Magic Stamp App

MAGIC STAMP PLATFORM TERMS AND CONDITIONS

This Legal Agreement set out below governs your use of the Magic Stamp Platform and Services as set out below. It is important that you read and understand the following terms. By signing up to the Magic Stamp Platform, you are agreeing that these terms will apply

BACKGROUND:

(A) Park Technology Limited (“Park”) has developed a Magic Stamp digital loyalty software platform for businesses, which aims to improve how businesses interact with customers to drive loyalty (the “Platform”).

YOU AGREE AS FOLLOWS:

1. INTERPRETATION

1.1 Defined terms and rules of interpretation used in this agreement are set out in Schedule

1. 2. LICENSE AND SCOPE OF AUTHORISED USE

2.1 Park licenses and operates the Platform, which may be used by you to manage its customer loyalty schemes digitally. Park hosts the Platform and Application Services, and provides you with a service via the internet by means of which you may access and use the Platform (the "Service"). Any new features that add to or enhance the Platform or the Service and which are added by Park after the Commencement Date of this Agreement (including the release of new tools, resources or functionality) shall also be subject to this Agreement.

2.2 If you breach any of the terms of this Agreement, Park may immediately suspend or terminate your account or your access to or use of the Service, as set out in more detail in this Agreement.

2.3 Subject to payment of the applicable charges and the restrictions set out in this Agreement, you are granted a non-exclusive, non-transferable licence for the Term of this Agreement, to access and use the Platform via the Service, and is authorised to sub-licence the use of the Platform and Service to End Users, provided always that such sub-licence is on the terms of the End User Licence Agreement for the purposes of administering your digital loyalty scheme.

2.4 Only you are licensed to access and use the Platform and the Service. Use by you includes use by your:
2.4.1 employees;
2.4.2 any contract staff who are working for you; and
2.4.3 any other person working with or on your behalf; provided that, in each of these cases, the person concerned is accessing and using the Platform and the Service exclusively on your behalf and for your internal business purposes. You shall at all times remain responsible for a person accessing the platform via the Services through your account.

2.5 In order to use and access the Service you must register and sign up for an account with The Magic Stamp (via The Magic Stamp Website). Once you have registered with Park, Park will issue you with a set of log-on credentials in order to gain access to the Service. You are responsible for ensuring the security and confidentiality of all log-on credentials (including usernames and passwords), assigned to it or any authorised user(s) to access or use the Service. You will be solely responsible for all activity which occurs under authorised user accounts, and shall promptly notify Park on becoming aware of any unauthorised access to or use of the Service.

2.6 You must not:
2.6.1 permit any third party to access or use the Platform or Service except to the extent that a third party is a sub-licensed End User;
2.6.2 use the Platform or Service on behalf of any third party (which includes operating any form of facility on behalf of any third party) except to the extent that such third party is a sub-licensed End User;
2.6.3 copy, modify, adapt or create derivative works from the Platform (save to the extent that this occurs automatically and in temporary form in the normal course of using our Platform via the Service);
2.6.4 attempt to discover or gain access to the source code for the Platform or reverse engineer, modify, decrypt, extract, disassemble or decompile the Platform except to the extent that you are permitted to do so by law;
2.6.5 attempt to interfere with the proper working of the Platform or Service or attempt to circumvent security, licence control or other protection mechanisms or tamper with, hack into or otherwise disrupt the Platform or Service or any related website, computer system, server, router or any other internet- connected device;
2.6.6 introduce any viruses, bugs, worms, spyware, malware, ransomware, trojan horse or other program or code into the Platform or any device accessing the Platform; or
2.6.7 obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, the Platform or the Service.

3. HOSTING AND SUPPORT AND MAINTENANCE SERVICES
3.1 Park shall maintain, manage, and monitor the hosting site communications, and Platform, Service and Application availability and on an ‘as is’ basis.
3.2 Park shall provide Support during the Term of this Agreement [in accordance with the requirements of on an ‘as is’ basis.

