Merchant Partner Terms of Service

NEXT JUMP TERMS OF SERVICE FOR MERCHANTS

These Terms of Service set out the terms and conditions upon which Next Jump will supply the Services.

By signing an Order Form you agree to and accept these Terms of Service.

BACKGROUND:

(A)        Next Jump is a provider of an online shopping exchange and operates systems and services which present discounts to Next Jump Customers and the End Users.

(B)        Merchant is a provider of certain products or services through its retail stores, catalogues, website, and/or other channels (Merchant Products).

(C)         Next Jump will provide Merchant with the Services for the Term in accordance with these Terms of Service.

1. DEFINITIONS

1.1        Any words or phrases defined in the Order Form shall apply in these Terms of Service and otherwise the following definitions and rules of interpretation shall apply:

Commission: means the commission payable to Next Jump by the Merchant at the rate specified in the Order Form.

Data Protection Legislation: means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

End User: means any employee or invitee of a Next Jump Customer.

Group Company: means any of Next Jump’s holding companies or any subsidiary of Next Jump or of its holding company from time to time and any reference to Next Jump’s Group shall be construed accordingly. The terms subsidiary and holding company shall have the meaning given to them by section 1159 of the Companies Act 2006.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Merchant: means the person named as such in the Order Form.

Merchant Products: means any products or services which the Merchant wishes to sell to End Users.

Next Jump Customer: means any direct customer of Next Jump that participates in its ‘rewards’ scheme.

Next Jump Program: means any promotional campaign operated by Next Jump through its online portals to or for the benefit of Next Jump Customers and End Users.

Party: means each of Next Jump and the Merchant and together, the Parties.

Services: means the promotion of the Merchant Products to End Users via the Next Jump Programs by the creation of links and other promotional materials.

Term: means the period of time stipulated as such in the Order Form and which shall commence on the Effective Date.

This agreement: means together the Offer Form and these Terms of Service.

1.2        A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

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

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

1.5        These Terms of Service shall be binding on, and continue for the benefit of, the Parties and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that party’s personal representatives, successors and permitted assigns.

1.6        A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.7        A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.8        A reference to writing or written includes email unless expressly provided to the contrary in these Terms of Service.

1.9        Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.10     A reference to these Terms of Service or the Order Form is a reference of these Terms of Service or Order Form, in each case as varied from time to time.

1.11     Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. MERCHANT OFFER

2.1        The Merchant agrees to provide and extend constant discount offerings for the Merchant Products during the Term for promotion via the Next Jump Program (Ongoing Offers).

2.2        As agreed between the Parties, each Ongoing Offer may be for episodic, in-store, or invitation only events, or any combination thereof.

2.3        Each Ongoing Offer will be at least as low as the price that the Merchant offers to customers either directly or through any other partner or distributor. If the Merchant enters into an agreement in the during the Term to offer a greater discount (lower price) to its customers in respect of any of the Merchant Products, whether directly or through any other partner or distributor, it shall notify Next Jump immediately and the Ongoing Offer in respect of that Merchant Product shall be adjusted so that the price is at least as low as that being promoted under the alternative offer.

3. PAYMENT OF COMMISSION BY MERCHANT

3.1        Self-Billing

3.1.1    If the Merchant has selected to pay Next Jump by ‘Self Billing’ as stipulated on the Order Form, then the Parties shall calculate the Commission due following the delivery of a Purchase Report in accordance with clause 3.1.2.

3.1.2    If the Merchant is self-tracking, then it shall provide Next Jump with a monthly report by no later than ten [10] days following the end of each calendar month detailing the total number of leads, sales and revenue generated by End Users from the Ongoing Offers during the preceding month (or part of a month as the case may be for the first such report) (Purchase Report). If the Merchant is using Next Jump tracking technology, then Next Jump will generate the Purchase Report and deliver it to the Merchant in accordance with the same timeline. Each Party shall promptly notify the other of any errors in the Purchase Report as soon as reasonably practicable.

3.1.3    Upon Next Jump’s receipt or delivery of the Purchase Report, Next Jump shall issue Merchant with an invoice for the Commission due in respect thereof. Payment is due within 30 days upon presentation of the invoice.

3.2        Cost Per Click.

3.2.1    If the Merchant has selected to pay Next Jump by ‘Cost Per Click’ as stipulated on the Order Form, then each time an End User clicks on the Merchant’s link on the relevant Next Jump Program, the Merchant agrees to pay Next Jump a fee. Next Jump will calculate the number of clicks each month and shall provide Merchant with a monthly invoice for the Commission that is due and payable to Next Jump. Payment is due within 30 days of presentation of the invoice.

