Effective as of 2022-03-14

TERMS AND CONDITIONS - HOST

IMPORTANT NOTICE

The promoter of all competitions is Winnrs Circle Ltd. (a company registered in England & Wales with company number 13999912) whose registered address is at 16 Great Queen Street, Covent Garden, London, United Kingdom, WC2B 5AH (the Promoter).

The Promoter facilitates prize competitions that are free from regulation under the Gambling Act 2005, in the United Kingdom. For further information about the laws and regulations on raffles and prize competitions, please visit www.gamblingcommission.gov.uk

The Promoter reserves the right to alter these Terms and Conditions at any time. Where alterations constitute a material change, you will be notified through the e-mail associated with your account. What constitutes a material change shall be determined by Us at our sole discretion, in good faith, using common sense.

The Terms and Conditions assume that each Host has acted like a prudent individual. If you host a competition it is on the basis that you accept these Terms and Conditions. They govern the Promoter’s relationship with you as the Host.

The Promoter does not offer any competitions in any jurisdiction where such an offer or solicitation is unlawful or would impose any unfulfilled registration, qualification, publication or approval requirements.

It is the Host’s responsibility to ensure it is located in a jurisdiction where it is not unlawful for it to enter host any competitions.

A. Meanings

1. In these Terms, the following words are defined:

2. In these Terms, unless the context requires a different interpretation:

1. the singular includes the plural and vice versa;
2. references to sub-clauses, clauses, schedules or appendices are to sub-clauses, clauses, schedules or appendices of these Terms;
3. reference to a person includes firms, companies, government entities, trusts and partnerships;
4. 'including' is understood to mean 'including without limitation';
5. reference to any statutory provision includes any modification or amendment of it;
6. the headings and sub-headings do not form part of these Terms; and
7. 'writing' or 'written' will include fax and e-mail unless otherwise stated.

B. Provision of Services

3. The Promoter will provide the Services to the Host in connection with the Draw on the terms and conditions of these Terms from the Effective Date and as set out in Schedule 1.
4. The Services will be provided by the Host either:

1. on an on-going basis; or
2. in response to each request from the Host from time to time, as specified in Schedule 1.

5. The Promoter will perform the Services with reasonable care and skill and will ensure that in providing the Services it will:

1. on an on-going basis; or
2. in response to each request from the Host from time to time, as specified in Schedule 1.

1. do so with due care and skill and in accordance with generally recognised commercial practices and standards in the applicable industry; and
2. comply with all laws and regulations applicable to the Services, including all laws and regulations related to (i) anti-bribery and corruption, and (ii) data protection; and
3. take all reasonable steps to ensure that any software used by the Host will be free from viruses, spyware, ransomware, and other malicious code.

6. The Host must:

1. co-operate with the Promoter in all matters relating to the Services;
2. provide, in a timely manner, any materials and any information as the Promoter may reasonably require;
3. obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services before the date on which the Services are to start;
4. take all necessary steps to ensure that End Users sign up to and interact with the Platform in accordance with the Promoter T&Cs;
5. refrain from any unacceptable behaviour towards participants in any Draw, including (without limitation) any behaviour likely to affect those participants’ enjoyment of that Draw;
6. not offer any Prohibited Items as Prizes;
7. deal directly at its own cost with each Winner in relation to the delivery, transfer or collection of Prizes (and it shall be the Hosts’ sole responsibility to determine if the Winner should have to contribute to or organise any such delivery transfer or collection);
8. in relation to any Prize which involves an experience or similar, be solely responsible at its own cost for all travel and/or security arrangements and costs; and
9. if the Promoter so requests, render such services as are necessary and reasonable in relation to publicity surrounding a Draw(s)

B. Provision of Services

7. The Promoter shall promptly notify the Host of:

1. any delays or problems from time to time in the provision of the Services of which the Promoter becomes aware;
2. any circumstances from time to time which may prevent the Host from providing the Services in accordance with these Terms together with (where practicable) recommendations as to how such circumstances can be avoided; and
3. any complaint (whether written or not) or other matter which comes to its attention and which it reasonably believes may give rise to any loss by or claim against the Host or which may result in any adverse publicity for the Host.

