(for the provision of Acquiring Services)
(A) You wish to obtain the Services from Us for the purpose of processing payments from Your Customers in the course of Your business.
(B) We wish to provide the relevant Services to You subject to the terms of the Contract.
(C) We may use subcontractors to perform any of the Services under the Contract on Our behalf.
(D) The Contract is concluded in the English language and all communications (including any notices or the information being transmitted) shall be in English. In the event that the Contract is translated, for Your convenience, into any other language, the English language text of the Contract shall prevail. Where You are not a Large Enterprise or a Large Charity (as defined below) during the term of the Contract, We will provide a copy of the Contract to You as soon as reasonably practicable following Your request.
(E) While the Contract applies to merchants of any size, You agree that, if at the time You enter into the Contract:
(1) Your annual turnover and/or annual balance sheet total exceeds €2 million; and
(2) You have more than ten employees,
(in which case You are a ‘Large Enterprise’) or
(3) You are a charity with an annual income of £1 million or more
(in which case You are a ‘Large Charity’) then You:
(i) confirm that You are not a consumer, micro-enterprise or a charity within the meaning of the Payment Services Regulations;
(ii) agree that none of the provisions of Part 5 of the Payment Services Regulations applies to the Contract;
(iii) agree that regulations 54(1), 55(3), 55(4), 60, 62, 63, 64, 67, 75, 76 and 77 of the Payment Services Regulations do not apply to the Contract; and
(iv) agree that the time period for notifying us of any unauthorised or incorrectly executed payment transaction is any such period specified in the Contract rather than regulation 59(1) of the Payment Services Regulations.
1. Definitions and Interpretation
1.1 In these Conditions, the following terms shall (unless the context otherwise requires) have the following meanings:
‘Access Code’ means each personal identification number and/or password that is necessary to enable You to access or use Your Merchant Data Account;
‘Acquiring Services’ means the services provided by Us, as described in Schedule 1 and/or the Application Form;
‘Activation Date’ means the date that We notify you in writing (which may be by email) of final and formal acceptance of your Application and with details of your unique Terminal ID and Merchant ID;
‘Applicable Laws’ means all laws or regulations (and including the requirements of any Regulatory Authority whether or not having the force of law) applicable to a Party or to any Transaction or Refund for the time being in force in any jurisdiction;
‘Application’ means an application by You for the purchase of a Terminal and the provision of the Services from Us which must be submitted using an Application Form;
‘Application Form’ means the application form that You submit when making an Application;
‘Assessments’ means any and all assessments, fees, costs, expenses or charges of any nature which (a) the Card Schemes or any Other Financial Institution require You or Us to pay or which are otherwise directly or indirectly recovered from Us by the Card Schemes or any Other Financial Institution under their Rules at any time; and (b) relate directly or indirectly to any aspect of Our relationship with You in relation to the Services;
‘Authorisation’ means the confirmation obtained by Us at the time of the Transaction (directly or indirectly) from the relevant Card Issuer that the Card has not been blocked for any reason or listed as lost or stolen or as having had its security compromised and that there are sufficient funds for the relevant Transaction (and ‘Authorise’ and ‘Authorised’ shall be construed accordingly);
‘Business Day’ means a day on which banks are open for normal banking business in London, United Kingdom;
‘Card’ means a credit or debit card issued by a Card Issuer and which We have agreed to process;
‘Cardholder’ means a Person who or which is the authorised user of a Card;
