membership Terms and Conditions

 

 

This platform, and any services provided in relation to it, are targeted to, and intended for use by, limited companies (whether public or private) incorporated in the United Kingdom only. By continuing to access, view or make use of this platform, you hereby warrant and represent to us that you are accessing this platform on behalf of a limited company located in the United Kingdom. If you are not accessing this platform on behalf of a limited company located in the United Kingdom, you must immediately discontinue use of this platform, and any related content and services.

These Terms and Conditions apply between the company joining the Platform as a Playter Supplier (”you” / “your”) and ImployApp Limited trading as Playter (“we” / “us” / “our” / “Playter”), registered in England and Wales under company number 11376064 whose registered office is at 5 Merchant Square, Paddington, London, W2 1AY.

Please read these Terms and Conditions carefully as they contain important information.

Please see our Privacy Policy (which is available on request) for information about how we handle your personal data.

In these Terms and Conditions, the following words shall have the following meanings:

Candidate: means an individual seeking employment or offering services on the Platform.

Contract: means the contract between you and us for your membership on the Platform, in accordance with these Terms and Conditions.

Credit Agreement: means a credit agreement entered into between a Lender and a Playter Customer, for the purposes of allowing the Playter Customer to split your Fees across 6 consecutive months, at 0% interest.

Credit Checks: means any checks (including without limitation affordability checks) we deem appropriate to carry out, in order to assess a Playter Customer’s creditworthiness, or a Playter Customer’s ability to afford financial products.

Employee: means an individual who is introduced by you to a Playter Customer via the Platform, and who the Playter Customer employs or receive services from following that introduction.

Fees: means any professional services fees, agreed between you and a Playter Customer from time to time.

Lender: means a third party lender, introduced to you by us.

Membership Term: means the membership term set out in the order process.

Our Charges: means our charges for your membership on the Platform, as set out in clause 4.

Platform Terms and Conditions of Use: means our terms and conditions governing your use of our Platform, as set out below.

Platform: the online Playter Pay platform, hosted at app.playter.co.

Playter Customer: means a customer onboarded onto the Platform, but excluding any Playter Suppliers.

Registration Date: means the day on which you agree to these Terms and Conditions.

Renewal Term: means any renewal term set out in the order process.

Start Date: means the day on which the Employee’s employment or services (as the case may be) commence with the Playter Customer.

Terms and Conditions: mean these terms and conditions.

1. When you join the Platform, these Terms and Conditions will apply.

2. The Contract shall commence on the Registration Date, and shall continue until the later of:

a) either party terminating the Contract, by serving not less than 12 weeks’ notice; and

b) all amounts of credit issued under all Credit Agreements, are repaid in full.

3. When you enrol onto the Platform, you will be entitled to the following benefits:

a. Full and free access to the Platform throughout the Membership Term and any Renewal Term;

b. Introductions to Playter Customers throughout the Membership Term and any Renewal Term;

c. The ability to promote your business as a Playter Supplier throughout the Membership Term and any Renewal Term.

d. The ability for Playter Customers to split your Fees over 6 consecutive months, at 0% interest, subject to the relevant Playter Customer successfully passing our Credit Checks;

e. A guarantee from Playter that upon the later of (i) the Playter Customer entering into a Credit Agreement, and (ii) the Playter Customer making its first payment under the Credit Agreement, the Credit Amount (less our Our Charges, as set out in clause 4), shall be transferred to you in accordance with the terms of the Credit Agreement;

f. Free access to Playter’s standard support package (which shall include account management and Platform support) throughout the Membership Term and any Renewal Term; and

g. The ability to refer your own clients to the Platform (Referral Rights) on the terms set out in Schedule 1.