8. The Host shall, without limiting any right or remedy of the Host, promptly report to the Host any defects in the Host's performance of the Services as soon as reasonably practicable after any such defect comes to the attention of the Host.

D. Charges, Payment And Time Records

9. In consideration of the provision of the Services by the Host, the Host shall pay the agreed Service Fees (plus VAT if applicable) which, unless otherwise stated, are to be calculated on the basis of a fixed percentage of payments made by users of the Platform.
10. The Host shall report to the Host on a daily basis in a format which is agreed between the parties as to (i) the number of sales generated through the, (ii) payments made by those users, and (iii) such other information as agreed between the parties.
11. On each Business Day from the Effective Date, the Promoter will provide a statement (Statement) showing the total amount of revenues received during the previous Business Day, the Service Fee due on such revenues and the amount payable to the Host, being the total amount of revenues less (i) the Service Fees, and (ii) a retained sum of 10% of the total revenues (Retained Revenues) which will be held by the Host until the date which falls 30 days from the date on which the Draw takes place (Outpayment). Host will on the same Business Day as the Statement is issued make payment of all Outpayments to the bank account nominated in advance by the Host (Due Date).
12. On or before the date falling 30 days from the Draw, the Promoter will account to the Host for all Retained Revenues less any sums which have legitimately been claimed back by consumers and have therefore been refunded to them by the Host on instruction from a relevant third party.
13. In the case of any Draw where the Host sets a minimum number of tickets that must be sold in order for a Prize to be claimed with a relevant period (Minimum Threshold), should the Minimum Threshold not be met then the Host agrees that the Draw shall be concluded and all revenues received by the Promoter shall be split as to 70% to the Winner, 20% to the Platform and 10% to the Host. In such cases, the provisions of clauses 11-12 above shall be expressly disapplied.
14. Any dispute as to the level of the Outpayments and/or Service Fees due, will be decided by an independent accountant nominated jointly by the parties or, failing such nomination within 14 days, at the request of either party, by the President for the time being of the Institute of Chartered Accountants in England and Wales. In the absence of manifest error, the accountant’s decision will be final and binding on both parties who will pay the accountant’s costs as he or she directs.
15. The Promoter and the Host shall pay all amounts due under these Terms in full without any deduction except as required by law and neither party shall be entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any amount due, in whole or in part.

E. Liability

16. If the Promoter’s performance of its obligations under these Terms is prevented or delayed by any act or omission of the Host, its agents, sub-contractors, consultants or employees, the Host shall not be liable for any costs, charges or losses sustained or incurred by the Host that arise directly or indirectly from such prevention or delay.
17. Nothing in these Terms limits or excludes either party's liability for:

1. death or personal injury caused by its negligence;
2. fraud or fraudulent misrepresentation; or
3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
4. any other liability which cannot be limited or excluded by applicable law.

18. Other than in respect of clause 16, the total liability of either party for any other loss of the other party in respect of any one event or series of connected events shall not exceed the level of Outpayments received by the Host in the period between the Commencement Date and the date on which any such liability arises.
19. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms.

F. Confidentiality

20. Each party will only use Confidential Information to perform its obligations under the Agreement and will not cause or allow the information to be disclosed except:

1. where required by law, court order or any governmental or regulatory body;
2. to any of its employees, officers, sub-contractors, representatives or advisers who need to know the information in order to discharge its obligations under the Agreement and agree only to use the information for that purpose and not to cause or allow disclosure of that information;
3. where the information has become generally available to the public (other than as a result of disclosure in breach of the Agreement by the party or any of its employees, officers, sub-contractors, representatives or advisers);
4. where the information was available or known to it on a non-confidential basis before being disclosed under the Agreement; or
5. where the information was developed by or for it independently of the Agreement and is received by persons who are not the disclosing party.

