Last Updated: OCTOBER 15, 2009
EFFECTIVE: NOVEMBER 01, 2009
PREVIOUS VERSION MAY BE VIEWED AT: http://www.perpetualpayments.com/terms_old.htm
IMPORTANT NOTE: these are the standard terms and conditions pursuant to which We will provide internet payment Services to You, and on which we intend to rely. For Your benefit and protection You should read these terms and conditions carefully before agreeing to them.
MERCHANT TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS are entered into on the Operative Date in accordance with the Provisions herein.
These Terms and Conditions set forth the legal relationship between Voice Commerce Ltd, Unit C3, Quern House, Mill Court, Hinton Way, Great Shelford, Cambridge, CB22 5LD, United Kingdom; a company registered in United Kingdom under company register number 05428358 (hereinafter “VoicePay”, “We”) and the merchant (“You”) in respect of the processing of Transactions by VoicePay for the You. It sets out the terms on which VoicePay will accept Transactions for processing and upon which You will present such Transactions to VoicePay for Authorisation and processing.
1. DEFINITIONS AND INTERPRETATION
In these Terms and Conditions, the following terms shall (unless the context otherwise requires) have the following meanings:
"Acquirer" means a Person who or which is licensed by a Card Scheme and/or has appropriate arrangements in place with a third party relating to the use of a Card Scheme acquiring licence and who or which enters into an agreement with a merchant for the provision of services allowing the the merchant to accept payment by Cards pursuant to the Rules and to receive payment from such Person in respect thereof;
"Application" means Your application to Us for the provision of the Facility (and “Application Form” shall be construed accordingly);
“Approved Products” means the goods and/or services to be provided by You to Cardholders using the Facility which have been agreed to by Us in writing either as part of the Application or from time to time thereafter;
"Assessments" means any and all assessments, fines, levies, costs, expenses, charges or imposition of liabilities of any nature which are directly or indirectly demanded or recovered by Us from You at any time and which relate to any aspect of Our relationship with You (including the Transactions and the provision of the Facility) and which may or may not relate to any actual or potential liability of Us to an Acquiring Bank or a Card Scheme whether in accordance with the Rules or otherwise (examples of the calculations of Assessments can be found on our website at www.perpetualpayments.com or elsewhere as notified to You from time to time);
“Authentication” means the process of verifying the identity of a Cardholder;
"Authorisation" means the process whereby We obtain at the time of the Transaction (directly or indirectly) from the Card Issuer confirmation that the Card has not been listed as lost or stolen and that there are sufficient funds for the relevant Transaction;
“Business Day” means a day on which banks are open for business and dealing in European currencies in England excluding Saturdays and Sundays; and where a Transaction is to be made in a currency other than Pounds Sterling, a day on which banks are open for business and dealing in that currency in the principal financial centre of the country of such currency; where a Transaction is to be made to a destination other than England a day on which banks are open for business and dealing in the relevant currency in the principal financial centre of that country;
"Card" means a credit, debit, charge or purchase or other card issued by a Card Issuer and licensed by a Card Scheme which We are able to process (as notified by Us to You from time to time) and which We have agreed to process (and "Cards" shall be construed accordingly);
“Card Account Number” means a primary account number that is embossed and/or encoded on a Card;
"Cardholder" means a Person who or which is the authorised user of a Card (and "Cardholders" shall be construed accordingly);
"Card Issuer" means a financial institution which issues Cards under the authority of the relevant Card Scheme (and "Card Issuers" shall be construed accordingly);
"Card Schemes" means Visa Europe, Visa Inc, MasterCard Worldwide, UK Maestro, Solo and/or International Maestro and/or such other schemes governing the issue and use of Cards, as approved and notified by Us to You in writing from time to time (and "Card Scheme" shall be construed accordingly);
“Card Scheme Member” means a financial institution that participates in a Card Scheme and agrees to operate in accordance with that Card Scheme’s Rules;
"Confidential Information" means information that is designated as "confidential" or which by its nature is clearly confidential including any information relating to a Cardholder or a Cardholder’s use of a Card or information concerning any one of the Card Schemes or information concerning Our or (as the case may be) Your technology, technical processes, procedures, business affairs, finance, security procedures and premises and may take the form of (but is not limited to) documents, technical specifications, unpublished patent specifications, data, drawings, plans, processes, photographs, databases, computer software in disk, cassette, tape or electronic form and items of computer hardware or oral descriptions or demonstrations;
“Contract” means our contract with You which is made up of these Terms and Conditions and the documents referred to in clause 2;
"Control" means the ability to direct or influence the affairs of another whether by way of contract, ownership of shares or otherwise (and "Controls" and "Controlled" shall be construed accordingly);
“Copy Request” means a request from a Card Scheme or Card Issuer which We pass on to You or a direct request to you from Us for information regarding a Transaction which is the subject of a potential Chargeback or a Dispute;
"Data" means documents, data and records of any kind relating to Transactions (including, for the avoidance of doubt, data relating to Cards and Cardholders);
“Dispute” means any issue concerning a Transaction or concerning Your behaviour which is relevant to the Facility which is raised with Us by any third party;
“Facility” means the provision of payment services by VoicePay to You which may include (as appropriate) the secure capture of data, Authentication, Authorisation and Remittance as well as fraud monitoring;
"Fees" means the fees payable by You to Us for the provision by Us of the Facility, as notified to You by Us from time to time;
“Fraud Report” means a report notified to Us by an Acquirer, Card Scheme or Card Issuer relating to a Transaction or Transactions which are believed to be in some way fraudulent as notified by us to you via your statement;
"Group Company" means, in respect of a party, any undertaking which, directly or indirectly, Controls or is Controlled by such party or an undertaking which, directly or indirectly, Controls or is Controlled by any aforementioned undertaking;