‘Card Issuer’ means a Person with the necessary Regulatory Authority approvals for and which issues Cards under the authority of a Card Scheme;
‘Card not Present Transaction’ means a Point of Sale Transaction in which the Customer uses a Card but is not present at the point of sale (including Mail Order/Telephone Order Transactions) and for which Fees shall be as set out in the Pricing Schedule or Application Form or as notified to you from time to time;
‘Card Schemes’ means Visa Europe, Visa Inc, MasterCard Worldwide, Laser Card and/ or such other schemes governing the issue and use of Cards, as may be approved and notified by Us to You in writing from time to time;
‘Chargeback’ means any circumstances where Card Issuers, Card Schemes and/or Other Financial Institutions either: (A) refuse to Settle a Transaction; or
(B) demand payment from Us in respect of a disputed Transaction that has been Settled or which We have made Remittance to You, notwithstanding that the Card Issuer and/or Other Financial Institution may have given Authorisation;
‘Chargeback Costs’ means the administrative costs that We charge for a Chargeback and any reasonable costs, expenses, liabilities or Assessments that We may incur as a result of or in connection with a Chargeback and includes any fees related to Chargebacks;
‘Compatible Device’ means one of those classes of device referred to in the ‘FAQ’ section of the worldpayzinc.com website (or any successor thereto) that is Bluetooth enabled and shall not include any Jailbroken Device or Rooted Device;
‘Conditions’ means these terms and conditions, and includes all Schedules;
‘Confidential Information’ means information that is designated as ‘confidential’ or which by its nature is clearly confidential including any information relating to: the Contract; a Cardholder or
a Cardholder’s use of a Card; any one of the Card Schemes; Our or (as the case may be) Your technology, technical processes, procedures, business affairs, finance, security procedures;
or the layout of Our or (as the case may be) Your premises, however conveyed or presented, including text, information, 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 on any medium including all electronic, optical, magnetic and tangible media, oral descriptions, demonstrations or observations;
‘Contract’ means the contract between Us and You incorporating these Conditions and the other documents referred to in clause 2.1, for the supply of the Terminals and/or Services by Us to You. You can obtain a copy of the Contract at any time during its term by writing to the address provided on our Website or Customer Operating Instructions;
‘Control’ or ‘Controlled’ has the meaning given to such item in ss.449 and 450 of the Corporation Tax Act 2010 and a ‘Change of Control’ shall be deemed to have occurred to a Party if any Person or Persons who Control or together Control such Party at the Activation Date subsequently ceases or together cease to Control it or if any Person or Persons subsequently acquire Control of it;
‘Controller’ has the meaning given to it in Directive 95/46/EC;
‘Customer’ means a Person (including a Cardholder, where the context permits) who or which has ordered goods and/or services from You and where payment for such order is to be received by You through use of the Terminal and Services;
‘Customer Operating Instructions’ has the meaning given to such term in clause 2.1(E);
‘Data’ means documents, data and records of any kind relating to Transactions, Chargebacks or Refunds (including, for the avoidance of doubt, data relating to Cards and Customers) and shall include Transaction Personal Data and Sensitive Authentication Data;
‘Data Protection Legislation’ means the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner;
‘Default’ has the meaning given in clause 8.12;
‘Fees’ means the fees payable by You to Us for: (A) the purchase of the Terminal; and/or (B) the provision by Us of the Acquiring Services or Terminal(s); and / or (C) any ancillary services related to the Acquiring Services or Terminal(s).