G. Intellectual Property

21. All Background Intellectual Property is and shall remain the exclusive property of the party owning it (or where applicable, the third party from whom its right to use the Background Intellectual Property is derived) and nothing in these Terms will operate to transfer any Background Intellectual Property of one party to the other.
22. Each party hereby grants to the other party a royalty-free, non-exclusive licence to its Background Intellectual Property Rights to the extent necessary to provide and/or receive the benefit of the Services.
23. Host will own all rights, title and interest in and to any Project Intellectual Property Rights for the full duration of such rights. Host agrees to do and execute, at Host’s expense, such other acts, deeds, documents and items as may be required by Host for effectively vesting any Project Intellectual Property Rights in Host or its licensors.

H. Data Protection

24. Each party shall comply with its obligations, and may exercise its respective rights and remedies under Schedule 1. For the avoidance of doubt any Host data (whether personal data or not) which is processed by the Promoter pursuant to the provision of the Services shall remain the sole and exclusive property of the Host. The Host agrees and acknowledges that the Promoter will give consumers signing up to the Draw the ability to receive marketing information from third parties such as the Promoter if (and only if) they positively opt-in to receiving such marketing information.

I. Non-Solicitation

25. Neither party shall, without the prior written consent of the other party, at any time from the date of these Terms to the expiry of 12 months after the last date of supply of the Services or termination of these Terms (whichever is the latest), solicit or entice away from that other party or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of that other party.

J. Circumstances beyond the control of either party

26. Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party.
27. Such causes include, but are not limited to: power failure, Internet Service Provider failure, acts of God, epidemic, pandemic, civil unrest, fire, flood, droughts, storms, earthquakes, collapse of buildings, explosion or accident, acts of terrorism, acts of war, governmental action, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or any other event that is beyond the control of the party in question.
28. The party affected by a circumstance beyond its control shall use all reasonable endeavours to mitigate the effect of the force majeure upon the performance of its obligations.
29. The corresponding obligations of the other party will be suspended to the same extent as those of the party affected by a force majeure event.
30. If the delay continues for a period of 90 days, either party may terminate or cancel the Services to be carried out under these Terms.

L. Termination

31. A party may terminate the Agreement immediately by giving written notice to the other party if that other party:

1. does not pay any sum due to it under the Agreement within 30 days of the due date for payment;
2. commits a material breach of the Agreement which, if capable of remedy, it fails to remedy within 30 days after being given written notice specifying full particulars of the breach and requiring it to be remedied;
3. persistently breaches any term of the Agreement;
4. is dissolved, ceases to conduct substantially all of its business or becomes unable to pay its debts as they fall due;
5. is a company over any of whose assets or property a receiver is appointed;
6. makes any voluntary arrangement with its creditors or (if a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
7. (if an individual or firm) has a bankruptcy order made against it or (if a company) goes into liquidation;
8. undergoes a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010); or
9. (if an individual) dies or as a result of illness or incapacity becomes incapable of managing their own affairs.

M. Consequences of Termination

32. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
33. Other than as set out in the Agreement, neither party shall have any further obligation to the other under the Agreement after its termination.

N. General

34. These Terms contains the whole agreement between the parties relating to its subject matter and supersedes all prior discussions, arrangements or agreements that might have taken place in relation to the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
35. No party may assign, transfer or sub-contract to any third party the benefit and/or burden of the Agreement without the prior written consent (not to be unreasonably withheld) of the other party.
36. No variation of the Agreement will be valid or binding unless it is recorded in writing and signed by or on behalf of both parties.
37. The Contracts (Rights of Third Parties) Act 1999 does not apply to the Agreement and no third party has any right to enforce or rely on any provision of the Agreement.
38. Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
39. A provision which by its intent or terms is meant to survive the termination of the Agreement will do so.
40. If any court or competent authority finds that any provision (or part) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
41. Unless specifically provided by the parties, nothing in the Agreement will establish any employment relationship, partnership or joint venture between the parties, or mean that one party becomes the agent of the other party, nor does the Agreement authorise any party to enter into any commitments for or on behalf of the other party.
42. Any notice (other than in legal proceedings) to be delivered under the Agreement must be in writing and delivered by pre-paid first class post to or left by hand delivery at the other party's registered address or place of business, or sent by email to the other party's main business email address as notified to the sending party. Notices:

