Merchant Terms & Conditions

between

MERCHANT; and

VOUCHERCART LTD trading as “VoucherCart” whose registered office is at Rutherford House, West Linton, Peeblesshire, EH46 7AS, UK (“VoucherCart”)

(this “Agreement”).

This Agreement takes effect on the date upon which Merchant completes a Registration (“Effective Date”).

1. TERMS AND DEFINITIONS

1.1. In this Agreement, the following terms have the following meanings:

“Additional Buyer Terms” means the terms set out in Annex 1 which shall be incorporated into any agreement between Merchant and any Buyer in the context of a Voucher generated through the Platform.
“Buyer Feedback” means any and all information provided to us by a Buyer via the feedback service regarding any goods and/or services provided by the Merchant in respect of a particular transaction with that Buyer (including in respect of any communications with the Merchant), which may include any opinions about the Merchant.
“Buyer” means the purchaser of a Voucher.
“Contracted Processor” means VoucherCart or a Subprocessor.
“Data Protection Legislation” means the EU General Data Protection Regulation 2016/679 “GDPR”, and, to the extent applicable, the local data protection or privacy laws of any other country in the European Union where VoucherCart is established and provides Services from pursuant to this Agreement, including the United Kingdom following any exit from the European Union.
“IPR” means all the intellectual property rights conferred by the law of any country or jurisdiction in the world (including by statute) as amended or re-enacted (by common law, civil law, equity or otherwise) in relation to any invention, discovery, literary work, dramatic work, musical work, artistic work, copyright, database, trademark, service mark, design (whether two dimensional or three dimensional), patents, semiconductor topography, confidential information, know-how, trade secret, and in each case whether or not it has been reduced to a material form, and howsoever it may be recorded, stored or embodied (including in an electronic or transient medium), including all applications for such rights as well as all extensions and renewals of such rights.
“Liability” means any loss, damages, expenses or liability in or for any cause of action whatsoever (including breach of contract, delict, breach of statutory duty, misrepresentation, restitution or any other cause of action whatsoever) relating to or arising under, from or in connection with this Agreement.
“Merchant” or “Merchant” means a seller of goods and/or services for which a Voucher can be redeemed.
“Merchant Information” means information, data or content provided by the Merchant in any form or medium, whether or not such information is owned by the Merchant, uploaded to the Platform or given by the Merchant to VoucherCart for whatever purpose, whether directly or on the Merchant’s behalf.
“Merchant Personal Data” means any Personal Data which may be Processed by a Contracted Processor on behalf of Merchant pursuant to or in connection with this Agreement, including related to a Buyer or recipient of a Voucher, in each case in the capacity of a Processor.
“Platform” means the software as a service platform that VoucherCart makes available to the Merchant following a Registration, to enable the Merchant to generate Vouchers.
“Policies” means any policy (including any guides relating to content and style) which may be notified and made available to the Merchant by VoucherCart through the CMS from time to time.
“Register” means to create an account on the Platform, and “Registration” means the action of creating an account.
“Response” means a response by the Merchant to any Buyer Feedback.
“Services” means all or any of the services provided by VoucherCart via or in association with the Platform, including the content management system “CMS” provided by VoucherCart to each Merchant for management of its transactions.
“Subprocessor” means any person (excluding an employee of VoucherCart) appointed by or on behalf of VoucherCart to Process Personal Data on behalf of the Merchant in connection with this Agreement.
“Voucher” means a gift card, ticket, coupon and/or voucher which is created by the Merchant through use of the Platform to be redeemed from the Merchant.
The terms, “Controller”, “Data Subject”, “member state”, “Personal Data”, “Personal Data Breach”, “Supervisory Authority” and “Processing” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. BASIC TERMS AND CONDITIONS INFORMATION