3.3        Late Payment and VAT

3.3.1    Without prejudice to any other right or remedy that it may have, if the Merchant fails to pay Next Jump any sum due under this agreement on the due date the Merchant shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 3.3.1 will accrue each day at 1.5% per week or the maximum percentage allowed at law on the collection of late payments. The Merchant shall be responsible for all costs and expenses incurred by Next Jump for the collection of any overdue sums under this agreement, including without limitation, legal fees.

3.3.2    All sums payable to Next Jump under this agreement are exclusive of VAT, and the Merchant shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice.

4. MERCHANT OBLIGATIONS

4.1        Products and Services.

The Merchant shall be solely responsible for all sale and service of Merchant Products, including, without limitation, customer service, web operations, product support, quality and availability of products and services made available by the Merchant, and fulfilment of orders and returns. The Merchant covenants and agrees that it shall provide End Users with policies (with respect to returns, shipping, and user account privacy), products and customer services in a professional manner consistent with the level of service the Merchant provides its general customers. The Merchant represents and warrants that it will remain compliant with the Payment Card Industry Data Security Standards (PCI DSS) during the Term. The Merchant further represents and warrants that it shall comply with all applicable laws, statutes, and ordinances with respect to this agreement and its obligations under this agreement.

4.2        Warranty

4.2.1    The Merchant represents and warrants that it has undertaken reasonable efforts to ascertain that its suppliers of Merchant Products are reliable legitimate service providers.

4.2.2    The Merchant warrants that use and onward supply of the Merchant Products to the End Users shall not infringe the rights, including any Intellectual Property Rights, of any third party.

4.2.3    The Merchant warrants that any services comprised in the Merchant Products will be performed by appropriately qualified and trained individuals in a professional environment and that due skill, care and diligence will be exercised and that the Services will be provided to the highest standards of quality as is customary in the relevant industry.

4.2.4    The Merchant warrants that it shall comply with all applicable rules and regulations in providing any services comprised in the Merchant Products, and it has obtained, or will timely obtain, any and all necessary permits, licenses and third party consents to provide the same.

4.3        End Users.

The Next Jump Customers and the End Users are Next Jump’s clients, and all information pertaining to them belongs to Next Jump. The Merchant shall not contact the Next Jump Customers or End Users for any reason other than to fulfil the End Users’ orders. The Merchant shall not directly market to End Users.

4.4        Data Protection

4.4.1    Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4.4 (Data protection) is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation.

4.4.2    Next Jump is registered with the UK Information Commissioner as a data processor (covered under the Data Protection Act 1998) with registered number is Z2001110.

4.4.3    This agreement requires that Next Jump shares the End User’s personal information with the Merchant in order to fulfil some transactions. For this agreement, personal information is considered as any data that can be used to distinguish an individual’s identity or can be directly linked to an individual. The Merchant acknowledges receipt of this data and agrees to protect it with industry standard administrative, operational and technical controls. In addition, merchant agrees to:

1. a) hold the data confidential and use it solely for the purpose intended in this agreement;
2. b) not disclose the data to any third party without prior written consent of Next Jump;
3. c) conduct background checks on any staff or contractors who may have access to Next Jump’s purchase data;
4. d) notify Next Jump, in the event of a data breach impacting Next Jump’s data, within 24 hours of identifying the breach;
5. e) remove personal data from Merchant’s systems upon request by Next Jump or termination of this agreement;
6. f) allow Next Jump to review and audit Merchant’s data security program and practices on an annual basis and subsequently work with Next Jump to mitigate any issues that may present high or medium risks to either Party; and
7. g) maintain compliance with the current PCI data security standard, if credit card information is received from Next Jump.

4.5        Indemnification

4.5.1    Next Jump will defend, indemnify and hold harmless the Merchant (and its employees, contractors, directors, officers and representatives) against and from any claims, liability, damage, cost and expense (including reasonable legal costs) to the extent they arise out of any claim or action brought by a third party relating to the operation of the Services including claims that the Services, or any content, materials or communications provided by Next Jump, violate the Intellectual Property Rights or other rights of any third party. However, the Merchant accepts and acknowledges that all claims and actions relating to Merchant Products shall be raised against the relevant suppliers of the Merchant.