4. SUPPLY OF DEVICES
4.1 Park shall supply the Devices to you on the rental basis set out in this clause 4.

Delivery

4.2 Park shall ensure that the Devices are appropriately packed and that all relevant marking and labels are shown on or attached to all packages for shipment in accordance with all applicable laws and regulation.

Risk and title

4.3 Legal and beneficial title in any Devices shall remain with Park at all times during the period of this Agreement
4.4 Risk in the Devices passes to you on collection by you and shall remain with you until the termination of this Agreement.

5. YOUR OBLIGATIONS
5.1 You are responsible for all activities that occur under its authorised user accounts and for all authorised users’ compliance with this Agreement.
You shall:
5.1.1 use commercially reasonable endeavours to prevent unauthorised access to, or use of, the Service, and notify Park promptly of any such unauthorised access or use;
5.1.2 comply with all applicable local, state, federal and foreign laws in using the Service, including, without limitation, all the Data Protection Requirements; and
5.1.3 comply with all laws applying to the running of promotions or loyalty schemes when using the Platform and Service.

5.2 You shall promptly inform Park in writing of anything of which it becomes aware of that may have an adverse impact on its ability to fulfil its obligations under this Agreement.
5.3 You shall be solely responsible for procuring and maintaining its network connections and telecommunications links that enable it to use the Services. Park shall not assume or be liable to you for any failure of the Services arising from any external causes outside of its reasonable control including, but not limited to, a failure of an ISP or mobile phone network.

6. PARK OBLIGATIONS
6.1 Park shall:
6.1.1 make the Platform, Services and App available to you in accordance with the terms of this Agreement;
6.1.2 provide such information and support at your expense, as may be reasonably requested by you to enable it to properly and efficiently perform its obligations under this Agreement; and
6.1.3 ensure that you are promptly informed of anything of which it becomes aware that may have an adverse impact on the ability of Park to fulfil its obligations under this Agreement.

7. WARRANTIES
7.1 Each party warrants that:
7.1.1 it has the full right, power and authority to enter into and fully perform this Agreement
7.1.2 the person signing this Agreement on its behalf is a duly authorised representative of such party who has been authorised to execute this Agreement;
7.1.3 it is a legal entity in good standing in the jurisdiction of its formation and shall continue to be so during the Term of this Agreement; and
7.1.4 it will comply with all applicable laws and regulations in relation to the performance of its obligations hereunder.

7.2 Park warrants that:
7.2.1 the Platform and App are proprietary to Park and in respect of any third party components incorporated within each of the Platform and the App, Park has the right to license all Intellectual Property Rights in and to the Platform, App and Devices to you, and to provide the Services;
7.2.2 it has the necessary licences, consents and permissions to licence and supply the Devices to you;
7.2.3 the Devices shall be of satisfactory quality, and free from material defects in designs, materials and workmanship, and shall comply with European Standard Part 1 and Part 3 of EN 71;
7.2.4 to the best of its knowledge, the Platform, App, Devices and Services will not subject you to any claim for an infringement of any Intellectual Property Rights or any other rights of any third party in the United Kingdom; and
7.2.5 it will provide the Services in a reliable and professional manner in accordance with good industry practice.

7.3 You warrant that:
7.3.1 your loyalty schemes and ad hoc promotions which are run through the Platform and using the Service shall be operated in a manner which is compliant with all promotion and advertising law, regulations and guidance.

7.4 You acknowledge that Park does not warrant, represent or guarantee that the Services, Platform or App will be uninterrupted or error or bug free.

7.5 Save as expressly set out in this Agreement, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

8. CHARGES AND PAYMENT
8.1 From the Commencement Date, you shall pay the fees for the Services and any additional charges (as per the rates set out in Schedule 2 (the “Fees”), and Park shall invoice you for the Fees, in accordance with Schedule 2.

