Anti-Bribery & Anti-Corruption Clauses
CONTENTS
2. INTERPRETATION AND CONSTRUCTION
4. REPRESENTATIONS AND WARRANTIES
6. THE CONTRACTING PARTY’S PERSONNEL AND THIRD PARTIES
1. Definitions
"Affiliates" means the in relation to a party, a corporation owned or controlled by the party or which owns or controls the party or which is owned or controlled by a parent corporation which also owns that party.
"Agreement" means CAKE.com Terms of Use as the main Agreement between CAKE.com and the Contracting Party including the schedules, annexes, appendices and any amendments and variations made in accordance with the Agreement.
"Anti-Bribery Laws and Anti-Corruption Laws" all Applicable Laws relating to anti-bribery, anti-corruption or anti-kickbacks, as in effect from time to time, including, but not limited to, the United States Foreign Corrupt Practices Act of 1977 (FCPA), as amended, the United Kingdom Bribery Act of 2010 and any other Applicable Laws in any jurisdiction intended to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
"Anti-Money Laundering Laws" all Applicable Laws relating to anti-money laundering or combating financing of terrorism, which may include the United States Anti-Money Laundering Act of 2020 (AMLA) and any other Applicable Laws in any jurisdiction.
"Applicable Laws" means with respect to any person or thing, any supranational, national, state, provincial, municipal or local law, common law, regulation, directive, guideline, constitution, act of parliament, ordinance, treaty, convention, by-law, circular, guidance, notice, codes, rule (including the rules of any applicable stock exchange), order, injunction, judgment, decree, arbitral award, ruling, finding or other similar requirement enacted, adopted, promulgated or applied by an Authority, including any amendments, re-enactment or replacement of it, that has the force of law with respect to such person or thing in any relevant jurisdiction.
"Authority" includes any supranational, national, state, municipal or local government, governmental, semi-governmental, intergovernmental, regulatory, judicial or quasi-judicial body, agency, department, entity or authority, stock exchange or self-regulatory organization established under statute and shall include persons exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
"CAKE.com" means where the context requires in accordance with the Agreement, either CAKE.com Inc. or any of its subsidiaries or Affiliates or, CAKE.com AG and its subsidiaries and Affiliates collectively, or any relevant combination thereof.
"CAKE.com Group" CAKE.com Inc., CAKE.com AG and their subsidiaries and affiliated companies and all other Affiliates of CAKE.com Inc. and CAKE.com AG.
"Contracting Party" the party with whom CAKE.com or CAKE.com Group has entered into the Agreement. collectively, CAKE.com or CAKE.com Group and the party with whom CAKE.com or CAKE.com Group has entered into the Agreement.
"Control" the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.
"gratification" and "financial or other advantage" includes facilitation payments, asset, benefit, loan, employment, agreement to render services, release, discharge of any liability, money, forbearance to demand money, forbearance from exercising any right or power, obtaining favorable treatment or improper commercial advantage, gifts, entertainment, favors, services or benefits, commission, valuable consideration of any kind and any service or favor and "gift" is defined to include all forms of entertainment, travel and hospitalities, donations and sponsorships.
"Politically Exposed Persons" includes anyone working for or on behalf of a national, state, provincial or local government department, body, agency or other government entity (including government-owned or controlled companies) or any public international organization, and more precisely, any current or former government or public official or employee of governmental agencies of the relevant country or any state service or department, any official of government departments, agencies or instrumentalities, and any person working for the government, or close relative or related person of any of the above persons; any official or employee of public international organizations, political party official and political party representative or, candidate for political office, any employee of a public body, any employee of a state-owned or controlled entity or enterprise or of a public international organization, or their respective representatives or proxies.
2. Interpretation and Construction
2.1. In this Agreement, unless the context otherwise requires:
- words denoting the singular number include the plural and vice-versa;
- words denoting a gender include every gender;
- “person” and words denoting natural persons include bodies corporate and unincorporated, governments, government officials, government departments, agencies or instrumentalities, officials of government departments, agencies or instrumentalities, public international organizations, officials of public international organizations, political party, political party officials, candidates for political office, or their respective representatives or proxies; and
- references to any legislation or law shall include any modification, amendment, re-enactment or substitution of that legislation or law and all regulations, directives, guidelines, by-laws, circulars, guidance, notices, codes, rules and statutory instruments issued under such legislation or law that has the force of law.