2.1 Charges and payment
a. From the date of Registration, VoucherCart will issue invoices to the Merchant for recurring subscription and commission charges monthly in arrears before the 7th day of each calendar month in accordance with its pricing terms available at https://vouchercart.com/pricing (which details are hereby incorporated by reference). Invoices issued for additional services may be issued at any time.
b. The Merchant will pay each invoice within 30 days of the date of issue by VoucherCart in accordance with clause 2.1(a) above.
c. All charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise.
d. Charges must be paid by debit or credit card, direct debit, bank transfer or by cheque (using such payment details as are notified by VoucherCart to the Merchant from time to time).
e. If the Merchant does not pay any amount properly due to VoucherCart under or in connection with this Agreement, VoucherCart may: (i) charge the Merchant interest on the overdue amount at the rate of 5% per year above the base rate of Royal Bank of Scotland from time to time (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand); or (ii) claim interest and statutory compensation from the Merchant pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 (whichever is greater).
2.2. Merchant may access the Platform only through standard web browsers and devices and similar consumer applications. Access is not permitted via any robot, spider, proprietary program, site search and retrieval application or other device, system, or process used to scan, index, or data mine VoucherCart’s site and its content. Search engines may use spiders to copy materials from the Platform for the sole means of creating publicly available search indices of VoucherCart’s site content, but not to create stored archives of such content.
2.3. This Agreement takes effect upon Registration and continues on a rolling basis until such time as VoucherCart terminates this Agreement.
2.4. Merchant shall have responsibility to put in place appropriate terms between Merchant and any Buyer. Merchant has read the Additional Buyer Terms and warrants that it shall ensure that the Additional Buyer Terms are at all times incorporated into any contract entered into between Merchant and the Buyer. To the extent that there is any conflict or inconsistency between the Merchant’s contract with the Buyer and the Additional Buyer Terms, the terms of the Additional Buyer Terms shall take priority.
2.5. VoucherCart shall be entitled to amend this Agreement, from time to time by posting such amended version on the Platform. The Merchant acknowledges that it is its responsibility to check the Platform on a regular basis to make and keep itself aware and notified of any changes made to the Agreement.
2.6. VoucherCart reserves the right to revise or alter the Services at any time. Any variation in the Services will be subject to this Agreement.

3. STANDARDS AND LIABILITY LIMITATION

3.1. Nothing in this Agreement shall exclude or limit VoucherCart’s Liability for any liability which cannot be excluded or limited by applicable law (such as for death or personal injury caused by VoucherCart’s negligence, for fraud or fraudulent misrepresentation or any other non-excludable statutory rights).
3.2. VoucherCart warrants that it will exercise reasonable care and diligence in performing any obligations under this Agreement.
3.3. To the fullest extent permitted by law VoucherCart shall have no Liability for any indirect, consequential or special loss, in particular any loss of goodwill, loss of reputation, loss of contracts, loss of business, loss of revenue, loss of opportunity, loss of anticipated savings, loss of actual or anticipated profits, or loss of, damage to or corruption of data or use, whether those losses are foreseeable, known, foreseen or otherwise.
3.4. VoucherCart’s total Liability to Merchant shall in no circumstances exceed, in aggregate, a sum equal to the total payments made to VoucherCart by the Merchant during the calendar month preceding a claim under clause 3.1 and 3.2.

