Standard Terms & Conditions for Licensing Technology 'Kindred Terms'
Last updated 19.05.2023
Module 1
* Terms 1 & 2 found in the term sheet (Signatories & Key terms).
3 Definitions used in this agreement.
3.1 "Licensed Technology" means (a) the Kindred SDK as defined in Key Terms above; (b) associated Kindred APIs (application programming interface); and (c) the Documentation;
3.2 "Documentation" means documentation provided by Kindred which describes the development, installation, functionality, operation, implementation or maintenance of the Licensed Technology, including technical specifications and user manuals.
3.3 "Implemented App" means the Licensee's mobile or desktop extension app (or an optional component of it) or other product or service that integrates the Licensed Technology and interfaces with the Kindred SDK and Kindred's transaction processing systems so as to give End Users the ability to surface deal results and connect them with merchant deals as they shop on their mobile or desktop devices.
3.4 "End User" means a customer of the Licensee using the Implemented App.
3.5 "Settlement Service" means Kindred's tracking and authentication of End User purchases triggered through the Implemented App and the resulting allocation of merchant commissions.
3.6 "Affiliates" means any entity which from time to time controls, is controlled by or is under common control with a party, and “control” means ownership or control of a majority of the voting rights, or the legal power to direct or cause the direction of the general management of the relevant entity.
3.7 Other definitions Capitalised items under Key Terms in module 1 are incorporated as definitions in this agreement. Other definitions which are specific to a section or module are found together with that section or module.
4 The Licensed Technology
4.1 SDK access Kindred shall give the Licensee access to the Licensed Technology in binary code form, for implementation into the Implemented App.
4.2 Documentation Kindred shall give access to or provide copies of the Documentation to the Licensee, which will include FAQs for Licensee's customer support agents.
5 Licence Fee
5.1 License fee $120,000 per year invoiced upon effective date.
6 Commission
6.1 How the Commission is calculated The Commission is payable on the merchant's commission to Kindred for each completed and validated transaction between the End User and the merchant activated through the Kindred SDK technology. The merchant's commission is determined by the agreement in place between Kindred and the relevant merchant or aggregator.
Kindred shall provide quarterly statements to the licensee for all merchant commission paid to Kindred by merchants.
6.2 When the Commission is payable Kindred shall pay the Commission to the Licensee quarterly, on receipt of a valid invoice from the Licensee against a provided statement with 60 days Net payment terms.
7 Exclusivity in favour of Kindred
7.1 Licensee's exclusivity commitment During the Initial Term, the Licensee shall not: (a) work with any Kindred Competitor with a view to implementing a Competing Solution; or (b) itself develop or implement a Competing Solution.
"Competing Solution" means any mobile or desktop browser extension service, interception layer or similar functionality which enables cash-back, special offers, discounts on bills, the ability to make charitable donations or similar benefits to an End User against purchases made by the End User from third party merchants, using a mobile app as a means of distributing those services or functionality to the End User.
7.2 No exclusivity after renewalThe Licensee's exclusivity commitment will cease to apply at the start of any Renewed Term.
8 Data
8.1 The default mode for all End Users provides anonymity for the length of a user’s engagement with the Licensed Technology, unless they specifically choose otherwise. In this anonymous mode, The Licensed Technology generates unique tokenised IDs each time an End User navigates to a domain and selects a merchant offer surfaced by the Kindred SDK. Kindred processes such IDs together with limited data (merchant's commission amount, time of transaction, merchant's URL) for the purpose of matching and authenticating transaction data from the merchant, crediting discounted amounts to End Users and their chosen charities, accounting for the Commission and crediting it to the Licensee.
If an End User actively opts-in for The Licensed Technology to capture more information using a TCF 2.2 compliant opt-in form displayed to an End User, they can choose to manage their own privacy settings and preferences and elect to give Kindred additional data. In this second mode the Licensed Technology tracks additional data including; 3rd party IDs, IP address, hashed email, pre-defined shopping-related search terms and retail/lifestyle websites visited on our publicly available whitelist - and assign to each respective consenting End user.
(Our data ingestion technology is unique in the sense that it has been designed to selectively capture a limited spectrum of benign yet materially-valuable shopping signals and is specifically designed to NOT capture as much data as possible, indiscriminately. This enables Kindred to use these IDs to work with approved third parties and provide insights and audience curation services. In return End Users get additional benefits such as exclusive discounts for providing permission and also collectively contribute to environmental and charitable causes.)
8.2 The Licensee does not need to transfer any personal data of its End Users to Kindred in order to operate the Licensed Technology and make use of the Settlement Service, and shall not transfer any such personal data to Kindred.
8.3 End User data generated and collected by the Licensed Technology and Settlement Service will be used by Kindred to operate and improve the Licensed Technology and work with advertisers. This allows Kindred to provide the best possible coupon codes to users.
8.4 Kindred can provide data relating to aggregate commission earned from the service to the Licensee on request.
9 Attribution
9.1 General restriction Neither party will use the other party's name, logo or other brand assets unless expressly set out below or otherwise agreed in writing.
9.2 Permitted use The Licensee permits Kindred to use the Licensee's name and logo on Kindred's brochures, presentation decks, website and other printed and digital communications materials, to indicate the Licensee as a customer of Kindred for marketing.
10 Liability Cap
10.1 Liability Cap The greater of 100% of total Licence Fees paid by the Licensee under this Agreement and £100,000 (one hundred thousand pounds).
Module 2 - Governance
1 Contractual framework
1.1 This agreement
This agreement governs the provision of the Licensed Technology by Kindred and all aspects of the Licensee's use of it.
1.2 Agreement structure
Each module to this agreement represents legally binding terms and together comprise the agreement between the parties in relation to the Kindred SDK (to the exclusion of any other content). In the event of any conflict between the component parts of this agreement, the order of precedence is: (a) Key Terms, (b) the remaining modules and (c) any technical documentation referenced.
1.3 Participation by affiliates
Licensee's Affiliates who wish to have access to the Licensed Technology, must be listed or described in module 1 (Key Terms).
2 Duration and exit
2.1 Initial Term
This agreement commences on the Effective Date and continues for the Initial Term and any subsequent Renewed Term, unless terminated earlier in accordance with its terms.
2.2 Renewal
This agreement will renew automatically on expiry of the Initial Term for a further equivalent period, unless non-renewal notice is issued by either party at least 90 days prior to expiry of the Initial Term.
2.3 Exit for convenience
The Licensee has the right to terminate this agreement at any time subject to the Exit Notice (as defined in module 1- Key Terms).
2.4 Exit for breach
By giving notice, a party has the right to terminate this agreement without liability (following such notice period as the terminating party sees fit, which may at its option be with immediate effect) if the other party commits a material breach of this agreement and, if the breach is capable of remedy, fails to remedy the breach within 21 (twenty one) days after being notified to do so.
2.5 Exit on insolvency
By giving notice, a party has the right to terminate this agreement without liability (following such notice period as the terminating party sees fit, which may at its option be with immediate effect) if the other party becomes insolvent or subject to insolvency, bankruptcy, liquidation, receivership, administration, arrangement with creditors or to any analogous proceedings, or is otherwise unable to pay its debts as they fall due or ceases trading, to the extent that termination in such circumstances is permitted under applicable law.
2.6 Exit obligations - Commission
On any termination of this agreement, Kindred shall pay to Licensee any outstanding Commission accrued at the date of such termination. Kindred shall provide a final statement for calculating the outstanding Commission.
2.7 Exit obligations - return of data and information
On termination or expiry of this agreement, Licensee shall immediately cease to use the Licensed Technology, including switching off End User access to it through the Implemented App (subject to any additional period under the transition arrangements described below). Licensee shall also promptly return or destroy (at Kindred's option) any media, code, files or materials containing the Licensed Technology and Documentation, and shall certify the destruction to Kindred.