2.2. A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it.
3. Undertakings
3.1. Each Contracting Party agrees to observe and comply with all Anti-Bribery Laws and Anti-Corruption Laws and shall ensure that its controlling entities or persons, affiliates, partners, officers, directors, employees, consultants, representatives, agents and sub-contractors do not violate any Anti-Bribery Laws and Anti-Corruption Laws during the term of the Agreement.
3.2. Each Contracting Party agrees to observe and comply with all Anti-Money Laundering Laws and shall ensure that its controlling entities or persons, affiliates, partners, officers, directors, employees, consultants, representatives, agents and sub- contractors do not violate any Anti-Money Laundering Laws during the term of the Agreement.
3.3. Without limiting the generality of the foregoing, the Contracting Parties or any of their controlling entities or persons, affiliates, partners, officers, directors, employees, consultants, representatives, agents and sub-contractors, shall not, under any circumstances and whether directly or indirectly, through a third party:
a. give, request, agree to give, promise, offer or authorize the giving, the entry into any agreement to give, promise, offer or payment of, any gratification or financial or other advantage or any other thing of value:
- to or from any person who is a controlling entity or person, affiliate, partner, officer, director, employee, consultant, representative, agent or sub-contractor of any Contracting Party or acting on its behalf; or
- to or from any family member or related person of such controlling entity or person, affiliate, partner, officer, director, employee, consultant, representative, agent or sub-contractor; or
- to or from any other third party,
as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to this Agreement or showing or forbearing to show favor or disfavor to any person in relation to this Agreement or to any other person in order to induce him or her to act disloyally or otherwise improperly; and for the purpose of securing any improper or unfair advantage or receiving, providing or encouraging to receive/provide improper/groundless advantages for their own benefit or obtaining or retaining business in connection with the activities contemplated hereunder or for the purpose of improperly inducing or rewarding favorable treatment or advantage in connection with the Agreement.
or
b. do or carry out any acts in furtherance of a gift, agreement to give, offer, payment, promise to pay or authorization referred to in Clause 3.3(a) above.
4. Representations and Warranties
4.1. The Contracting Parties hereby represent, warrant and covenant that:
- they and any of their controlling entities or persons, affiliates, partners, officers, directors, employees, consultants or representatives, agents and sub-contractors involved in the relevant undertaking in relation to the subject matter of the Agreement, will comply at all times in connection with and throughout the course of the Agreement and during the term of the Agreement (if applicable, including upon acquisition of the products and/or contents that are relevant for the provision of the services subject to the Agreement), with all Applicable Laws, statutes, regulations and codes relating to combating corruption, including without limitation the United States Foreign Corrupt Practices Act, and namely with all Anti-Bribery Laws and Anti-Corruption Laws as well as Anti-Money Laundering Laws.
- they have not, under any circumstances and whether directly or through a third party, given, requested, agreed to give, promised, offered or negotiated and authorized the giving, the entry into any agreement to give, promise, offer or payment of, any gratification, or financial or other advantage, money or other property or any other thing of value or other privileges, services, intangible assets, other benefits that are promised, offered, provided or received without proper legal grounds (improper benefit):
- to or from any person who is a controlling entity or person, affiliate, partner, officer, director, employee, consultant, representative, agent or sub-contractor of any Contracting Party or acting on its behalf; or
- to or from any family member or related person of such controlling entity or person, affiliate, partner, officer, director, employee, consultant, representative, agent or sub-contractor; or
- to or from any other third party;
- they have not, under any circumstances and whether directly or through a third party, done or carried out any acts in furtherance of a gift, agreement to give, offer, payment, promise to pay or authorization referred to in Clause 4.1(b) above.
- they have not taken any action or acted in any way, in relation to the negotiation or execution of the Agreement, that may be in violation of Anti-Bribery Laws and Anti-Corruption Laws or Anti-Money Laundering Laws, nor will they use funds and/or property received hereunder to finance or support any activities which may violate the Anti-Bribery Laws and Anti-Corruption Laws or Anti-Money Laundering Laws.
- they have not, under any circumstances and whether directly or through a third party:
- given, requested, agreed to give, promised, offered or negotiated and authorized the giving, the entry into any agreement to give, promise, offer or payment of, any gratification or financial or other advantage, money or other property or any other thing of value or other privileges, services, intangible assets, other benefits that are promised, offered, provided or received without proper legal grounds (improper benefit):
- a. to or from any Politically Exposed Person; or
- b. to or from any family member or related person of such Politically Exposed Person,
or - done or carried out any acts in furtherance of a gift, agreement to give, offer, payment, promise to pay or authorization referred to in Clause 4.1(e)(i) above.