1. sent by post will be deemed to have been received, where posted from and to addresses in the United Kingdom, on the second Business Day and, where posted from or to addresses outside the United Kingdom, on the tenth Business Day following the date of posting;
2. delivered by hand will be deemed to have been received at the time the notice is left at the proper address; and
3. sent by email will be deemed to have been received on the next Business Day after sending.

O. Governing law and jurisdiction

43. These Terms shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.

SCHEDULE 1 DATA PROTECTION

PART A

1. For the purposes of this Schedule:

1. Data Protection Laws means any applicable law relating to the processing of Personal Data, as applicable to either party or the Services, including:
GDPR;

1. any laws which implement or supplement such laws;
2. any laws that replace, extend, re-enact, consolidate or amend any of the laws stated in (i) and (ii) above;
3. all guidance, codes of practice and codes of conduct issued by any relevant Data Protection Supervisory Authority relating to such Data Protection Laws (whether legally binding or not).

2. GDPR means the UK General Data Protection Regulation;
3. Protected Data means Personal Data received from or on behalf of the Host, or obtained in connection with the performance of the Host's obligations under the Agreement; and
4. Sub-processor means any agent, subcontractor or any other third party engaged by the Host (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data;
5. UK GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales

The terms 'Controller', 'Data Subject', 'International Organisation' 'Member State', 'Personal Data', 'Personal Data Breach', 'Processor', 'Processing' and 'Supervisory Authority' shall have the same meaning as in the UK GDPR.

Compliance with data protection laws

2. The parties agree that the Host is a Controller and the Promoter is a Processor for the processing of Protected Data pursuant to these Terms.
3. The Promoter shall, and shall ensure its Sub-Processors and each of the Host personnel shall comply with all Data Protection Laws in connection with the processing of Protected Data and the provision of the Services.
4. Nothing in these Terms relieves the Host of any responsibilities or liabilities under Data Protection Laws.

Indemnity

5. Each party shall be liable for and shall indemnify (and keep indemnified) the other against all actions, proceedings, liabilities, costs, claims, losses, expenses, compensation paid to Data Subjects and other reasonable professional costs and expenses suffered or incurred by the indemnified party arising out of or in connection with any breach of the Data Protection Laws by the indemnifying party, its employees or agents.

Instructions

6. The Host shall only process (and shall ensure Host personnel only process) the Protected Data in accordance with Section 1 of Part B of this Schedule and the Host's written instructions. The Host will immediately inform the Promoter if any instruction relating to the Protected Data infringes or may infringe any Data Protection Law.

Security

7. The Promoter shall implement appropriate technical and organisational measures to protect the Protected Data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access. The technical and organisational security measures which the Promoter shall have in place are set out in Part B to this Schedule.

Sub-processing

8. The Promoter will not permit any processing of Protected Data by any third party (except Host personnel that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the prior specific written permission of the Host, except (i) as specifically stated in this Schedule, or (ii) where such processing is required by any applicable law, regulation or public authority.
9. The Promoter shall prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written agreement containing data protection obligations that provide at least the same level of protection for Protected Data as those in this Schedule.
10. The Promoter shall remain fully liable to the Host under these Terms for all the acts and omissions of each Sub-Processor and each of the Host Personnel as if they were its own.
11. Where a Sub-processor is engaged by the Promoter the Promoter shall:

1. carry out adequate due diligence to ensure that the Sub-processor is capable of providing the level of protection for Protected Data required by this Schedule;
2. remain liable for any breach of this Schedule caused by a Sub-processor; and
3. provide relevant details and a copy of each agreement with a Sub-Processor to the Host on request.