4. MERCHANT OBLIGATIONS

4.1. Merchant warrants that all information provided on Registration and in relation to Merchant’s account during the course of this Agreement is complete and accurate and that Merchant will promptly inform VoucherCart of any changes to such information by updating the details in Merchant’s account via login.
4.2. It is Merchant’s responsibility to ensure that all information relating to Vouchers is accurate and correct and that any information Merchant provide through the Platform meets Merchant’s specific requirements.
4.3. Without limitation, Merchant undertakes not to use or permit anyone else to use the Platform or Services:
a. to post, send or receive any material which may be deemed in any way as offensive, threatening, indecent, obscene or defamatory, or may be in breach of copyright, rights of personality, publicity or privacy or any other third party rights;
b. to post, send or receive any material for which Merchant has not obtained all necessary licenses and/or approvals from the relevant party or parties;
c. to post, send or receive any harmful or malicious content which may cause direct or indirect damage (including but not limited to viruses, Trojan horses, Worms, corrupt data or other malicious software or harmful data);
d. for any fraudulent or unlawful means or purpose.
4.4. The following uses of the Platform and associated services are prohibited and Merchant undertakes not to (or permit anyone else to):
a. send unsolicited mail messages, including the sending of “junk mail”;
b. enter false data including but not limited to false names, addresses, contact details or fraudulent use of credit/debit card numbers or other payment data;
c. attempt to circumvent VoucherCart’s security or network or any part thereof;
d. engage in any activity which may otherwise be considered as unlawful in connection with the use of the Platform and/or associated services.
e. resell the Services or Platform;
4.5. VoucherCart has absolute discretion as to the look, feel and content of the Platform (as well as full and final say in the inclusion, positioning, location and all other presentation of Merchant Information (including in VoucherCart’s sole discretion the right to remove any Merchant Information from the Platform at any time).
4.6. The Merchant undertakes and agrees that none of its Merchant Information or use of the Platform will:
a. be in breach of copyright, confidence, privacy or any other rights and will not infringe any third party’s IPR, or other proprietary rights or rights of publicity or privacy;
b. be fraudulent or involve the sale of counterfeit or stolen items;
c. be in breach of any applicable laws or regulations (including, but not limited to, laws or regulations governing e-commerce, distance selling, data protection, export control, tax, consumer protection, advertising and requirements of trading standards);
d. be in breach of the Policies;
e. adversely affect the reputation of VoucherCart or the VoucherCart brand;
f. create, or be likely to create, liability for VoucherCart or cause VoucherCart to lose (in whole or in part) the services of its internet service or other suppliers;
4.7. The Merchant has complete discretion over how it wishes to price its Vouchers.
4.8. The Merchant shall not make use of keyword spamming (the use or placement of inappropriate keywords in a title or description to gain attention or divert users to another page) or similar techniques in Product listings.
4.9. The Merchant shall comply at all times with all applicable laws, regulations and trading standards requirements in respect of the Vouchers and services it sells.
4.12. The Merchant shall indemnify and hold harmless VoucherCart against any and all liabilities, costs, expenses, fines, damages and losses (including any direct, indirect or consequential losses) it incurs in connection with any claim from any Buyer (including in relation to VoucherCart’s use of Buyer data or in relation to its purchase of a Voucher through the Platform) and/or any claim made due to the Merchant’s breach of the terms of this Agreement or paid or agreed to be paid by VoucherCart in settlement of the claim and all legal or other expenses incurred by VoucherCart in or about the defence or settlement of the claim. VoucherCart shall notify the Merchant in writing as soon as practicable after becoming aware of the claim.
4.13. The Merchant shall maintain at all times, at its own expense and with reputable insurers appropriate insurance in relation to its business. The Merchant shall, upon written request from VoucherCart, provide VoucherCart with any information it reasonably requires concerning the scope of such insurance together with any relevant certificates of currency.

