These Terms are subject to change and were last updated on 29th January 2018.
The following terms and conditions (“the Society Terms”) and the attached Annexures set out the basis upon which a Participating Society (as defined below) may (subject to acceptance by Capen) enter into an agreement with Capen to participate as a Society on Zaffo.com (as defined below) (“the Agreement”).
By Registering to raise money for a good cause on Zaffo.com, you agree, on behalf of the Participating Society you represent, that you have read these Society Terms, understand them and agree that the Participating Society shall be legally bound by them and you warrant to Capen that you have the authority to enter into the Agreement on behalf of that Participating Society.
You further acknowledge that by doing so, the Participating Society is making an offer to Capen to enter into the Agreement subject to acceptance of Registration (as defined below) by Capen and that Capen reserves fully its right to refuse any application.
Background and principal Objectives
(A) Capen Limited (“Capen”), trading as Zaffo, has created Zaffo.com for the benefit of good causes, and administers and manages all remote society lotteries on Zaffo.com and may operate other Prize Draws on Zaffo.com as a tool to raise funds for good causes. Capen, 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 (address for correspondence: Unit 512, The Print Rooms, 164 to 180 Union Street, SE1 0LH), is licensed by the UK Gambling Commission as an external lottery manager with licence number (Type F, Remote) (000-036257-R-317724-001) (the “Operating Licence”), permitting it to manage raffles and lotteries on behalf of organisations promoting society lotteries.
(B) Zaffo.com has been set up in such a way as to allow Participating Societies to have a microsite, hosted by Zaffo.com, through which the Participating Societies’ supporters can buy entries to Prize Draws (“Society Sites”). Participating Societies will receive 90% of the proceeds raised through the Society Site, which may be used for the Participating Society’s Permitted Purposes (as defined below).
Definitions and interpretation
In this Agreement the following terms shall have the following meanings:
“Acceptance Date”, means the time of acceptance of Registration by Capen;
“Agreement” has the meaning set out above;
“AUP” means the acceptable use policy relating to the use of Zaffo.com and the Society Site as revised from time to time (the current version of which is available at Zaffo.com);
"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 Controller" has the meaning given in the Data Protection Legislation;
"Data Processor" has the meaning given in the Data Protection Legislation;
"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;
“End User Terms” or ‘Terms and Conditions” means the terms and conditions governing the use of Zaffo.com and the Society Site (and incorporating the AUP) as revised from time to time (the current version of which is available at https://zaffo.com/);
“Entrant” means an individual entrant to a prize draw having purchased one or more entries;
“Prize Draw Terms and Conditions” means the terms and conditions governing the applicable Prize Draw(s) (and which will be made available at https://zaffo.com
“Zaffo.com” means the website located at URL https://zaffo.com/;
"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;
“Prize Draw” means the remote society lottery draw (raffle) promoted by the Society and operated through the Zaffo.com Site on the Participating Society Site;
"Marks" means in relation to a Party, the trade marks, trade names, logos, signs and devices of that Party, in the case of Capen as set out in Annex 2 and in the case of Participating Charities, any trademarks, trade names, logos, signs and devices owned by a Participating Society or by a third party which the Participating Society provides to Capen for use in connection with the Prize Draw;
"Materials" means in relation to a Party, all materials created by or on behalf of that Party in relation to which the Party owns (or is licensed to use, other than under these Society Terms) the Intellectual Property in any medium whatsoever, owned by or licensed to that Party, in the case of Capen, as set out in Annex 2 and in the case of Participating Charities, any materials owned by a Participating Society or by a third party which the Participating Society provides to Capen for use in connection with the Prize Draw;
“Site” means the website owned by Capen Limited (trading as Zaffo) and located at URL (http://zaffo.com);
“Society Proceeds” means the monetary proceeds received by Capen from Entrants who enter the Prize Draw through the Society Site;
“Society Site” has the meaning given in clause 3.1;
“Society Sums” means the share of the Society Proceeds payable to the Participating Society in respect of the applicable month of the Term as calculated under Annex 2 (which is subject to amendment under clause 7.4) and, for the avoidance of doubt, excludes Society Proceeds in respect of which the Entrant has not nominated the Participating Society to be the recipient of the revenue share;
“Participating Society” means such community groups, voluntary bodies and charities as may be authorised by Capen to set up a Zaffo.com Prize Draw and receive funding pursuant to this Agreement;
“Party” means a party to this Agreement (and “Parties” shall be construed accordingly);
“Permitted Purpose” means use of the Society Sums for the benefit of the Participating Society
“Prize” means the Prize offered by the Society in accordance with the Prize Draw clauses and Conditions;
“Registration” means the process by which an organisation that wishes to become a Participating Society provides registration information through Zaffo.com; and “acceptance of Registration” means any acceptance of the Registration by Capen, such process being completed when Capen (in its absolute discretion) sends written confirmation to the applicant organisation that its application for Registration has been accepted;
“Term” means the Initial Term and all Renewal Periods (which has the meaning given in clause 2.1);
"Territory" means the United Kingdom;
“User” means either an Entrant or visitor to the Site;
"User Data" means personal information relating to a User;
“Society’s promoter” means the individual named on the Society Site who is designated as having responsibility within the Society for the promotion of the Prize Draw.