8.2 The Fees are subject to review and increase by Park at any time upon sixty (60) calendar days’ prior notice to you, such notice not to take effect until the anniversary of the Commencement Date. If you do not wish to accept the increased Fees, you may terminate its use of the Service on notice to Park (such notice to be given [30 days] before the end of the sixty (60) days’ notice that you were given stating the proposed fee increase, and to expire at the end of that sixty (60) days’ notice).

8.3 All amounts referred to in this Agreement are exclusive of VAT or other applicable sales tax which, where chargeable by Park, shall be payable by you at the rate and in the manner prescribed by law.

8.4 You must pay all invoices within [10 (ten) calendar days] of the date of the invoice and pay all undisputed invoices, in full, by the due date for payment without deduction, set off or withholding of any kind. If you dispute any invoice in good faith, having advised Park of the dispute in writing, you shall be entitled to withhold payment of the disputed amount pending resolution of the dispute, but shall pay all undisputed amounts in accordance with the terms of this clause 8.

8.5 Park may charge interest on all outstanding sums beyond the due date of the relevant invoice. Such interest shall be charged from the due date until the date of payment (including after any judgment has been obtained) at the rate of 4% per annum above the base lending rate of Barclays Bank PLC for the time being.

9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights and all other rights in the Services, Platform, App and Devices (along with any updates to, or modifications or derivations of, the aforementioned) including all data collected by Park’s servers whether arising before or after the Commencement Date, shall be owned by Park and/or its third party licensors.

9.2 Park confirms that it has all the necessary rights, licences and consents in relation to the Services, Platform, App and Devices that are required to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

9.3 You acknowledge that Park has utilised certain Open Source Software within its Platform and that such Open Source Software is provided by Park on an ‘as-is’ basis and expressly subject to the disclaimer in clause 7.5.

9.4 Park shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Platform and/or Service any suggestions, enhancement requests, recommendations or other feedback provided by you or your End Users relating to the operation of the Platform and/or Service.

10. TRADEMARKS AND SYMBOLS
10.1 Park may use your trademarks, trade names and logos for the purpose only of performing the Services and the Professional Services, including the branding of the Platform and App, within the scope of this Agreement.
10.2 Park’s right to use your trademarks, trade names or logos as provided for under this clause 10 shall cease immediately on the expiration or termination for any reason of this Agreement.
10.3 The parties agree that copyright in all materials provided by you to Park under this Agreement belongs exclusively to you, providing that such materials, and Park’s right to use the same, shall cease immediately on the expiration or termination for any reason of this Agreement.
10.4 Park shall have a limited authorisation to use any trademarks, trade names, logos or copyright material provided or permitted by you in relation to the Platform and App for the purposes only of Park exercising its rights and performing its obligations under this Agreement. 11.

CONFIDENTIALITY
11.1 Each party shall keep the other party’s Confidential Information confidential and shall not:
11.1.1 use any Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement (“Permitted Purpose”); or
11.1.2 disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.

11.2 A party may disclose the other party’s Confidential Information to those of its representatives who need to know that Confidential Information for the Permitted Purpose, provided that: 11.2.1 it informs those representatives of the confidential nature of the Confidential Information before disclosure; and October 2018 – Park Technology Limited Terms and Conditions 11.2.2 at all times, it is responsible for the representatives’ compliance with the confidentiality obligations set out in this clause 11.

11.3 Confidential Information does not include any information that:
11.3.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its representatives in breach of this clause 11);
11.3.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
11.3.3 was, is, or becomes, available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
11.3.4 was known to the receiving party before the information was disclosed to it by the disclosing party; or 11.3.5 the parties agree in writing is not confidential or may be disclosed.

11.4 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible.

11.5 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information, other than those expressly stated in this Agreement, are granted to the other party, or are to be implied from this Agreement.