4.5.2    The Merchant will defend, indemnify and hold harmless Next Jump (and its employees, contractors, directors, officers and representatives) against and from any claims, liability, damage, cost and expense (including reasonable legal costs) to the extent they arise out of any claim or action brought by a third party relating to: (a) the operation of the Merchant’s website (including without limitation the infringement of any Intellectual Property Rights or other rights of any third-party by any content or other materials appearing on the Merchant website, or in Merchant’s communications relating to the Merchant website; (b) the violation of Intellectual Property Rights or other rights of any third-party by any materials provided to Next Jump by the Merchant; (c) any breach of confidentiality of Data Protection Legislation; or (d) any failure by Merchant to comply with any applicable law or regulation or any representation, warranty or obligation under this agreement.

4.5.3    In connection with any claim or action described in this clause 4.5, the Party seeking indemnification shall: (a) give the indemnifying Party prompt written notice of the claim; (b) cooperate with the indemnifying Party (at the indemnifying Party’s expense) in connection with the defence and settlement of the claim; and (c) permit the indemnifying Party to control the defence and settlement of the claim, provided that the indemnifying Party may not settle the claim without the indemnified Party’s prior written consent (which will not be unreasonably withheld). Further, the indemnified Party (at its cost) may participate in the defence and settlement of the claim.

4.5.4    Each Party warrants that it shall comply with all applicable laws, rules and regulations relating to anti-money laundering and anti-bribery and anti-corruption.

4.5.5    The provisions of this clause 4.5 shall survive the termination of this agreement.

5. LICENCES

For the purpose of this Agreement, the Merchant hereby grants Next Jump a limited and non-exclusive license to use the name, logo, copyright, service mark and/or display trademark owned by or licensed to the Merchant, its holding companies, subsidiaries, or affiliates. The Merchant also grants Next Jump the right to use the Merchant’s name as a client reference in Next Jump marketing promotional materials. This license will terminate upon the termination of this agreement or as otherwise expressly agreed to by the Parties in writing.

6. LIMITATION OF LIABILITY

6.1        References to liability in this clause 6 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

6.2        Nothing in this this clause 6 shall limit the Merchant’s payment obligations under this agreement.

6.3        Nothing in this agreement limits any liability which cannot legally be limited, including [but not limited to] liability for (i) death or personal injury caused by negligence; and (ii) fraud or fraudulent misrepresentation.

6.4        Next Jump’s total liability to the Merchant for all or any loss or damage arising under this agreement shall not exceed an amount equal to the total sum actually paid by the Merchant to Next Jump for the supply of the Services hereunder.

6.5        Subject to clauses 6.2 and clause 6.3, the following types of losses that are specifically excluded under this agreement:

6.5.1    loss of profits;

6.5.2    loss of sales or business;

6.5.3    loss of agreements or contracts;

6.5.4    loss of anticipated savings;

6.5.5    loss of use or corruption of software, data or information;

6.5.6    loss of or damage to goodwill; and

6.5.7    indirect or consequential loss.

6.6        Unless the Merchant notifies Next Jump that it intends to make a claim in respect of an event within the notice period, Next Jump shall have no liability for that event. The notice period for an event shall start on the day on which the Merchant became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

7. CONFIDENTIALITY

7.1        Each Party understands and agrees that the provision of the Services may require the disclosure of information or material that is confidential or proprietary to a Party (Confidential Information). Each Party agrees not to disclose the other’s Confidential Information without the prior written consent of the other Party and not to use, record or reproduce the other Parties’ Confidential Information other than for the purposes of performing its obligations hereunder.

7.2        Upon termination of this agreement, each Party shall return to the other all such Confidential Information disclosed by the other Party in connection herewith, provided always that the provisions of this clause 7.2 shall not apply to (a) information generally available in the public domain other than through breach of this clause 7.2; (b) information that the receiving Party has in its lawful possession at the time of disclosure or thereafter independently develops without the use of the disclosed Confidential Information; and (c) information that a Party is ordered to disclose by law or any order by a competent court or authority.

7.3        The Parties’ obligations under this clause 7 shall survive the termination of this agreement.

8. TERMINATION

8.1        Either Party may terminate this agreement at any time after the expiry of the Term by serving ninety (90) day’s written notice on the other Party of its intent to terminate.

