TOTUM Platform Terms & Conditions

TOTUM Platform Terms & Conditions

These are the terms and conditions on which You will be entitled to promote the OneVoice Digital TOTUM Platform in order to receive your reward payments. By You or Your we mean the student union, or entity contracting on behalf of the student union, engaged by Us to promote the TOTUM Platform. By We Our or Us we mean OneVoice Digital Limited a company incorporated in England and Wales, whose registered number is 10842253 and whose registered office is at Jactin House, 24 Hood Street, Manchester, M4 6WX

  1. THE MEANING OF THE WORDS USED IN THESE TERMS AND CONDITIONS

1.1 In these Terms, the following words have the following meaning (except where the context otherwise requires): Appointment: means the appointment of You as a promoter of the TOTUM Platform subject to these Terms; Card: means the physical TOTUM card issued by Us which provides benefits and discounts to its holder during the term of its validity; Data Protection Requirements: Regulation (EU) 2016/679 of the European Parliament and of the Council (the General Data Protection Regulation) as enacted by the UK Data Protection Act 2018, the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003); and all applicable laws and regulations relating to the processing of Personal Data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner. Effective Date: means the 1st July 2020; Force Majeure: means acts, events, omissions, accidents or an event or sequence of events beyond Our reasonable control, including without limitation, strikes, lock-outs or other industrial disputes (whether involving Our workforce or any other party), failure of a utility service or transport or telecommunications network,  act  of  God,  war,  riot,  civil  commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Us or sub-contractors; Incentives: means the incentive payments to be paid to You in accordance with these Terms and as communicated to You and/or set out on the SU Site  as amended from time to time; Initial Period: means the period of one year from the Effective Date; Intellectual Property Rights: means copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing; OneVoice Marks: means the any name, trade or service mark or logo of Us whether registered or unregistered; Qualifying Course: means a course offered by You being a course of study leading to an exam, qualification or test regulated by the Office of Qualifications and Examinations Regulation (Ofqual), the Scottish Qualification Authority, Qualifications Wales or the Council for the Curriculum, Examinations and Assessment of Northern Ireland; Renewal Period: one year; SU Site: means the limited access website at https://www.onevoicedigital.com/su-terms-conditions/accessible by Student Unions on which We will post information and materials relevant to the Appointment; Student: means a full-time student or a student who studies more than ten (10) hours per week for a minimum of twelve (12) weeks on a Qualifying Course; Terms: means these terms and conditions; TOTUM App: means the downloadable application used by Students to access the TOTUM Platform; TOTUM Content: means the content created by You for inclusion on the TOTUM Platform; TOTUM Digital: means the version of TOTUM for Students who do not pay for TOTUM Platform Membership but who register to use the TOTUM App and who receive limited benefits, marketed as TOTUM Digital; TOTUM Platform: means the benefits and discounts offering made available to Students by Us which includes a Card, the associated on-line identification on the TOTUM website and the TOTUM software ‘app’ for personal mobile devices; TOTUM Platform Membership: means membership of the TOTUM Platform; VAT: means value added tax (if any) or any other locally applicable equivalent sales taxes. 1.2 In these Terms the following rules apply: (a) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns; (b) a reference to a ‘person’; includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality); (c) any words that follow ‘include’, ‘includes’, ‘including’ ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; (d) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and (e) a reference to “writing” or “written” includes e-mail but not faxes.

  1. APPOINTMENT AND DURATION

2.1 With effect from the Effective Date, We hereby appoint You as a promoter of the TOTUM Platform.  The Appointment is not exclusive. 2.2 The Appointment is made subject to these Terms and Your acceptance of Incentives indicates your acceptance of these Terms. The Appointment shall commence on the Effective Date and shall continue in force for the Initial Period unless terminated earlier. 2.3 The Appointment shall renew automatically from the end of the Initial Period for consecutive Renewal Periods unless either party services written notice on the other, not later than the last day of the Initial Period or the then current Renewal Period, to terminate these Terms. 2.4. The Appointment can be terminated at any time in accordance with clause 12.

  1. PROMOTION OF THE TOTUM PLATFORM

3.1 You agree to exclusively promote the TOTUM Platform and TOTUM Platform Membership to Students for the duration of the Appointment. You will be responsible for the design, creation, production and publication of your promotional materials and promotional activity but all your promotional materials must adhere to the guidelines, including guidelines relating to use of the OneVoice Marks, and marketing materials that we provide directly or via the SU Site from time to time. 3.2 We will provide You with marketing materials for use in promoting the TOTUM Platform. 3.3 You will supply TOTUM Content directly on the TOTUM Platform.  Guidance on the style, type of content and format for the TOTUM Content will be provided by Us from time to time or found at the SU Site.  All TOTUM Content will be free from defamatory, obscene or offensive material and will be suitable for its purpose. 3.4 You will use reasonable efforts to promote the TOTUM Platform and Us as your preferred provider of benefits and discounts, of the sort included on the TOTUM Platform, to Students.