"Intellectual Property Rights" means any and all intellectual property rights of whatever nature including patents, inventions, know-how, trade secrets and other confidential information, registered designs, copyrights, database rights, design rights, rights affording equivalent protection to copyright, trademarks, service marks, logos, domain names, business names, trade names, moral rights, and all registrations or applications to register any of these, rights in the nature of unfair competition rights and rights to sue for passing off and all such rights in any country or jurisdiction;
“Interchange” means the fees charged to the Acquirer and passed on to Us by the Card Issuer which relate to the processing of a Transaction;
“Merchant Bank Account” means a separate account maintained at a Bank or financial institution acceptable to Us by You in order to facilitate Remittance;
“Operating Instructions” means Our operating instructions as communicated to You by Us from time to time, setting out procedures, information and instructions which You must follow in connection with the Facility;
“Operative Date” means the date nominated by Us and notified to You when we have approved Your application;
“PCI DSS” means the Payment Card Industry Data Security Standards developed by the leading card Schemes which merchants and others processing Card data must comply with;
"Person" means any individual, corporation, firm, unincorporated association, government, state or agency of a state and joint venture;
“Prohibited Products” means the goods and/or services which are specifically forbidden from being supplied through the Facility and which are listed by Us and/or notified to You from time to time;
“Refund” means the reimbursement of a Transaction to a Cardholder at Your request (or as initiated by Us in accordance with the terms of the Contract) by such electronic means as shall have been approved by Us which represents the complete or partial reversal of a Transaction with the intention of crediting the Customer’s account;
"Remittance" means the payment due to You from Us in respect of Transactions (and "Remit" and "Remitted" shall be construed accordingly);
"Remittance Date" means the date as shall be agreed between Us when We shall make a Remittance to You;
"Rules" means the applicable rules, regulations and operating guidelines issued by the Card Schemes or by Us from time to time relating to Cards, Transactions and any payments or processing of Data relating to Cards and Transactions (including all amendments, changes and revisions made from time to time) which We have communicated to you (whether by e-mail, website updates, newsletter or otherwise) or are available to You from Card Scheme websites or other similar sources;
“Scheme Fees” means the fees charged to the Acquirer and passed on to Us by the Card Schemes which relate to the processing of a Transaction;
"Settlement" means the crediting to Us of the proceeds of Transactions from the relevant Card Scheme or Acquirer (and "Settle" and "Settled" shall be construed accordingly);
“Trading Limit” means any limit on the aggregate value of Transactions in any specified period above which You will not process with Us without first obtaining Our prior written consent which We may notify to You;
"Transaction" means any payment for goods or services, or any Refund made by use of a Card, a Card Account Number or otherwise to debit or credit the applicable Cardholder's account with the Card Issuer;
“You” means the Person which has applied for the Facility and been accepted as such by Us; and
“Void Transaction” means a transaction which is abandoned by You or by the Cardholder after an Authorisation has been obtained but before the Cardholder account has been debited.
In these Terms and Conditions (unless the context otherwise requires):
the words "including" and "include" and words of similar effect shall not limit the general effect of the words which precede them;
references to the Contract, these Terms and Conditions and any other agreement, contract or document (including the Rules) shall be construed as a reference to it or them as varied, supplemented or novated from time to time;
words importing the singular shall include the plural and vice versa;
words importing any gender shall include a reference to each other gender; and
references to a numbered clause or paragraph are to a clause of these Terms and Conditions or paragraph of the schedule so numbered.
2. THE CONTRACT
The following documents are incorporated into and form part of the Contract:
(a) any Application Form (if applicable);
(b) these Terms and Conditions;
(c) any schedule (if applicable) and
3. MODIFICATIONS
3.1 We may amend these Terms and Conditions and/or the Operating Instructions on giving sixty (60) days notice in accordance with the provisions herein to You with the exception of amendments made in order to comply with;
3.1.1 the Rules; and
3.1.2 statutory regulation; and
3.1.3banking regulation; and
3.1.4 currency restrictions from local and/or central banks;
which will become effective immediately.
3.2 We shall be entitled to pass on to You any increase in Interchange or Scheme Fees as soon as We become liable for the same notwithstanding that We or You may receive less than 60 days notice.
3.3 These Terms and Conditions will not be deemed to be or be interpreted as having been amended as a result of any oral communication between the Parties or as a result of any practice between the Parties.
4. OBLIGATIONS OF VOICEPAY
5. FACILITY
5.1 The Facility shall include such services as may be agreed by You and Us from time to time and which may include:
5.1.1 procuring payment services in connection with the acceptance of Transactions in electronic form in order to clear such Transactions for Settlement and other related services as set out in these Terms and Conditions; and
5.1.2 maintaining records of all credits and liabilities You and Us and will making accessible to You statement showing amounts then due and owing; and
5.1.3 providing technical specifications regarding the Interface; and
5.1.4 subject to the requirements of relevant data protection laws, providing access to Authorisation and data capturing under the Facility; and
5.1.5 enabling the inputing Your data into Our systems to enable the Facility set-up and maintenance; and
5.1.6 subject to the requirements of relevant data protection law, passing on Transaction data on a daily basis or such other basis as is agreed between You and Us; and
5.1.7 providing statements either through Our online management facilaity or as We otherwise elect showing the amount of the Fees due to Us.
Licence for Website Access
5.2 With effect from the Operative Date We grant You a limited, revocable, and non-exclusive right to create a hyperlink to the Our “welcome page” as long as the link does not portray Us, Our other merchants, or their products or services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any of Our logos or other proprietary graphics or trademarks as part of the link without Our express written consent.
5.3 You will include on Your website an inbound link to the VoicePaywebsite and display Our logo at the point of payment.