In these Society Terms:
Clause headings are used in this Agreement for ease of reference only and shall not affect interpretation; references in this Agreement to Clauses and Annexes are to clauses and annexes 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.
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.
In the event of any conflict or ambiguity in the provisions of the Clauses and the Annexes, the Clauses shall take precedence over the Annexes.
Term and registration
The Agreement shall take effect on the Acceptance Date (the date on which these Terms are accepted) and continue in force for a term of one (1) year (“Initial Term”) and then 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 unless and until terminated earlier under clause 15 (“the Term”).
For the avoidance of doubt, Capen reserves fully the right to refuse any application to Register to become a Participating Society.
Subject to the compliance of the Participating Society with these Society Terms, Capen shall, on request by the Society, host a micro-site on Zaffo.com as set out in Part 1 of Annex 1 (“the Society Site”) for a period of time as requested by the Society, within the Term.
The Society Site may (subject to clauses 3.3 and 8.2 and the Participating Society’s compliance with clause 5) incorporate the Participating Society’s Marks and Materials.
The Participating Society acknowledges and agrees that Capen shall (subject to the approval requirements under clause 8.2) have full editorial control over the content on the Society Site.
The Participating Society acknowledges and agrees that (without prejudice to the generality of clause 12) Capen may, acting reasonably, suspend access to all or any part of the Society Site when it is necessary to prevent harm and/or other material adverse consequences to Zaffo.com.
Capen shall be permitted to conduct scheduled maintenance and emergency maintenance of the Site or Society Site 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 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.
Capen will provide reasonable support in the use of the Society Site to the Participating Society in accordance with the provisions of Part 3 of Annex 1.
Use of the Society Site by the Participating Society shall be subject to the terms of the AUP. Use of the Society Site and participation in the Prize Draws by Users and Entrants shall be subject to the AUP, the End User Terms, and the Prize Draw Terms and Conditions. The Participating Society specifically acknowledges this and agrees that Capen may in its reasonable discretion accept or reject the participation of any User, or any entry to any Prize Draw made by a proposed Entrant. The Participating Society further agrees that it will take all action required by Capen in respect of enforcement of the AUP, the End User Terms, the Prize Draw Terms and Conditions against the Users and Entrants.
Payment and use of the Society sums
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 28 days after that receipt, pay it into an account held by a bank or building society in the name of the Society in accordance with the details provided by the Society.
The Society agrees that for the purpose of Clause 4.1, following Capen’s receipt of such Proceeds, Capen shall pay such proceeds into a designated client account which is held by Capen on behalf of charitable institutions including the Society pending payment of such Proceeds to the account held in the name of the Society in accordance with Clause 4.1 above.
The Participating Society acknowledges and agrees that Capen has not made any representation of the Society Sums being any guaranteed amount and that it is possible that the aggregate Society Sums may be zero.
The Participating Society undertakes to Capen to ensure that all Society Sums are used solely for the Permitted Purpose.
The Prize Draws
By agreement with the Society, Capen shall hold Prize Draws on the Site, details of which shall be branded with Society’s Marks and Society’s Materials.
Capen shall be responsible for ensuring all Prize Draws are compliant with all gaming laws applicable under UK law.
CAPEN undertakes to maintain in full force and effect all the insurance policies set out in Annex 3 and identify with the relevant insurer the Society as a potential beneficiary of proceeds of any claim which may be impacted by a claim for damages under this Agreement.