11.6 The provisions of this clause 11 shall continue to apply after termination of this Agreement. 12.

DATA PROTECTION
12.1 For the purpose of this Agreement, including this clause 12, (a) “Data Protection Requirements” shall mean the Data Protection Act 1998, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) or equivalent legislation and all other applicable laws (including judgments of any relevant court of law) and regulations relating to the processing of personal data, data privacy and data security, in each case as amended, extended or re-enacted from time to time and all orders, regulations, statutes, instruments or other subordinate legislation made thereunder in any jurisdiction from time to time; and (b) “Personal Data” and the terms “process”, “data subjects”, “data controller”, “controller”, “data processor”, “processor” and “personal data breach” shall have the meanings given to them in the applicable Data Protection Requirements.

12.2 Park and you each warrant that they will each duly observe all their obligations under the Data Protection Requirements which arise in connection with the Services, use of the Platform and App or the performance of this Agreement, and that they shall not, in respect of Personal Data to be processed under or in connection with this Agreement, do any act or make any omission which puts the other party in breach of its obligations under the Data Protection Requirements.

12.3 The type of Personal Data that will be processed and/or controlled by Park in connection with this Agreement is any information contained in communications made in connection with this Agreement, and the categories of data subjects are broad and will include any individual who sends or receives communications or is the subject- matter of communications made in connection with this Agreement.

12.4 Where sub-contractors have access to Personal Data processed and/or controlled by Park on behalf of you, Park shall obtain prior written authorisation from you for the use of such sub-contractors and Park shall impose the same data protection obligations on such sub-contractors as set out in this Agreement.

12.5 In particular and without limitation, in the event that Park processes and/or controls any Personal Data on your behalf under or in connection with this Agreement, Park shall: (a) act and control and/or process personal data only on documented instructions from you as data controller or controller (as applicable); (b) implement appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, any Personal Data including as appropriate pseudonymisation and encryption of personal data, the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident and/or a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the October 2018 – Park Technology Limited Terms and Conditions security of the processing; (c) not (and shall ensure that it, its sub-contractors and its and their employees, agents and contractors do not) publish, disclose or divulge any Personal Data on Park’s behalf without the prior written consent of you; (d) notify you without undue delay and not later than 24 hours after having become aware of any actual or suspected personal data breach; (e) not transfer any Personal Data from the EU to outside the European Economic Area, without and only to the extent of any express written consent of you which may be refused at your sole discretion, and where such consent is given, Park shall comply with the terms of Clause 12.4; (f) ensure that persons authorised to process Personal Data have committed themselves to confidentiality; and (g) assist you in complying with its obligations under the Data Protection Requirements, including without limitation making available to you all information necessary to demonstrate compliance with the Data Protection Requirements and allowing for and contributing to audits and inspections conducted by you or its representatives on reasonable notice and at reasonable intervals, provided that any audits carried out pursuant to this clause shall not take place more frequently than once in any twelve (12) month period from the Commencement Date.

12.6 In respect of any transfer of Personal Data from the EU to outside the European Economic Area on your behalf under or in connection with this Agreement and in respect of which you have given express written consent (other than in respect of any such transfer to a country which the European Commission has determined provides adequate protection), Park shall, prior to any such transfer, execute with you, the EU’s model contract for exporting Personal Data to a data processor located outside the EU, as such model contract is from time to time amended and updated.

13. INDEMNITY
13.1 Park shall indemnify you from and against any losses, claims, expenses, losses, damages, proceedings and costs that the use, possession or receipt of the Services, Platform, App by you (excluding any Third Party Materials and the Devices), infringes any Intellectual Property Rights of a third party (“Your IPR Claim”) provided that, if any third party makes an IPR Claim, or notifies an intention to make an IPR Claim against you, you shall:
13.1.1 give written notice of your IPR Claim to Park as soon as reasonably practicable;
13.1.2 not make any admission of liability in relation to your IPR Claim without the prior written consent of Park;
13.1.3 allow Park to conduct the defence of your IPR Claim including settlement; and
13.1.4 co-operate and assist to a reasonable extent with Park’s defence of your IPR Claim. 13.1.5 upon Park’s instructions, cease using the Services, Platform, App, or Device immediately.