6. YOUR OBLIGATIONS
6.1 You shall at all times comply with:
6.1.2 the provisions of the Contract;
6.1.3 the Rules;
6.1.4 all laws, regulations and codes of practice applicable to any Transaction, the sale of goods and/or services by You in connection with the Transactions and the execution and performance by You of Your obligations under the Contract (including the Operating Instructions); and
6.1.5 Your obligations relating to the provision of goods and/or services by You to Cardholders.
6.2.1 only process Transactions in connection with goods and/or services which You have supplied either directly or thought Your appointed agents;
6.2.2 only process Transactions which relate to goods and services which fall within Your business as identified in Your Application; and
6.2.3 only process Transactions in respect of goods or services that the Cardholder would reasonably expect to receive and only supply the relevant goods or services in accordance with the laws of any jurisdiction within which a Card Scheme, Card Issuer, Cardholder, Acquirer or any party to this Contract operates.
6.3 Unless otherwise agreed by Us in writing, You acknowledge and agree that You shall (at Your own cost) be solely responsible throughout the duration of the Contract for the provision of all such equipment, software, systems and telecommunications facilities which are required to enable You to use the Facility.
6.4 You shall not complete a Transaction without obtaining an Authorisation without Our prior written approval (to be given at Our discretion).
Display of Card Scheme Symbols
6.5 You agree to display and exhibit (and keep displayed and exhibited) to the general public at each worldwide point at which Cards are accepted for payment such of Our and Card Scheme identification symbols or decals as are approved or supplied by Us with effect from the date of such notification and in accordance with any requirements which may be specified.
Honour of Cards
6.6 Subject to the provisions herein You shall honour all valid and current Cards by supplying to the Cardholder without imposing any financial limit the full range of goods and services offered You at the cash price for such goods and services (subject to any local regulations concerning surcharging) and to obtain Authorisation in respect of all Transactions.
Merchant’s Bank Account
6.7.1 You shall establish and maintain in a form acceptable to Us an account in Your name at a bank or financial institution acceptable to Us to facilitate Remittance;
6.7.2 You will maintain sufficient funds in the Merchant Bank Account in respect of due liabilities under the Contract;
6.7.3 Where permitted by law and local regulations You shall irrevocably authorise Us to debit the Merchant Bank Account for any amounts due to Us under the Contract;
6.7.4 You must notify Us if You propose changing the Merchant Bank Account and where appropriate initiate an direct debit over the new account if requested by Us in respect of monies owed to Us under this Agreement.
6.7.5 Notwithstanding termination of the Contract You must maintain the Merchant Bank Account and keep in it enough funds to cover all potential Chargebacks and other liabilities incurred and also for the purpose of receiving any Remittance when due.
Your Website
6.8 Where appropriate You will create a website for using the Facility. You are responsible for all material on the website. You must include the Your contact details (including e-mail address and postal address) clearly on the website. All material on the website must comply with all relevant laws and regulations and You shall ensure that it has all necessary licences and permission (including those from owners of copyrights, performing rights and any other relevant intellectual property rights).
Refunds and Void Transactions
6.9.1 You will only process Refunds and Void Transactions where there is a corresponding Transaction and then only up to the value of that Transaction and no more.
6.9.2 Where You wish to process a Refund or a Void Transaction You shall advise Us by such automated systems as We may make available to them from time to time.
6.9.3 Refunds will only be made to the Card upon which the original Transaction was debited and not to any other Card and shall be processed in the original payment currency.
Settlement of Disputes
6.10 You agree that We shall be entitled in Our reasonable discretion to accept, dispute, compromise or otherwise deal with any claim, alleged claim, loss or liability relating to any Transaction. Specifically You agree that We shall in Our reasonable discretion be entitled to settle any claim or dispute between a Cardholder and You or between a Cardholder and Us by initiating a Refund to a Cardholder’s account and You irrevocably authorise to take such action in this regard as We deem appropriate.
Provision and Disclosure of Information
6.11 You shall at all times throughout the term of the Contract (and for such period as may be necessary thereafter):
6.11.1 disclose to Us such information as We reasonably require relating to the performance of the Contract including any information:
6.11.1.1 required to satisfy Our obligations to any Card Scheme or governmental or regulatory authority or otherwise; and
6.11.1.2 relating to any aspect of the processing of Data by You or on Your behalf;
6.11.1.3 to enable us to review any potential risk to Our business;
6.11.1.4 to enable Us to deal with any Chargeback, Dispute or Fraud Report, such information to include (but not limited to) information required in any Copy Request.
6.11.2 take all reasonable steps to assist Us in handling any claim or query raised by a Cardholder, a Card Issuer, a Card Scheme, an Acquirer or any other third party in relation to the Facility; and
6.11.3 give Us reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of Transactions.
6.12 To enable Us to assess Your financial position throughout the term of the Contract, You shall on request:
6.12.1 provide Us with any financial or other information We may require; and
6.12.2 permit or procure Us or Our duly authorised representatives to have access to any premises where Your business trades or where any of its records are for the time being situate, to examine all or any of such records and those of any other business which We consider is or may be connected to it, and to take and retain copies of all or any such records and further to provide to Us or procure that We are provided with honest and comprehensive answers to any enquiries We may make.
6.13 You shall advise Us immediately in writing of any:
6.13.1 other agreement that You enter into concerning Your acceptance of Transactions;
6.13.2 act, omission or error which does or may:
6.13.2.1 cause material loss or damage to Us (including damage to Our reputation, which for the avoidance of doubt shall be deemed to be material in every instance in which it occurs); or
6.13.2.2 adversely affect Your ability to perform Your obligations under the Contract;
6.13.4 material change in the nature of Your business or in the goods and/or services supplied to Your customers or of any additional business commenced by You or of Your cessation of business; and/or
6.13.5 any change of Your Control, or any proposed or reasonably anticipated change of Your Control.
7. CARD SCHEME RULES
7.1 These Terms and Conditions are intended to comply with the Rules. The Rules shall prevail over the terms of these Terms and Conditions in the event of any dispute.