The Society shall at its cost reasonably promote the Prize Draws, such promotion may include:
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;
promoting such Prize Draws by including a link to the Prize Draw from the Society’s website; and
promoting such Prize Draws using social media channels.
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.
Where a Prize Draw has been administered by Capen, Capen shall inform the Society of the contact details of the winning Entrants in order that the Society can fulfil prizes.
Capen shall conduct the draw or draws using a Random Number Generator licensed by the UK Gambling Commission; 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.
Participating Society obligations in respect of registration
The Participating Society shall provide to Capen in the format reasonably required by Capen:
evidence that the Participating Society meets the criteria for participation;
the Participating Society’s Materials which the Participating Society wishes to be included on the Society Site;
website copy relating to the Participating Society’s involvement in Zaffo.com
graphical representations of the Participating Society’s Marks.
Any subsequent amendments to the Participating Society’s Materials and/or Marks shall be subject to the discretion of Capen (and may be subject to a charge).
The Participating Society shall ensure that at all times the information provided by or on behalf of the Participating Society to Capen including (but not limited to) its Materials and Marks is accurate and up to date, complies with applicable laws and regulations and the AUP and does not infringe the Intellectual Property Rights or other rights of any person.
Reporting Obligations in respect of the Society sums
Capen shall provide or make available to Society a monthly report containing particulars of the Proceeds and Commission for that month 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.
The percentage of the Society Proceeds calculated as the Society Sums is inclusive of VAT and, where VAT is required to be paid by applicable law on the Society Sums, the Participating Society shall be responsible for accounting to HMRC for the applicable amount of VAT. In such circumstances, Capen shall provide a valid VAT invoice giving the necessary details of the taxable supply.
If any sum payable under these Society Terms 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 these Society Terms, a “substantial remedy” for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from time to time).
In the event that Capen wishes to change the basis for calculating the Society Sums, Capen shall give the Participating Society at least one (1) month’s prior written notice of the proposed changes. In the event that the Participating Society does not accept the proposed changes, the Participating Society shall within 30 days notify Capen, which notice shall be deemed to be notice to terminate the Agreement for convenience pursuant to clause 15.3 provided that the proposed changes shall not take effect during the notice period. In the event that the Participating Society does not so notify Capen, the Participating Society is deemed to accept the revised Society Sums, which shall be effective on the day following the expiry of the one month notice period.
This Clause 7 shall survive termination of the Agreement.
Each Party (“Licensor“) grants to the other Party (“Licensee“) an irrevocable (except as set out in these Society Terms), 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 the extent set out in these Society Terms. In respect of Zaffo.com, these rights shall be limited to the Materials and Marks as set out in Annex 2 (as may be revised from time to time on notice to the Participating Society).
Each Party (“Using Party“) shall only use the Materials and Marks provided by the other Party (“Owning Party“) in good faith for the purposes of its rights and obligations in connection with Zaffo.com (only), 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.
Nothing in this Agreement shall operate to transfer title in the Owning Party’s Marks or Materials to the Using Party. Intellectual Property Rights in anything created by a Party during the Term shall be vested in that Party provided that ownership of the underlying Intellectual Property Rights incorporated in those materials shall belong to the Party owning the underlying Materials.
In the event that the Participating Society does not consent to a proposed use of its Materials and/or Marks by Capen, then Capen shall consult with the Participating Society but shall be under no obligation to include the Materials and/or Marks in any format in the relevant marketing materials or on the Society Site. In circumstances where it is not possible for Capen to perform its obligations under these Society Terms or otherwise in relation to Zaffo.com without the consent of the Participating Society, then the provisions of clause 17 shall apply.
This clause 8 shall survive termination of the Agreement.
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.
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.