Kindred will retain any transaction data generated by the Settlement Service in accordance with its usual retention policies.
2.8 Transition - SDK switch off
Following termination or expiry of this agreement for any reason, Licensee shall switch off End User access to the Licensed Technology in the next scheduled release of the Implemented App and in any event within a maximum of 3 months from the date of termination or expiry. In the event Kindred terminates this agreement for breach or as the result of a force majeure event, any such additional period beyond the date of termination will be at Kindred’s discretion.
The terms of this agreement will continue to apply to any such additional transition period following the date of termination.
3 Governance
3.1 Key personnel
Each party shall appoint and maintain an Account Contact and a Technical Contact who will be responsible for day-to-day communications between the parties.
3.2 Day to day governance
The parties' respective Account Contacts shall hold quarterly review meetings. The parties' respective Technical Contacts and Account Contacts shall maintain regular communication and hold additional meetings on an as needed basis.
3.3 Changes in key personnel
If any of the Account Contacts or Technical Contacts are unable to perform their activities, the relevant party shall appoint an alternative individual with equivalent experience and skills and inform the other party of the change.
3.4 Change control
The Licensee may request changes or customisations to the Licensed Technology. If Kindred considers the request to be technically or commercially feasible, Kindred shall prepare an impact statement within a reasonable time, advising the Licensee of the costs of the changes, the works required, any effect on other aspects of the Licensed Technology and associated services, and any additional development fees to be charged. If the Licensee indicates that it is willing to proceed with the change based on the impact statement, then Kindred shall prepare, within a reasonable time, a full proposal and project plan. If the Licensee agrees to proceed on that basis, the parties shall carry out the proposed change in accordance with the agreed proposal.
4 Assurance and audits
4.1 Information security
Kindred operates an information security management system (ISMS) aligned with the international standard ISO 27001: a best-practice approach to information security addressing people, processes and technology. Kindred has completed a certification process under ISO 27001 and will carry out periodic audits at its cost (both internally and with external auditors). Kindred shall provide copies of such audits and its certification status to the Licensee on request.
4.2 Penetration testing
Kindred shall conduct annual penetration tests at the request of the Licensee. Kindred shall cooperate with the Licensee to set the parameters of such tests and will provide the full results to the Licensee within 30 days of completing the tests.
4.3 Licensee's audit rights
Kindred shall grant to Licensee (including to Licensee's auditors) access to its systems, personnel and records during normal business hours as reasonably required to verify Kindred's compliance with the terms of this agreement (and, if applicable, Kindred's statements used to calculate the Commission payable), or to enable Licensee to fulfil any formal request by a regulator. Licensee shall provide at least 10 business days' notice prior to an audit.
4.4 Kindred's audit rights
Licensee shall grant to Kindred (including to Kindred's auditors) access to its systems, personnel and records during normal business hours as reasonably required to verify Licensee's compliance with the terms of the licence under this agreement. Kindred shall provide at least 10 business days' notice prior to an audit.
4.5 Remediation
If an audit demonstrates that the Commission or Licence Fee has been incorrectly calculated or invoiced, the audited party shall issue a corrected statement and the parties shall settle the resulting discrepancy without delay. If an audit demonstrates any other material non-compliance by a party with this agreement, the audited party shall at its own expense remedy the cause of non-compliance as soon as reasonably practicable (without prejudice to any other rights of the auditing party).
4.6 Audit costs
The party undertaking an audit shall bear the cost of it. However, if an audit demonstrates any material non-compliance by the audited party, the audited party shall refund to the auditing party reasonably incurred third party costs in undertaking the audit.
5 Invoices and payment
5.1 Payment terms
Kindred shall pay the commission following the issue of a compliant invoice by the licensee, within 60 days NET of the date of the invoice.
5.2 Disputed invoices
If a party disputes an invoice or statement, it shall notify the other party, and both shall cooperate to clarify the disputed amount. Any delay by a party in paying an invoice which it has legitimately disputed, shall not attract late payment interest or be treated as a breach of the agreement.
5.3 VAT
The Commission Fees and any other payments under this agreement are exclusive of value added tax and equivalent goods and service taxes (together, "taxes") applicable to the provision of services, unless otherwise stated.
5.4 Other taxes
If applicable laws require that taxes be withheld from the Commission, Licence Fees or any other amounts due under this agreement, the payor shall (i) deduct these taxes from the payment amount, (ii) pay the taxes to the proper taxing authority, and (iii) deliver to the payee a statement including the amount of tax withheld, the justification for withholding tax, and any other information as may be necessary for tax credit purposes. The amount due to the payee shall be reduced by any applicable withholding taxes, such that the actual maximum payment by the payor shall not exceed the amounts provided under this agreement. Both parties shall take reasonable steps to minimise the amount of any withholding tax payable, including providing any certificate or documentation required to obtain a reduction to or credit for any withholding tax.
5.5 Settlement service
The Licensed Technology generates unique tokenised IDs each time an End User clicks on a merchant offer surfaced by the Kindred SDK. Kindred processes such IDs together with limited transaction data (merchant's commission amount, time of transaction, merchant's referral URL) for the purpose of matching and authenticating transaction data from the merchant and working with advertisers, crediting discounted amounts to End Users and their chosen charities, accounting for the Commission and crediting it to the Licensee.
5.6 Merchant commissions
All merchant discounts, special offers or commissions ("commissions") made available to End Users are determined by the merchants. Kindred will distribute the commission to End Users (and where relevant to their chosen charities and to the Licensee) based on the amount received from the merchant. The amount of commission the merchant decides to pay per transaction is outside of Kindred's control. The merchant's decision is final in relation to commission amounts distributable by Kindred on any transactions.
6 Legal formalities
6.1 Entire agreement
This agreement contains all the obligations of the parties in respect of its subject matter and supersedes previous agreements and negotiations. The standard terms of business of either party are excluded if not specifically incorporated into this agreement.
6.2 Amendments to this agreement, to be valid, must be made in writing and signed by both parties.
6.3 Assignment
neither party shall assign this agreement or any of its rights and obligations under it without the other party's prior written consent (except in the case of any internal group reorganisation).
6.4 Transfer of undertakings
this agreement will not create any transfer of personnel from one party to the other due to any law implementing the Transfers of Undertakings Directive 2001/23/EC or any other law with similar effect. In the event that any employee or contractor of Kindred becomes or claims to be an employee of the Licensee by operation of such law, then Kindred shall indemnify the Licensee against any costs or liabilities arising from the employment and/or dismissal of such employee or individual.
6.5 Relief events
a party will not be in breach of this agreement or liable for any delay or failure to perform any obligation under this agreement to the extent that it results from circumstances beyond the reasonable control of that party, including natural disaster, fire, inevitable accident, terrorism, insurrection, war, pandemic or associated quarantine restrictions, sanctions or similar government restriction or prohibition ("Force Majeure Event"). The following shall not be considered as a Force Majeure Event: delay or failure by any of a party's subcontractors or suppliers except where such delay or failure is itself caused by a Force Majeure Event. The party delaying or failing to perform due to a Force Majeure Event, or expecting such a delay or failure, shall: (a) promptly notify the other party; and (b) take all reasonable steps to mitigate the effect of the Force Majeure Event. If a Force Majeure Event continues for a period of more than sixty (60) days, the non-delayed Party may terminate this agreement on immediate notice.
6.6 Notices
any notice under this agreement must be in writing and sent to the other party by registered post and will be treated as having been received on the second business day of posting. A copy of the notice must be sent by email on the day of posting to the designated Account Contact but will not constitute valid notice on its own.
