Terms and Conditions for merchants
These terms and conditions ("Terms") apply between you, the Merchant (the "Merchant" or "you") and Ekko Earth Limited a company incorporated and registered in England and Wales with company number 12338538 whose registered office is at 128 City Road, London, United Kingdom, EC1V 2NX ("ekko" and "we" and "us") as set out below. ekko provides its products to a number of Payment Service Providers (an ekko "Customer"). The Merchant has a pre-existing relationship with one of ekko's Customers, and is accessing ekko's products via Customer infrastructure. Any capitalised words used in these terms are defined in Appendix 1 or, within the body of the terms.
1. Use of the Services
1.1 In consideration of the mutual promises and obligations set out herein, we grant to you a non-exclusive, non-transferable, non-sublicensable right during the Term for you to use the Services (including the API and ekko Data) solely for the purposes of enabling:
1.1.1 in the case of Card Users: to understand their carbon footprint when using their Card and, where applicable, pay to offset that carbon footprint;
1.1.2 in the case of Purchasers: to understand the carbon footprint associated with purchases and pay to offset that carbon footprint; and
1.1.3 in the case of Merchants:
(a) to understand the carbon footprint of sales made by Merchants within their retail channels and on premises and paying to offset that carbon footprint.
(b) to pay to offset the carbon footprint of their Card Users, should they choose to do so.
1.2 We shall provide the Services to you in accordance with these terms and conditions.
2. Term and Termination
This Agreement will start on the date that these terms and conditions are agreed to (by whatever process the Customer or ekko have required the Merchant to do so).
2.2 The Agreement shall end on the date that the Merchant ends their relationship with the Customer.
2.3 You or we can terminate this Agreement by giving the other party written notice of the termination where:
2.3.1 the other party is in material breach of any of its obligations under this Agreement and that party has not been able to fix that breach within 30 days of receiving a notice that there has been a breach that needs to be fixed;
2.3.2 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
2.3.3 where the other party has experienced an Insolvency Event.
2.4 On termination of the Agreement for any reason, all Services and any rights or access given to you under this Agreement will stop, unless we have agreed otherwise, and you will immediately pay us any money that is outstanding under the Agreement relating to any Additional ekko Services used up to the date of termination.
3. ekko's obligations
3.1 Whilst this Agreement is in place we will provide you with the Services, subject to the terms of this Agreement.
3.2 We will, throughout the term of the Agreement:
3.2.1 try to ensure that we provide the Services to at least the standard that would reasonably be expected from a supplier of this type of service; and
3.2.2 ensure that we have the right to enter into this Agreement with you and that we have all of the licences, consents and any permissions that we need to be able to carry out our obligations under this Agreement.
3.3 If you have any problems with your use of the Services you should contact the Customer who will then contact us. We will try and correct any issues with the API within a reasonable time.
3.4 This Agreement shall not prevent ekko from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products or services which are similar to those provided under this Agreement.
3.5 ekko shall use reasonable endeavours to notify the Customer in advance of scheduled maintenance of the API or the Services which may result in downtime but the Merchant acknowledges that it may receive no advance notification for downtime caused by emergency or non-scheduled maintenance.
4. Your obligations
4.1 You agree and commit to us that:
4.1.1 you will provide the Merchant Data and Card User Data accordance with the API Documentation in close to real time via our API;
4.1.2 you have the right to legally bind yourself to this Agreement and that you are not in any way legally restricted or prohibited from accessing or using the Services;
4.1.3 you will carry out all of your responsibilities set out in this Agreement within the agreed timeframe, or if no specific timeframe is agreed, within a reasonable timeframe; and if there are any delays or failures in your giving assistance to us, then we may not be able to provide the Services on time, or in some cases at all;
4.1.4 you and you alone will be responsible for any network connections or telecommunications links needed to provide us with Merchant Data and Card User Data and to use the Services;
4.1.5 you will not attempt to build a product or service which competes with the ekko Data or any part of the Services;
4.1.6 you will not make the Services or any ekko Data available to any third party, or attempt to commercially exploit them in any way; and
4.1.7 you will co-operate with us in all matters relating to the Services, including by promptly providing us with all information we reasonably request in connection with the Services.