‘Floor Limit’ has the meaning given to such term in clause 12.1(B);
‘Force Majeure Event’ has the meaning given to such term in clause 33.1;
‘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;
‘Insolvent’ means an inability to pay debts as defined in s.123 (1) or (2) Insolvency Act 1986 except that in the interpretation of this definition:
(A) the words ‘it is proved to the satisfaction of the court that’ in subsections (1)(e) and (2) of section 123 shall be deemed to be deleted; and
(B) a Party shall not be deemed to be unable to pay its debts if any demand under section 123(1)(a) or section 268(1)(a) is being contested in good faith by such Party and such Party has adequate funds to discharge the amount of such demand or if any such demand is satisfied before the expiration of 21 days from the date on which it is made;
‘Intellectual Property Rights’ means any and all intellectual property rights of whatever nature and includes patents, rights to inventions, utility models, know-how, lists of suppliers and customers and other proprietary knowledge, trade secrets and other confidential information, registered designs, copyrights, database rights (including rights of extraction), design rights (registered or unregistered), rights affording equivalent protection to copyright, trade marks, service marks, logos, internet domain names, business names, trade names, rights in computer software, topography rights, rights protecting goodwill and reputation, moral rights, all registrations or applications to register, renew or extend any of the aforesaid items, and all rights and forms of protection of a similar nature of any of the aforesaid rights or having equivalent effect in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing off;
‘Jailbreaking’ means the process of removing the limitations on an iOS device through the use of software and hardware exploits. Jailbreaking permits ‘root access’ to the operating system allowing the download of additional applications, extension and themes that are unavailable through the official Apple application store and a ‘Jailbroken Device’ is one that has been subject to the foregoing;
‘Mail order/Telephone order Transactions’ means Transactions in which the Buyer pays using a Card concluded via the telephone or mail order;
‘Merchant Bank Account’ has the meaning given to it under clause 13.1;
‘Merchant Data Account’ means an electronic management information account in Our or our subcontractors systems containing Data related to Your Transactions, Chargebacks and Refund
‘Merchant Material Adverse Change’ means any circumstance, event, or series of events that We have reasonable grounds to believe materially adversely affects or may materially adversely affect:
(A) Your liabilities or potential liabilities; or
(B) Your ability fully and promptly to perform and comply with any one or more of Your obligations, under the Contract, and in respect of events set out in sub-paragraphs (2),
(3) and (8) only taking into account historical experience and trends including seasonality of sales and yearly sales growth. A Merchant Material Adverse Change may include:
(1) material change in the goods and/or services supplied by You;
(2) material positive or negative fluctuations month on month in Your Transaction volumes or the average value of Your Transactions;
(3) material increase in Your Chargeback levels relative to expected volume;
(4) occurrence of Assessments at a material level;
(5) a Change of Control in respect of You;
(6) removal or unenforceability of any security in relation to You which We rely upon;
(7) instructions from a Regulatory Authority which You do not or are unable or unwilling to comply with; or
(8) material deterioration in Your profits or financial or trading position;
‘Mobile Agreement’ means any agreement between You and a mobile telecommunications service provider under which telecommunication services are provided to You from time to time during the term of the Contract;
‘Other Financial Institution’ means any third party which is in any arrangement with Us in connection with which We supply You with the Services, and which for the avoidance of doubt shall not include providers of technical and administrative services;
‘Other Personal Data’ means Personal Data which is provided to or otherwise Processed by Us (or Our Personnel) in the provision of the Services, other than Transaction Personal Data;
‘Party’ means You or Us (as the context may require) and includes successors and permitted assigns;
‘Payment Service Regulations’ means the UK Payment Services Regulations 2009 (Statutory Instrument 2009 No. 209);
‘Person’ includes any individual, company, body corporate, corporation sole or aggregate, government, state or agency of a state, firm, partnership, limited partnership, limited liability partnership, association, organisation or trust (in each case, irrespective of the jurisdiction in or under the law of which it was incorporated or exists) and a reference to any of them shall include a reference to the others;
‘Personal Data’ has the meaning given to it in Directive 95/46/EC;
‘Personnel’ means employees, agents, consultants, contractors and sub-contractors and their employees, agents, consultants and sub-contractors;
‘Point of sale Transactions’ means Transactions in which the Customer’s payment instruction is issued via a Terminal;
‘Pricing schedule’ means the relevant Fees payable for and in connection with the Services which are listed in the Application Form or are provided to You from time to time;