13.2 In respect of any Third Party Materials and the Devices, Park shall only indemnify you to the extent that it has received indemnities in place with its respective third party licensors which, for the purposes of this clause 13.2, means that Park shall indemnify you against all claims, expenses, losses, damages, proceedings and costs that you may sustain or incur as a result of any successful claim by a third party:
13.2.1 that the use, possession or receipt by you in accordance with the terms and conditions of this Agreement of any of the Third Party Materials or Devices infringes the Intellectual Property Rights of any third party and such indemnity, if proved attributable to Park by the relevant Court in the country of supply and distribution, shall be limited to the total Fees paid during the period of infringement.
13.2.2 for damage to property arising out of or in connection with defects in the Devices, to the extent that the defects in the Devices are attributable to the acts or omissions of Park, its employees, agents or subcontractors; and/or 13.2.3 arising out of or in connection with the supply of the Devices, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by Park, its employees, agents or subcontractors (each a “Third Party Claim”).

13.3 In the event of any of the events in clauses 13.2.1, 13.2.2, 13.2.3 arising, both parties shall promptly hold discussions in good faith and take necessary measures to remove such infringement or damages resulting therefrom.

13.4 If any person makes a Third Party Claim, Park may also at its option and its own cost:
13.4.1 modify or replace the Third Party Materials and/or Devices without reducing the overall performance of the Third Party Materials and/or Devices in order to avoid and/or mitigate the effect of the Third Party Claim; or
13.4.2 procure for you the right to continue using the Third Party Materials and/or Devices.

13.4.3 refund to you the total amount of Fees paid during the period of infringement if Park cannot modify or replace the Third Party Materials and/or Devices, or procure the right described in 13.4.2 on commercially reasonable terms.

13.5 You shall promptly notify Park of any actual, threatened or suspected Third Party Claim, which comes to your notice.

14. LIABILITY
14.1 Nothing in this Agreement limits or excludes either party’s liability:
14.1.1 for death or personal injury caused by its negligence;
14.1.2 for fraud or fraudulent misrepresentation; or
14.1.3 for any other liability which cannot be limited or excluded by applicable law.

14.2 Subject to clause 14.1, Park shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
14.2.1 loss of profits;
14.2.2 loss of revenue, sales or business;
14.2.3 loss of agreements or contracts;
14.2.4 loss of anticipated savings;
14.2.5 loss of or damage to goodwill;
14.2.6 loss of use or corruption of software, data or information; or
14.2.7 any indirect or consequential loss.

14.3 Subject to clauses 14.1 and 14.2, Park’s total liability arising in any Contract Year out of or relating to this Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited, in aggregate for all claims arising during each Contract Year, to: (a) the total of all amounts paid and amounts payable in Subscription Fees under this Agreement in the relevant Contract Year.

14.4 Park shall take reasonable steps to prevent the misuse and mismanagement of Devices by third parties, including monitoring the Services for any unauthorised or excess use of the Devices in connection with a loyalty scheme or campaign aimed at increasing or otherwise distorting the reward points allocated to End Users.

14.5 Park shall not, under any circumstances, be liable to you for your (including any of its employees, agents or sub-contractors) or any third party’s fraudulent or unauthorised use or misuse of the Devices.

15. TERM AND TERMINATION
15.1 This Agreement shall commence on the Commencement Date] (the "Initial Period") following which it shall automatically renew for successive periods of 1 month (each such period of twelve (12) months being a "Renewal Period") unless terminated in accordance with the provisions of this Agreement. The Initial Period and the Renewal Period(s) shall together constitute the “Term”.