7.2 You agree that the Card Schemes have the right, either in law or in equity, to enforce any provision of the Rules pertaining to the relevant Card Scheme and to prohibit conduct that creates a risk of injury to that Card Scheme or which may adversely affect the integrity of that Card Scheme’s systems, information, or both. Upon receipt of notice in accordance with any such matters, You will refrain from taking any action that would have the effect of interfering with or preventing any exercise of such right by any Card Scheme.
7.3 Should any provision of these Terms and Conditions be or become at variance with the Rules, We shall give You notice effecting any change necessary to bring these terms and Conditions into line with the Rules and You may terminate these Terms and Conditions upon receipt of such notice otherwise the Rules shall govern the extent of any variation to these Terms and Conditions.
8. FEES
8.1 In return for Our providing the Facility You shall pay the Fees and all other sums payable by You in accordance with the provisions of the Contract.
8.2 Unless stated otherwise, all Fees, charges and other payments to be made by You under the Contract are exclusive of VAT and any other relevant taxes and in addition to paying such Fees, charges or other payments You shall also pay any such taxes.
9.1 Subject to Our rights to defer and/or deduct from Remittance We shall on the Remittance Date send by bank transfer to Your Merchant Bank Account the relevant Remittance.
9.2 Remittance shall not fall due until the occurrence of the later of the following:
9.2.1 the next Remittance Date following the relevant Transactions; and
9.2.2 the expiry of any period of deferment which we are entitled to impose.
9.3 We shall be entitled to deduct any or all of the following sums from any Remittance;
9.3.1 the Fees in respect of the Transactions which We have not yet charged You for;
9.3.2 any Refunds processed by Us since the previous Remittance Date (or, in the case of the first Remittance Date, since the date of commencement of the Facility);
9.3.3 any Chargebacks and Assessments;
9.3.4 any amounts required by Us to cover any:
9.3.4.1 potential or reasonably expected Refunds, Chargebacks, Disputes, Void Transactions or Assessments or any liability or potential liability relating to any Transaction or Assessment;
9.3.4.2 any liability or potential liability of Yours under the Contract; and
9.3.4.3 any other charges or amounts due to Us under the Contract.
or at Our option invoice You separately for each or any such sums.
9.7.1 the relevant liability is incurred (when We shall pay to You the balance of the amount of such sums, if any, after deducting the amount of such liability); or
9.7.2 any breach has been ascertained or the risk of any breach passed; or
9.7.3 We are, acting reasonably, satisfied that no such liability will be incurred or that no fraud or other criminal activity is involved.
9.8 You shall not be entitled to any interest or any other compensation whatsoever in respect of any sums held by Us prior to being Remitted to You for any period for which payment may be deferred or otherwise withheld.
9.9 You have no right or entitlement to or any interest in any sums representing any Transaction until Remittance is due in accordance with the terms of this Contract.
10.1 In addition to any lien or right to which We may be entitled by law, You hereby irrevocably authorise Us from time to time without notice and both before and after demand to set-off by whatever means the whole or any part of Your liabilities to Us under the Contract (whether such liabilities are present, future, actual or contingent or potential, liquidated or unliquidated and irrespective of the currency of its denomination) against any Remittance or against any sums (whether or not related to the Transaction that gave rise to the liability) held by Us, including in any of Your accounts with Us which are in Your name or any other accounts referred to in clause[security]. Any credit balance with Us will not be repayable, or capable of being disposed of, charged or dealt with by You until Your liabilities to Us have been met. Our allowing You to make withdrawals from any account You hold with Us will not waive this restriction. We will notify You as soon as possible upon exercising our rights under this clause.
10.2 You are not entitled to set-off any liabilities of Ours under the Contract or otherwise (whether such liabilities are present, future, actual, contingent or potential) against any funds due to Us from You.
10.3 Any exercise of Our rights under this clause 10 shall be without prejudice to any other rights or remedies available to Us under the Contract or otherwise.
11. AUTHORISATION AND CHARGEBACKS
11.1 All Transactions must be Authorised by the Card Issuer or Card Scheme unless otherwise agreed in writing with Us and where they are so Authorised You will receive notification from Us.
11.2 Acceptance of any Transaction for processing shall not be taken as an indication by Us that Remittance will be made in respect of that Transaction. We can give You no assurance that the Card Scheme or Card Issuer will not exercise any right of Chargeback or that We will not utilise Our rights of set-off under these Terms and Conditions or defer or delay Remittance even where the relevant Transaction has been Authorised.
11.3 You acknowledge and agree that under the Rules, You may be required to reimburse Us for Chargebacks in circumstances where You have accepted payment in respect of the relevant Transaction and even if You are under no legal liability for the supply or performance of the goods or services concerned. To the extent permitted by law, We shall notify you of Chargebacks through the information on Your account summary which will be available to You via a link to a URL.
11.4 Where a Chargeback occurs, We shall immediately be entitled to debit Your Merchant Bank Account and/or make a deduction from any Remittance or invoice You to recover the full amount of the relevant Chargeback and any other reasonable costs, expenses, liabilities or Assessments which We may incur as a result of or in connection with such Chargeback ("Chargeback Costs").
11.5 A Chargeback represents an immediate liability from You to Us and where the full amount of any Chargeback and/or any Chargeback Costs is not debited by Us from Your Merchant Bank Account or deducted from any Remittance or invoiced as referred to in clause9.3, then We shall be entitled to otherwise recover from You by any means the full amount of such Chargeback and Chargeback Costs (or the balance thereof, as the case may be). We can recover Assessments from You in the same way as Chargebacks and in any event they represent an immediate liability from You to Us. We will notify you as soon as reasonably practicable of any Assessments which are deducted from any Remittance.
11.6 We shall not be obliged to investigate the validity of any Chargeback by any Card Issuer or Card Scheme, whose decision shall be final and binding in respect of any Chargeback.