4.1.8 You agree that any donations made to ekko Good Causes as part of these Services shall be made to the ekko Good Causes that have been agreed upon between ekko and the Customer.
4.2 Except as expressly stated in this Clause 4, the Merchant has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the API or the Services, in whole or in part (except to the extent that applicable law overrides this provision or any part hereof).
4.3. The Merchant shall not use the API or ekko Data other than as specified in this Clause 4 without the prior written consent of ekko.
4.4 Without prejudice to its other rights and remedies under this agreement, should the Card User, Merchant or the Merchant use the API or ekko Data other than as specified in this Clause 4 without the prior written consent of ekko, ekko may, in its sole discretion:
4.4.1 terminate this Agreement, or suspend the Merchant's access and use to the API and the ekko Data, on written notice with immediate effect; and/or
4.4.2 require the Merchant to pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use, an amount equal to the fees which ekko would have charged (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in Clause 9.3, from such date to the date of payment.
4.5 ekko shall be entitled to suspend the Merchant's access to, and use of, the API and the ekko Data under Clause 4.4.1 until such time as the breach is remedied to ekko's reasonable satisfaction, which may include where payment is required under Clause 4.4.2 until ekko has received that payment in cleared funds from the Merchant.
4.6 We will not be responsible for any failures or delays in providing the Services where those failures or delays are caused directly by something that you have or should have done.
4.7 The Merchant warrants that during the Term of the Agreement it has the right to sub-licence the use of Merchant Marks to ekko for promotional purposes including but not limited to referring to any Merchant's name, brand or logo on ekko's website or in ekko marketing or promotional materials.
4.8 Where ekko provides via the API or otherwise, as part of any of the Services, a calculation of what the price would be to offset the carbon footprint of any purchases or transactions, the Merchant shall in no event be permitted to charge Purchasers or Card Users (whichever the case may be) a price higher than the price provided by ekko. In the event that the Merchant did charge a price higher than the price provided by ekko for the offsetting of carbon footprint for any such purchases or transactions, any proportion in excess of the price provided by ekko which the Merchant receives, must be paid to ekko by Customer within thirty (30) days.
5. Data licenses
5.1 In order to provide our Services, we take data that you provide to us about products or services that Card Users and/or Purchasers are able to purchase via applicable retail channels (Merchant Data), match it with certain transaction data (in respect of the Card Users this would include Card User Data), and, where relevant, use them to form the data needed to provide the Services, from time to time.
5.2 We will own all rights, title and interest (including all Intellectual Property Rights) to all of the ekko Data.
5.3 You and only you will be responsible for the legality, reliability, integrity, accuracy, timeliness and quality of Merchant Data and Card User Data which is provided to us via any integration method that is agreed between you and us.
5.4 You will allow us, and will ensure that any relevant third parties allow us, to use Merchant Data and Card User Data so that we are able to provide the Services to you during the Term, and to use the Merchant Data and Card User Data at any time to create ekko Data. You will allow us, and ensure that any relevant third parties allow us, to use the Merchant Data and Card User Data at any time for our own internal business purposes.
5.5 We will not make any part of the Merchant Data, Card User Data or the ekko Data available to any third party in any way that the data can be identified as coming from you, whether during or after the term of this Agreement. However, nothing shall preclude ekko from using Merchant Data, Card User Data and/or the ekko Data whether during or after the term of this Agreement for any purposes including (but not limited to) the development of future ekko products and services, provided always that any such Merchant Data, Card User Data and/or ekko Data shall be in anonymised form.
5.6 We will not be responsible for any failure to provide parts of ekko Data and/or the Services where we have not been able to produce the ekko Data and/or provide the relevant parts of the Services because you have not provided us with the relevant Merchant Data or Card User Data.