6.7 Claims under indemnities
If a party wishes to be indemnified under this agreement against a liability arising from a third party claim, it shall notify the indemnifying party promptly and shall: (a) consult and keep informed the indemnifying party; (b) not admit or settle the claim without the written consent of the indemnifying party; and (c) allow the indemnifying party to conduct any litigation or settlement of the claim and give it reasonable assistance should it take that option.
If the indemnifying party assumes the defence of the third party claim, it shall: (a) do so at its own cost; (b) consult and keep informed the indemnified party; and (c) not admit or settle the claim without the written consent of the indemnified party.
7 Governing law and disputes
7.1 Governing law
This agreement will be interpreted in accordance with the Governing Law.
7.2 Disputes
All disputes under or in connection with this agreement will be finally resolved in the Forum. The Disclosing party has the right to seek injunctive relief in relation to any breach or imminent breach of this agreement in any court of competent jurisdiction in any territory.
Module 3 - Project delivery
1 SDK access and support
1.1 Delivery of the SDK
Kindred shall make the Licensed Technology available to the Licensee in binary (source code) form, on the Effective Date and for the duration of this agreement, in accordance with the terms of use set out in module 9 (SKD terms of use).
1.2 Hosting and maintenance
Kindred shall host the Licensed Technology, carry out the Settlement Service, and provide code maintenance and support as detailed in module 5 (Service levels).
1.3 Settlement Service
Kindred shall perform its support, development and maintenance obligations and the Settlement Service at all times: (a) with reasonable care, skill and diligence; (b) meeting agreed specifications and service levels; and (d) in accordance with customary professional standards.
1.4 Milestones and timing
To the extent that Kindred commits to any support for the development of the Implemented App, it shall meet any deadlines specified in any agreed project plan as fixed-term deliverables. All other timelines and milestones are non-binding targets which Kindred will use reasonable efforts to meet.
1.5 Authorisations
Kindred shall obtain and maintain all authorisations and licences necessary to perform the Settlement Service and make the Licensed Technology available.
1.6 Defects
In the event that the Licensed Technology or the Settlement Services do not meet the requirements of this agreement (other than as a result of a breach of the agreement by Licensee), Licensee may issue to Kindred a written notice specifying the remediation required and a reasonable timeframe for carrying it out. Kindred shall carry out the specified remediation at its cost.
1.7 Remediation
In the event that Kindred fails to carry out a required remediation action (where relevant in accordance with the Service Levels) Licensee may (a) refuse to accept any subsequent performance of the services by Kindred; and (b) put on hold its own obligations under this agreement, until the nonconformance is remedied. The above are in addition to any other rights of Licensee arising from breach of contract.
2 Licensee's responsibilities
2.1 Implementation of the SDK
Licensee shall implement the Licensed Technology and develop the Implemented App: (a) with reasonable care, skill and diligence; (b) in compliance with the Documentation; (c) in accordance with any regulatory requirements; and (d) complying with the terms of use in module 7.
2.2 Technical Contact
Licensee shall designate a Technical Contact to be the primary point of communication in relation to technical implementation matters. The Technical Contact must have sufficient technical knowledge to be able to effectively communicate with Kindred and to request, receive and action technical support provided by Kindred.
2.3 Development
The Licensee is fully responsible for identifying its and its End User needs, developing the Implemented App and configuring the Licensed Technology for those requirements.
2.4 Testing
The Licensee is fully responsible for testing the Implemented App prior to making it generally available to End Users, to make sure that it meets the Licensees' requirements and the needs of its End Users, that it provides the functionality the Licensee expects, and that it operates in a secure manner.
2.5 App security
Licensee shall be responsible for the safety and security of the Implemented App and any data processed by means of it. Kindred reserves the right to terminate the agreement with immediate effect should Licensee's security systems and procedures not meet applicable standards or result in a threat to Kindred's systems.
2.6 Marketing
The Licensee is fully responsible for marketing the Implemented App and securing End User adoption.
2.7 Provision of information
Licensee shall provide to Kindred all relevant product and system information as reasonably required for Kindred to support the implementation of the Licensed Technology and to respond to technical support requests. Where a technical support request reasonably requires it (for example where assistance is needed in isolating a root cause), Licensee shall provide to Kindred remote access to Licensee's systems in an appropriate and secure manner.
2.8 Maintenance
The Licensee shall implement any security patches and updates provided by Kindred, without undue delay. While Licensee is not obliged to implement any new releases immediately, Licensee shall ensure that the version of the Licensed Technology it operates is not older than 6 months from the latest available release. Versions older than 6 months may no longer be supported by Kindred.
2.9 First line support
The Licensee shall provide first line support for its End Users with regard to the Implemented App. Licensee is responsible for communicating with its End Users regarding any aspects of the Implemented App.
2.10 Authorisations
The Licensee shall obtain and maintain all authorisations and licences necessary to operate the Implemented App and market it to its End Users.
2.11 Use of materials
The Licensee shall ensure that any source code, access codes, technical support information and Documentation provided by Kindred are used only by Licensee's authorised personnel undertaking implementation of the Licensed Technology.
2.12 System requirements
The Documentation sets out certain system and connectivity requirements that are necessary to access, integrate and run the Licensed Technology. Licensee is responsible for meeting such requirements and the requisite computer network and telecommunication facilities.
3 Resources and cost
3.1 Implementation costs
The Licensee shall implement the Licensed Technology and develop the Implemented App at its cost.
3.2 Implementation support
In addition to technical support as noted above, Kindred shall support the Licensee in implementing the Licensed Technology and developing custom features requested by the Licensee (at no additional charge but at Kindred's discretion as to the number of engineering hours provided). Any substantial custom development may be subject to additional charges to be agreed between the parties.
3.3 Permitted subcontractors
Licensee may use subcontractors and third party suppliers to implement the Licensed Technology and operate the Implemented App, provided that any access to the Licensed Technology and Documentation by such third parties is subject to contractual terms with regard to intellectual property and confidentiality materially equal to those terms in this agreement.
3.4 Remuneration of personnel
Each party shall be exclusively responsible for remunerating its personnel (including contractors) and for the discharge of any associated income tax, social security or national insurance contributions, and any other employment related taxation arising out of remuneration it receives for the Services, and shall indemnify the other party against any such liabilities.
4 Compliance
4.1 Compliance with laws
Each party shall comply with all applicable laws in performing its obligations under this agreement.
4.2 Anti-bribery and corruption
In performing its obligations under this agreement, each party shall: (a) comply with all applicable laws relating to anti-bribery and anti-corruption, including but not limited to the United States Foreign Corrupt Practices Act of 1977 and the United Kingdom Bribery Act 2010; and (b) not do anything which would constitute an offence under the above laws if it would have been done in the UK.
4.3 Anti-competitive behaviour
Neither party shall engage in any activity, practice or conduct (including entering into, or giving effect to, an agreement or any other form of coordination) that is unlawful or otherwise restricted or prohibited under applicable antitrust or anti-monopolisation laws.
4.4 Financial crime
Neither party shall not engage in any practice or conduct which would constitute either: (a) money laundering under the Proceeds of Crime Act 2002; (b) a UK tax evasion facilitation offence under section 45(1) of the Criminal Finances Act 2017; or (b) a foreign tax evasion facilitation offence under section 46(1) of the Criminal Finances Act 2017.
4.5 Export controls
Each party shall comply with applicable laws relating to trade sanctions and import and export controls in respect of their activities and deliverables under this agreement.
