Definitions and interpretation
In these Terms the following definitions apply
the Poncho Partner Agreement comprising the Contract Form, and these Supplier Terms and Conditions;
a day other than a Saturday, Sunday or bank or public holiday in England;
Data Protection Legislation
all privacy and data protection laws applicable in the United Kingdom from time to time including the General Data Protection Regulation ((EU) 2016/679 (“GDPR”); the Data Protection Act 2018; the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended); and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
the initial term set out in the Contract Form;
Intellectual Property Rights
patents, trade marks, service marks, design rights (whether registrable or otherwise), applications for any of those rights, copyright (including all rights in software and any database rights), know-how, confidential information, trade or business names and any similar rights or obligations whether registrable or not in any country;
the terms and conditions applicable to a User’s booking of a Supplier Deals on the Platform , which are specified by the Supplier in accordance with clause 5.3;
the monthly fee payable by Supplier to be listed on the Platform, as further detailed in the Contract Form
the restricted access online learning and activities platform for children and young adults managed by Poncho, including an online marketplace by which Supplier Users can access Supplier Deals from Poncho Partners;
shall have the meaning given to it in clause 19.1;
the start date set out in the Contract Form;
the supplier named in the Contract Form;
as defined in clause 2.5;
means those activities, events, learning opportunities, after school and holiday clubs, and other services and products for children and families, listed for sale by Supplier on the Platform;
the Initial Term together with any Renewal Periods;
a user of the Platform;
means a review of any Supplier Deal, uploaded to the Platform by a User.
1.2 In the Agreement, unless the context requires otherwise:
1.2.1 the expressions controller, process, personal data, and appropriate technical and organisational measures shall be as defined in Data Protection Legislation.
1.2.2 any clause, schedule or other headings in the Agreement is included for convenience only and shall have no effect on the interpretation of the Agreement;
1.2.3 a reference to a “party” includes that party’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a “person” includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.5 a reference to a “company” includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6 a reference to a gender includes each other gender, and words in the singular include the plural and vice versa;
1.2.7 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;
1.2.8 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and
1.2.9 a reference to legislation includes all subordinate legislation made from time to time under that legislation.
2. Supplier’s listing on the Platform
2.1 In consideration of Supplier’s payment of the Monthly Fee in accordance with the Agreement, Poncho grants to Supplier a non-exclusive, non-transferable licence during the Term to offer Supplier Deals to Users on the Platform, on and subject to the terms and conditions of the Agreement.
2.2 Poncho is not involved in, and bears no responsibility for, the actual transaction between Supplier and Users and does not act as agent for Supplier. As such, the completed sale is a contract solely between Supplier and User.
2.3 Before listing Supplier or any Supplier Deal on the Platform, Poncho may conduct appropriate identity verification or background checks on Provider, as it considers necessary or as required by applicable law.
2.4 Supplier authorises Poncho to act as their limited representative solely to conclude on its behalf sales contracts directly between it and Users for Supplier Deals purchased via the Platform. While Poncho helps facilitate transactions that are carried out using the Platform, Poncho is neither the User nor Supplier of the Supplier Deal.
2.5 Supplier is solely responsible for its conduct and activities on and regarding the Platform and the Supplier Deals and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, items, events, campaigns and links that it submits to Poncho or submits, posts and displays on the Platform (“Supplier Content”).
2.6 Supplier represents and warrants that:
2.6.1 it is entering into the Agreement for the purposes of its trade, business or profession;
2.6.2 if Supplier is a natural person, they are 18 years or older;
2.6.3 In respect of Supplier Deals, it is the true owner of any goods included in Supplier Deals and is able to transfer good title to such goods free from any third party claims, liens or encumbrances;
2.6.4 any Supplier Content making up a listing (i) accurately describes the Supplier Deal; (ii) is not misleading or otherwise deceptive; (iii) is current and complete; and (iv) complies with the Agreement and any relevant Poncho policies from time to time in force;
2.6.5 it owns and/or is permitted to use Supplier Content and that such Supplier Content does not infringe the intellectual property rights of any third party;
2.6.6. the Supplier Content will not contain any defamatory matter nor breach any contract or law nor breach any duty of confidentiality, infringe any data protection rights, nor constitute contempt of court or obscenity; and
2.6.7 any Supplier Content (including such content used in a marketing campaign on the Platform) shall comply with all applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force, including all such guidelines and codes issued by statutory, regulatory and industry bodies.