5.7 By virtue of relying on information provided by third parties (such as the Merchant Data and Card User Data) to produce the ekko Data, ekko gives no warranties as to the accuracy, completeness, timeliness, integrity or fitness for purpose of the ekko Data.
5.8 ekko does not warrant that:
5.8.1 the Customer's use of the API will be uninterrupted or error-free;
5.8.2 the API and/or the ekko Data will meet the Customer's requirements; or
5.8.3 the API and/or the ekko Data will be free from Vulnerabilities or Viruses.
6. Systems and Security
6.1 The Merchant:
6.1.1 is solely responsible for the operation and security of the Application (though this may be provided by ekko's Customer)
6.1.2 shall be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from the Application to the Services, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet;
6.1.3 will take reasonable steps to secure the API and the ekko Data from infringement, misappropriation, theft, misuse of unauthorised access;
6.1.4 shall comply with the API Documentation; and
6.1.5 shall at all times implement security measures in accordance with Best Industry Practice to protect the API against unauthorised or unlawful operations and against accidental, unauthorised or unlawful destruction, damage, loss, alteration, disclosure or access.
6.2 The Merchant shall not (and shall procure that the Card User's shall not) use the API:
6.2.1 in any way that could be harmful to ekko's systems (including the Services) or data (including uploading or introducing any material that contains a Virus or Vulnerability);
6.2.2 in any way which might infringe the Intellectual Property Rights of third parties; or
6.2.3 for any unlawful purpose whatsoever.
7. Service Usage Data
7.1 We are allowed to collect and keep Service Usage Data. We may use this Service Usage Data for statistical analysis, for improving the Services, for billing, and for monitoring of your compliance with this Agreement. You will provide full answers to any reasonable questions that we may have about your usage of the Services where we suspect that you are in breach of any term of the Agreement within a reasonable timeframe.
8. Fees and payment
8.1 In some deployments of the ekko Services, the Merchant will receive monies that Purchasers or Card Users have paid in consideration of the Services provided by ekko. In these deployments, ekko shall invoice the Merchant for this consideration.
8.2 The Customer shall pay all invoices:
8.2.1 in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice;
8.2.2 in the currency set out in the invoice; and
8.2.3 to the Bank account set out in the invoice
8.3 Where sums due under these terms and conditions are not paid in full by the due date:
8.3.1 ekko may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of Barclays Bank plc from time to time in force; and
8.3.2 Interest shall accrue on a daily basis, and apply from the due date for payment until actual payment whether before or after judgment.
8.4 All amounts and fees in this Agreement do not include value added tax ("VAT"), which will be added to ekko's invoice(s) at the appropriate rate.
8.5 ekko may increase the Fees with effect from the first anniversary of the Effective Date provided it has given the Customer at least 30 days' written notice. ekko and the Customer shall have an annual review in advance of the implementation of any price increases.
8.6 The Merchant shall allow ekko and/or its agents to access, inspect and audit the Customer's records, accounts and other relevant information and premises (including the making and removal of copy documents):
8.6.1 during normal Business Hours on Working Days subject to a minimum of seven Working Days' notice; and
8.6.2 not more often than two times in any rolling 12-month period, to the extent this is reasonably required for the purpose of verifying the Customer's compliance with its obligations under this Agreement.
8.7 ekko shall pay the auditor's reasonable costs and otherwise bear its own costs in connection with the audit or inspection, unless the records show that ekko has been underpaid or the Customer is in breach of this Agreement, in which case the Customer shall pay:
8.7.1 the costs of the auditor and ekko's other reasonable costs in connection with the audit or inspection; and
8.7.2 any amount by which ekko has been underpaid and applicable interest calculated in accordance with this Agreement within 14 days of ekko's written request.