‘Processing’ has the meaning given to it in Directive 95/46/EC and its grammatical variants shall be construed accordingly;
‘Processor’ has the meaning given to it in Directive 95/46/EC;
‘RBS Account Bank’ means each of The Royal Bank of Scotland plc, National Westminster Bank plc, Ulster Bank Limited, Ulster Bank Ireland Limited or any other bank that is a subsidiary (as defined in the Companies Act 2006) of The Royal Bank of Scotland Group plc, or any one of them, as the context requires;
‘Reason Code’ has the meaning given to such term in clause 24.12(C);
‘Refund’ means a return of an amount to a Cardholder’s account pursuant to a request or instruction from You to Us and in any event, the amount of which shall not exceed the amount of the original payment made via the Terminal;
‘Regulatory Authority’ means all and any governmental or regulatory authority (including the United Kingdom’s Financial Conduct Authority, the United Kingdom’s Office of Fair Trading, the United Kingdom’s Office of the Information Commissioner and any body which succeeds or replaces any of the foregoing), and/or any self-regulatory authority, governmental department, agency, commission, board, tribunal, crown corporation, or court or other law, rule or regulation making entity having jurisdiction over any of the Parties and/or their businesses or any part or subdivision thereof in the territories in which the Services are made available or any local authority, district or other subdivision thereof;
‘Remittance’ means payment of the value of any Transaction(s) to You;
‘Remittance Date’ means the date notified to You by Us from time to time on which Remittance occurs;
‘Retailer’ means the online or physical store that You purchased the Terminal from and does not include an online purchase of the Terminal from Us;
‘Rooted Device’ means a device where a user has performed a process to enable privileged control of ‘root access’ within Android’s subsystem;
‘Rules’ means all applicable rules, regulations and operating guidelines issued by the Card Schemes or (where relevant) any Other Financial Institution from time to time relating to Cards, Transactions and any payments or processing of Data relating thereto (including all amendments, changes and revisions made thereto from time to time) and any current waivers or exceptions agreed with the Card Schemes or (where relevant) any Other Financial Institution;
‘Schedule’ means each of the schedules attached to, and forming part of, these Conditions;
‘Sensitive Authentication Data’ means security related information used to authenticate cardholders and authorise card transactions. Sensitive Authentication Data elements include magnetic stripe data (PAVE, CVV, CVC, CID) PINs, PIN blocks and the three or four digit number security code found either on the front or on the back of a card (e.g. MasterCard CVC2 / Visa CVV2);
‘Services’ means the Acquiring Services that are provided to You under the Contract and shall not include any testing work in respect of the interaction of any Services and Your systems for the purposes of providing Services to You;
‘Settlement’ means the crediting to Us, Our agent or Other Financial Institution (as applicable) of the value of a Transaction as determined by (in the case of the Acquiring Services) the relevant Card Scheme (and ‘Settle’ and ‘Settled’ shall be construed accordingly);
‘Software’ means each of the software products owned by or licensed to Us and (i) downloaded by you from iTunes, GooglePlay (as the case may be and depending on your Compatible Device) or any other app store approved by Us, and/or (ii) pre-loaded onto the Terminal, including the operating system and the third party payment processing application;
‘Specification’ means the specification for the Terminal as set out in the User Guide;
‘Terminal’ has the meaning given to it in the User Guide, where it may be described as a ‘keypad’ or ‘Chip & PIN device’, and shall include any new or replacement Terminal (and ‘Terminals’ shall be construed accordingly);
‘Trading Limit’ has the meaning given to such term in clause 12.1(A);
‘Transaction’ means any payment for goods and/or services provided by You to the Cardholder or Refund made by use of a Card, a Card number or otherwise to debit or credit the applicable Card account in accordance with the terms of this Contract.
‘Transaction Personal Data’ means Personal Data in respect of individuals to whom Transactions relate which is provided to or otherwise Processed by Us (or Our Personnel) in the provision of the Services;
‘Us’ means, WorldPay (UK) Limited, a limited company incorporated in England and Wales with registered number 07316500 and with its registered office address at The Walbrook Building, 25 Walbrook, London EC4N 8AF (and ‘We’ and ‘Our’ shall be construed accordingly);
‘User Guide’ means the document titled ‘User Guide’, as issued and/or amended by Us from time to time to explain how to use the Terminal;
‘You’ means the Person identified as the Merchant in the Contract (and ‘Your’ shall be construed accordingly);
‘Warranty Period’ has the meaning given in clause 5.1;
‘WEEE Regulations’ means the Waste Electrical and Electronic Equipment Regulations 2006 (as amended);
‘WorldPay Customer Payments Account’ means any account with any Other Financial Institution in which We hold the proceeds of Transactions, net of any amounts due to us.