- given, requested, agreed to give, promised, offered or negotiated and authorized the giving, the entry into any agreement to give, promise, offer or payment of, any gratification or financial or other advantage, money or other property or any other thing of value or other privileges, services, intangible assets, other benefits that are promised, offered, provided or received without proper legal grounds (improper benefit):
- at any point in time, the Contracting Parties, their directors, controllers, affiliates, partners, officers, agents, employees, consultants, representatives, agents and sub-contractors or persons who are concerned in the management of the affairs of the Contracting Parties or acting on their behalf, or their related persons, as well as any of their controlling entities and entities within the control of the Contracting Parties (individually or collectively "Subject Person") have never been charged or been the subject of investigation by any Authority or regulatory agency or been debarred as a vendor or supplier to any government entity anywhere in the world in relation to any of the matters described in Clauses 4.1(a) to 4.1(e), and the Contracting Parties undertake to immediately notify each other of such fact as soon as they become aware of it.
- the Contracting Parties have and shall continue to have and maintain in place throughout the term of the Agreement relevant policies, processes and procedures in respect of bribery, corruption and money laundering in place to ensure compliance with Anti-Bribery Laws and Anti-Corruption Laws or Anti-Money Laundering Laws, sufficient to provide reasonable assurances that violations of Anti-Bribery Laws and Anti-Corruption Laws or Anti-Money Laundering Laws will be prevented, detected and deterred; such policies, processes and procedures are consistently implemented, monitored and regularly reviewed.
4.2. Representations, warranties and covenants of the Contracting Parties in the Section 4.1 extend equally, for the avoidance of doubt, to any third parties subject to the control or influence or acting on behalf of the Contracting Parties in connection with the Agreement, and the Contracting Parties have taken reasonable steps to ensure their compliance; no rights or obligations of, or services to be rendered by the Contracting Parties in connection with the Agreement shall be assigned, transferred or subcontracted to any third party without the prior written approval of other Contracting Party.
4.3. The Contracting Parties shall certify its compliance with the Section 4.1 periodically as may be required by other Contracting Party.
5. Obligations
5.1. If any of the Contracting Parties:
- identifies or becomes aware of any credible allegation or evidence indicating:
- that there exists a material weakness in any policies, processes or procedures of itself, any of its major shareholders, entities within the control of any of its major shareholders or entities within its control, that results, or would reasonably be expected to result in, a violation or significant risk of violation of any Anti-Bribery Laws and Anti-Corruption Laws or Anti-Money Laundering Laws; or
- that it, any of its major shareholders, entities within the control of any of its major shareholders or entities within its control has violated, is violating, or is at significant risk of violating, any Anti-Bribery Laws and Anti-Corruption Laws or Anti-Money Laundering Laws or, that it, any of its major shareholders, entities within the control of any of its major shareholders or entities within its control has received a request to take any action that might constitute, or be construed as, a violation of any Anti-Bribery Laws and Anti-Corruption Laws or Anti-Money Laundering Laws (any such matter, a "Compliance Matter"); or
- receives notice of any deficiency at itself or any of its major shareholders, entities within the control of any of its major shareholders or entities within its control identified by any Authority having jurisdiction over itself or any such shareholder or entity, whether in a report of regulatory examination or otherwise and which indicates a violation, or a significant risk of violation, of any Anti-Bribery Laws and Anti-Corruption Laws or Anti-Money Laundering Laws ("Regulatory Deficiencies"),
each Contracting Party shall notify the other Contracting Party in writing of this fact as soon as possible and in any event within seven (7) days.
5.2. Each Contracting Party shall, and shall procure that any of its major shareholders, entities within the control of any of its major shareholders or entities within its control, promptly develop appropriate responses and remedial actions with respect to any Compliance Matters or Regulatory Deficiencies and share these plans with other Contracting Party. Each Contracting Party shall have the right to review any and all such responses and remedial actions, and the Contracting Party shall, and shall procure that its major shareholders, entities within the control of any of its major shareholders or entities within its control shall take all actions that other Contracting Party may reasonably request to remedy any such Compliance Matters or Regulatory Deficiencies to the reasonable satisfaction of other Contracting Party.
5.3. Each Contracting Party shall:
- conduct its businesses and affairs in an ethical, responsible and accountable manner; and
- maintain and develop a culture of compliance and policies and procedures reasonably designed to prevent unethical or improper business practices.
5.4. Each Contracting Party shall, and shall ensure that its controlling entities or persons, affiliates, partners, officers, directors, employees, consultants, representatives, agents and permitted or authorized sub-contractors shall, at all times, act in accordance with the highest ethical standards including in their dealings with any and all Authority.