5. PLATFORM AND SERVICES USAGE RULES

5.1. VoucherCart provide no representations or warranty that the Platform or the Services are free from errors, viruses, malicious code or any other element or data which may have a harmful effect on any technology.
5.2. The Merchant acknowledges that the transmission of information via the internet is not completely secure, there is always a risk that communications by electronic means may not reach their intended destination, or may do so much later than intended, for reasons outside VoucherCart’s control, and that it is technically impossible to provide the Services entirely free of fault at all times.
5.3. Merchant’s access to the Platform and/or the Services may occasionally be restricted due to technical issues or to allow for repairs, maintenance or the introduction of new platform functions or services. VoucherCart will attempt to restore access as soon as is reasonably practicable.
5.4. The Platform may from time to time (at the discretion of VoucherCart) provide a system of Buyer Feedback, which may be obtained and/or facilitated by a third party service provider selected by VoucherCart (the “Third Party”). By using the Platform and Services the Merchant agrees that:
a. VoucherCart and/or the Third Party may, in its discretion, post on the Platform and on the Third Party website any and all Buyer Feedback relating to the transaction in question for a period of up to two (2) years after VoucherCart and/or the Third Party receives such Buyer Feedback;
b. Following the provision of any Buyer Feedback, VoucherCart shall make such Buyer Feedback available to the Merchant via the CMS. The Merchant may submit a Response to any negative Buyer Feedback via the facility provided by VoucherCart on the CMS, and VoucherCart and any Third Party will display any such Response with reasonable prominence and proximity to the corresponding Buyer Feedback. The Merchant agrees that it shall not contact any Buyer directly, whether via the CMS through an order or product enquiry or otherwise in response to any Buyer Feedback.
c. The Merchant will ensure that any Response is true and accurate and not misleading in any way, and does not contain any material that may be construed as offensive, defamatory or unlawful.
d. VoucherCart may, in its sole discretion and in accordance with the applicable terms and conditions of any Third Party elect to amend, or not to post, any Response that VoucherCart and/or the Third Party consider, in their sole discretion, to be offensive, defamatory, unlawful or otherwise inappropriate.
5.7. VoucherCart may from time to time introduce a Merchant to third parties with whom special terms have been arranged unique to Merchants. Any contract entered into between Merchants and any such third party is concluded directly between the Merchant and the third party concerned and, except as expressly set out in these Conditions, VoucherCart cannot be involved in the fulfilment or liability for any such contracts.

6. ACCOUNTS AND REGISTRATION

6.1. At time of Registration, Merchant will create an account using a unique password. Merchant agrees that VoucherCart is not responsible or liable in any way in the event that Merchant permits or enables (through act or omission) a person to access the password and use the Platform and/or Service.
6.2. Merchant is responsible for the security and proper use of all passwords, or other security devices used in connection with the provision of the Services and access to the Platform (which responsibility shall include the obligation to change passwords on a regular basis).
6.3. Merchant shall take all necessary steps to ensure that passwords and other security devices remain confidential, secure, are used properly and are not disclosed to unauthorised third parties.
6.4. Merchant shall inform VoucherCart immediately if there is any reason to believe that a password or any other security device has or is likely to become known to someone not authorised to use it, or is being or is likely to be used in an unauthorised way, including if Merchant forgets or loses a password and must satisfy such security checks as VoucherCart may operate in order to obtain a new password.
6.5. Merchant shall ensure that the CMS and its content remains entirely confidential, and that no other person beside those in the Merchant’s employment has sight of the CMS or any of its content.
6.6. VoucherCart reserves the right:
a. to suspend access to the Services if at any time VoucherCart considers that there is or is likely to be a breach of security, in which event VoucherCart will notify the Merchant of the suspension and any steps to be taken by it as soon as reasonably practicable; and
b. to require the Merchant to change any or all of the passwords used by the Merchant in connection with the Platform, in which event VoucherCart will notify the Merchant of the requirement to change passwords and any further steps to be taken by the Merchant as soon as reasonably practicable.
6.7. At time of Registration, all accounts must be registered with a valid personal email address that is controlled and accessed regularly. Any accounts which have been registered with someone else’s email address or with temporary email addresses may be closed without prior notice. VoucherCart may require users to re-validate their email accounts at any time and at its discretion.
6.8. VoucherCart reserves the right to close or suspend Merchant’s user accounts for any reason at VoucherCart’s discretion or in the event of breach of or non-compliance with VoucherCart’s terms of use.
6.9. VoucherCart’s right to terminate this Agreement shall not prejudice any other right or remedy we may have in respect of any breach or any rights, obligations or liabilities accrued prior to account termination.