8.8 When conducting audits, ekko shall comply with the Merchant's reasonable directions in order to minimise disruption to the Merchant's business and to safeguard the confidentiality of the Merchant's other confidential information.
8.9 ekko will only purchase the third party supplies required for plastic removal, reforestation, and carbon offsetting or donate to ekko Good Causes following payment by the Merchant of the relevant invoice.
8.10 Each Party shall bear their own costs, however incurred, associated with the deployment of ekko products, change requests, ad hoc special projects as part of the implementation of the Services, unless specifically agreed otherwise.
9. Data Protection
9.1 Each of us is an independent controller of any Personal Data we respectively handle under this Agreement. We and you will each at all times comply with our obligations under all applicable Data Protection Legislation in connection with the performance of our obligations or exercise of our rights under this Agreement.
9.2 You and we will provide each other with such reasonable cooperation, information and assistance as may be required to allow the other party to comply with its obligations under applicable Data Protection Legislation. Neither you nor we will perform our obligations under this clause in any way that causes the other party to breach any of its obligations under applicable Data Protection Legislation.
9.3 Although neither party expects that there will be any controller-processor relationship under this Agreement, each of us agrees that, if any Personal Data is processed under this Agreement by either party to this Agreement as a processor:
(a) the parties will modify this Agreement as necessary to include the details of such processing as required by Data Protection Legislation; and
(b) with respect to the Personal Data processing that is the subject of the controller-processor relationship, the party acting as the processor will:
9.3.1 process (and procure that any permitted sub-processors will process) the Personal Data only in accordance with the instructions of the other party and as otherwise required by applicable law (subject to the processor notifying the other party of such legal requirement before processing unless such notification is prohibited by applicable law on important grounds of public interest);
9.3.2 put in place, and ensure that any permitted sub-processors put in place, appropriate technical and organisational measures to ensure:
(a) the protection of the rights of the relevant data subjects; and
(b) a level of security appropriate to the risks that are presented by the processing, in particular protection from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed under this Agreement; and
9.3.3 take reasonable steps to ensure the reliability of any of its staff who will have access to the Personal Data and to ensure that anyone who accesses it respects and maintains all due confidentiality;
9.3.4 not use any sub-processors in the performance of the Agreement without the prior written approval of the other party;
9.3.5 immediately notify the other party of any actual, potential or alleged breach of the provisions of this Clause 10.3, and provide full cooperation and assistance to the other party in respect of such breach;
9.3.6 provide full cooperation and assistance to the other party in ensuring compliance with:
(a) each party's obligations to respond to requests from any data subject(s) seeking to exercise its/their rights under Data Protection Legislation, including by notifying the other party of any written subject access requests the party receives relating to the other party's obligations under the Data Protection Legislation; and
(b) the other party's obligations under Data Protection Legislation to ensure the security of the processing, to notify the relevant data protection regulator, and any data subject(s) where relevant of any personal data breach(es), to carry out any data impact assessments ("DPIA") of the impact of the processing on the protection of Personal Data, and to consult the relevant data protection regulator prior to any processing where a DPIA indicates that the processing would result in a high risk if steps are not taken to minimise the risk; and
9.3.7 make available to the other party all information necessary to demonstrate compliance with the obligations set out in this Clause 10.3 and allow for and contribute to audits, including inspections, conducted by the other party or another auditor appointed by the other party.
9.3.8 not transfer or permit any sub-processor to transfer any Personal Data to an international organisation or any third country without first:
(a) providing the other party with written notice, including full details of such transfers;
(b) ensuring that (except where the transfer is to a country that is subject to an adequacy decision of a relevant approving authority) any such transfer is effected using appropriate safeguards, and will (as relevant): (i) provide to the other party on request a copy of such safeguards entered into between the processor and any third party; and/or (ii) enter into such safeguards with the other party directly; and
(c) ensuring that any such transfer otherwise complies with Data Protection Legislation, including by carrying out or supporting the other party in carrying out a transfer impact assessment (as applicable).