8.2        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:

8.2.1    the other Party commits a material breach of any term hereof and (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified to do so;

8.2.2    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;

8.2.3    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 any of its creditors;

8.2.4    the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

8.2.5    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;

8.2.6    an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

8.2.7    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;

8.2.8    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 8.2.2 to 8.2.7 (inclusive); or

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

8.3        Without affecting any other right or remedy available to it, Next Jump may terminate this agreement with immediate effect by giving written notice to the Merchant if the Merchant fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 10 days after being notified to make such payment.

8.4        If this agreement is not terminated in accordance with the foregoing provisions of this clause 8 it shall automatically extend and continue indefinitely unless and until terminated as aforesaid.

8.5        In the event of termination of this agreement, the Merchant shall pay Next Jump all outstanding sums as agreed or other commission/transaction fees that have been earned by Next Jump and unpaid by Merchant up to the date of termination. Such payment shall be made no later than 30 days after the termination date.

9. AUDIT RIGHTS

Next Jump reserves the right to audit the Merchant’s business and financial records to determine Merchant’s compliance with the terms and obligations of this agreement. Such an audit shall be conducted upon not less than ten (10) days’ notice to the Merchant. If the audit reveals an underpayment then Merchant shall pay Next Jump the amount of the underpayment plus 10% thereof, and Next Jump’s reasonable cost of performing its obligations and conducting the audit. Next Jump also has the right to audit the Merchant’s systems or engage a third party assessment of such systems to insure PCI compliance, the safeguarding of personally identifiable information as relates to End Users and the compliance with applicable requirements under the Data Protection Legislation.

10. ASSIGNMENT

10.1     The Merchant shall not assign any of its rights or obligations under this agreement without the consent of Next Jump.

10.2     Next Jump may assign or transfer its rights (but not its obligations) under this agreement to another Group Company for so long as that Group Company remains a member of Next Jump’s Group.

11. GENERAL

11.1     A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

11.2     A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.3     This agreement embodies the entire agreement and understanding between the Parties hereto and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof.

11.4     No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this agreement.

11.5     No oral variation of this agreement shall be effective.

11.6     Next Jump shall be entitled to make variations of this agreement from time to time.

11.7     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.

11.8     Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

11.9     Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

12. FORCE MAJEURE

12.1     Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:

12.1.1  acts of God, flood, drought, earthquake or other natural disaster;

12.1.2  epidemic or pandemic;

12.1.3  terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

12.1.4  nuclear, chemical or biological contamination or sonic boom;

12.1.5  any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;

12.1.6  collapse of buildings, fire, explosion or accident;

12.1.7  any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause); and

12.1.8  interruption or failure of any utility service.

12.2     No Party shall be liable to the other for any loss of any kind whatsoever, including, but not limited to, any damages, whether directly or indirectly caused to or incurred by the other Party by reason of any failure or delay in the performance of its obligations under this agreement to the extent that this is due to a Force Majeure Event. Notwithstanding the foregoing, each Party shall use all reasonable endeavours to continue to perform, or resume performance of, such obligations hereunder for the duration of such Force Majeure event.

12.3     If either Party shall become aware of circumstances likely to give rise to a Force Majeure Event, it shall with immediate effect notify the other Party by the most expeditious method available and shall inform the other Party of the period for which it is estimated that such the Force Majeure Event may impact its ability to perform any of its obligations hereunder.

12.4     If the relevant Force Majeure Event subsists for a period of one (1) month or more, Next Jump may, forthwith by notice in writing to the Merchant, terminate this agreement with immediate effect without any cost or liability whatsoever.

12.5     Any force Majeure Event that impacts Next Jump will not relieve the Merchant of any of its obligations under this agreement in respect of any Merchant Products sold prior to Force Majeure Event taking place. Accordingly, the Merchant will remain liable to pay Next Jump for the Services rendered prior thereto.

13. NOTICES

13.1     Any notice given to a Party under or in connection with this agreement shall be in writing and shall be:

13.1.1  delivered by hand or by pre-paid first-class post or other next working day delivery service at its address specified in the Order Form; or

13.1.2  sent by email to the address specified in the Order Form.

13.2     Any notice shall be deemed to have been received:

13.2.1  if delivered by hand, at the time the notice is left at the proper address;

13.2.2  if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

13.2.3  if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 13.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

13.3     This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14. GOVERNING LAW AND JURISDICTION

If this agreement is concluded with Next Jump Limited, this agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

If this agreement is concluded with Next Jump, Inc. this agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of New York. Each party irrevocably agrees that the courts of New York shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.