7. INTELLECTUAL PROPERTY RIGHTS

7.1. All IPR (including goodwill and, where relevant, trade marks) in the “VoucherCart” names are owned by VoucherCart or its licensors.
7.2. Subject to Clause 7.3 only, all IPR existing or generated in association with this Platform and Services, information and any other content on the Platform or accessed as part of the Platform or associated Services (including VoucherCart’s source code and software) shall remain VoucherCart’s property or that of VoucherCart’s licensors. Merchant shall not, and shall not attempt to, obtain any right, title or interest to any such IPR.
7.3. Without prejudice to Clauses 7.1 and 7.2, VoucherCart grants Merchant a revocable, non-exclusive and non-transferable right to: (a) use VoucherCart’s name, logo or branding on any promotional material, in accordance with this Agreement, for the purpose of promoting a Voucher using the Platform; and (b) use the Platform for the sole purpose of accessing and using the Services, in each case for the duration of the Agreement.
7.4. The Merchant may not bid or trade on the VoucherCart name, VoucherCart brand or brand name, or variations of them, on Google or any other search engines.
7.5. Merchant may not distribute, reproduce, modify, copy or use any of the materials or content on the Platform or associated services without VoucherCart’s permission, under any circumstances.
7.8. Merchant grants VoucherCart a royalty-free, irrevocable, non-exclusive licence to publish, copy, modify, adapt, translate and distribute world-wide the Merchant Information for the purpose of operating the Platform and providing the Services without limitation.

8. CONFIDENTIALITY AND DATA PROTECTION

8.1 Each party shall keep the other’s information of a confidential nature confidential, and shall only use it for the purpose for which such confidential information was disclosed or as permitted by this Agreement.
8.2 Either party may disclose the confidential information of the other party only to those of its employees, agents, subcontractors or professional advisors who need to know such information and who are subject to obligations of confidentiality materially similar to those imposed on the parties by this Agreement.
8.3 The provisions of Clause 8.1 do not apply to any disclosure of confidential information where such:
a. becomes generally available to the public without a breach of Clause 8.1; or
b. was known to the receiving party prior to the disclosure hereunder free from any restrictions as to disclosure or use; or
c. has been disclosed, without an obligation of confidentiality, to the receiving party; or
d. has been independently developed by the receiving party.
8.4 A party may disclose confidential information to the extent required by a court or regulatory body or as required by law.

8.5 Data Protection
(a) Processing of Personal Data.
(a.1) In so far as Merchant Personal Data is hosted on the Platform or uploaded by Merchant for the purpose of the Services, VoucherCart shall only process Merchant Personal Data on the reasonable and lawful documented instructions of Merchant, unless otherwise required by an Applicable Law to which VoucherCart is subject, in which case VoucherCart shall inform Merchant of that legal requirement before such Processing (save where that law prohibits such information).
(a.2) For the purpose of section (a.1) Merchant instructs each Contracted Processor to Process Merchant Personal Data as is necessary to provide the Services and comply with this Agreement. Merchant warrants and represents that it is and will at all relevant times remain duly authorised to give such instruction.
(a.3) Annex 2 to this Agreement sets out certain information as required by Article 28(3) of the GDPR in the event Personal Data may be processed by VoucherCart. Merchant warrants that Annex 2 is an accurate reflection of the Processing activities pursuant to this Agreement.
(a.4) Merchant warrants that all Merchant Personal Data processed by any Contracted Processor has been collected by the Merchant in accordance with all Applicable Laws and the Merchant has ensured that there is and there will continue to be a lawful basis for the Contracted Processors to process such Personal Data on the Merchant’s behalf. Merchant shall indemnify and hold harmless, on an unlimited basis, any Contracted Processors against all losses, fines and regulatory sanctions arising from any claim by a third party (including any Supervisory Authority or a Data Subject) arising from any breach of this Clause. [A1]
(a.5) Subject to ensuring compliance with all applicable Data Protection Legislation, VoucherCart may process business contact information[2] (“BCI”) relating to personnel of Merchant (for example name, business telephone number, job title and business email address) for the purpose of providing the Services and to manage the general relationship between VoucherCart and Merchant (which for clarity, shall include a right to carry out marketing activities where permitted by law or where appropriate permissions have been obtained). For those purposes, VoucherCart deems that it is acting as an independent Controller.
(a.6) Merchant acknowledges that VoucherCart may obtain a separate opt-in from a Buyer to carry out marketing in relation to VoucherCart services. For those purposes, VoucherCart deems that it is acting as an independent Controller and its processing shall not be governed by this Agreement.