4.6 Ethical practices
Each party warrants that in operating its business and performing this agreement:
(a) it complies with applicable anti-slavery and human trafficking laws, including the Modern Slavery Act 2015, and it does not use child labour or forced labour in any form;
(b) it complies with applicable environmental and health and safety laws relating to its employees and facilities and otherwise provides a safe and healthy working environment for its employees;
(c) it does not discriminate against any employees on any ground (including race, religion, disability or gender);
(d) it does not engage in or support the use of corporal punishment, mental, physical, sexual or verbal abuse and does not use cruel or abusive disciplinary practices;
(e) it complies with the laws on minimum wage, working hours and employment rights in the countries in which it operates; and
(f) it is respectful of its employees' right to join and form independent trade unions and freedom of association.
4.7 Ethics policy
Kindred has an Ethical Statement as updated from time to time, which it commits to comply with. The Ethical Statement sets out Kindred's commitments with regard to sustainable sourcing, anti-bribery and corruption, ethical partnerships, labour practices and other compliance and ethics matters.
4.8 Supporting policies and procedures
Kindred shall maintain adequate policies and procedures to ensure compliance with its obligations under this section 5 (Compliance). As part of its compliance efforts, Kindred operates an information security management system (ISMS) aligned with the international standard ISO 27001.
4.9 Compliance by subcontractors
Kindred uses subcontractors and suppliers to help operate its systems and host the Licensed Technology in the normal course of operating its business. Kindred acknowledges that its subcontractors and service providers must support compliant delivery of the Licensed Technology and Settlement Service. Kindred shall undertake appropriate due diligence to ensure that its subcontractors and service providers are capable of observing the above compliance requirements and have procedures and policies in place. Kindred will be responsible for managing all subcontractors and their deliverables and for any breach of its obligations as the result of the actions or omissions of its subcontractors and suppliers.
4.10 Notification of breaches
Each party shall notify the other party as soon as it becomes aware of any breach or suspected breach of the above compliance requirements, by its own personnel or any of its subcontractors.
4.11 Infringing software
In the event that Kindred becomes aware or is notified by Licensee that the Licensed Software or any part of it infringes (or there is a material risk that it may infringe) the intellectual property rights of a third party, Kindred shall at its option: (a) procure for the Licensee the right to continue using the Licensed Technology; (b) replace or modify the Licensed Technology so that it becomes non-infringing without materially affecting its functionality; or (c) terminate this agreement.
5 Data protection
5.1 Data protection compliance
Each party shall comply with its obligations under relevant data protection laws in relation to any personal data of the other party that it processes.
5.2 Processing for the purposes of this agreement
The parties will process the personal data (names, surnames, position, work contact details) of the signatories of this agreement and key contact personnel. Neither party will share such personal data with any third parties, however, it may be processed within the platforms of external service providers used in the normal course of business under contractual clauses that provide adequate guarantees for the processing of data, even if they are outside the European Economic Area.
5.3 Responsibility for consents
Licensee shall obtain all necessary consents or other lawful basis for the processing of End User personal data via the Implemented App. Licensee shall indemnify Kindred against all claims arising from or incurred by reason of any wrongful processing of any personal data via the Implemented App.
Kindred shall obtain all necessary consents or other lawful basis for the processing personal data via the Kindred service. Kindred shall indemnify Licensee against all claims arising from or incurred by reason of any wrongful processing of any personal data via the Kindred service.
5.4 Data Ownership
Kindred owns all data relating to the service. Including but not limited to; merchant's commission amount, time/date of transaction, website URL’s.
Module 4 - Service levels
1 Availability
1.1 Availability of the Licensed Technology
The Licensed Technology will be accessible 24 hours a day, 7 days a week, except during maintenance periods, network or security incidents and other downtime events as described below. Kindred targets an availability rate of 99.5%, but does not warrant that access to the Licensed Technology will be uninterrupted or error free.
1.2 When it may not be available
The Licensed Technology may be wholly or partially unavailable in the event of: (a) network failures, interruptions, outages, delays, third party system unavailability or other connectivity problems; (b) suspension by Kindred in order to remedy a vulnerability or data breach likely to compromise security or user data; and (c) routine or extraordinary maintenance or updates. Unavailability may be without notice in the case of unexpected incidents.
Kindred shall without delay notify Licensee’s Technical Contact when Kindred becomes aware that the Licensed Technology may not be available for any reason other than for scheduled maintenance, providing details of unavailability, including the time of outage and planned resolution of the problem.
1.3 Planned outages
Kindred shall notify Licensee of any planned outages expected to last more than 30 minutes at least 5 (five) business days prior to the planned outage.
2 Maintenance
2.1 Continuous improvement
Kindred undertakes continuous monitoring and management of Licensed Technology to optimise its performance.
2.2 Code maintenance
Kindred shall maintain the Licensed Technology in good working order in accordance with its specifications and provide regular code updates, security patches and bug fixes during the term of this agreement.
2.3 Backward compatibility
Kindred shall ensure backward compatibility of code, within a 6 month window. Licensee is not required to upgrade immediately to any new code releases, but shall ensure that the Implemented App uses a version which is not older than 6 months from the latest release. Kindred cannot guarantee full functionality of the Licensed Technology if the Implemented App uses a version that is older than 6 months.
2.4 Root cause analysis
If Kindred fails to meet any of the service levels in this module or a technical support request is raised, Kindred shall promptly investigate the failure and undertake a root cause analysis, and on Licensee's request provide a report setting out the problem and the proposed remediation steps, in accordance with the applicable severity level response time.
2.5 Corrective action
Kindred shall promptly take action to correct any service failures in accordance with its root cause analysis to prevent recurrence of the failure, in accordance with the applicable severity level response time.
3 Settlement
3.1 Processing of transactions
Each time an End User clicks on a merchant offer surfaced on the End User’s browser by the Kindred SDK, Kindred's systems generate and process a unique user ID together with certain transaction data (basket amount, merchant's commission amount, time of transaction, merchant's referral URL) to match and authenticate transaction data from the merchant, credit discounted amounts to End Users and their chosen charities, account for the Commission and credit it to the Licensee. This process is referred to as the Settlement Service.
3.2 Processing window
Kindred will process each End User's transaction which enters its systems, within 60 days following the end of the applicable returns policy for that transaction (as per the merchant's terms of sale).
3.3 Credit to End User
Once a transaction is completed between the End User and merchant, authenticated by Kindred and validated by the merchant, Kindred shall credit the resulting End User's payment into the End User's wallet directly or to the Licensee for onward crediting to the End User (depending on the payment flow implementation options selected by the Licensee) The timing of the credit will depend on the End User's billing cycle so an additional delay may occur above the applicable returns period. Where the selected payment flow requires Kindred to pass End User payments to the Licensee, onward crediting to the End User is entirely the responsibility of the Licensee.
3.4 Credit to charities
Where the End User selects a charity, Kindred will credit the relevant amount to the charity on an annual basis.
3.5 Unrecognised transactions
Kindred will only process transactions that are recognised and validated by the merchant. Kindred will not provide support for resolving any incomplete or failed transactions which are not tracked and recognised by the merchant as the result of End User error, network failures, the failure of merchant systems to correctly process and store Kindred's tracking code or other technical failures.
3.6 Merchant commissions
All merchant discounts, special offers or commissions ("commissions") made available to End Users are determined by those merchants. Kindred will distribute the commission to End Users (and where relevant to their chosen charities and to the Licensee) based on the amount received from the merchant. The amount of commission the merchant decides to pay per transaction is outside of Kindred's control. Kindred is not obliged to support, challenge or enter into any correspondence in connection with any Licensee's or End User's challenge of the commission amounts.
4 Support
4.1 Support
Kindred will provide the following categories of support, in accordance with the availability and response levels set out below:
SDK technical support: support to the Licensee's technical personnel for any matters relating to the installation and configuration of the Licensed Technology.
SDK help desk support: help with use, performance and scalability issues associated with the implementation of the Licensed Technology as well as answers to general products, feature and functionality questions.