4. If you have been introduced to the Playter Customer by a member of the Playter team with the purpose of building a professional relationship not previously agreed, you agree to pay us 10% of your Fees generated from a Playter Customer in perpetuity, whether those Fees are the subject of a Credit Agreement or not (Our Charges). Where your Fees are the subject of a Credit Agreement, we will be paid by the Lender, and you agree that we may recover Our Charges directly from the Lender. Where your Fees are not the subject of a Credit Agreement, you agree to:

a. notify us in writing, immediately upon agreeing your services and/or Fees with a Playter Customer;

b. notify us in writing, immediately upon entering into a contract with a Playter Customer (whether via the Platform or otherwise); and

c. transfer Our Charges to us, no later than 10 days following receipt of your Fees from the Playter Customer.

5. Playter reserves the right to waive its fees set out in clause 4, at its absolute discretion.

6. When working with a Playter Customer for the purposes of recruitment, unless otherwise agreed in writing with that Playter Customer, you hereby agree to provide the Playter Customer with a 12-week free replacement policy for each Employee, whereby you agree to use your reasonable endeavours to provide the Playter Customer with alternative Candidates, free of charge, if the Employee leaves employment with the Playter Customer, or ceases to provide services to the Playter Customer, within 12 weeks of his/her Start Date.

7. If you do not pay any amount properly due to us by the due date, and without prejudice to any other rights and remedies of us:

a) we may without liability to you, disable all access to the Platform; and

b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of HSBC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8. All amounts and fees stated or referred to in the Contract:

a) shall be payable in pounds sterling;

b) are non-cancellable and non-refundable; and

c) are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.

9. We shall be entitled to implement membership fees for the Platform at any time, by providing you with 45 days’ prior written notice (which may be provided by email).

10. When accessing our Platform, you agree at all times to comply with our Platform Terms and Conditions of Use.

11. By joining the Platform, you hereby grant us, a non-exclusive, royalty free, worldwide, irrevocable licence, to use your trade marks and logos, on our website and in our marketing materials.

12. You acknowledge and agree that we are an intermediary only, and are in no way responsible for the acts or omissions of any third parties (including without limitation any (i) Playter Customers, (ii) Candidates, or (iii) Employees). Whilst we are satisfied with the quality of the third parties we work with, we do not, and cannot, guarantee the performance of any third parties, or any results received from the Platform.

13. We may (at our sole discretion) amend these Terms and Conditions, and the content and format of the Platform at any time and for any reason, whether or not due to a Force Majeure Event (as defined below), and in each case without liability.

14. To the fullest extent permitted by the applicable law, we exclude: (a) all warranties, representations, terms and conditions (whether express or implied); and (b) any actual or alleged indirect loss or consequential loss howsoever arising, suffered by you, and any loss of profits, anticipated profits, savings, loss of business revenue, loss of business, loss of opportunity, loss of goodwill, and any other type of economic loss (whether direct or indirect). If we are liable to you for any reason, our total liability to you in relation to the Contract (whether under these Terms and Conditions or otherwise) is limited to the amount of Membership Fees received by us from you pursuant to the Contract.

15. If, by reason of any Force Majeure Event, we are delayed in or prevented from performing any of our obligations under the Contract, then such delay or non-performance shall not be deemed to be a breach of the Contract, and no loss or damage shall be claimed by you by reason thereof. Our obligations shall be suspended during the period of the delay or non-performance and we and you shall each use reasonable endeavours to mitigate the effect of the Force Majeure Event. For the purpose of this clause, “Force Majeure Event” means any event arising that is beyond our reasonable control including (without limitation) supplier or contractor failure, industrial dispute, governmental regulations or action, military action, fire, flood, epidemic, pandemic, disaster, civil riot, acts of terrorism or war.

16. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;

b) the other party commits a material breach of any other term of the Contract and where such breach is irremediable or (if such breach is remediable) where that party fails to remedy such breach within a period of 28 days after being notified in writing to do so;

c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

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

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

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

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

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

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

j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1(c) to clause 16(i) (inclusive); or

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

17. On termination of the Contract for any reason:

a) your obligation to pay Our Fees in accordance with clause 4 shall continue in full force and effect, indefinitely;

b) all licences and rights granted under the Contract shall immediately terminate and you shall immediately cease all use of the Platform; and

c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.