2.7 Poncho makes no representations regarding the rank, location and prominence of any listing of a Supplier Deal on the Platform and has the sole right to determine whether and where a listing will be displayed in response to a given search or otherwise.
2.8 All Supplier Content will be subject to the licence in clause 11.2. Poncho reserves the right to remove such Supplier Content immediately and without notice to Supplier
Prices and payment
3.1 Supplier Deals offered by Supplier for sale on the Platform shall be at a fixed price and in GBP. All VAT and any other taxes associated with the fixed price sale of Supplier Deals will be paid by the User and it is Supplier’s responsibility to determine, collect and remit the applicable VAT and any other taxes associated with the sale.
3.2 Supplier must set the price for each Supplier Deal listed on the Platform, in accordance with clause 3.1.
3.3. Supplier shall ensure that the prices at which their Supplier Deals are listed on the Platform are accurate.
3.4 Supplier can change prices at any time in accordance with clause 3.2, except that Supplier cannot raise prices in respect of orders that have already been placed by Users.
3.5 All sales are binding and Supplier may not alter the price of a Supplier Deal after completion of a sale or booking.
3.6 Poncho shall not be responsible for any errors in pricing made by the Supplier, and reserves the right to refuse orders placed with erroneous information.
3.7 Purchases made between a User and Supplier shall be processed via the Platform through Poncho’s payment facility. Suppliers must not invoice buyers off the Platform.
3.8 Poncho shall collect all payments from Users for Supplier Deals and shall transfer them on to Supplier within one (1) month of receipt, less any: (i) Commission and Monthly Fees payable to Poncho under this Agreement, (ii) transaction fees payable to our payments processor (Stripe) and (iii) refunds made to Users.
3.9 Any amount that Poncho owes to Supplier under this Agreement, whether now or at any time in the future, whether it is liquidated or not and whether it is actual or contingent, may be set off from any amount due to Poncho from Supplier under this Agreement.
Commission and Monthly Fee
4.1 Poncho shall be entitled to retain a commission on each sale of a Supplier Deal to a User (“Commission”), such Commission being the amount set out on the Front Sheet to these Terms.
4.2 In addition to any sums accruing by way of Commission, and in further consideration of it featuring Supplier on the Platform, Poncho shall be entitled to retain a monthly fee (a “Monthly Fee”) from such sums as would otherwise be due and payable by Poncho to Supplier under this Agreement. Such Monthly Fee shall be in the amount set out on the Front Sheet to these Terms. The Monthly Fee will be levied in practice only in months where Supplier’s sales are sufficient to pay it in full after Commission, and will otherwise be rolled over to be billed at the discretion of Poncho in a subsequent month.
4.3 The Commission and Monthly Fee is exclusive of VAT which where applicable Supplier shall pay to Poncho in addition.
4.4 Poncho may alter the Monthly Fee at any time by giving Supplier not less than 20 Business Days’ notice in writing provided that the increase shall not take effect until the next Renewal Date.
4.5 Poncho shall invoice Supplier for Commission and Monthly Fee monthly in arrears.
4.6 Supplier shall pay all invoices:
4.6.1 in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and
4.6.2 to the bank account nominated by Poncho.
4.7 Time of payment is of the essence. Where sums due under the Agreement are not paid in full by the due date:
4.7.1 Poncho may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of the Bank of England from time to time in force;
4.7.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment; and
4.7.3 Poncho may suspend the Listing until payment in full has been made.
5 Bookings of Supplier Deals
5.1 Bookings of Supplier Deals shall be arranged by Poncho (acting on behalf of Supplier) and the User through the Platform.
5.2 Supplier acknowledges and agrees that all bookings of Supplier Deals shall be made on and subject to the Booking Terms.
5.3 Supplier shall provide the Booking Terms applicable to a particular Supplier Deal either to Poncho for inclusion on the Platform or, if Supplier has direct access to the Platform for such purpose, by directly adding them to the Platform prior to the Supplier Deal going live. Supplier acknowledges and agrees that the Booking Terms must not contradict the Booking Terms or the terms of this Agreement.