10. Intellectual Property Rights
10.1 The Merchant acknowledges that ekko and/or ekko's licensors (as the case may be) own all Intellectual Property Rights in anything developed or delivered to the Customer by ekko or on ekko's behalf under this Agreement including any modifications and/or anything created from it (together the "ekko Materials"). For the avoidance of doubt, the API, ekko Data, ekko Marks, the API Documentation, and the Service Usage Data are all ekko Materials.
10.2 The Merchant shall have no rights in the ekko Materials or Feedback other than the right to use the same in accordance with the terms of this Agreement.
10.3 All rights, title and interest in any Feedback shall vest in ekko on creation. The Merchant hereby assigns to ekko all right, title and interest in and to the Feedback.
10.4 You and your licensors own all Intellectual Property Rights in the Card User Data and Merchant Data and any materials that you or your licensors owned and existed before this Agreement or are developed by or for you independently of this Agreement ("Merchant Materials"). The ekko Materials and Feedback will not be considered Merchant Materials.
10.5 The Merchant will promptly notify ekko in writing if the Merchant becomes aware of any infringement of any Intellectual Property Rights in the ekko Materials or Feedback and will fully co-operate with ekko in any legal action taken by ekko to enforce ekko's Intellectual Property Rights.
10.6 We will indemnify you from and against any Losses you incur which arise out of any claim made or threatened against you alleging that your use of the Services, ekko Materials or the ekko Data in accordance with this Agreement infringes the Intellectual Property Rights of any third party.
10.7 You will indemnify us from and against any Losses we incur which arise out of any claim made or threatened against us alleging that the use of the Card User Data, Merchant Data or Merchant Materials in accordance with this Agreement infringes the Intellectual Property Rights or other rights of any third party.
10.8 The party indemnified above shall:
10.8.1 promptly give the other party written notice of any relevant claim of which the indemnified party becomes aware;
10.8.2 allow the other party to have conduct of and/or to settle any negotiations and/or proceedings in relation to any claim;
10.8.3 not make any admission of liability, agreement or compromise in relation to any claim without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed); and
10.8.4 at the other party expense, give the other party such information and assistance in relation to the negotiations and proceedings in relation to any claim as is reasonably requested by the other party.
10.9 If any claim is made, or in ekko's reasonable opinion is likely to be made, against the Merchant, ekko may at its sole option and expense:
10.9.1 procure for the Merchant the right to continue to use the API, ekko Data or ekko Marks (or any part thereof) in accordance with the terms of this Agreement;
10.9.2 modify the API, ekko Data or ekko Marks so that the same ceases to be infringing;
10.9.3 replace the API, ekko Data or ekko Marks with non-infringing versions; or
10.9.4 terminate the Agreement immediately by notice in writing to the Merchant and refund any of the Fees already paid by the by the Merchant as at the date of termination for the Services that had not yet been delivered to the Merchant.
11. Limitation of liability
11.1 Except as set out in clause 11.2 or as otherwise expressly stated in this Agreement:
11.1.1 the Services, the API, the Additional ekko Services and the ekko Data are provided to you on an "as is" and "as available" basis;
11.1.2. we will not be responsible for any loss or damage caused to you (or to your Group Companies or your or their agents or subcontractors) by any third party applications or platforms licensed by or controlled by you which may interface with the API; and
11.1.3 neither of us will be responsible to the other in any way, for any loss of profits, loss of business, loss of revenue, loss of opportunity, depletion of goodwill and/or similar losses or pure economic loss (in each case whether direct or indirect), nor for any indirect or consequential loss.