18. No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement. Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause 18. Each party may disclose the other party’s confidential information:

a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 18; and

b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

19. We reserve the right to amend these Terms and Conditions from time to time.

20. The Contract and our Platform Terms and Conditions of Use, constitute the entire agreement between you and us and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.

21. No person other than you and us shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) or otherwise) to enforce the Contract or these Terms and Conditions, without the prior written agreement of both you and us.

22. These Terms and Conditions (and the Contract) are governed by and construed and interpreted in accordance with the laws of England and Wales and you agree that the English courts shall have exclusive jurisdiction in any dispute.

Schedule 1

The following terms shall apply where you exercise your Referral Rights under clause 3(g) of our Terms and Conditions, to refer your own clients (“Clients”) to us for the purposes of those Clients joining the Platform (“Referrals”):

1. Appointment. We appoint you on a non-exclusive basis to identify prospective Clients for the Platform, and to make introductions of such Clients on the terms of this Schedule 1.

2. Non-Compete. We agree not to introduce any of your Clients to any other Playter Suppliers, without the your prior written approval.

3. No Commission. No fees or commission whatsoever shall be payable by us to you for any Referrals made to us at any time.

4. Your duties.

(a) Good faith. You shall serve us faithfully and diligently and not to allow your interests to conflict with your duties under the Contract;

(b) Reports. You shall report in writing to us from time to time, on progress made with Clients;

(c) Provision of information. Any information you provide to a third party in respect of Playter or the Platform, must be complete, accurate and correct at all times; and

(d) Compliance with instructions. You shall comply with all reasonable and lawful instructions of us from time to time.

5. Limited scope of authority.

(a) No authority to bind. You shall have no authority, and shall not hold yourself out, or permit any person to hold itself out, or otherwise create the impression that you are authorised to bind us in any way, and you shall not do any act which might reasonably create the impression that you are so authorised.

(b) No authority to contract or negotiate. You shall not make or enter into any contracts or commitments or incur any liability for or on behalf of us, including for the provision of the Platform, or the price of membership for it, and you shall not negotiate any such terms with your Clients.

6. Obligation to disclose limits on authority. You must disclose to each Client that you are only making a referral to us, and that you have no authority or ability to negotiate or vary the terms of the Platform, or enter into any contract on behalf of us.

7. Marketing material. You shall not produce any marketing material for the Platform, or use our name, logo or trade marks on any marketing material without our prior written consent. You shall not, without our prior written consent, make or give any representations, warranties or other promises concerning the Platform, which are not contained in our marketing materials.

8. Trade marks. You may not use our trade marks, logos, or other intellectual property rights, unless approved by us in writing. You may however, provide third parties with links to our Platform in order to promote it.

9. Obligations of us.

(a) Provision of information. We shall provide you at all material times with the information you reasonably require to perform your duties, including marketing information for, and details of, the Platform.

(b) Notices of suspension or cessation of services. We shall inform you if we suspend the Platform.

(c) Payment of expenses. We shall not be responsible for any expenses incurred by you, unless such expenses have been agreed by us in writing, in advance.

(d) Freedom of us not to pursue Referrals. We shall be under no obligation to follow up any Referral made by you.

10. Compliance. Each party shall at its own expense comply with all applicable laws and regulations relating to its activities under the Contract, as they may change from time to time.