5.4 As between Poncho and Supplier, the parties shall agree within three(3) days of the date of the Agreement whether the booking of Supplier Deals shall be arranged by email, or through integration with Supplier’s existing electronic booking system, or through some other online process (the “Booking Process”). The Booking Process agreed upon by the parties shall determine the response time under clause 5.5 below.
5.5 Supplier shall confirm or reject each Supplier Deal booking request within:
5.5.1 three hours for a Booking Process through email; and
5.5.2 one hour for all other Booking Processes.
5.6 Once a booking is confirmed by Supplier Poncho shall provide a booking confirmation to the User, at which point a contract shall be formed between Supplier and User on the Booking Terms.
5.7 Supplier shall not make any amendments to a confirmed booking (including time, date or type of booking) without the prior written consent of Poncho and the User.
5.8 If a Supplier Deal is cancelled by Supplier or otherwise does not go ahead as planned, Poncho shall offer each User affected either a credit note of the same value as the price paid for the affected Supplier Deal or a full refund. Credit notes can only be redeemed against other Supplier Deals on the Platform and within twelve (12) months of issue date.
5.9 If a User cancels its booking of a Supplier Deal, then the User’s rights and remedies shall be determined in accordance with the Booking Terms.
6 Prohibited Supplier Deals
6.1 The following items must not be listed on the Platform by Supplier:
6.1.1 offensive material, including material that incites racial hatred or promotes discrimination based on race, sex, religion, national origin, physical ability, sexual orientation or age;
6.1.2 obscene material including pornographic material;
6.1.3 living animals;
6.1.4 intoxicating liquor and tobacco;
6.1.5 firearms and ammunition;
6.1.6 stolen goods;
6.1.7 items that infringe another party’s copyright, patent, trademark, database right, or other intellectual property other proprietary right;
6.1.8 illegal or prescription drugs;
6.1.9 items whose sale, distribution or offering for sale is prohibited by any Applicable Laws;
6.1.10 items whose sale is subject to export restrictions;
6.1.11 offensive weapons, poisons and dangerous substances;
6.1.12 second hand and/or refurbished goods; and
6.1.13 any other types of products that are in Poncho absolute discretion are to be excluded from listing and/or sale using the Platform.
7. Reservation of rights
7.1 Poncho reserves all rights available to it, if it considers it appropriate, to immediately and without notice to Supplier:
7.1.1 halt any transactions via the Platform;
7.1.2 prevent or restrict access to the Platform; or
7.1.3 take any other action to restrict access to or availability of or remove any objectionable material, feedback, ratings, inaccurate listings, inappropriately categorised items, unlawful items or items prohibited for listing on the Platform pursuant to clause 6.
7.1.4 Poncho reserves the right and has absolute discretion, but not an obligation, to remove, screen or edit any content that breaches these Terms or any Poncho policy or is otherwise objectionable.
7.2 Without prejudice to the rights granted in this clause 9, Poncho reserves the rights to refuse any listings or to immediately remove any listings, at its absolute discretion.
8. User Feedback
8.1 Supplier acknowledges and agrees that Users may leave feedback relating to Supplier and Supplier Deals purchased via the Platform. Poncho is not responsible for checking or editing the User Feedback on the Platform.
8.2 Supplier consents to the publication of, and authorises Poncho to publish User Feedback, even though such User Feedback may be critical or defamatory of Supplier.
8.3 Supplier releases Poncho from and waives all rights against Poncho in respect of any liability arising out of or in connection with the publication of any defamatory comments about Supplier in such User Feedback.
9. Data Protection
9.1 Supplier acknowledges and agrees that personal data will be processed by and on behalf of the Supplier in connection with the supply of Supplier Deals and, in respect of such personal data, Supplier warrants to and undertakes with Poncho that it shall:
9.1.1 comply with all the obligations imposed on a controller under the Data Protection Legislation;
9.1.2 give full information to any data subject whose personal data may be processed under this Agreement, of the nature of such processing;
9.1.3 not disclose or allow access to such personal data to any third party other than for the purpose of provision of the Supplier Deal;
9.1.4 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
9.1.5 not transfer any personal data outside of the European Economic Area unless it ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the General Data Protection Regulation; (ii) there are appropriate safeguards in place pursuant to Article 46 of the General Data Protection Regulation; or (iii) one of the derogations for specific situations in Article 49 of the General Data Protection Regulation applies to the transfer.