11.7 As Chargebacks may arise a considerable period after the date of the relevant Transaction, You acknowledge and agree that, notwithstanding any termination of the Contract for any reason, We shall remain entitled to recover Chargebacks and Chargeback Costs from You in respect of all Chargebacks that occur in relation to Transactions effected during the term of the Contract.
11.9 You agree that it is Your responsibility to prove to Our reasonable satisfaction (or that of the relevant Card Issuer) that the debit of a Customer's or Cardholder's account was authorised by such Customer or Cardholder.
12.3 We may exercise Our rights under clauses 12.1 and 12.2 either to require additional security or to require the replacement of a previous security which has been withdrawn or which We for any reason require to be replaced.
12.4 Without prejudice to any other provision of the Contract, Your failure to comply with any requirement made under this clause 12 strictly in accordance with the relevant time limits shall constitute a material breach of these Terms and Conditions for the purposes of clause 16.
13.1.1 any claim brought against Us by a Cardholder, Card Scheme, Card Issuer, Acquirer or other third party arising from a Transaction whether or not previously Remitted by Us to You;
13.1.2 any other claim brought against Us (including Assessments) arising from any aspect of Our relationship with You (including in connection with any security breach, compromise or theft of Data held by You or on Your behalf irrespective of whether such security breach, compromise or theft of Data was within or outside Your control);
13.1.3 the enforcement or attempted enforcement of the Contract (which includes the recovery or attempted recovery of any sum owing to Us under the Contract);
13.1.4 the protection of Our interests in connection with any aspect of Our relationship with You (including the cost of any third parties nominated by Us or instructed by Us for this purpose);
13.1.5 a material breach by You of any of these Terms and Conditions or any other provisions of the Contract;
13.1.6 any Transaction (including a Transaction which is subsequently discovered to be fraudulent); or
any other arrangements between You and a Customer,
except, in each case, if and to the extent caused by or contributed to by Our negligence or any material breach of the Contract by Us.
13.2 For the avoidance of doubt, if a claim is brought against Us by a Cardholder, Card Issuer, Acquirer or any other third party We shall be entitled to settle or otherwise deal with it at Our sole discretion.
13.3 If You are a partnership, each partner shall be jointly and severally liable under the Contract.
14.2 We shall not be liable for any delay or failure to carry out any of Our obligations under the Contract if and to the extent that such failure:
14.2.1 is due to abnormal or unforeseeable circumstances beyond Our reasonable control (or that of Our agents or sub-contractors); or
14.2.2 is due to Our obligations under national or international law.
14.4 Subject to clause 14.7, Our total liability to You in contract, tort (including negligence or breach of statutory duty) or otherwise arising out of, or in connection with, the supply, failure to supply or delay in supplying the Facility throughout the term of the Contract or otherwise in connection with or related to the Contract shall be limited to:
14.4.1 the Fees paid to Us in the twelve months prior to the date of the first event giving rise to any relevant liability; or
14.4.2 where the date of the first event giving rise to any relevant claim arises during the period of 12 months commencing on the Operational Date, the total amount of Fees which have been paid in such period together with an amount equal to the Fees which would be reasonably likely to be payable (having regard to matters such as the amount of Fees which have been paid or are payable, market conditions and general patterns of trading and assuming that the Contract would remain in full force and effect) for the remainder of such 12 month period.
14.8 We shall have no liability to You in relation to any decision of any Acquirer, Card Issuer or Card Scheme, save if and to the extent that such decision is made as a direct result of Our negligence or any breach of the Contract by Us.
15. SERVICE ADJUSTMENTS AND CONTRACT VARIATIONS
15.2 We shall be entitled to vary the provisions of these Terms and Conditions from time to time on giving You at least 60 days' notice. You will be deemed to have accepted such changes if You do not notify Us to the contrary before the conclusion of the 60 day notice period. If We serve You with a notice of variation, You are immediately entitled to terminate the Contract without charge, provided that You serve written notice of termination upon Us before the conclusion of the 60 day notice period.
15.3 We are entitled to immediately and without notice apply changes in exchange rates and interest rates. Such changes shall be based upon the reference rates notified to You in these Terms and Conditions.
16.3 We shall be entitled to immediately suspend the provision of all or any part of the Facility or to terminate the Contract or any part of the Facility at any time with immediate effect by notice to You if:
16.3.1 You materially breach any of the provisions of the Contract and either:
16.3.1.1 that breach is incapable of remedy; or
16.3.1.2 You fail to remedy the breach within 21 days of the date of Our notice to You stating the existence and nature of the breach;
16.3.2 You fail to pay any amount under the Contract on the due payment date;
16.3.3 We consider (in Our reasonable discretion) that the total value of Refunds and/or Chargebacks is unreasonable;
16.3.4 You breach the Rules;
16.3.5 You present a Transaction to Us in a situation where You do not give to the relevant Cardholder the goods, services or other facilities referred to which they could reasonably expect to receive;
16.3.6 You become insolvent or any step is taken for Your liquidation, winding-up, bankruptcy, receivership, administration or dissolution (or anything analogous to the foregoing occurs in any jurisdiction);
16.3.7 You make or propose any arrangements with Your creditors generally;
16.3.8 anything happens to You or a matter is brought to Our attention which We in Our reasonable discretion consider may affect Your ability or willingness to comply with all or any of Your obligations or liabilities under the Contract;
16.3.9 any other change in Your circumstances (including a deterioration in or change to Your financial position) or in the nature of Your business or in the goods and/or services supplied by You to Customers or Cardholders occurs which We in Our reasonable discretion consider material to the continuance of the Facility or any services made available by Us to You;
16.3.10 You cease to carry on business;
16.3.11 We, in Our reasonable discretion, determine that Our relationship with Your business represents increased risk of loss or liability to Us;
16.3.12 anything happens to You or comes to Our attention in relation to You or arising from or incidental to Your business or the conduct of Your business (including trading practices and individual activities) or You engage in any business trading practices or individual activity which We in Our reasonable discretion consider disreputable or capable of damaging Our reputation or that of any of the Card Schemes, detrimental to Our business or that of any of the Card Schemes or which may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity;
16.3.13 there is any change to the Person, or group of Persons acting together pursuant to an agreement or understanding (whether formal or informal), which Controls You;
16.3.14 any claim or action in connection with the Contract or Facility is threatened or commenced by You or Us;
16.3.15 any Assessments or any other claims are brought against Us by any Card Scheme or any other third party arising from any aspect of Our relationship with You;
16.3.16 We are required or requested to do so by any Card Scheme or competent regulatory authority;
16.3.17 You undertake trading practices which We have not consented to;
16.3.19 We reasonably consider that any act or omission of Yours falls within a Reason Code;
16.3.20 the relevant Facility (or relevant part thereof) is suspended or otherwise cease to be provided by the relevant Acquirer or Card Scheme (as the case may be); or
16.3.21 any Card Scheme or the relevant Acquirer introduces additional terms and conditions or amends the Terms and Conditions relating to the Facility.