11. Anti-bribery

11.1 Anti-bribery compliance by you:

(a) Compliance with Bribery Act 2010. You shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption (Relevant Requirements), including but not limited to the Bribery Act 2010 (BA 2010);

(b) Conduct outside the UK. You shall not engage in any activity, practice or conduct outside the UK which would constitute an offence under sections 1, 2 or 6 of the BA 2010 if such activity, practice or conduct had been carried out inside the UK;

(c) Compliance with our policies. You shall comply with our ethics and anti-bribery policies as provided from time to time (Relevant Policies);

(d) Your policies and procedures. You shall have and shall maintain in place throughout the term of the Contract, your own policies and procedures, including adequate procedures under the BA 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and you will enforce them where appropriate;

(e) Reporting obligation. You shall promptly report to Us, any request or demand for any undue financial or other advantage of any kind received by you in connection with the performance of the Contract;

(f) Foreign public officials. You shall immediately notify us if a foreign public official becomes an officer or employee of you, and you warrant that you have no foreign public officials as direct or indirect owners, officers or employees at the date of the Contract;

(g) Compliance certification. You shall within 1 month of the date of the Contract, and annually thereafter, certify to us in writing, compliance with this clause 11, by you and all persons associated with you under clause 11.2. You shall provide such supporting evidence of compliance as we may reasonably request from time to time.

11.2 Ensuring compliance from associated persons. You shall ensure that any person associated with you, who is performing services in connection with this agreement, does so only on the basis of a written contract which imposes on and secures from such person, terms equivalent to those imposed on you in this paragraph 10 (Relevant Terms). You shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to us for any breach by such persons of any of the Relevant Terms.

11.3 Definitions. For the purpose of this clause 11, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.

12. Data Protection

Each party shall comply with applicable Data Protection Legislation at all times during the Membership Term and any Renewal Term. For the purposes of this paragraph 11, Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018); and the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426) as amended.

Platform Terms and Conditions of Use

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Agreed Purposes: the purposes of facilitating the use of our Platform, and for allowing any Customers to split certain fees of the Supplier, over 6 consecutive months, at 0% interest.

Applicable Data Protection Laws: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

Authorised Users: those employees of the Supplier who are authorised by the Supplier to use the Services, as further described in clause 5.1(c).

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

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in Applicable Data Protection Laws.

Credit Agreement: means a credit agreement entered into between a Lender and a Customer, for the purposes of allowing the Customer to split any Supplier Fees across 6 consecutive months, at 0% interest.

Customer: means an organisation registered to use the Platform as a customer.

Data Discloser: a party that discloses Shared Personal Data to the other party.

Lender: means a third party lender, introduced to the Supplier by Playter.

Mandatory Policies: Playter’s business policies and codes, as amended from time to time by notification to the Supplier.

Membership Agreement: means the agreement between Playter and the Supplier, for the Supplier’s membership on the Platform, in accordance with our Platform Membership Terms and Conditions.

Membership Fees: means the membership fees payable by the Supplier to Playter in accordance with the Membership Agreement.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Permitted Recipients: the parties to this agreement, the employees of each party, and all other users of the Services (including without limitation, all Suppliers and Customers).

Platform: the online platform hosted at www.app.playter.co provided by Playter as part of the Services.

Platform Membership Terms and Conditions: means the platform membership terms and conditions set out above.

Playter: means ImployApp Limited trading as ‘Playter’.

Registration Date: the date on which the Supplier accepts these terms and conditions.

Services: the subscription services provided by Playter to the Supplier under this agreement as set out at www.app.playter.co, including without limitation access to and use of the Platform, along with any other website or platform notified to the Supplier by Playter from time to time.

Shared Personal Data: the personal data to be shared between the parties under clause 7 of this agreement. Shared personal data shall be confined to the following categories of data subject: Contact details including names, email Addresses and phone numbers of Customers and Lenders.

Subscription: the subscription provided pursuant to these terms and conditions, entitling Authorised Users to access and use the Services.

Supplier: means the organisation subscribing for the services in accordance with these terms and conditions.

Supplier Data: the data inputted into the Platform by the Supplier, Authorised Users, or by Playter on the Supplier’s behalf, for the purposes of using the Services.

Supplier Fees: means any professional services fees, agreed between the Supplier and a Customer from time to time.

Term: means the term set out in clause 2.1.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural, and words in the plural shall include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.9 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

1.10 A reference to writing or written includes email.

2. Term

2.1 This agreement shall commence on the Registration Date, and (unless terminated earlier in accordance with these terms and conditions) shall automatically terminate at the expiry or termination of the Membership Agreement.