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:
only carry out Personal Data processing activities necessary for the Services and in processing Personal Data act only on the written instructions of the Society. In the event that a legal requirement prevents Capen from complying with such written instructions or if, in Capen’s opinion, the Society’s written instructions infringe the Data Protection Legislation, Capen shall, unless such legal requirement prohibits it from doing so, promptly inform the Society of the relevant legal requirement and not carry out the affected processing activities without the Society’s further written approval;
keep Society Data physically and logically separate and distinct from any other data compiled, maintained and used by Capen;
take all appropriate technical and organisational measures to protect Society Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, including (without limitation) by:
taking reasonable steps to ensure the reliability of any Staff of Capen who have access to Society Data;
ensuring a level of security appropriate to the nature of Society Data and the risks that are presented by its processing (including but not limited the risks from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to, or processing of such Society Data);
the encryption, and (where reasonably practicable) the pseudonymisation, of Society Data;
maintaining the ability to ensure the ongoing confidentiality, integrity, availability and resilience of the systems and services processing Society Data;
maintaining the ability to restore the availability and access to Society Data in a timely manner in the event of a physical or technical incident;
implementing a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing of Society Data; and
taking any other steps required by Data Protection Legislation;
ensure that only those Capen Staff that need to have access to the Society Data are given access to the extent necessary in connection with the Services and only after the relevant Staff have been informed by Capen of the confidential nature of the Society Data and such Staff agree in writing to be bound by a duty of confidentiality and comply with the obligations set out in this clause 9 of this Agreement;
not publish, disclose or divulge (and ensure that its Staff do not publish, disclose or divulge) any of the Society Data to any third party, nor allow any third party to process the Society Data on Capen’s behalf, unless Society has given its prior written consent. Where Society gives such written consent and Capen allows a third party to process the Society Data:
Capen shall ensure that the third party is bound by the same data protection obligations that the Capen is subject to under this clause 9 of this Agreement;
Capen shall remain fully liable to the Society for the performance of that third party’s obligations and for the acts and omissions of that third party as if they were the acts and omissions of Capen;
unless expressly stated otherwise by the Society in writing, the consent given by the Society shall be deemed to be specific to the third party in respect of whom the consent is given and not of a general application. If the Society does provide Capen with a general consent (“general” meaning that such consent is not limited to a specific third party), such consent may be revoked at the Society’s absolute discretion at any time and, notwithstanding such consent, Capen shall inform the Society of any intended changes concerning the addition or replacement of a third party processing Society Data and shall give the Society a reasonable opportunity in which to object to such changes prior to them taking effect;
not transfer, or otherwise permit access to, the Society Data outside the European Economic Area without the prior written consent of the Society;
provide the Society with reasonable cooperation and assistance in connection with its compliance with Data Protection Legislation;
provide the Society with full co-operation and assistance in relation to:
any complaint or request made in relation to Data Subject rights (including a request made in respect of the Data Subject’s right of access, right to object, right to be provided with fair processing information and his/her rights to rectification and erasure of the data within the statutory response periods), including by allowing the Society unrestricted access to the Society Data and such other records as the Society shall reasonably require, providing the Society with full details of any such complaint or request;
any request from the Society requiring Capen to take reasonable steps to ensure that Permitted Recipients and/or other third parties to whom the Personal Data has been provided by Capen erase any links to, or copies of, Personal Data in accordance with the requirements of Data Protection Legislation;
permit, by not less than 24 hours’ notice, at any time (and immediately by notice if the Society reasonably believes there to have been a breach of this clause 9 of this Agreement or if required by law or a Regulatory Body requires it), the Society and a third party auditor appointed by the Society to access the Capen owned systems and locations or any data centres which are being used in connection with the Services and all other information reasonably necessary in order to establish whether the Capen has complied with its obligations under this clause 9 of this Agreement;
amend, update, delete or supplement, any Personal Data forthwith if the Society so requests in order to comply with Data Protection Legislation;
if there is a Personal Data Breach, or if the Capen identifies any imminent risk of a Personal Data Breach, immediately notify the Society (providing all such details as the Society may reasonably request) and take all steps to mitigate or avoid such Personal Data Breach;
assist the Society with the making of any mandatory notifications to Regulatory Bodies and/or affected individuals in the event of a Personal Data Breach; and
upon expiry or termination of this Agreement for any reason or when requested in writing so to do, deliver all records of Society Data to the Society without charge within fourteen (14) days in such a format as the Society may require or (in whole or in part) if so requested by the Society irretrievably delete the Society Data instead of delivering the Society Data to the Society (except to the extent that Capen is required by law to retain copies of the Society Data).
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 its Affiliate Network 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.
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.
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:
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
is acquired from a third party who owes no obligation of confidentiality in respect of the relevant information; or
is or becomes generally available to the public other than as a result of a breach of this Clause 10.2
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.
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.
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.
The Audited Party shall provide the Auditing Party and/or its auditors with all reasonable assistance in exercising their right of audit.
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.
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.
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.