Assistance

12. The Promoter shall, taking into account the nature of the processing, provide reasonable assistance to the Host insofar as this is possible, to enable the Host to respond to requests from a data subject seeking to exercise their rights under Data Protection Laws. In the event that such request is made directly to the Promoter, the Promoter shall promptly inform the Host of the same.
13. The Promoter shall to the extent required by Data Protection Laws, taking into account the nature of the processing and the information available to the Host, provide the Host with commercially reasonable assistance with data protection impact assessments (as such term is defined in Data Protection Laws) or prior consultations with data protection authorities that the Host is required to carry out under Data Protection Laws.

Data subject requests

14. The Promoter will record and refer all requests and communications received from Data Subjects or any Supervisory Authority to the Host which relate (or which may relate) to any Protected Data promptly (and in any event within three days of receipt) and will not respond to any without the Host's express written approval and strictly in accordance with the Host's instructions unless and to the extent required by law.

International transfers

15. he Promoter will not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the UK or EEA or to any International Organisation without the prior written consent of the Host.

Audits and records

16. The Promoter will, in accordance with Data Protection Laws, make available to the Host such information in the Promoter's possession or control as the Host may reasonably request with a view to demonstrating the Promoter's compliance with the obligations of data processors under Data Protection Laws in relation to its processing of Protected Data.
17. The Host may exercise its right to audit under Data Protection Laws through the Promoter providing:

1. an audit report not older than 18 months by an independent external auditor demonstrating that the Promoter's technical and organisational measures are in accordance with the Host's industry audit standard; and
2. additional information in the Promoter's possession or control to a Supervisory Authority when it requests or requires additional information in relation to the data processing activities carried out by the Promoter under this Schedule.

Breach

18. The Promoter shall promptly (and in any event within 24 hours) notify the Host if it (or any of its Sub-Processors or the Host Personnel) suspects or becomes aware of any suspected, actual or threatened occurrence of any Personal Data Breach in respect of any Protected Data.
19. The Promoter shall promptly (and in any event within 24 hours) provide all information as the Host requires to report the circumstances referred to in paragraph 19 (above) to a Supervisory Authority and to notify affected Data Subjects under Data Protection Laws.

Return/Deletion of Protected Data

20. Upon termination or expiry of the Agreement, the Promoter shall at the Host's election, promptly (and in any event, within 30 days of the expiry of the Agreement) delete or return to the Host the Protected Data (including existing copies) in the Host's possession by secure file transfer, save to the extent that the Promoter is required by any applicable law to retain some or all of the Protected Data.
21. The Promoter will provide written certification to the Host that it has fully complied with the section above within 30 days of the expiry of the Agreement.

Survival

22. This Schedule shall survive termination or expiry of the Agreement for any reason.

PART B

Section 1 - Data processing

Processing of the Protected Data by the Promoter under this Schedule shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this Section 1 of Part B.

Subject-matter of processing:

The Promoter's provision of the Services and any related technical support to the Host.

Duration of the processing:

The term plus the period from expiry of the term until return/deletion of all Protected Data by the Host in accordance with this Schedule.

Nature and purpose of the processing:

The Promoter will Process Protected Data for the purpose of providing the Services and any related technical support to the Host in accordance with this Schedule.

Type of Personal Data:

Names, email address, physical address, DOB.

Categories of Data Subjects:

Protected Data will concern the following categories of Data Subjects:

• Data Subjects about whom the Host collects Protected Data in its provision of the Services; and/or
• Data Subjects about whom Protected Data is transferred to the Host in connection with the Services by, at the direction of, or on behalf of Host.

Section 2 - Minimum technical and organisational security measures

Without prejudice to its other obligations, the Promoter shall implement appropriate technical and organisational measures to ensure an appropriate level of security for Personal Data. The Promoter shall provide the Host with details of all such technical and organisational measures on reasonable written notice.