3. Licence

3.1 Subject to the Supplier complying with these terms and conditions, Playter hereby grants to the Supplier, a non-exclusive, non-transferable right, without the right to grant sublicences, to permit its Authorised Users to use the Services during the Term solely for the Supplier’s internal needs.

4. Services

4.1 Playter shall, during the Term, provide the Services to the Supplier on and subject to the terms of this agreement.

4.2 Playter shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 10.00 pm to 4.00 am UK time; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that Playter has used reasonable endeavours to give the Supplier at least 3 Normal Business Hours’ notice in advance.

5. Subscription

5.1 In relation to the Authorised Users, the Supplier undertakes that:

(a) it will not allow its Subscription to be used by anyone other its Authorised Users;

(b) each Authorised User shall keep all passwords secure and confidential, and that each password shall be changed no less frequently than once in each calendar year;

(c) it shall maintain a written, up to date list of current Authorised Users and provide such list to Playter within 2 Business Days of Playter’s written request at any time or times;

(d) it shall not provide any Authorised User with access to the Services (including the Platform), without first providing them with a copy of Playter’s Privacy Policy (located at https://playter.co/privacy-policy/);

(e) it shall permit Playter or Playter’s designated auditor to audit the Services in order to establish the name of each Authorised User and to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at Playter’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Supplier’s normal conduct of business; and

(f) if any of the audits referred to in clause 6.1(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Playter’s other rights, the Supplier shall promptly disable such passwords and Playter shall not issue any new passwords to any such individual.

5.2 The Supplier shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) is otherwise illegal or causes damage or injury to any person or property;
and Playter reserves the right, without liability or prejudice to any other rights it has to the Supplier, to disable the Supplier’s access to any material that breaches the provisions of this clause.

5.3 The Supplier shall not:

(a) use the Services for anything other than for its own internal purposes; or

(b) access all or any part of the Services in order to build a product or service which competes with the Services; or

(c) use the Services to provide services to third parties; or

(d) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or

(e) subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or

(f) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under the terms of this agreement; or

(g) introduce or permit the introduction of, any Virus or Vulnerability into Playter’s network and information systems.

5.4 The Supplier shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Playter.

5.5 The rights provided under clauses 3 and 4 are granted to the Supplier only, and shall not be considered granted to any subsidiary or holding company of the Supplier.

6. Supplier data

6.1 The Supplier shall own all right, title and interest in and to all of the Supplier Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Supplier Data.

6.2 Playter shall archive Supplier Data in accordance with its archiving procedures and such archiving procedures may be amended by Playter in its sole discretion from time to time. In the event of any loss or damage to Supplier Data, the Supplier’s sole and exclusive remedy against Playter shall be for Playter to use reasonable commercial endeavours to restore the lost or damaged Supplier Data from the latest back-up of such Supplier Data maintained by Playter in accordance with its archiving procedures. Playter shall not be responsible for any loss, destruction, alteration or disclosure of Supplier Data caused by any third party.

7. Data protection and data sharing

7.1 Shared Personal Data. This clause sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (referred to in this clause as the Data Discloser) may regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

7.2 Effect of non-compliance with UK Data Protection Legislation. Each party shall comply with all the obligations imposed on a controller under the UK Data Protection Legislation, and any material breach of the UK Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.

7.3 Particular obligations relating to data sharing. Each party shall:

(a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;

(b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;

(c) process the Shared Personal Data only for the Agreed Purposes;

(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;

(f) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

(g) not transfer any personal data received from the Data Discloser outside the UK unless the transferor:

(i) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and

(ii) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; or (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) Binding corporate rules are in place or (iv) one of the derogations for specific situations in 60 Article 49 GDPR applies to the transfer.