  1. OUR OBLIGATIONS

4.1 We will operate the TOTUM Platform and ensure the fulfilment, subject to membership terms and conditions, by our retailers and those offering products and services on the TOTUM Platform to Students who have successfully applied for TOTUM Platform Membership or who are using TOTUM Digital. 4.2 We will fulfil all eligible applications for TOTUM Platform Membership from Students.

  1. REWARDS AND PAYMENT

5.1 In consideration for You promoting sales of the TOTUM Platform Membership, We will pay You the Rewards. The current rewards model, initiated on 1st July 2021, which renews annually on this date, is as referred to here: http://su-help.totum.com/support/solutions/articles/47001206893-totum-rewards- 5.2 There are two types of Rewards available.  The first is for all Students' Unions and is calculated based on the sales of the TOTUM Platform Membership to Students and the second is only for NUS affiliated Students' Unions and is based on the engagement of Students, including those using TOTUM Digital, with the TOTUM App. 5.3 What qualifies as engagement (for the purposes of the digital engagement reward), the rates of Incentives and further details of the activities required to earn the Incentives are as communicated to You by Us and/or as set out on the SU Site. 5.4 The Rewards based on sales of the TOTUM Platform will be paid on 90 day terms and the Rewards for digital engagement will be paid quarterly. Any applicable VAT will be paid with the Rewards. Payment will be made when the balance owed is £250 or more. 5.5 You are solely responsible for providing Us with up to date contact details for the TOTUM product and for Your finance team. You are solely responsible for notifying Us of changes to these contact details. 5.6 The Rewards will be calculated and paid by Us into a bank account as instructed by You and You are solely responsible for completing and returning a self-billing agreement within the specified deadlines held in the agreement in order to receive Rewards payments from Us. 5.7 You are solely responsible for Your performance of Your obligations under these Terms and We shall not be responsible for Your failure to perform and meet the performance and Rewards targets. 5.8 If any dispute arises as to the amount of Rewards due, such dispute shall be referred to Our auditors for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties.

  1. INTELLECTUAL PROPERTY

6.1 Save for OneVoice Marks and all Intellectual Property Rights in the Our materials, which shall at all times remain the property of OneVoice, all Intellectual Property Rights in the materials relating to your promotions will remain with and belong to You. 6.2 All Intellectual Property Rights in the TOTUM Platform including User Data and OneVoice Marks will remain the property of OneVoice and nothing in these Terms grants You the right to copy the software code comprising the TOTUM Platform, make or engineer a product or offering that is similar to the TOTUM Platform or copy or use the OneVoice Marks, except as expressly permitted by Us. 6.3 In the event that We perceive that You are in breach of the restrictions set out in clause 6.2, We have the right to terminate the Appointment and withhold payment of Incentives.

  1. YOUR OBLIGATIONS

7.1 You warrant and represent to Us that: (a) You shall provide Us with all necessary co-operation in relation to these Terms, and all necessary access to such information as may be required by Us to enable Us to pay the Incentives; (b) You agree that You will not do or publish or say anything that may disparage Us or the TOTUM Platform or have a negative impact on Our reputation or that of the TOTUM Platform or Our other offerings; (c) You own or have the full rights to provide us with the TOTUM Content and to allow Us to use the TOTUM Content as described in these Terms.  You further warrant that Our use of the TOTUM Content does and will not infringe the Intellectual Property Rights of a third party.

  1. DATA AND REPORTING

8.1  Each party agrees that, in the performance of its respective obligations under these Terms, it shall comply with the provisions of the Data Protection Requirements to the extent it applies to each of them. 8.2 We shall collect data and information concerning the uptake of TOTUM Platform Membership by Students and the level of engagement and activity of Students on the TOTUM Platform and shall report this data to You in an anonymised form.  The uptake, activity and engagement data can be used by You and Us to analyse the success of your marketing activities and will also be used by Us for Incentives calculation purposes.