11.2 In relation to the ekko Data, the Merchant acknowledges and agrees that:
11.2.1 the ekko Data relies on third party data in order to be generated and so all carbon footprint measurements and offsetting calculations which form part of the ekko Data are an estimate only;
11.2.2 the ekko Data is for informational purposes only and should not be relied on by the Merchant, Card Users and/or any other third parties;
11.2.3 any decisions that the Merchant and/or Card Users take in relation to the ekko Data are their respective decisions alone and ekko accepts no responsibility for those decisions or their consequences;
11.2.4 the Merchant will take all necessary steps to ensure that any third parties (including Card Users) which are provided access to the ekko Data by the Merchant (where expressly permitted under this Agreement) by way of licence, the terms of such licence shall contain obligations which shall have the same effect as the obligations set out in clauses 11.2.2 to 11.2.3.
11.3 Nothing in this Agreement limits or excludes either party's liability:
11.3.1 to the extent that such liability cannot be limited or excluded by law (including fraud and liability for death or personal injury resulting from negligence of either party, its employees, subcontractors or agents);
11.3.2 under clause 13 (Confidentiality); or
11.3.3 under the indemnity at clause 10.6 or 10.7.
11.4 Subject to clause 12.2 and 12.5, our total liability under or in connection with this Agreement arising out of or in connection with the Services will not, in respect of all events occurring in any Year, exceed the amounts paid or payable by you to us in respect of such Year.
11.5 The limitations and exclusions in this clause 12 apply to all Losses, however they arise in connection with this Agreement (including under contract, tort (including negligence) or otherwise).
12. Confidentiality
12.1 Each party agrees to keep any Confidential Information of the other party confidential during the Term of this Agreement and after and to not use that Confidential Information for any of its own purposes or to share it with any third party (except for its professional advisors or if required by law) unless that party has prior written consent of the other party. This provision does not apply to information that is publicly known, or later becomes publicly known apart from where it becomes known because of a party to this Agreement, or later becomes known by a third party but not as a result of a breach of this clause. Each party will try its best to prevent the unauthorised disclosure of any such information.
12.2 Nothing in this Agreement will prevent a party from seeking injunctive relief or other urgent relief for any breach of clause 13.1, in any court in any jurisdiction in connection with this Agreement.
13. Notices
13.1 Any notice given under this Agreement should be in writing and will be valid only if it is delivered to the other party personally; or sent by pre-paid first class post or other next Working Day delivery service to the address set out in the Order Form; or any other address that the parties agree; or sent to the email address set out in the Order Form (or such other email address that the parties agree), with a hard copy being sent within 48 hours of sending the email.
13.2 A notice will have been properly received: (a) if it is delivered personally, when it is left at the address and for the contact named on the Order Form; (b) if sent by pre-paid first class post or other next Working Day delivery service, at 9am on the second Working Day after posting; (c) if sent by a recorded delivery service, at the time recorded by such service; or (d) if sent by email, at the time of sending, provided that any notice which would be treated as received outside Business Hours will be deemed to be given at the next opening of Business Hours.
14. General
14.1 Announcements: ekko shall be entitled to reference the Merchant as a user of the Services in ekko's general marketing literature, including on ekko's website and other online platforms. The reference to the Merchant for these purposes may include a reference to the Merchant's corporate name and to any of its trade names and trade marks. We may ask you to work together with us to create a press statement to announce the use of the Services by you.
14.2 Assignment and Subcontracting: You will not transfer in any way any of your rights, liabilities and/or obligations under this Agreement to any third party, or subcontract any of your obligations under this Agreement to any third party without our prior written consent.
14.3 Waiver: No delay by any party to this Agreement in enforcing any right and/or continued performance of this Agreement will restrict the rights of that party, and no waiver of any right or of any breach of any contractual term will be deemed to be a waiver of any other right or other breach. No single or partial exercise of any remedy will restrict the further exercise of that or any other right or remedy.
14.4 Changes to the Agreement: This Agreement can only be changed by written agreement between you and us.
14.5 Third party rights: No part of this Agreement is intended to benefit or be enforceable by any party that is not you or us.
14.6 Entire agreement: This Agreement is the entire agreement between you and us relating to the Services. You and we both agree that neither of us has relied on anything said or done by any person (whether or not they are a party to this Agreement) except as set out in this Agreement.