16.4.1 save where permitted or authorised to do so pursuant to these Terms and Conditions, We fail to pay any undisputed sums due to You from Us under the Contract within 30 days of notice from You to Us that We have failed to make such payment;
16.4.2 We become insolvent or any step is taken for Our liquidation, winding-up, bankruptcy, receivership, administration, or dissolution (or anything analogous to the foregoing occurs in any jurisdiction); or
16.4.3 We make or propose any arrangements with Our creditors generally;
16.4.4 We are in material breach of any of the provisions of the Contract and either:
16.4.4.1 that breach is incapable of remedy; or
16.4.4.2 We fail to remedy the breach within 21 days of the date of Your notice to Us stating the existence and nature of the breach.
17. CONSEQUENCES OF TERMINATION
17.1 Upon termination of the Contract all rights and obligations of either Party shall cease to have effect immediately, save that:
17.1.1 the clauses of these Terms and Conditions which expressly or by implication have effect after termination will continue to be enforceable notwithstanding such termination; and
17.1.2 termination shall not affect accrued rights and obligations of either Party under the Contract as at the date of termination.
17.2 Upon or at any time after termination of the Contract, You shall immediately pay Us all amounts owed by You under the Contract and We shall immediately pay You all amounts owed by Us under the Contract, save for any sums which We are entitled to withhold, set-off and recover pursuant to the provisions of these Terms and Conditions.
18.1 You shall give Us reasonable assistance on Our request to assist in the successful collection and delivery of all Data. We shall assist You, upon Your request, where We are able to gain access to the Data, but reserve the right to make charges for doing so.
18.2 At all times while Data is in Your possession or control or of Your agents, You shall ensure that it is kept secure and is used only for the purposes of the Contract and that all applicable laws, rules, regulations or similar obligations in any relevant territory governing the use, storage and/or processing of data relating to individuals are observed and performed with regard to it.
18.5 We may refuse to accept Data from You where the requirements specified in any instructions issued by Us from time to time are not satisfied and Our processing the Data shall not preclude Us from subsequently requiring its replacement, deletion or correction.
19. PCI DSS
19.1.1 to build and maintain a secure network (to include the installation and maintenance of a fire wall configuration to protect Data and not to use vendor supplied defaults for system passwords and other security parameters);
19.1.2 to protect Data (to include protecting stored Data and encrypting transmission of Data across open, public networks);
19.1.3 to maintain a vulnerability management programme (to include the use of and regularly updating anti virus software and developing and maintaining secure systems and applications);
19.1.4 to implement strong access control measures (to include restricting access to Data by business need-to-know, assigning a unique ID to each person with computer access and restricting physical access to Data);
19.1.5 to regularly monitor and test networks (to include tracking and monitoring all access to network resources and Data and regularly testing security systems and processes); and
19.1.6 to maintain an information security policy (to include maintaining a policy that addresses information security).
19.3 You shall not at any time or in any format store:
19.3.1 Card verification value in the magnetic stripe;
19.3.2 Card verification value printed on the Card in or next to the signature pane;
19.3.3 Card verification value contained in the magnetic stripe image in a chip application;
19.3.4 PIN verification value contained in the magnetic stripe;
19.3.5 the full contents of any track from the magnetic stripe (on a Card, in a chip or elsewhere); or
19.3.6 any other Data that the Card Schemes mandate from time to time.
19.4 Your obligations under this clause 19 shall survive termination of the Contract and shall continue in full force and effect until all Data obtained under the Contract has been destroyed or as otherwise agreed in writing by Us.
20. INFORMATION CONCERNING YOU
20.1 If You contact Us electronically, We may collect Your electronic identifier (for example, Internet Protocol (IP) address or telephone number) supplied by Your service provider.
20.2 We may use and share Your information (including information about Transactions) with Our Group Companies, Card Issuers, Card Schemes and credit reference agencies to help Us and/or them:
20.2.1 assess financial and insurance risks;
20.2.2 recover debt;
20.2.3 develop customer relationships, services and systems; and
20.2.4 prevent and detect crime.
20.3 We do not disclose Your information to anyone other than as expressly provided in the Contract except:
20.3.1 where We have Your specific permission;
20.3.2 where We are required or permitted to do so by law;
20.3.3 to other companies who provide a service to Us or You relating to the Facility; or
20.3.4 where We may assign, subcontract or transfer rights and obligations under the Contract.
20.4 From time to time We may change the way We use Your information. Where We believe You may not reasonably expect such a change We shall write to You. If You do not object to the change within 60 days, You will be taken to have consented to that change.