  1. CONFIDENTIALITY

9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence. 9.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party (apart from any consultants or professional advisers appointed by Us), or use the other’s Confidential Information for any purpose other than the implementation of these Terms. 9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms. 9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

  1. INDEMNITY

10.1 You shall defend, indemnify and hold Us harmless from and against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (a) any claim that Our use of the TOTUM Content infringes the Intellectual Property Rights or other rights of a third party; (b) any breach by You of Your obligations under the Data Protection Requirements. We will provide reasonable co-operation to You in the defence and settlement of such claim, at Your expense and You are given sole authority to defend or settle the claim. 10.2 We shall defend, indemnify and hold You harmless from and against all losses which are suffered by You in the event of Our breach of Our obligations under the Data Protection Regulations. You will provide reasonable co-operation to Us in the defence and settlement of such claim, at Our expense and We shall have sole authority to defend or settle the claim.

  1. LIMITATION OF LIABILITY

11.1 This clause sets out the entire liability of Us (including any liability for the acts or omission of Our employees, agents and sub-contractors) to You arising under or in connection with these Terms. 11.2 Notwithstanding any other provision of these Terms, the liability of the parties shall not be limited in any way in respect of death or personal injury caused by negligence; fraud or fraudulent misrepresentation and any other losses which cannot be excluded or limited by applicable law. 11.3  Subject to clause 11.2 We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any of the following (whether direct or indirect) loss of profit; loss of data; loss of use; loss of production; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated) or harm to reputation or loss of goodwill. 11.4  Subject to clause 11.2 and 11.3, Our total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or  breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of these Terms shall be limited to 100% of the Incentives paid during the 12 months immediately preceding the date on which the claim arose. ]

  1. TERMINATION

12.1 Without prejudice to any other rights or remedies We may have, We may terminate the Appointment at any time by giving notice in writing to You if: (a) You commit a material breach of these Terms and such breach is not remediable; (b) You commit a material breach of these Terms which is not remedied within 30 days of receiving written notice of such; (c) You commit a breach of the requirement set out in clause 7.1(b) (obligation not to disparage). 12.2 We may terminate the Appointment at any time by giving notice in writing to You if You: (a) stop carrying on Your business, or indicates in any way that You intend to do so; (b) are in financial peril such that Your performance of your objectives or obligations under these Terms are or may be compromised; (c) are subject to any recovery or attempted recovery of items supplied to You by a supplier retaining title to those items. 12.3 Termination of the Appointment shall not affect any accrued rights and liabilities of either party at any time up to the date of termination. 12.4 Any provision that is expressly or by implication intended to survive termination shall survive termination of these Terms.

  1. AUDIT

13.1 You must keep, maintain and retain until one year after the end of your Appointment full and accurate records relating to Your performance of Your obligations under these Terms including details relating to the promotion of the TOTUM Platform and TOTUM Platform Membership. 13.2 You must, on request, permit Us or Our representatives such access to those records as We may reasonably request.

  1. GENERAL

14.1  Nothing in these Terms is intended to or shall be deemed to establish any partnership or joint venture of any kind between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. 14.2 If any provision of these Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal the other provisions shall remain in force. 14.3 You may not transfer any of Your rights or obligations under these Terms to another person without Our prior written consent.  We shall be entitled at any time to assign, novate, mortgage, charge, sub-contract or otherwise dispose of Our rights and/or obligations under these Terms; or may act through any group company from time to time. 14.4 We shall have no liability under or be deemed to be in breach of these Terms for any delays or failures in performance which result from Force Majeure.  We shall promptly notify You in writing when such an event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure continues for a continuous period of more than 3 months, We may terminate the Appointment by written notice to You. 14.5 These Terms and the information, including marketing guidelines and Incentives details communicated to You by Us and set out on the SU Site and the self-billing agreement (referred to in clause 5.6) constitute the entire agreement and understanding between the parties with respect of the matters contained herein and supersede any and all previous agreements, written or oral, express or implied between the parties with respect to it. 14.6 No third party has any right to enforce these Terms under the Contracts (Rights of Third Parties) Act 1999. 14.7 No delay, act or omission by either party in exercising any right will be deemed to be a waiver of that, or any other right. 14.8 We may from time to time modify these Terms by publishing any changes online at the SU Site.  Any changes will apply immediately. We will notify You of all changes (and when the changes are effective) provided that such changes shall apply irrespective of non-receipt of any notification.   If changes are material and adversely affect You then You may terminate the Appointment on giving 30 days’ notice, such notice to be received by Us within 30 days after the relevant change is effective. 14.9 If there is an inconsistency between any of the provisions on the SU Site and these Terms the SU Site shall prevail. 14.10 These Terms and the Appointment and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non- contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. 14.11 The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, these Terms and their subject matter.