End User support: second line support for End Users for technical issues relating to the Licensed Technology escalated by the Licensee's user support team.
No transaction support: Kindred will not provide support relating to transaction authentication and processing either to Licensee or to End Users, which will remain the responsibility of the Licensee.
4.2 Excluded
Kindred is not obliged to provide support for the following:
(a) development, consulting, technical training or testing;
(b) integration with Licensee's or other technologies;
(c) in the event of improper installation or operation of the Licensed Technology not in accordance with the Documentation;
(d) for any incident caused by Licensee's negligent or intentional misuse of the Licensed Technology;
(e) if the support request is caused by third party software or hardware not provided by Licensee;
(f) if the version of the Licensed Technology operated by the Licensee is a release no longer supported by Kindred;
4.3 Support availability
Kindred shall make support available during the term of this agreement each business day (Monday to Friday) during normal United Kingdom business hours (GMT 9am to 6pm as adjusted for summer time) except public holidays. Off-hour support may be available with prior written notification to Kindred at a cost to be agreed. Technical and help desk support will be provided by remote assistance, through an email to sdksupport@kindredteam.com.
4.4 Response times
Kindred will respond to technical support requests within the following response times:
Severity 1: prevents operation of the Licensed Technology in the Implemented App, or represents a safety or security risk. Initial response within 2 hours (during normal business hours), which will include a high priority resolution plan.
Add 2 hours for incidents arising from browser extension functionality.
Severity 2: significant reduction in specified functionality of the Licensed Technology, preventing effective use of the Implemented App. Initial response within 2 hours (during normal business hours), which will include an initial resolution plan. This plan may include temporary measures to circumvent the issue, and/or details of a ticket raised.
Add 2 hours for incidents arising from browser extension functionality.
Severity 3: minor reduction in specified functionality, which does not substantially impede the Licensed Technology and Implemented App from operating. Initial response within 24 hours (during normal business hours).
Add up to 24 hours for incidents arising from browser extension functionality.
Severity 4: minor bugs and errors that do not impede the Licensed Technology and Implemented App from operating in a normal manner. Initial response within 72 hours (during normal business hours)
Add up to 72 hours for incidents arising from browser extension functionality.
4.5 Response
Following the initial responses as set out above, Kindred shall take the following action by reference to the severity level:
Severity 1 & 2: apply continued effort to provide a resolution;
Severity 3: apply effort during normal business hours to provide a resolution;
Severity 4: incorporate necessary changes with the next release of the Licensed Technology.
4.6 Support dependency
Where resolution of technical issues is dependent on support and responses from Kindred's technology partners, additional hours will be added to response times as indicated above, and an additional 3 days may be added to the corresponding resolution times.
4.7 Technical user support
Questions and assistance requests relating to installation and configuration of the Licensed Technology will be answered within 6 hours (during normal business hours) (and an additional 6 hours for matters relating to browser extension functionality).
4.8 Non-technical user support
Kindred's customer success team will respond to business critical email requests within the same day that the message is received (or the next business day if a request is received after 5pm). Any non-critical queries will be responded to within 2 business days.
5 Business continuity
5.1 Continuity plan
Kindred will provide business continuity in accordance with its ISO27001 certification, as set out in the "ISP12 – Business Continuity Plan" document as updated from time to time and available to the Licensee on request.
5.2 Transition support
On termination or expiry of this agreement for any reason, Kindred shall provide transitional access to the Licensed Technology and the Settlement Service as described in Module 2 section 2.9.
Kindred shall on request provide additional reasonable assistance to the Licensee to allow the smooth transition of Implemented App to the Licensee’s new system or supplier and shall ensure that Licensee's suppliers are assisted in this transition; Kindred shall be entitled to charge the Licensee for such additional assistance at its normal rates.
Module 5 - Liability and risk
1 Warranties and indemnities
1.1 General warranties
Each party warrants that at all times:
(a) it is solvent and is not subject to any insolvency or similar proceedings;
(b) it has full authority and capacity to enter into this agreement, and that the performance of this agreement does not constitute a breach of any contract to which it is bound;
(c) it has obtained all authorizations and complied with all applicable legal conditions, required to lawfully comply with its obligations under this agreement.
1.2 Kindred IP warranties
Kindred warrants that it can license the Licensed Technology under this agreement to the Licensee without restrictions, and its use by the Licensee will not infringe the rights (including intellectual property) of any third party.
1.3 Third party rights
Where Kindred is not the originator or owner of intellectual property incorporated in the Licensed Technology, but uses it under licence from a third party, Kindred shall ensure that it has all rights necessary to provide the Licensed Technology and associated services to the Licensee.
1.4 Malicious code
Kindred applies industry best practice and works with leading hosting providers to ensure that Licensed Technology is free of harmful code and will not transmit any software or code which may adversely affect the operation or integrity of any Licensee software, hardware, network or data. Kindred's information security management system (ISMS) means that it has development and operational processes (including testing) to minimise such risks. However Kindred does not warrant that Licensed Technology will never transmit harmful code including from third party or Licensee sources which are outside of its control.
1.5 Open source software
Kindred warrants that the Licensed Technology does not incorporate, link, or use any Open Source Software that would create an obligation on the Licensee to distribute or disclose to any third parties any source code used within the Implemented App.
"Open Source Software" means any third party software or code which (i) is licensed under the license terms recognized by the Open Source Initiative or the Free Software Foundation as an open source software and is listed as such on their respective web page and/or (ii) has been provided to users free of royalties by their respective owners on the basis of an agreement that includes the right to edit and distribute this software and which permits the distribution or access to the software only if certain materials or information (e.g. licence texts, copyright or copyright notices, source code or written material) are provided with the software.
1.6 Indemnities by Kindred
Kindred shall indemnify Licensee against all liabilities arising from: (i) death, personal injury or damage to property resulting from Kindred's performance of this agreement, (ii) any unlawful acts or intentional misconduct of Kindred in performing this agreement; and (iii) Kindred's breach of its obligations under module 3 section 4 (Compliance).
1.7 Indemnities by Licensee
Licensee shall indemnify Kindred against all liabilities arising from: (i) death, personal injury or damage to property resulting from Licensee's performance of this agreement, (ii) any unlawful acts or intentional misconduct of Licensee; and (iii) breach of Licensee's obligations under module 3 section 4 (Compliance).
1.8 Licensee's indemnity for IP
If the Implemented App infringes the intellectual property rights of any third party (other than as a result of an infringement by the Licensed Technology), Licensee shall indemnify Kindred from any resulting claim or liability.
1.9 Indemnity for end user claims
Licensee shall indemnify Kindred against any claims from End Users arising from their use of the Implemented App and any resulting transaction with a merchant, except to the extent a claim is the result of the circumstances listed in section 1.7 above (Indemnities by Kindred). Licensee shall take control of any claims or complaints raised by End Users towards Kindred including the defense of any legal actions.
1.10 Meaning of liabilities
In the preceding indemnity clauses: (i) “liabilities” include losses whether foreseeable or not, costs, penalties, attorney fees reasonably incurred and any such liabilities arising from third party claims; (ii) references to a party's actions, breach or performance includes the actions or omissions of that party's personnel, agents and contractors, and those of its Affiliates; (iii) an obligation to indemnify a party includes indemnifying its Affiliates and personnel; and (iv) an indemnifying party will not be liable under the indemnity to the extent that the liability results from the negligence, willful misconduct or breach of the other party.
2 Limitations of liability
2.1 Accuracy of Licensed Technology
Kindred uses reasonable efforts to ensure that the Licensed Technology is accurate, complete and meets specifications, however the Licensed Technology is provided on an "as is" basis. Kindred excludes any warranties or representations (express or implied) that the Licensed Technology is free of errors and bugs or is suitable for the Licensee's needs. It is the Licensee’s responsibility to take adequate steps to verify the suitability for its needs and to test the Implemented App prior to deployment.