15.2 Either party may terminate this Agreement:
15.2.1 with immediate effect by providing written notice if the other party commits any material or persistent breach(es) of any of the terms herein and (if such a breach is remediable) fails to remedy such breach within thirty (30) days of that party being notified under this sub-clause
15.2.1 of the breach, such notice to refer to the notifying party’s intent to terminate this Agreement unless the breach is remedied; or
15.2.2 either party may terminate this Agreement with immediate effect by providing written notice to the other party, if the other party suffers an Insolvency Event.

15.3 Park may (at its sole discretion), as an alternative to clause 15.2.1 above, suspend your access to the Service with immediate effect if you are in material or persistent breach of any obligation in this Agreement.

16. CONSEQUENCES OF TERMINATION
16.1 Upon termination of this Agreement, you shall immediately: 16.1.1 stop using the Services, Platform, App and Devices; and 16.1.2 pay to Park all outstanding Subscription Fees and other amounts owing up to the date of termination of this Agreement. 16.1.3 Return all Devices to Park;

16.2 On the termination or expiry of this Agreement for any reason, you may request [for a period of [thirty (30) days following termination], the export and removal, of all customer data relating to its End Users (including any personal data). Park shall, upon receipt of a data extraction request from you, provide all reasonable assistance in the access and extraction of the aforementioned information including, providing the customer data in a format reasonably requested by you.

16.3 Termination of this Agreement for any reason shall not affect:
16.3.1 any accrued rights or liabilities which either party may have by the time termination takes effect; or
16.3.2 the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after the termination. Without prejudice to the foregoing, clauses 1, 9, 11, 12, 13, 14, 16 and clauses 17 - 28 shall survive termination of this Agreement.

17. FORCE MAJEURE
17.1 Park will not be liable to You for any breach of this Agreement which arises because of any circumstances which Park cannot reasonably be expected to control (including any fire, flood, earthquake, elements of nature or acts of God, acts of war (whether or not war is declared), terrorism, riots, civil disorders, rebellions or revolutions, strikes, lock outs or other form of industrial action and any act or regulation of any government or supra-national authority occurring worldwide (but not including any legislative changes in the United Kingdom effected or brought into law as a result of the United Kingdom withdrawing from and leaving the European Union), or any other place from where the obligations of Park are performed, provided that Park:
17.1.1 notifies you in writing as soon as reasonably practicable about the nature and extent of the circumstances and actual breach;
17.1.2 uses reasonable efforts to mitigate the effects of the circumstances causing or are likely to be the cause of the breach so as to minimise or avoid the breach; and
17.1.3 uses reasonable efforts to resume performance as soon as reasonably practicable.

18. DISPUTE RESOLUTION PROCEDURE
18.1 In the event of any dispute between the parties, then:
18.1.1 the parties shall first try in good faith to resolve the dispute by negotiation between each parties respective Managers;
18.1.2 if that fails to resolve the dispute within five (5) Business Days, then the dispute will be escalated to appropriate senior executives of each party within five (5) Business Days;
18.1.3 if the dispute remains unresolved within the agreed timescale (or if none is specified or agreed, within ten (10) further Business Days), then the parties will try and resolve the claim through mediation under the auspices of the Centre for Dispute Resolution (“CEDR”) in London, by reference to the CEDR Model Mediation Procedure, on the basis that: (a) the language of the mediation shall be English; and (b) the Mediation Agreement referred to in the Model Mediation Procedure shall be governed by and interpreted according to English law; and
18.1.4 if after twenty (20) Business Days from the date on which the dispute was referred to mediation the dispute remains unresolved, then the dispute resolution procedure will be treated as having failed and as at an end, and the parties shall be free to seek alternative methods of dispute resolution as available at law.