The Participating Society acknowledges and agrees that save to the extent expressed in these Society Terms and as permitted by applicable law, Capen provides the Society Site on an ‘as is’ basis and Capen makes no representations or warranties, either express or implied, of any kind:
with respect to the Society Site (including its operation, content, information or materials); or
that the Society Site will operate without interruption or be timely, secure or error free;
and that Capen disclaims all warranties, express or implied, of any kind with respect to the Society Site and its use including but not limited to satisfactory quality, fitness for purpose, non-infringement and availability, to the maximum extent permitted by law.
This clause 12 shall survive termination of the Agreement.
Limitation of Liability
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.
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.
Subject to Clause 13.1, Capen shall not be liable for any loss arising in relation to such Prizes offered to Entrants for Exclusive Prize Draws including, without limitation, any error or inaccuracy in the description of Prizes, damage to Prizes or damage caused by Prizes.
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, unless the liability is specifically covered by the policies listed in Schedule 4, in which case the limit of £2000 per claim shall not apply to Capen.
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.
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.
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.
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.
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.
Each Party may terminate this Agreement at any time during the Term by giving 3 months prior written notice to the other.
In the event of the Society cancelling a draw. As per the terms and conditions of that draw, all proceeds will be transferred to the society bank account by Capen. 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. Subject to clause 15.1, a one off fee of £250 will be charged to administer the cancellation of a draw.
Consequences of Termination
Upon expiry or termination of this Agreement for any reason:
all rights and obligations of the Parties shall cease to have effect immediately upon termination of this Agreement except that termination shall not affect the accrued rights and obligations of the Parties at the date of termination; and
all licenses granted under this Agreement shall terminate; and
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;
each Party shall immediately pay to the other all amounts due under this Agreement; and
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
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.
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.
Protection of customer funds
18.1 Capen holds all customer funds in a separate client account on behalf of the societies we act for and these funds are transferred to societies on a regular basis. All remote operators licensed by the Gambling Commission have an obligation to hold separate accounts for proceeds. This is to protect the player in the event of an insolvency incident.
This Agreement together with the Annexes 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.
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.
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.
No purported variation of this Agreement shall be effective unless it is agreed in writing by or on behalf of each of the Parties.
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.
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.
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.
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.
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.
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 19.10 or as otherwise notified in writing from time to time. For notices to Capen: (Address) Capen Limited, Unit 512, The Print Rooms, 164 - 180 Union St, London SE1 0LH. 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.
This Agreement shall be governed by and construed in accordance with English law. Each of the Parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the courts of England.
Annex 1: Society Site Services Schedule
THE SOCIETY SITE
Entry to the Prize Draw
The Society Site will include details of, and enable Users to enter, the Prize Draw by any of the payment methods set out in Annex 1.2(a).
The winning Entrants shall be notified, and prizes fulfilled by the Society in accordance with the Prize Draw Terms and Conditions.
Players may pay to enter the Prize Draw via credit card or debit card
The payments shall be held by or on behalf of Capen and proceeds due to the Participating Society shall be paid to the bank account nominated during registration on a monthly basis.
Capen shall collect, maintain and hold a database of Users that may include the following information: Title, First name, Last name, Address, Card details, Display name, Email, Opt in for Society email.
Subject to the Participating Society’s compliance with Clause 8, Capen shall include the Participating Society’s Materials and Marks on the Society Site.
COMMUNICATIONS WITH USERS
Capen shall send a ticket email to each Entrant following their entry to a Prize Draw on the Society Site.
Capen shall respond to enquiries from Users/Entrants in relation to the Prize Draw only and shall refer to the Participating Society all other enquiries that it receives in relation to the Participating Society. Capen’s responses shall be by email during normal working hours.
Capen may use the Participating Society’s Marks for use in marketing campaigns through the Affiliate Network to promote Zaffo.com.
Capen may, in its sole discretion, include a link from its home page or other pages on Zaffo.com or the Society Site to one or more pages on the Participating Society’s website.
Annex 3: Insurances
1. Professional liability £1,000,000
2. Public/products liability £1,000,000
3. Entity defence £100,000
4. Employers liability £10,000,000
5. Cyber and data risks £1,000,000
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Please note that your payment has been processed by Capen Ltd Trading as Zaffo.com and your bank statement will include the following information “Zaffo.com-ZaffoCharity”
Company number 8141955, an external lottery manager and remote gambling software supplier, license number 000-036257-R-317724-001