7.4 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the Applicable Data Protection Laws. In particular, each party shall:

(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;

(b) promptly inform the other party about the receipt of any data subject access request;

(c) provide the other p arty with reasonable assistance in complying with any data subject access request;

(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;

(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Applicable Data Protection Laws with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;

(f) notify the other party without undue delay on becoming aware of any breach of the Applicable Data Protection Laws;

(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;

(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;

(i) maintain complete and accurate records and information to demonstrate its compliance with this clause 7; and

(j) provide the other party with contact details of at least one employee as a point of contact and responsible manager for all issues arising out of the Applicable Data Protection Laws, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Applicable Data Protection Laws.

7.5 The Supplier shall indemnify Playter against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Playter, arising out of or in connection with a breach of the Applicable Data Protection Laws by the Supplier, its employees or agents.

8. Third party providers

The Supplier acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Playter makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Supplier, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Supplier and the relevant third party, and not Playter. Playter recommends that the Supplier refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Playter does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

9. Playter’s obligations

9.1 Playter undertakes that the Services will be performed in accordance with the descriptions set out on www.app.playter.co and with reasonable skill and care.

9.2 The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Playter’s instructions, or modification or alteration of the Services by any party other than Playter or Playter’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Playter will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Supplier with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Supplier’s sole and exclusive remedy for any breach of the undertaking set out in clause 9.1.

9.3 The Platform shall (a) provide the Supplier with the ability to check if a Customer might be eligible for credit to pay the Supplier Fees, and (b) introduce independent Lenders for the purposes of providing credit to the Customer (Eligibility Check). The Supplier expressly acknowledges that such Eligibility Checks are provided by third party suppliers on Playter’s behalf and Playter does not provide any warranties in respect of the accuracy of the information provided to the Supplier. Further, Playter accepts no liability for the outcome of any Eligibility Checks carried out by such third parties as part of the Services. If an Eligibility Check confirms that a potential customer may be eligible for credit via the Platform, the potential customer will be sent an email inviting it to join the Platform. If the potential customer does not join the Platform, Playter will not be required to take any further action in respect of such potential customer, or any Eligibility Check. If the potential customer joins the Platform as a Customer, and provides the necessary permissions, Playter shall arrange any required additional banking authorisation checks to be undertaken and will contact with the Customer directly in order to carry out the Services.

9.4 Playter:

(a) does not warrant that:

(i) the Supplier’s use of the Services will be uninterrupted or error-free;

(ii) that the Services and/or the information obtained by the Supplier through the Services will meet the Supplier’s requirements; or

(iii) the Services will be free from Vulnerabilities;

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Supplier acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

9.5 This agreement shall not prevent Playter from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
9.6 Playter warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

10. Supplier’s obligations

10.1 The Supplier shall:

(a) provide Playter with:

(i) all necessary co-operation in relation to this agreement; and

(ii) all necessary access to such information as may be required by Playter; in order to provide the Services, including but not limited to Supplier Data, security access information and configuration services;

(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;

(c) carry out all other Supplier responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Supplier’s provision of such assistance as agreed by the parties, Playter may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;

(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Playter, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

(f) ensure that its network and systems comply with the relevant specifications provided by Playter from time to time; and

(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Playter’s data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Supplier’s network connections or telecommunications links or caused by the internet.

10.2 The Supplier agrees that it shall upload all invoices that are the subject of a Credit Agreement, together with its bank details for the account into which it wishes the Supplier Fees to be paid. The Supplier acknowledges and agrees that if it fails to provide such information, it will not be possible to pay the Supplier Fees to the Supplier.

10.3 For the purposes of carrying out the Eligibility Check, the Supplier must provide certain information about the Customer, including but not limited to the Customer’s Companies House registration number. The Supplier agrees to provide complete and up to date information as set out in this clause 10.3, in order for Playter to carry out the Eligibility Check.

11. Proprietary rights

The Supplier acknowledges and agrees that Playter and/or its licensors own all intellectual property rights in the Services (including without limitation all intellectual property rights in the Platform). Except as expressly stated herein, this agreement does not grant the Supplier any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.