2.2 Network risks
Access to and use of the Licensed Technology is subject to risks inherent in information technology networks such as computer virus infection, spyware, malicious software, trojans and worms which may be outside of the control of Kindred. Except in the event of intentional misconduct, negligence or material breach of this agreement, Kindred will not be liable for any damage to Licensee’s or End Users' systems, data or property resulting from such risks.
2.3 Third party technology
In the event that the Implemented App integrates or interfaces with any third party technologies, apps or services not provided or operated by Kindred ("third party technologies"), it is the responsibility of the Licensee to verify and manage such third party technologies and to ensure their safety, functionality and availability. Kindred will not be responsible or liable for (a) the availability or accuracy of such third party technologies; (b) the operation of the Implemented App to the extent it relies on such third party technologies; (c) the privacy practices of such third party technologies, their content and functionality; and (d) any damage or loss caused by such third party technologies.
2.4 Licensee and supplier information
The Licensee is responsible for the data and information it provides to Kindred. Incorrect or incomplete information may adversely impact the quality of the development and technical support services provided by Kindred and Kindred will not be liable for any failures to meet its obligations under this agreement as the result of such errors or omissions.
2.5 User adoption
The Licensee is responsible for the marketing of the Implemented App and End User adoption. Unless Kindred is in breach of this agreement, Kindred will not be responsible for any failure by End Users to use or activate the Implemented App or to opt in to any associated terms of use or privacy notices.
2.6 Unrecognised transactions
Kindred will only process transactions recognised and validated by the relevant merchant. Kindred will not be liable to the Licensee or its End Users in respect of: (a) any attempted or alleged transaction which is not tracked and recognised by the merchant as the result of End User error, (b) any transaction amended, refused or voided by a merchant, (c) network failures, (d) the failure of merchant systems to correctly process and store Kindred's tracking code or other technical failures (other than a technical failure of the Licensed Technology or breach of Kindred's service levels under this agreement), or (e) the failure of the Licensee to pass on any payments received from Kindred to End Users.
2.7 Merchant commission
The amount of commission a merchant decides to pay per transaction is outside of Kindred's control. The merchant's decision is final in relation to commission amounts distributable by Kindred on any transactions, and accordingly Kindred is not obliged to challenge or enter into any correspondence regarding the commission amounts and will not be responsible for any End User claims with regard to those amounts. Kindred will use reasonable endeavours to secure the payment of commision on a transaction but does not guarantee it. In the event Licensee or any End User does not receive the expected commission for a transaction for any reason, Kindred will not be liable to pay the relevant commission or compensate Licensee or the End User for its loss, and Licensee shall indemnify Kindred against any End User claims in that regard.
2.8 Incorrect payment details
Kindred is not responsible for verifying the accuracy of any bank or payment details provided by the End User. Kindred will not be liable for any payments or failed transactions as the result of incorrect details and shall have no obligation to assist in the recovery of any funds paid out incorrectly or otherwise resolve the error.
2.9 Consequential losses
Neither party shall be liable to the other for any indirect, incidental, special or consequential damages of any nature whether in contract, tort or otherwise (including loss of business, loss of anticipated savings or loss of customers).
2.10 Carve-outs
Nothing in this agreement excludes or limits the liability of a party for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation or for any other liability for which exclusion or limitation is prohibited by law.
3 Liability cap
3.1 Liability Cap
The total liability of Kindred to the Licensee under or in connection with the agreement is limited to the greater of: (a) 100% of total Licence Fees paid by the Licensee under this agreement and (b) £100,000 (one hundred thousand pounds).
3.2 Exceptions
The above liability cap does not apply to any damages or indemnity claims in respect of breach of: (a) Kindred's intellectual property warranties in module 5 sections 1 (Warranties and indemnities); and (b) Kindred's indemnity under module 5 section 1.6 (Indemnities by Kindred).
4 Insurance
4.1 Required insurance cover
Kindred shall maintain the following minimum insurances during this agreement:
(a) Professional Indemnity insurance (including Cyber and Data risk) limit of liability £3,000,000 any one claim.
(b) Employers Liability insurance, limit of indemnity £10,000,000.
(c) Public Liability insurance, limit of indemnity £5,000,000.
(d) Products Liability insurance, limit of indemnity £5,000,000.
4.2 Evidence
Kindred shall, on request, supply to Licensee a certificate of insurance evidencing the above coverage.
4.3 Obligation to inform
If cover under any of the above insurance policies lapses, is not renewed or changed in any material way, Kindred shall immediately notify Licensee in writing.
5 Transfer of funds
5.1 Cashback transfer of title
Kindred does not hold funds on behalf of the End User. Discounts, cashback or other credit (“Cashback”) assigned to an End User and received by Kindred from merchants will be the property of Kindred until a withdrawal request has been made by the End User or by the Licensee on behalf of the End User. Legal title to the End User’s portion of any Cashback will pass to Licensee or directly from Kindred to the End User (as the case may be depending on the payment flow adopted by the Licensee) once the funds have been withdrawn from Kindred’s account and credited to the End User. Legal title to the portion of the Cashback allocated as a charitable donation will pass to the charity once the funds have been withdrawn from Kindred’s account.
Following a withdrawal request and the transfer of Cashback to the Licensee’s account, the allocation of the Cashback to the End User is the responsibility of the Licensee and Kindred shall have no further obligation to the End User in that respect. Licensee shall indemnify Kindred in respect of any End User claims arising from a failure by Licensee to properly allocate and deliver the transferred Cashback to the End User.
5.2 Transfer of donations
Cashback allocated by the End User for charity donations will be transferred by or on behalf of Kindred to the relevant charity directly, in the quarter following the quarter in which the relevant transaction was validated.
5.3 Time limit for withdrawal
Where an End User has created a Kindred wallet (by creating an account with Kindred directly) Cashback allocated to an End User can be withdrawn from the End User’s Kindred account once it exceeds £10. Any funds that have not been withdrawn from the End User’ Kindred account within 12 months of the transaction date will no longer be made available for withdrawal and will be deemed forfeited.
Module 6 - Intellectual property
1 Definitions used in this Module
1.1 "Background" of a party means any intellectual property, technology, materials and information contributed by that party for the purposes of this agreement or required for lawful use of materials or services contributed by that party, which are (a) owned or controlled by that party prior to the date of this agreement; or (b) generated or acquired by that party at any time independently of this agreement.
1.2 "Data" means all data used, stored, transmitted or generated on or by the Licensed Technology or the Settlement Service, including Metadata and any intellectual property rights in the same. “Metadata” means any set of data that gives information about Data, and the contextual, processing, and use information needed to identify and certify the scope, authenticity and integrity of Data.
1.3 "App IP" means the Implemented App developed by the Licensee (including with the support of Kindred), and all intellectual property rights in the same, but excluding: (a) any SDK IP and (b) Kindred’s Background.
1.4 "SDK IP" means (a) any workflow, UX or design consisting of a configuration of the Licensed Technology; (b) any improvements, additions or customisations to, or new versions or derivative works of, the Licensed Technology developed by Kindred or Licensee or by the parties jointly; (c) any new inventions or concepts developed by Kindred or Licensee or by the parties jointly which are derived from the Licensed Technology or associated confidential information and cannot be lawfully exploited independently of it; (d) feedback, suggestions, notified errors or recommendations provided by the Licensee to Kindred; and (e) all intellectual property rights in any of the above.
1.5 "SDK Data" means (a) all Data and IDs generated by Kindred's systems in the course of operating the Licensed Technology and the Settlement Service, (b) all aggregated statistics, analytics, usage and transaction Data compiled by Kindred in the course of operating the Settlement Service, and (c) all Metadata routinely generated by Kindred as part of the operation of the Licensed Technology and the Settlement Service for merchants and advertising partners.