(b) Personnel. VoucherCart will ensure that all employees or contractors of any Contracted Processor who have access to Merchant Personal Data are subject to confidentiality undertakings or professional/statutory obligations of confidentiality.

(c) Security.
(c.1) VoucherCart will implement appropriate technical and organisational measures, with respect to the Processing of Merchant Personal Data, taking into account the measures required by Article 32 of the GDPR, which measures may be updated by VoucherCart from time to time provided that such updates shall not materially decrease the protection of Personal Data for Data Subjects.
(c.2) Merchant may implement its own additional measures, for example applying encryption before the data is transferred to any Contracted Processor (“Merchant Security Measures”), provided always that no Contracted Processor shall be required to change any of its measures unless otherwise agreed.
(c.3) Merchant shall have contractual responsibility to ensure that, together with any Merchant Security Measures which Merchant may implement itself from time to time in accordance with section (c.2) above, VoucherCart’s commitments in these Terms collectively meet the requirements set out in Applicable Laws for security, including Article 32 of the GDPR[3] [4] [DLAP5]

(d) Subprocessing.
(d.1) Merchant specifically authorises VoucherCart to permit sub-processors (including any engaged as at the Effective Date), and any VoucherCart affiliate to Process Merchant Personal Data as required to provide the Services, subject to VoucherCart in each case as soon as practicable meeting the obligations set out in section 8.5 (d.2) (“Authorised Sub-Processors”).
(d.2) With respect to each Subprocessor, VoucherCart shall: (i) ensure that the arrangement between VoucherCart and the Subprocessor is governed by a written contract including terms which offer no less protection for Merchant Personal Data as those terms set out in this Agreement; (ii) if that arrangement involves the transfer of Personal Data from the European Union to a country outside of the European Union that has not been determined to ensure an adequate level of protection for Personal Data, at VoucherCart’s discretion: ensure that an appropriate data transfer safeguard is in place in compliance with Chapter IV of the GDPR, including certification with the privacy shield framework, or where required to ensure compliance with Data Protection Legislation, use commercially reasonable endeavours to procure that the Subprocessor enters into standard contractual clauses directly with the relevant Merchant.

(e) Data Subject Rights.
(e.1) Merchant shall, in the first instance, comply with requests received from any Data Subjects to exercise their rights pursuant to Chapter III of the GDPR by itself accessing the Merchant Personal Data held on the Platform.
(e.2) Subject to section (e.1) and taking into account the nature of the Processing, VoucherCart shall provide reasonable assistance to the Merchant, at Merchant’s cost, to comply with requests to exercise Data Subject rights under the Data Protection Legislation including by notifying Merchant without undue delay if any Contracted Processor receives a formal request directly from a Data Subject to exercise any of its rights under Chapter III of any Data Protection Legislation in respect of Merchant Personal Data.

(f) Personal Data Breach.
(f.1) VoucherCart shall notify Merchant without undue delay, upon VoucherCart becoming aware of a Personal Data Breach affecting Merchant Personal Data, providing Merchant with information (as and when available) to assist Merchant to meet any obligations to report or inform Data Subjects of the Personal Data Breach where required by the GDPR.
(f.2) VoucherCart shall, at Merchant’s cost, co-operate with Merchant and take such reasonably commercial steps as are reasonably instructed by Merchant to assist in the investigation and mitigation of each such Personal Data Breach.