14.7 Governing law and jurisdiction: This Agreement (and any obligations arising out of or in connection with it and any claim or dispute in relation to it) will be governed by and interpreted in accordance with English law. You and we both agree that the courts of England will have exclusive jurisdiction over any dispute or claim in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
14.8 Interpretation: In this Agreement: (i) a reference to a party is to a party to this Agreement and includes that party's personal representatives, successors and permitted assignees; (ii) a reference to persons includes individuals, corporations, unincorporated bodies and associations which are recognised at law; (iii) any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it as from time to time amended, consolidated, re-enacted or replaced; (iv) any words introduced by the word "including" or any similar expression are to be construed as illustrative and shall not limit the sense of the related general words; (v) "subsidiary" and "holding company" have the meanings given to these terms in s1159 Companies Act 2006; (vi) writing includes email to the designated email addresses notified to by the recipient party to the notifying party from time to time.
Appendix 1
Definitions
In this Agreement the following words and expressions have the following meanings:
Active Card User means any Card User who has made transaction using their Card and an API call has been made by the Customer to ekko in relation to that transaction in the relevant calendar month.
The service provided by us that enables Card Users to understand what their carbon footprint measurement is in relation to the transaction(s) they have made using their Card.
Additional ekko Services means any services provided by ekko to the Merchant which were not included as part of the Initial Order Form.
Additional Order Form means any order form for services entered into by the parties following the Effective Date of this Agreement.
Agreement means these ekko Terms and Conditions, together with any Order Forms, as may be amended from time to time if agreed by both parties.
Application means any applications developed by, or on behalf of, the Merchant to interact (or call) with the API.
API means ekko's application programming interface.
API Documentation means the document(s) which may be made available to you via a website link or email attachment(s) sent by us (and as amended from time to time)) which sets out a description of the API or the Services including (but not limited to) user instructions, technical product and data specifications as well as requirements in relation to data to be provided by the Merchant to ekko.
Bank Details means the ekko bank details set out in the Order Form.
Best Industry Practice means in relation to any undertaking and any circumstances, the highest degree of professionalism, skill, diligence, prudence and foresight which would be expected from an internationally recognised company engaged in the same type of activity under the same or similar circumstances and which is best in class.
Business Hours means 9:00 – 18:00, UK time, Monday-Friday, excluding public holidays in England.
Carbonmeter Service means the service provided by us as part of the ekko Services.
Checkout Service means the service provided by us as part of the ekko Services.
Confidential Information in relation to either party, means all information which is not in the public domain and which belongs or relates to that party or its business or to any other member of that party's Group or such Group Company's business, including information relating to any of: its customers, suppliers, financial information, advertising and promotional materials; its products, services, processes, strategies and developments; intellectual property, trade secrets and know-how; market share, market research reports and surveys; personnel, agents and third party intermediaries; and future projects, business plans, budgets, commercial relationships and negotiations, in each case existing in any form, whether or not marked "confidential", and all other information clearly designated as "confidential".
Card means the cards (including pre-paid cards, debit cards or credits cards) provided by the Customer to Card Users which enables Card Users to pay for products or services.
Card User means the individuals using the part of the ekko Services's Application or Card.
Card User Data means data to be provided to ekko via the API about a transaction, in accordance with the API Documentation.
Consumer Prices Index means the Consumer Prices Index as published by the UK Office for National Statistics.
Customer Client means a third party that offers a product via one of the Customer's distribution channels or platforms.
Data Protection Legislation means as applicable to a party or the Services: the Data Protection Act 2018 and the UK GDPR (as defined in Part 1, Section 3(10) of the Data Protection Act 2018) and in each case any regulations made under either; Regulation (EU) 2016/679 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) including the recitals (the "EU GDPR") and any equivalent or implementing legislation; and in either case, and in any other relevant jurisdiction, all other applicable laws (including judgments of any relevant court of law) and regulations relating to the processing of personal data, data privacy, electronic communications, marketing and/or data security, in each case as from time to time in force and as from time to time amended, replaced or otherwise incorporated into law and all subordinate legislation made under any of the above in any jurisdiction from time to time.