5.5. The Contracting Party shall immediately report to CAKE.com if there is any controlling entity or person, affiliate, partner, officer, director, employee, consultant, representative, agent or sub-contractor of any CAKE.com Group members asking for, receiving or attempting to obtain gratification or financial or other advantage for themselves or for others. Furthermore, the Contracting Party shall promptly report to CAKE.com any violation of any of its obligations under this Agreement; in such event, CAKE.com reserves the right to require that the Contracting Party immediately takes appropriate remedial actions.
6. Contracting Party’s Personnel and Third Parties
6.1. Each Contracting Party shall be fully responsible for the acts, omissions, defaults and neglect of its respective controlling entities or persons, affiliates, partners, officers, directors, employees, consultants, representatives, agents and permitted sub- contractors regardless of whether the Contracting Party has knowledge of the same.
6.2. The Contracting Parties shall not allow any third party to carry out any part of the obligations under this Agreement without prior written consent of other Contracting Party. Notwithstanding the appointment of such third party, the respective Contracting Party shall remain fully liable to other Contracting Party for the supply and performance of the services/deliverables and shall be fully responsible for the acts, omissions, defaults and neglects of such third party.
7. Maintaining Records
7.1. Each Contracting Party must keep and maintain accurate and reasonably detailed books and financial records in connection with this Agreement and accurate and complete records and supporting documentation, both in hard copy and soft copy, to:
- demonstrate that it is in compliance with this Agreement and all Applicable Laws relating to the supply or performance of the services/deliverables and/or anti-bribery, anti-corruption and/or anti-kickbacks and all Anti-Bribery Laws and Anti-Corruption Laws or Anti-Money Laundering Laws; and
- enable other Contracting Party to verify the accuracy of such records.
7.2. Each Contracting Party must preserve the records and supporting documentation referred to in Clause 7.1 for a minimum period of five (5) years from the date of transaction, unless the Applicable Laws prescribe a period longer than five (5) years, in which case the longer period shall be applicable.
8. Indemnity
8.1. To the extent permitted by Applicable Laws, the Contracting Party shall on demand defend, hold harmless and indemnify CAKE.com, other members of CAKE.com Group and their respective controlling entities or persons, affiliates, partners, officers, directors, employees, consultants, representatives, agents and sub-contractors (collectively "Indemnified Persons") from and against any and all claims, demands, actions, proceedings, costs, penalties, expenses, losses, damages and liabilities howsoever incurred, suffered, paid or payable by the Indemnified Persons (including but not limited to legal costs and legal fees on a solicitor client basis and fines and penalties) in respect of any breach or breaches of Clauses 3, 4 and 5 and expenses arising from or related to, any breach by the Contracting Party of its obligations under this Agreement. In the course of defending any claims, demands, actions or proceedings against any Indemnified Person, the Contracting Party shall not make any settlement, compromise, admission or waiver of any defenses available in respect of any such claims, demands, actions or proceedingsð
8.2. This Clause 8 shall survive the expiry or termination of this Agreement.
9. Termination
9.1. CAKE.com may terminate this Agreement by giving written notice to the Contracting Party ("Notice"):
- with immediate effect, if the Contracting Party commits any breach of Clauses 3, 4, 5 and 8 or CAKE.com has reasonable belief that this may occur;
- with immediate effect, if CAKE.com receives a notice from the Contracting Party pursuant to Clause 5 or Clause 10 or CAKE.com has reasonable belief that this may occur;
- with effect from fifteen (15) days after the date of the Notice, if there is a change of Control of the Contracting Party;
- with effect from fifteen (15) days after the date of the Notice, if there is a merger of the Contracting Party or any of its assets or businesses.
10. Conflict of Interest
10.1. The Contracting Parties shall ensure that there is no conflict of interest (actual or potential) upon conclusion or during the term of the Agreement and immediately notify each other of actual or potential conflict of interest as soon as the Contracting Party becomes aware of it.
10.2. Each Contracting Party shall declare to other Contracting Party all work or relationships that may give rise to conflicts of interest between itself and other Contracting Party which will materially affect directly or indirectly the Contracting Party’s ability to supply or perform the services/deliverables and perform its obligations under the Agreement.
10.3. Subject to any restrictions imposed by Applicable Laws or confidentiality obligations, each Contracting Party shall declare the existence of any pending or ongoing litigation against the Contracting Party which will materially affect its ability to supply or perform the services/deliverables under the Agreement and perform its obligations under the Agreement.
Effective as of 16/04/2024