(g) Data Protection Impact Assessment and Prior Consultation. Where VoucherCart introduces new scope of Services which involve high risk Processing of Personal Data, VoucherCart shall, at Merchant’s cost, provide reasonable assistance to Merchant with any data protection impact assessments, and prior consultations with Supervisory Authorities, which are required by Article 35 or 36 of the GDPR, in each case solely in relation to Processing of Merchant Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

(h) Deletion or Return of Merchant Personal Data.
(h.1) Subject to sections (h.2) and (h.3), VoucherCart shall promptly and in any event within 365 calendar days of the date of cessation of any Services involving the Processing of Merchant Personal Data (the “Cessation Date”), delete and procure the deletion of such Merchant Personal Data.
(h.2) Subject to section (h.3), Merchant may in its discretion by written notice to VoucherCart within 30 calendar days of the Cessation Date require VoucherCart to (a) return a complete copy of all Merchant Personal Data by file transfer (Merchant to provide such file transfer mechanism at its cost). VoucherCart shall comply with any such written request within 45 calendar days of the Cessation Date.
(h.3) Each Contracted Processor may retain Merchant Personal Data to the extent required by applicable laws for such period as required or permitted by applicable laws.

(i) Audit Rights
(i.1) Subject to section (i.2) and (i.3), VoucherCart shall make available to Merchant on reasonable request such information reasonably necessary to demonstrate compliance with Article 28(3) of the GDPR, but in any event VoucherCart is not obliged to provide permanent copies of such information (and, at VoucherCart’s discretion, VoucherCart may require a commitment from Merchant and Merchant’s auditors to comply with reasonable security and confidentiality controls). In particular, VoucherCart shall inform Merchant if, in its reasonable opinion, an instruction provided by Merchant infringes the GDPR, save that VoucherCart shall not be obliged to conduct any legal review or analysis and in such instance, VoucherCart shall not be required to comply with such unlawful instruction until Merchant varies its instruction to ensure legal compliance.
(i.2) VoucherCart shall, at the Merchant’s costs, allow for audits, including inspections, by an auditor mandated by Merchant (subject to section (i.3) and to such auditor being subject to written confidentiality obligations) in relation to the Processing of the Merchant Personal Data by the Contracted Processors, provided that: (i) Merchant shall give VoucherCart reasonable notice of any audit or inspection to be conducted; (ii) Merchant shall take reasonable steps to ensure (and shall procure that each of its mandated auditors) minimise the disruption to the Contracted Processors’ business in the course of such an audit or inspection and such audits or inspections shall be conducted during normal working hours; and (iii) a Contracted Processor need not contribute or allow for an inspection or audit more than once in any calendar year, except for any audit required by a Supervisory Authority.
(i.3) VoucherCart may object in writing to an auditor mandated by Merchant if the auditor is, in VoucherCart’s reasonable opinion, not suitably qualified or independent, a competitor of VoucherCart, or otherwise manifestly unsuitable. In the event of such an objection, Merchant shall appoint another auditor or conduct the audit itself.

(J) Costs. VoucherCart shall provide assistance pursuant to this clause 8 upon reasonable prior written notice to VoucherCart during normal working hours. Any effort beyond two man days’ effort per annum (or its equivalent in hours) shall be at the Merchant’s cost as per VoucherCart’s then current standard rate card. VoucherCart’s costs will be waived where VoucherCart is found to be in breach of its obligations under this Agreement.

9. General
9.1. No set-off
All payments by the Merchant will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
9.2. Relationship
The parties are independent businesses and not principal and agent, partners, or employer and employee.
9.3. Severability
If any part of these Terms is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from this Agreement and the remaining provisions of this Agreement will otherwise remain in full force.
9.4. Notices
Notices under the Agreement will be in writing and sent to the persons and addresses set out on the Platform or in the Registration account. Save for clause 8 (which shall be immediate), notice may be given, and will be deemed received:
a. by first-class post: two Business Days after posting;
b. by airmail: seven Business Days after posting;
c. by hand: on delivery;
d. by facsimile: on receipt of a successful transmission report from the correct number, and
e. by e-mail: on receipt of a delivery or read receipt mail from the correct address.
9.5. Waiver
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
9.6. Rights of Third Parties
Save as provided at law, the Agreement is not enforceable by any third party.
9.7. Entire Agreement
The Agreement constitutes the entire agreement between the parties in relation to its subject matter.
9.8. Succession
The Agreement will bind and benefit each party’s successors.
9.9. Governing Law and Jurisdiction
a. The Agreement will be governed by the law of Scotland.
b. Disputes will be submitted to the non-exclusive jurisdiction of the courts of Scotland.