Donation Data means the amounts donated to ekko Good Causes as a result of the Services contained in this contract, in accordance with Schedule B.
Effective Date means the date on which these terms are accepted by the Merchant.
ekko Data means data created by ekko, by aggregating and / or combining or otherwise manipulating Merchant Data with other data (including the Card User Data).
ekko Good Causes means a conservation project, carbon offsetting project, pollution-reducing project or tree-planting project that ekko promotes on behalf of Third Parties, as amended from time to time
ekko Marks means ekko's proprietary trade marks, trade names, branding, or logos made available for use in connection with the API or ekko Data pursuant to this Agreement.
Feedback means all current and future suggestions, comments or other feedback regarding the API, ekko Data or the Services by or on behalf of the Merchant.
Fees means the fees payable by you for your use of the Services as set out in the Order Form.
Group means in relation to either party, means that party and that party's subsidiaries and holding companies and any subsidiary of any such holding company at the date of this Agreement or as the same may vary from time to time.
Group Company means in relation to any party, each member of that party's Group other than the party itself.
Initial Order Form means the first order form entered into by the parties and incorporating these terms and conditions.
Insolvency Event means in relation to a party (i) the party stops being able to pay its debts or stops payments generally, or becomes unable to pay its debts as they become due, or the value of its assets is or becomes less than its liabilities, or it becomes otherwise insolvent; (ii) the party passes a resolution for voluntary winding up or a court makes an order that the party be wound up (except as part of a solvent reorganisation); (iii) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; (iv) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy (v) a liquidator, receiver, administrative receiver, administrator, examiner is appointed over the party or any of its assets; (vi) the delisting (or suspension of any listing) of the other party's listed security (whether such delisting is voluntary or not) from a stock exchange; or (vii) any equivalent action is taken in another jurisdiction.
Intellectual Property Rights means all patents, rights to inventions, copyright and related rights, moral rights, database rights, trademarks and trade names, rights to goodwill and to sue for passing off, rights in designs, 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 (and rights to apply) for, and renewals and extensions of and rights to claim priority from such rights and all similar or equivalent rights and forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses means claims, expenses, losses, liabilities, damages, proceedings and costs (including reasonable legal fees).
Merchants means the Merchants, brands or other businesses which enter into commercial agreements with the Customer to use its products or services, which incorporate or in any way use the Services provided by ekko to the Customer.
Merchant Data means the data inputted by you or to be provided to us by or on your behalf for the purpose of our providing the Services and any Additional ekko Services, in accordance with the API Documentation.
Merchant Marks means the proprietary trade marks, trade names, branding, or logos of Merchants for use by ekko as part of its promotional purposes as per clause 5.9.
Order Form means any Initial Order Form and/or any Additional Order Form that may have been signed in addition to acceptance of these Terms.
Personal Data and the terms "processing" (and equivalent terms such as "process", and "processed"), "data subject", "controller", "processor" and, "personal data breach" and "third country" shall have the meanings given to them in the applicable Data Protection Legislation.
Purchasers means the individual customers of the Merchants that purchase goods or services from the Merchants, whether or not they do so using a Card.
Service Usage Data means information about your usage of the Services.
Services means the services supplied by ekko through its API, including, but not limited to, carbon footprints, nature scores, compensation and contributions to ekko Good Causes.
Term means the Agreement duration set out in the Order Form.
Virus means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity or availability, and the term Vulnerabilities shall be construed accordingly.
Working Day means Mondays to Fridays inclusive excluding any bank or other public holiday in England.
Year means any 12-month period starting on the Effective Date, or an anniversary of the Effective Date.