12. Confidentiality and compliance with policies

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

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

(b) was in the other party’s lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party, and where such independent development can be shown by written evidence.

12.2 Subject to clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

12.3 Each party shall ensure that the other’s Confidential Information to which it has access, is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

12.5 The Supplier acknowledges that details of the Services, along with the results of any performance tests of the Services, constitute Playter’s Confidential Information.

12.6 The Supplier shall not permit any person to make any public announcement concerning this agreement without the prior written consent of Playter (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12.7 The above provisions of this clause 12 shall survive termination of this agreement, however arising.

12.8 In performing its obligations under this agreement the Supplier shall comply with the Mandatory Policies.

13. Indemnity

The Supplier shall defend, indemnify and hold harmless Playter against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Supplier’s use of the Services.

14. Limitation of liability

14.1 Except as expressly and specifically provided in this agreement:

(a) the Supplier assumes sole responsibility for results obtained from the use of the Services by the Supplier, and for conclusions drawn from such use. Playter shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Playter by the Supplier in connection with the Services, or any actions taken by Playter at the Supplier’s direction;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

(c) the Services are provided to the Supplier on an “as is” basis.

14.2 Nothing in this agreement excludes the liability of Playter:

(a) for death or personal injury caused by Playter Play’s negligence; or

(b) for fraud or fraudulent misrepresentation.

14.3 Subject to clause 14.1 and clause 14.2:

(a) Playter shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

(b) Playter’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Membership Fees received by Playter from the Supplier pursuant to the Membership Agreement.

14.4 Playter makes no guarantee that any credit will be made available via the Supplier’s use of the Platform. For the avoidance of doubt, Playter is not a provider of credit provider. It does not lend its own money to any Customers. Playter acts as an intermediary only in order to facilitate introductions to Lenders. Playter and the Supplier each acknowledge and agree that this agreement does not constitute a contract for any credit, lending or funding. Any credit that Playter arranges will be based on the relevant Lender’s own terms of business and/or terms and conditions. Playter make no representation or warranty about any Lender and will not be liable in any way whatsoever for any loss, damage, injury or expense suffered or incurred by the Supplier or any third party howsoever caused in respect of any credit arranged by Playter. The Supplier hereby agrees that Playter acts as an intermediary only and is in no way responsible for the acts, omissions or defaults of any Lender or any failure of a Lender to perform its obligations.

15. Termination

15.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 28 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of this agreement and where such breach is irremediable or (if such breach is remediable) where that party fails to remedy such breach within a period of 28 days after being notified in writing to do so;

(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

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

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

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

(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

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

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

(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1(c) to clause 15.1(i) (inclusive); or

(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

15.2 On termination of this agreement for any reason:

(a) all licences granted under this agreement shall immediately terminate and the Supplier shall immediately cease all use of the Services;

(b) each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;

(c) Playter may destroy or otherwise dispose of any of the Supplier Data in its possession, unless Playter receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Supplier of the then most recent back-up of the Supplier Data. Playter shall use reasonable commercial endeavours to deliver the back-up to the Supplier within 30 days of its receipt of such a written request, provided that the Supplier has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Supplier shall pay all reasonable expenses incurred by Playter in returning or disposing of Supplier Data; and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

16. Force majeure

Playter shall have no liability to the Supplier under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Playter or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, epidemic, pandemic or default of suppliers or sub-contractors, provided that the Supplier is notified of such an event and its expected duration.

17. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

19. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

20. Severance

20.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

20.2 If any provision or part-provision of this agreement is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

21. Entire agreement

21.1 This agreement, along with the Platform Membership Terms and Conditions, constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

21.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

21.4 Nothing in this clause shall limit or exclude any liability for fraud.

22. Assignment

22.1 The Supplier shall not, without the prior written consent of Playter, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

22.2 Playter may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

23. No partnership or agency

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

24. Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

25. Notices

25.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered office address, or such other address as may have been notified by that party for such purposes.

25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

26. Governing law

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

27. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

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