Annex 1 – Buyer Additional Terms
1. For the purpose of these additional terms (the “Terms”): “Merchant Products and/or Services” means the goods and/or services provided by a Merchant (defined below) which are described as part of a Voucher; “Voucher” means a voucher for sale on a website that links to VoucherCart’s software as a service platform (“VoucherCart Platform”), which can be redeemed (in whole or in part) in exchange for Merchant Products and/or Services from the Merchant, “VoucherCart”, “we” or “us” refers to VoucherCart Ltd and “you” refers to yourself, the purchaser of a Voucher.
2. We act on behalf of our client (the “Merchant”) to allow it to sell Vouchers created via the VoucherCart Platform. We act only as an intermediary between you and the Merchant. You acknowledge that it is the Merchant, and not VoucherCart, who enters into the contract with you when purchasing and/or redeeming a Voucher for the Merchant Products and/or Services (the “Contract”). These terms are supplemental to and duly incorporated into the Contract.
3. The Contract shall comprise: (i) these Terms; and (ii) any applicable terms stipulated by the Merchant in relation to the Voucher (including any email confirmation that you may receive) and you agree to be bound by all such provisions. If there is any conflict or inconsistency between these Terms or any applicable terms stipulated by the Merchant, these Terms shall prevail to the extent of the conflict or inconsistency.
4. You acknowledge that it is the Merchant, and not VoucherCart, who takes sole responsibility for providing you with the Merchant Products and/or Services and for any and all aspects of the Merchant Products and/or Services themselves. VoucherCart does not review or control, and is not responsible in any way for, Merchant Products and/or Services and at no time does VoucherCart possess or offer any items offered for sale by Merchants through its Platform. VoucherCart does not promise the completeness, fitness for purpose or legality of the Merchant Products and/or Services. In no event shall VoucherCart be liable to you to provide the Merchant Products and/or Services including without limitation for any refund or replacements in the event of non-performance by the Merchant, (whether arising as a result of breach or the Merchant being liquidated, becoming insolvent or otherwise). These Terms do not affect your statutory rights which rest with the Merchant.
5. Please direct any enquiries in relation to use of your Voucher, including any request for a refund, to the Merchant.
6. VoucherCart does not exclude[6] liability for: (a) any death and personal injury caused by VoucherCart’s negligence; (b) fraud or fraudulent misrepresentation made by VoucherCart; or (c) any implied contractual terms that cannot be excluded or limited under applicable law.
7. Other than as set out in section 6 above, VoucherCart’s maximum liability to you in respect of the Merchant Products and/or Services, the Voucher and the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, is an amount equal to the total amount paid by you for the Voucher.
8. You shall indemnify us against any loss, liability or cost incurred by us arising as a direct or indirect result of any claims or legal proceedings brought or threatened against us by any person arising from your use of a Voucher.
9. These terms shall be governed by the same law as the Contract and disputes arising under these Terms shall be submitted to the same jurisdiction as the Contract.

Annex 2 – Data Protection Description

Subject matter and duration of the Processing of Merchant Personal Data
The subject matter and duration of the Processing of Merchant Personal Data are set out in this Agreement.

The nature and purpose of the Processing of Merchant Personal Data
Personal Data will be subject to the Processing activities: Contract Management and provision of services according to main contract, for the following purpose(s):
● to maintain the Platform and enable the generation of Vouchers;
● to provide reporting and analytics;
● to provide a helpdesk for Merchants.

The types of Merchant Personal Data Processed
Merchant: [Name, Address, Telephone, e-mail]
Buyer: [Name, Address, Telephone, e-mail]
Voucher Recipient: [Name, Address, e-mail]

The categories of Data Subject
Merchant
Buyers
Voucher Recipients

The obligations and rights of Merchant as Controller are set out in this Agreement.