10. Maintenance of the Platform
10.1 Poncho reserves the right to carry out maintenance and updates to the Platform. Poncho will endeavour to carry out all maintenance work outside of standard working hours (9am-5pm GMT) on Business Days with as little disruption as possible to Supplier and Supplier Users. However, Poncho reserves the right to suspend or interrupt the Platform for emergency maintenance or repairs.
11. Intellectual property
11.1 All Intellectual Property Rights in and to the Platform including in Poncho’s our name, logo, and brand and shall be and remain vested in Poncho (or its licensors).
11.2 All Intellectual Property Rights in and to Supplier Content and shall be and remain vested in Supplier (or its licensors).
11.3 Suppliers grants Poncho unlimited, non-terminable and free permission (including the right to sub-license that permission) to use, re-use, copy, adapt, abridge, amend, distribute, modify, translate, publish, perform, display, develop, reproduce, communicate to the public and to make Supplier Content otherwise available in any form and/or by any media (whether now known or hereafter devised), including through any on-demand or broadcast service, whether on a commercial or non-commercial basis anywhere in the world.
11.4 Supplier hereby waives its moral rights in Supplier Content and agrees not to assert such rights against Poncho.
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause.
12.2 Each party may disclose the other party's confidential information:
12.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this Agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party shall use the other party's confidential information for any purpose other than to perform its obligations or exercise its rights under this Agreement.
12.4 The provisions of this clause shall not apply to any information that is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its representatives in breach of this clause).
12.5 Poncho may disclose or publish that Supplier is a Poncho Partner and listed on the Platform. In addition, Poncho may, with Supplier’s prior written consent, create case studies of the collaboration between Poncho and Supplier.
13. Compliance with law
13.1 The Supplier shall be solely responsible for compliance with all laws applicable to it in connection with the exercise of its rights and performance of its obligations under the Agreement (including compliance with Data Protection Legislation when sharing User Information with Poncho or sending any marketing or other notifications about the Platform to its employees) and shall further be solely responsible for compliance with all published policies, guidelines or industry codes of practice applicable to it but not having the force of law.
13.2 Poncho shall be solely responsible for compliance with all laws applicable to it and its subcontractors and shall further be solely responsible for compliance with all published policies, guidelines or industry codes of practice applicable to it but not having the force of law.
14. Supplier responsible for all Supplier Deals
14.1 Supplier shall be solely responsible for all aspects of the provision, operation and running of Supplier Deals including:
14.1.1 operating all activities and events in a safe and fun learning environment and for ensuring their appropriateness and safety for children;
14.1.2 performing all relevant, necessary or desirable checks (DBS checks, reference checks) on staff, trainers, teachers and helpers;
14.1.3 complying with all health and safety laws and regulations applicable to the physical or virtual venue of the activity or event and in respect of all equipment to be used; and
14.1.4 having relevant first aid kits and imparting essential first aid training to all staff, trainers, teachers and helpers.
14.2 Supplier shall have in place appropriate insurance covering the operation and running of Supplier Deals.
14.3 Supplier shall adhere to any special requirements needed by a User such as dietary restrictions or SEND requirements as may be communicated to Supplier via the User or Poncho.
14.4 Supplier shall forthwith upon request make available to Poncho all records, documents and other information necessary to verify Supplier’s compliance with the obligations set out in this clause 14. Supplier shall allow Poncho or its authorised representative on reasonable notice during normal business hours to have access to Poncho’s premises in order to inspect, audit and take copies of relevant records, documents and other information as necessary to verify Provider's compliance with this Agreement.
15.1 Supplier agrees that it will compensate Poncho (and Poncho’ employees, officers, agents and suppliers) in full for any damages, losses, costs and expenses, including reasonable legal fees Poncho incur that arise out of any breach by Supplier of these Terms (including as a result of any material that Supplier post to the Platform or any actions Supplier take which disrupt access to and/or the functioning of the Platform) or any liability Poncho incur as a result of the use of the Platform by Supplier and any other person that uses its account.