1.6 "App Data" means (a) IDs generated by the Implemented App (independently or as the result of the functionality of the Licensed Technology) identifying End Users and their devices; (b) any other Data generated by the Implemented App which are specific to the Licensee and its End Users; and (c) any Data generated by the Implemented App independently of the Licensed Technology.
1.7 Interpretation References to the ownership or licensing of any software, data or other assets in this module includes the intellectual property rights in the same.
2 Ownership of intellectual property
2.1 Background
Each party shall remain the owner of its Background. Neither party grants any licences to its Background except as expressly stated in this agreement.
2.2 Ownership of the Licensed Technology
Kindred is and will be the sole owner of the Licensed Technology and any SDK IP. To the extent any SDK IP is developed or provided by Licensee, Licensee hereby assign the same to Kindred (including by way of present assignment of future copyright).
2.3 App IP
Licensee will be the sole owner of the App IP, whether developed solely by the Licensee or with Kindred's support. To the extent any App IP is developed or provided by Kindred, Kindred hereby assigns the same to the Licensee (including by way of present assignment of future copyright).
2.4 Ownership of data
Ownership of Data and any intellectual property in the Data will be allocated as follows:
App Data Owned by Licensee
SDK Data Owned by Kindred
Settlement service Data Owned by Kindred
2.5 Subcontractors
Each party shall ensure that it has in place at all times from its employees, agents and sub-contractors written agreements ensuring that it owns the App IP and SDK IP created by any of them and can pass such ownership to the other party where required under this agreement, including waiver of any moral rights (to the extent it is permitted by applicable law).
3 Protection of intellectual property
3.1 Patent filings
In the event that either party makes or contributes to an invention or other intellectual property right, the ownership of which is allocated to the other party under this module, the (co)inventing party shall provide reasonable assistance to the owner to enable the owner to file for patent or other form of registered protection for such intellectual property.
3.2 No intellectual property filings
Licensee shall not file for patent or any other protection for any Intellectual Property subsisting in or deriving from the Licensed Technology or any SDK IP. In the event that Licensee makes such a filing, it shall assign such applications to Kindred.
3.3 No challenge
In the event that the Licensee challenges the ownership or subsistence of any Kindred's intellectual property registrations relating to the Licensed Technology, Kindred shall have the right to terminate this agreement with immediate effect.
3.4 Proprietary notices
Licensee shall not remove, alter or obscure any proprietary intellectual property notices contained on or within the Licensed Technology and Documentation and shall reproduce such notices on any copies. Licensee shall not copy, print or extract any documentation provided for its use in online electronic form.
3.5 Further assurance
Each party shall take such actions as are reasonably requested to confirm and evidence the other party's ownership of the assets and intellectual property allocated to it in these sections 2 and 3, including any confirmatory deeds of assignment.
4 Intellectual property licence
4.1 Licence granted by Kindred
Kindred hereby grants to the Licensee a non-transferable (except as stated below), worldwide, non-exclusive (except as otherwise expressly stated in this agreement) licence for the duration of this agreement to:
(a) use and reproduce the Licensed Technology (including any SDK IP) to embed it in the Implemented App and to allow the Implemented App to interface with Kindred's systems using Kindred's APIs;
(b) distribute the Licensed Technology by way of the Implemented App solely to enable End Users to access end-user features (surfacing search results, connecting to merchant offers and allocating a portion of the merchant's offer to chosen charities) via the Implemented App;
(c) use and reproduce the Documentation as reasonably required for the above purposes.
4.2 Included versions
The Licensed Technology includes security updates, routine enhancements and bug fixes published by Kindred in the normal course of maintaining the Licensed Technology, but any inclusion of major upgrades providing significant new functionality will be at Kindred's discretion.
4.3 Background licence
Kindred grants to Licensee a non-transferable, worldwide, non-exclusive licence to any Kindred Background that is required for use of the Licensed Technology and the Settlement Service, with the right to sublicense the same to End Users as required to enable them to utilise the associated functionality via the Implemented App.
4.4 Access to data
Kindred shall provide aggregated transaction data (such as is available to Kindred in the normal course of operating its systems) to the Licensee on request. Kindred hereby grants to the Licensee a non-transferable, worldwide, non-exclusive, royalty-free licence to use such data solely for its own internal business purposes, for the length of the agreement. Licensee shall treat such data as Kindred's Confidential Information.
5 Rights granted by Licensee
5.1 Rights to process data
Licensee grants to Kindred the right to process App Data and record it in Kindred’s transactions database, as required for the purposes of authenticating transactions and processing resulting payments.
The above right includes processing the App Data via Kindred's SaaS service providers which Kindred uses to support its systems and services in the normal course of its business.
5.2 Licensee's background
In the event that Kindred's support of Licensee's implementation of the Implemented App or the development of any custom features requires use of Licensee's Background or the App IP, Licensee grants to Kindred a paid up, worldwide, royalty-free, non-exclusive licence to use such Background and App IP for those purposes for the duration of this agreement.
6 Confidential information
6.1 Definitions used in this section
"Confidential Information" means all information relating to this agreement disclosed by one party ("Disclosing Party") to the other party ("Receiving Party") in oral, written, graphic, or machine-readable form, which the Receiving Party is aware or should reasonably be aware is confidential. Kindred's Confidential Information includes the Licensed Technology and any information regarding the content, design and functionality of the Licensed Technology.
6.2 Permitted use
The Receiving Party shall use Confidential Information only to the extent reasonably necessary for the purposes of this agreement.
6.3 Disclosure to third parties
Receiving Party agrees to keep Confidential Information confidential and secure at all times. Receiving Party shall not disclose Confidential Information to third parties or the public unless permitted under this agreement or the Disclosing Party has given prior written consent.
6.4 Security measures
Receiving Party shall take reasonable precautions to prevent unauthorised disclosure of the Confidential Information, which includes maintaining adequate security measures to safeguard the Confidential Information from unauthorised use, reproduction, disclosure or access (such measures being at least equivalent to those it applies for the protection of its own Confidential Information).
6.5 Permitted disclosure
Receiving Party may disclose Confidential Information to personnel, advisors, agents, subcontractors, and Affiliates who are performing activities in connection with this agreement provided that appropriate written agreements have been signed with them requiring them to keep the Confidential Information confidential.
6.6 Loss of information
Receiving Party shall notify Disclosing Party as soon as reasonably practicable of any actual or suspected loss of documents, carriers or other media (including as a result of a hack), which may result in Confidential Information or personal data of the Disclosing Party falling into the hands of unauthorized third parties. In such event, Receiving Party shall use its reasonable endeavours at its own cost to prevent or limit further unauthorised disclosure.
6.7 Return
On termination or expiry of this agreement, Receiving Party shall:
(a) cease all use of the Confidential Information and ensure that all permitted recipients do the same;
(b) immediately on request return or destroy (at Disclosing Party’s option) all written and electronic copies of Confidential Information in its possession or control, with the exception of any electronic records created pursuant to routine back-up and archiving procedures. If no request to return or destroy is issued, Receiving Party shall delete or destroy the Confidential Information in accordance with its usual business practices. Receiving Party may retain a copy of Confidential Information to the extent required for legal purposes.
The above obligation is additional to Licensee's obligation to cease using the Licensed Technology and returning associated materials under module 2 section 2 (Duration and exit).
6.8 Exclusions
The confidentiality obligations under this agreement do not apply to any information which the Receiving Party can prove: (a) has been available to that Party already prior to signing this Agreement; (b) is or, since this agreement was signed, had become publicly known, through no fault of the Receiving Party; (c) is developed independently of the received Information; (d) is received from third parties and, to the best of knowledge of the Receiving Party, has not originated from the Disclosing Party.