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

20. RIGHTS AND REMEDIES
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21. SEVERANCE
21.1 If a court of competent jurisdiction considers that any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

22. ENTIRE AGREEMENT
22.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

23. ASSIGNMENT
23.1 You shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
23.2 Park may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

24. NO PARTNERSHIP OR AGENCY
Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

25. THIRD PARTY RIGHTS A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

26. COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.

27. NOTICES
27.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office, unless expressly agreed otherwise elsewhere in this Agreement.
27.2 Any notice or communication shall be deemed to have been received: 27.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or 27.2.2 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 at the time recorded by the delivery service.
27.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

28. GOVERNING LAW AND JURISDICTION
28.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) is governed by and construed in accordance with English law.
28.2 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims).

SCHEDULE 1

DEFINITIONS AND INTERPRETATION

1.1 The following definitions and rules of interpretation in this clause apply in this

Agreement: “Agreement” means this agreement, and its Schedules

“App” means the mobile application through which End Users access and use the Service and Platform;

“Application Services” means both the App and the Mobile Web Application;

“Business Day” means any day other than a Saturday, Sunday or a public or bank holiday in the United Kingdom;

“CEDR” has the meaning given to it in clause 18.1.3;

“Commencement Date” means the date of this Agreement;

“Confidential Information” means: (i) all confidential information, including any personal data, (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or sub-contractors involved in the performance of either party’s obligations under this Agreement, who need to know the confidential information in question (“representatives”) to the other party and that party’s representatives in connection with this Agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure; and (ii) the terms of this Agreement;

“Contract Year” means each consecutive period of twelve (12) months commencing from the Effective Date and each anniversary of the Effective Date thereafter;

“Your IPR Claim” has the meaning given to it in clause 13.1;

“Data Protection Requirements” has the meaning given to it in clause 12.1;

“Devices” means the hardware components provided to you as part of the Service;

“End User Licence Agreement” means the form of agreement [and privacy policy] set out at Schedule 3, which you are to put in place with its End Users;

“End Users” means your end customers who are users of the Platform and Service for the purposes of participating in your loyalty scheme or one-off promotions;

“Fees” has the meaning given to it in clause 8.1;

“Good Industry Practice” means in relation to any undertaking and any circumstance, the exercise of that degree of professionalism and skill, which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of activity under the same or similar circumstances;

“Initial Period” has the meaning given to it in clause 15.1;

“Insolvency Event” means, in relation to either party, any of the following events:
(a) a meeting of creditors of that party being held or an arrangement or composition with or for the benefit of its October 2018 – Park Technology Limited Terms and Conditions creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to that party;
(b) a chargeholder, receiver, administrative receiver or other similar party taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of that party;
(c) that party ceasing to carry on business or being deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986;
(d) that party or its directors or the holder of a qualifying floating charge or any of its creditors giving notice of their intention to appoint, appointing or making an application to the court for the appointment of, an administrator;
(e) a petition being advertised or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of that party; and/or
(f) the happening in relation to that party of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets;

“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

“Manager” means the either party’s point of contact for this Agreement as notified by each party to the other and updated from time to time;

“Mobile Web Application” means the browser based web browser through which End Users access and use the Service and the Platform for loyalty scheme redemptions only;

“Open-Source Software” means open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org);

“Permitted Purpose” has the meaning given to it in clause 11.1.1;

“Platform” has the meaning given to it in recital (A);

“Renewal Period” has the meaning given to it in clause 15.1;

“Service” has the meaning given to it in clause 2.1;

“Subscription Fees” has the meaning given to it in clause 8.1;

“Support” means the support and maintenance services to be provided by Park during the Term of this Agreement

“Term” has the meaning given to it in clause 15.1;

“Third Party Claim” has the meaning given to it in clause 13.2.3

“Third Party Licensor” means any third party with which either party has an agreement with in relation to any Intellectual Property Rights;

“Third Party Materials” means any software or other materials, the Intellectual Property Rights to which are owned by Park’s third party licensors;

“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.

“Website” means the Park website through which the Platform and Service can be accessed which is found at www.themagicstamp.com

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

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

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

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

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

1.7 A reference to writing or written includes e-mail but not faxes.

1.8 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the