16.1 While Poncho shall use commercially reasonable endeavours to make the Platform available 24 hours a day, seven days a week and to correct any errors in the Platform, Poncho does not warrant: (a) that the operation or use of the Platform will be error-free or uninterrupted or that any defect will be corrected; or (b) that the Platform, the Third Party Service or any information or results obtained by Supplier or Supplier Users through the use of the Platform will meet Supplier's (or any Supplier User’s) requirements.
16.2 Save as expressly set out in this Agreement, to the maximum extent permitted by law, Poncho disclaims any and all representations, conditions and warranties whether express or implied by statute or common law or otherwise that the Platform is or will be of satisfactory quality, fit for a particular purpose, provided with reasonable care and skill or non-infringing.
17. Limitation of liability
17.1 Nothing in this Agreement shall be deemed to limit or exclude the liability of Poncho for:
17.1.1 death or personal injury caused by its negligence;
17.1.2 fraud or fraudulent misrepresentation;
17.1.3. or any other liability that cannot by law be limited or excluded.
17.2 Subject to clause 17.1, Poncho shall not in any event be liable whether in contract (by way of indemnity or otherwise), tort (including negligence), misrepresentation, restitution or otherwise under or in connection with this agreement for:
17.2.1 any special, indirect or consequential loss or damage;
17.2.2 any direct or indirect loss of profit, turnover, business, revenue, contracts, goodwill, reputation, anticipated savings or management time;
17.2.3 loss of data;
17.2.4 any third party claims.
17.3 Subject to clause 17.1, Poncho’s total aggregate liability to Supplier in any calendar year under or in connection with this Agreement whether in contract (including by way of indemnity), tort (including negligence), misrepresentation, restitution or otherwise will be limited to the greater of (a) a sum equivalent to the total Monthly Fee paid by Supplier under this Agreement in the calendar year in which the cause of action first arose, and (b) £100.
18.1 Each party shall comply with the Bribery Act 2010 and other applicable laws in connection with bribery or anti-corruption including ensuring that it has in place adequate procedures to prevent bribery and shall use all reasonable endeavours to ensure that all of that party’s personnel and all others associated with that party and all of that party’s sub-contractors involved in performing the Agreement so comply.
19. Term and Termination
19.1 The Agreement shall commence on the Start Date and, unless terminated earlier in accordance with this clause, shall continue for the Initial Term. Thereafter, the Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period.
19.2 Either party may terminate this Agreement at any time with immediate effect by giving written notice to the other party if:
19.2.1 the other commits a material breach of any of its obligations under the Agreement which (if the breach is capable of remedy) it has failed to remedy within 30 days after the receipt of a notice in writing from the terminating party requiring the defaulting party to do so;
19.2.2 a provisional liquidator is appointed to the other or the other goes into liquidation either compulsorily or (except for the purpose of reconstruction or amalgamation) voluntarily;
19.2.3 a receiver is appointed in respect of the whole or any part of the assets of the other;
19.2.4 an administration order is made in respect of the other; or
19.2.5 the other enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors.
19.3 Poncho may terminate the Agreement by notice in writing to Supplier having immediate effect if Supplier defaults in payment of any Poncho invoice and such invoice remains outstanding fourteen (14) calendar days after Poncho has issued a demand in writing for payment.
20. Consequences of Termination
20.1 The termination of the Agreement will be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.
20.2 On termination of the Agreement for any reason whatsoever:
20.2.1 Supplier and Supplier Deals shall cease to be listed on the Platform;Poncho shall remove and cease any use of Supplier Materials from Platform.no refund will be due to Supplier in respect of any Commission or Monthly Fee paid; the provisions of clauses 1 (Definitions and Interpretation), 11 (Intellectual Property), 12 (Confidentiality), 9 (Data Protection), 20 (Consequences of Termination), 17 (Liability), 28 (Law and Jurisdiction) and any other provision which expressly or by implication is intended to come into or remain in force on or after termination will continue in full force and effect.
21. Assignment and Subcontracting
21.1 The Supplier shall not assign, sub-license, transfer, mortgage, charge, declare a trust of, subcontract or deal in any other manner with any or all of its rights or obligations under this Agreement, without the prior written consent of Poncho (such consent not to be unreasonably withheld or delayed).