20.5 The information which We collect from You may be transferred to, and stored at, a destination outside the European Economic Area ("EEA"). It may also be processed by staff operating outside the EEA who work for Us or for one of Our subcontractors or suppliers in connection with the Contract. We shall ensure that an adequate level of protection is given to any of Your information which is transferred or processed outside of the EEA in accordance with this clause.
21. CREDIT REFERENCE CHECKS
21.1 You accept that during Our initial assessment of You or any re-assessment during the term of the Contract, We may use the services of credit reference agencies to confirm (amongst other things) Your principals’ home address and calculate personal credit scores. Information held by the credit reference agencies is used by Us and others to help verify the identity of customers and to assess their ability to meet financial commitments. Checks on these credit reference agencies may leave an identity footprint on Your and/or Your principals’ credit file as a record. This process enables accounts to be opened quickly and reduces the need to obtain third-party references.
21.2 To enable us to form an accurate view of the existing financial commitments of merchants and their principals’, credit reference agencies may link the records of “financial associates” (such as spouses, family members, or cohabiters) who have entered into joint financial obligations. Once linked, this association means that each of the records will be taken into account in all future applications for credit by either financial associate and will continue until one of them successfully files a “disassociation” with the credit reference agencies by establishing that this financial link no longer exists.
21.2 Information held about You by the credit reference agencies may already be linked to records relating to one or more of Your “financial associates”. If so, for the purposes of any Application You or Your principals may be treated as financially linked and if so Your application will be assessed with reference to any associated records. Further details about financial “association”, “disassociation” and credit reference agencies are available by contacting the credit reference agencies directly.
21.3 We may make periodic searches of Our Group records, credit reference agencies, and fraud prevention agencies to manage Your account, and to take decisions regarding Your account and the terms under which We have opened it, including whether or not to confirm or extend Your Facility. These searches will not be seen or used by companies outside of Our Group of companies.
21.4 Your principal’s have the right of access to their personal records held by credit reference and fraud prevention agencies. We will supply the names and addresses of the agencies We use upon request.
21.5 By proceeding with the Application Your authorised representatives are confirming that as at the Operative Date they have read the foregoing and agreed on behalf of You and Your principals to Us obtaining the aforementioned information during Our assessment of Your application for the Facility and any subsequent reassessment.
22. CARD SCHEME DATABASES
22.1 We may disclose information concerning You to third parties for use in their or any Card Scheme's or Acquirer's fraud prevention programmes for the purpose of assisting in identifying merchants involved in, amongst other things, fraud or suspected fraud, insolvency, breach of a merchant services agreement and any other such matter which would assist Us or other third parties in their efforts to prevent fraud. We may also disclose information concerning You to law enforcement bodies where We suspect that fraud or other criminal activity may have occurred.
22.2 You acknowledge that the viability and availability of the Card Schemes depends upon effective and reliable information regarding, and effective management of, information security, the risk of fraud and sector and credit risk. Accordingly, You acknowledge and agree that We shall notify the Card Schemes or Persons nominated by them and, where We consider appropriate, crime enforcement authorities, of all information regarding You, Your business and Your conduct relating to the Contract or the operations and activities contemplated by it which We consider relevant to such matters. The Persons who We notify and the information notified may well vary from time to time as legal requirements and industry practices change.
22.3 In particular, You acknowledge that:
22.3.1 some or all of the Card Schemes may operate databases containing information regarding the conduct of Card transactions by merchants;
22.3.2 We may disclose information to the Card Schemes pursuant to this clause; and
22.5 You agree that where We have acted in good faith We shall have no liability to You for any inaccuracy in the information We provide to any third parties pursuant to this clause 22.
23. INTEREST
Either party shall be entitled to charge the other interest at the rate of three percent (3%) per annum over the Bank of England Base Rate on all amounts due in accordance with the terms of the Contract for the period they remain payable but unpaid. Any such interest will be stated on the relevant Statement.
24. FORCE MAJEURE
24.1 A party shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event).
24.2 The corresponding obligations of the other party will be suspended to the same extent as those of the party first affected by the Force Majeure Event.
24.3 Any party that is subject to a Force Majeure Event shall not be in breach of this agreement provided that it promptly notifies the other parties in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance and it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
25.1 The Contract does not transfer, and is not intended to transfer, to You any of the Intellectual Property Rights that We own at the date of the commencement of the Contract or any Intellectual Property Rights that We create, acquire or develop during the term of the Contract.
25.2 You shall obtain Our written consent prior to using or referring to any of Our trademarks, logos, copyrighted materials, business names or other similar protected intellectual property in any of Your promotional materials or literature, agreements or on any website.
25.3 On termination of the Contract, You shall remove any reference to Us from any of Your promotional materials or literature, agreements or on any websites.
26.2 The obligation in clause 26.1 above does not apply to information which the receiving Party can reasonably show:
26.2.1 was rightfully in its possession prior to its disclosure to it by the other Party;
26.2.2 is already public knowledge otherwise than as a result of breach of this clause 26;
26.2.3 is received from a third party who is not under an obligation of confidentiality in relation to the information; or
26.2.4 is developed independently without access to, or use or knowledge of, the Confidential Information.
26.3 The obligation in clause 26.1 shall not apply if and to the extent that any Confidential Information is required to be disclosed to any governmental or other regulatory authority, by the rules of a recognised stock exchange or by law.
26.4 Other than as expressly permitted under these Terms and Conditions, on termination or expiry of the Contract for whatever reason, each Party shall forthwith cease to use any Confidential Information of the other and shall return on demand, or at the request of the other, destroy or permanently erase all copies of that Confidential Information in its possession or control, save that either Party will be permitted to retain one copy of such part of the Confidential Information for the purposes of and for so long as required by any law or by judicial or administrative process or its legitimate internal compliance issues.