6.9 Disclosure by law
The confidentiality obligations under this Agreement do not apply to Confidential Information to the extent it is required to be disclosed pursuant to the order of a court or governmental body, provided that the Receiving Party requiring to make such disclosure shall provide the Disclosing Party with prompt notice of such order and afford the other Party an opportunity to intervene and prevent or limit disclosure.
6.10 Property
Disclosing Party does not transfer any ownership of Confidential Information and remains the owner of it.
Module 7 - Terms of use
1 SDK terms of use
1.1 Permitted use
Licensee shall use and disclose the Licensed Technology and Documentation solely for the purposes expressly set out in this agreement.
1.2 No adaptation
Licensee shall not alter, adapt or translate the Licensed Technology, except as expressly permitted in this agreement.
1.3 No reverse engineering
Licensee shall not (a) decompile, reverse engineer or disassemble the Licensed Technology; (b) attempt to derive source code, algorithms, structure or protocols from the Licensed Technology which are not otherwise made readily accessible in the form of SDK and API access; or (c) attempt to circumvent or deactivate any software protection mechanisms in the Licensed Technology including any mechanism used to restrict or control the accessible functionality of the Licensed Technology.
1.4 No derivative works
Licensee shall not create databases or derivative works from the Licensed Technology beyond what is reasonably required to integrate it into the Implemented App.
1.5 No open source
Licensee shall not incorporate, link, distribute or use the Licensed Technology with any Open Source Software (as defined in module 5 section 1) in any manner that could cause any part of the Licensed Technology to become subject to the terms of the Open Source Licence.
1.6 No distribution
Licensee shall not sublicense, distribute, rent, or offer as a service the Licensed Technology to any third party other than to its permitted Affiliates and subcontractors involved in developing an Implemented App.
1.7 Changes to the SDK
Kindred has the right to introduce changes to the Licensed Technology at any time as part of its periodic updates and fixes.
2 Fair use terms
2.1 Why it's important
Kindred does not directly control how the Implemented App integrates the Licensed Technology, how it operates or how End Users use it. It is therefore important that Licensee personnel accessing and using the Licensed Technology comply with the below fair use terms.
2.2 Scope and application
The acceptable use rules set out below apply to any Licensee personnel (including the personnel of any Affiliates and permitted subcontractors) who access the Licensed Technology. The Licensee shall ensure that its personnel adhere to these rules.
2.3 Appropriate uses
The Licensed Technology can be used solely for enabling relevant functionality for End Users in an Implemented App, in particular surfacing search results from Kindred's database of merchant offers (discount codes, cash back or similar benefits), connecting end users with those merchant offers as they shop on their mobile devices, and enabling users to allocate a portion of the merchant's offer to their chosen charities.
2.4 Inappropriate uses
Licensee shall not use Licensed Technology in the ways listed below:
(a) integrate the Licensed Technology with any technology, software or scripts that are inconsistent with or prohibited by the Documentation;
(b) perform any actions which may impair the operability of the Licensed Technology, including actions which may overload the Licensed Technology or its associated infrastructure;
(c) connect or upload into Kindred's systems any technologies, media or files that contains computer code designed to interrupt, destroy or limit the functionality, or compromise the security of Licensed Technology or associated infrastructure;
(d) use or attempt to use another user's login details or account (including the accounts of Kindred staff) or otherwise attempt to gain unauthorised access to the Licensed Technology;
2.5 Suspension
Kindred reserves the right, at its sole discretion and without liability, to suspend the Settlement Service and Licensee's access to Licensed Technology, if Kindred has reason to believe that the Licensee has violated the above use terms.
2.6 Breach of terms of use
Any use by Licensee which is inconsistent with the above terms will constitute breach of this agreement and may result in termination of the agreement at the discretion of Kindred. Licensee shall indemnify Kindred (including its personnel and affiliates) in respect of any liabilities, regulatory actions and third party claims resulting from such misuse.
2.7 Breach of terms of use by End Users
In the event that an End User is fraudulent (including attempts to make payments by fraudulent means), abusive or otherwise behaves in an inappropriate manner contrary to the above fair use terms or the end-user terms below, Kindred reserves the right to terminate the End User’s Kindred account with immediate effect and may refuse to pay out discounts and cashback earnings associated with fraudulent transactions.
3 End-user terms
3.1 User terms of use
Licensee shall be responsible for providing to its End Users the necessary terms of use, legal notices and opt-in procedures as required by law to inform End Users of their rights and obligations with regard to relevant functionality of the Licensed Technology as embedded in the Implemented App.
3.2 Terms that could be included
In addition to the general obligation above, Licensee shall include provisions in its End User terms and conditions substantially similar to the following provisions. "You" refers to the End User. Other definitions are used in accordance with this agreement and can be adapted by Licensee as required.
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(a) The [Implemented App/Service] includes technology to connect You to merchants and special offers provided by those merchants. You will enter into a direct relationship with the merchant in relation to any purchase you choose to make, and any matter relating to the fulfilment, payment, returns and refunds is a matter between you and the merchant. |
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(b) Discounts, and special offers which You may access as the result of signing up to the [Implemented App/Service] are determined by the relevant merchants and the amounts are therefore outside of the control of Licensee and its technology partners. The merchant's decision is final in relation to the amount of discount distributable to You on any transactions. The [Implemented App/Service] connects you with merchants through our trusted technology and transaction processing partner Kindred Soul Ltd (“Kindred”) (https://kindred.co). Kindred provides the technology that enables you to receive your discounts from merchants. By using the [Implemented App/Service, You are instructing Kindred Soul ltd to collect data under legitimate interest and contract; data including but not limited to; merchant's commission amount, time of transaction, website’ URL, as you use your browser, see their privacy policy here: (https://event.kindred.co/privacy-policy).
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(c) Cashback payments will be available for processing and crediting to Your account or wallet following the end of the applicable returns policy for that transaction (as per the merchant's terms of sale) - this is normally 60 days but may be longer for some merchants. Any credits to Your account with [Licensee] will further be dependent on the merchant’s transaction validation and cycle, final validation of the transaction by the merchant, Your billing cycle or other [Licensee] internal processes - so an additional delay may occur above the applicable returns period. Where you have the functionality to withdraw monies from a Cashback account hosted by the Licensee’s technology partner, you can do this once your Cashback account contains £10 or more. Kindred will collect Cashback due from validated transactions from the merchant and credit the Cashback to You or to Your account with [Licensee]. Kindred does not hold funds on your behalf. The Cashback assigned to your transaction (excluding the amount you have allocated for donation to a charity) will be the property of Kindred Soul Ltd until a withdrawal request has been made by You or on Your behalf by the Licensee. Legal title to your portion of the Cashback will pass to You once it has been successfully withdrawn from Kindred and credited to you. [Note for Licensee: if cashback is not included in the proposition to users this section can be ignored] |
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The Kindred Terms along with the ‘Term sheet’ (together, the “Agreement”) describe and govern the relationship between the Licensee and Kindred. This Agreement embodies the entire understanding between the parties with respect to the subject matter hereof and supersedes any prior agreements or understandings with respect to it. The Agreement may only be amended by the parties’ mutual written consent, including via email, and, in accordance with the terms set forth in the Agreement, and shall remain in full force and effect until terminated in accordance with this Agreement. All capitalized terms that are defined in the Term Sheet will have the same meaning when used in this Kindred Terms unless otherwise stated herein. In the event of a conflict between this Term Sheet and the Kindred Terms, the Term Sheet shall prevail. Except as expressly provided herein, the terms and conditions of the Kindred Terms shall remain in full force and effect. If any provision of the Agreement is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.