21.2 Poncho may without Supplier’s prior written consent:
21.2.1 assign or transfer the benefit of, and any of its rights under, this Agreement together with any cause of action arising in connection with any of them to its successor in title, to any of its group companies or to any purchaser or transferee from it or any of them; or
21.2.2 sub-contract any or all of its obligations under this Agreement so long as Poncho remains responsible for the obligations performed by any such subcontractor to the same extent as if such obligations were performed by Poncho.
21.3 Any attempted assignment, transfer or other dealing in violation of this clause 21 will be void and without effect.
22.1 A notice or other communication required to be given under the Agreement shall be sent by email to Poncho at email@example.com and to Supplier at the email address for Supplier set out in the Contract Form.
22.2 A notice or other communication sent by email shall be deemed duly received on the next Business Day after transmission if sent to the correct email address and no notice of delivery failure is received.
22.3 Any change to Contract Forma party’s email address for the purposes of this clause shall be notified to the other party in accordance with clause 22.1.
22.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23. Force Majeure
23.1 A “Force Majeure Event” means any circumstance not within a party's reasonable control including, without limitation:
23.1.1 acts of God, flood, drought, earthquake or other natural disaster;
23.1.2 epidemic or pandemic;
23.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions or embargo;
23.1.4 nuclear, chemical or biological contamination or sonic boom;
23.1.5 failure of or interruption in internet or telecommunications services;
23.1.6 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, sanction, quota or prohibition.
23.2 Provided it has complied with clause 23.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
23.3 The Affected Party shall:
23.3.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
23.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
23.4 A Force Majeure Event shall not relieve the Affected Party from its obligation to make payment of any sum due under the Agreement.
23.5 If the Force Majeure Event prevents the Affected Party's performance of its obligations under the Agreement for a continuous period of more than two months, the other party may terminate the Agreement by notice in writing to the Affected Party without liability to the Affected Party as a result of exercising the right of termination.
24. Amendments to the Agreement
24.1 Poncho may update or modify the Agreement to reflect changes to the Platform or updates to its business practices and policies, or for other reasons.
24.2 If Poncho updates or modifies the Agreement, it shall give notice to Supplier. Unless Supplier notifies Poncho within thirty days of the date of Poncho’s notice, Supplier will be deemed to have accepted the new terms. Notwithstanding any such notice from Supplier, Supplier’s continued use of the Platform after the expiry of such thirty day period will signify its agreement to the new terms
25. Entire Agreement
25.1 The Agreement represents the entire agreement between the parties in relation to the subject matter of the Agreement and supersedes any previous agreement whether written or oral between all or any of the parties in relation to that subject matter. Accordingly, all other conditions, representations and warranties which would otherwise be implied (by law or otherwise) shall not form part of the Agreement.
25.2 Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the Agreement.
25.3 Nothing in this clause shall limit or exclude any liability for fraud.
The Agreement may be executed, including by way of electronic signature, in any number of counterparts. Transmission of the executed signature page of a counterpart of the Agreement by email (in PDF, JPEG or other agreed format) or by using a web-based e-signature platform such as Docusign, shall take effect as delivery of an executed counterpart of the Agreement.
27.1 If any provision or part of any provision of the Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, then the provision or part shall be severed and the remainder of the provision and all other provisions of the Agreement shall remain valid and in full force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
27.2 Subject to clause 24, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
27.3 Poncho is an independent contractor. Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
27.4 No delay in exercising or failure to exercise by any party of any of its rights under or in connection with the Agreement shall operate as a waiver or release of that right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.
27.5 Each party shall pay its own costs incurred in connection with the negotiation, preparation, and execution of this agreement and any documents referred to in it.
27.6 Except as otherwise expressly provided in this Agreement, none of the terms and conditions of this Agreement shall be enforceable by any person who is not a party to it, and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply in relation to this Agreement.
28. Law and Jurisdiction
28.1 The Agreement, and any non-contractual rights or obligations arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with English law.
28.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to hear and determine or otherwise settle all and any claims, proceedings, suits or action (including arbitration) arising out of or in connection with the Agreement or its subject matter.