27. ASSIGNMENT AND SUBCONTRACTING
27.1 The Contract is personal to You and You may not assign it or transfer it or any of Your rights under it without Our consent, such consent not to be unreasonably withheld or delayed. If You are an individual, the Contract shall be binding upon Your personal representatives.
27.2 You may only use an agent or subcontractor in relation to the performance of Your obligations under the Contract (including Your obligations relating to the supply of goods and/or services which are the subject of Transactions) with Our prior written consent and We may withdraw that consent at any time. If You do use an agent or subcontractor for such purposes, You shall remain responsible for complying with these Terms and Conditions as though You were not using such agent or subcontractor.
27.3 We shall be entitled to assign or transfer the benefit of the Contract and/or to subcontract Our obligations under the Contract to any Person at any time.
28.1 No failure or delay by a Party in exercising any of its rights or remedies provided under these Terms and Conditions or under any relevant law or regulation shall be construed as a waiver or release of that right or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. The parties agree and acknowledge that the doctrine of affirmation shall have no application under the Agreement.
28.2 No single or partial exercise of any of a Party’s rights or remedies under these Terms and Conditions or under any relevant law or regulation shall preclude or restrict the further exercise of such right or remedy. A waiver of any breach of any provisions of the Contract shall not constitute a waiver of any other breach and shall not affect the other provisions of the Contract.
28.3 The rights and remedies of a Party under these Terms and Conditions are cumulative and not exclusive of any rights or remedies provided by law.
29.1 Any notice to be given under or in connection with the Contract shall be in writing and signed by or on behalf of the Party giving it and shall be served by delivering it personally or sending it by prepaid recorded registered post (or registered airmail in the case of an address for service outside the United Kingdom) or by facsimile (provided that a hard copy of the facsimile is also served by prepaid registered post or airmail) to the address of the other Party as set out in the Contract or as otherwise notified by such Party from time to time. Any notice given in accordance with this clause 29 shall be deemed to have been received:
29.1.1 if delivered personally, at the time of delivery;
29.1.2 in the case of prepaid registered post, 48 hours from the date of posting;
29.1.3 in the case of registered airmail, seven days from the date of posting; and
29.1.4 in the case of facsimile, on the date it is transmitted.
29.2 We may from time to time serve notices:
29.2.1 by email, in which case the provisions of clause 29.1 relating to the service of notices by facsimile shall apply to the service of notices by email; and
29.2.2 by other classes of post, in which case any such notice shall be deemed to have been received on the second day after it was put into prepaid first class post or the fourth day after it was put into prepaid second class post.
29.3 For the avoidance of doubt, You may not serve notices by email without Our prior written consent. Where such consent is given, it shall be deemed to have been given subject to the following conditions:
29.3.1 the provisions of clause 29.1 relating to the service of notices by facsimile shall apply to the service of notices by email; and
29.3.2 notices given by email which emanate (or reasonably appear to emanate) from any member of Your staff shall be deemed to be validly given by You, even if such member of staff did not have actual authority to send the relevant email and/or the relevant email in fact emanated from another member of staff or anyone else who may have had access to Your email systems.
29.4 We may specify (by giving notice to You in accordance with this clause29) a particular individual or office holder to whom any notices served on Us are to be addressed, in which case a notice shall not be validly given unless so addressed.
30.1 The Contract constitutes the entire agreement and understanding between Us and You in respect of the matters dealt with in it and supersedes and invalidates all other prior representations, arrangements, understandings and agreements relating to the subject matter of the Contract which may have been made between You and Us either orally or in writing prior to the date of the Contract, other than any securities or written pledges, undertakings or assurances which You may previously have given to Us and, subject to and together with such securities etc sets out the entire agreement and understanding You and We have.
30.2 Each Party warrants that it has not relied on any representations, arrangements, understanding or agreements (whether written or oral) not expressly set out or referred to in the Contract. The only remedy available to either Party in respect of any such representations, arrangement, understanding or agreement shall be for the breach of contract under the provisions of these Terms and Conditions.
30.3 Nothing in this clause 30 shall operate to exclude any liability for fraud.
31.1.1 such illegality, invalidity or unenforceability shall not affect the other provisions of these Terms and Conditions, which shall remain in full force and effect; and
31.1.2 if such provision would cease to be illegal, invalid or unenforceable if some part of the provision were modified or deleted, the provision in question shall apply with such minimum modification or deletion as may be necessary to make it legal, valid and enforceable.
32.1 Nothing in these Terms and Conditions is intended to create a partnership or joint venture or legal relationship of any kind that would impose liability upon one Party for the act or failure to act of the other Party, or to authorise either Party to act as agent for the other. Save where expressly stated in the Contract, neither Party shall have authority to make representations, act in the name or on behalf of or otherwise to bind the other.
32.2 Nothing in these Terms and Conditions shall render either Party or any of their respective employees an employee of the other or render either Party or any of its employees capable of incurring any liability or obligation on the other's behalf, and neither Party shall hold itself out as such.
32.3 A Person who is not party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provisions of the Contract. This clause 30.3 does not affect any right or remedy of any Person which exists or is available otherwise than pursuant to that Act.
33. GOVERNING LAW AND JURISDICTION
33.1 The Contract and any matter arising from or in connection with it shall be governed by and construed in accordance with English law.
33.2 You and We irrevocably agree that, for Our benefit only, the English courts shall have exclusive jurisdiction over any claim or matter arising from or in connection with the Contract, or the legal relationships established by or in connection with it. Accordingly, any proceedings by or against Us in respect of such claim or matter must be brought in the English Courts, but We shall not be prevented from taking proceedings against You either in the English courts or in any other court of competent jurisdiction. To the extent permitted by law, We may take concurrent proceedings in any number of jurisdictions.
33.3 In the event of any conflict between the English version of the Contract (or any part thereof) and any version which has been translated into any language other than English, then the English version shall prevail.