1.2 In these Conditions (unless the context otherwise requires):
(A) the words ‘include’, ‘includes’ and ‘including’ shall be construed without limitation to the generality of the preceding words or the words following;
(B) references to the Contract and any other agreement, contract or document (including the Rules) shall be construed as a reference to it or them as amended, varied, supplemented, modified or novated from time to time;
(C) words importing the singular shall include the plural and vice versa;
(D) words importing any gender shall include a reference to each other gender;
(E) the word ‘writing’ includes type writing, printing, lithography, photography, telex, e-mail, text messaging, facsimile and other modes of representing or reproducing words in
a legible and non-transitory form that is provided in a manner, including electronically, which enables the recipient to store it in a way accessible for future reference and which allows the unchanged reproduction of the stored information;
(F) references to clause(s) and schedule(s) are references to clause(s) and schedule(s) of and to these Conditions and references to paragraph(s) are, unless otherwise stated, references to paragraphs of the schedule in which the reference appears;
(G) references to any law or regulation is to the law or regulation from time to time in force;
(H) references to the Financial Conduct Authority include any body taking over its functions; and
(i) an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal term.
1.3 The headings and sub-headings in these Conditions are for convenience only and shall not affect the construction or interpretation of these Conditions.
2. The Contract
2.1 The following documents, as amended, varied, supplemented, modified or novated from time to time, are incorporated into and form part of the Contract:
(A) the Application Form;
(B) these Conditions;
(C) the Pricing Schedule;
(D) the User Guide; and
(E) any customer operating instructions or manuals which (i) are issued and/or amended by Us from time to time; and (ii) include information and requirements to be satisfied on various aspects of the Services including certain information on the Rules (‘Merchant Operating Instructions’).
2.2 In the event of any inconsistency between the provisions of these Conditions and those of the Application Form, the Pricing Schedule or the Customer Operating Instructions, the provisions of these Conditions shall prevail.
2.3 The Application Form constitutes an offer by You to purchase Terminal(s) and/or Services from Us in accordance with these Conditions.
2.4 Notwithstanding Your submission of an Application Form to Us, the Contract does not come into existence until You are notified by Us that Your Application for the provision of Services by Us has been formally accepted by Us and we have provided You with such details as are needed to activate the Services and the Terminal (the Activation Date). After such notice is given, You and We are bound by the Contract and Our obligations to provide the Terminal (if bought online directly from Us) and/or Services shall commence on the date of such notice (or, if different, the date specified in such notice). For the avoidance of doubt, any ‘status approved’ notification you may receive upon submission of your application is provisional only and does not constitute full or final acceptance by Us.
2.5 We shall use reasonable endeavours to process Your Application and (if We accept Your Application) provide You with written notice of such acceptance without due delay. We are not obliged to provide Our reasons for declining an Application but may do so at Our sole discretion.
2.6 The Parties acknowledge that, due to the nature of the Services that We provide (depending on Your business requirements as indicated to Us by choosing one or more Services to be provided under the Contract) and the way in which the Services are provided, Our role (including the way in which We must be entitled to take measures to protect Our position with respect to Refunds, Chargebacks, Assessments or any other liability relating to any Transaction) and Your responsibilities differ as set out in the Contract.
3. Our Obligations
3.1 We shall, in return for the Fees, provide You with the Services (and the Terminal if it has been bought online from Us and not from a Retailer) in accordance with the Contract.
3.2 For the term of the Contract, We grant to You a non-exclusive, non-transferrable, worldwide license to access and use the Data that We make available via Your Merchant Data Account solely for the purpose of receiving the Services in accordance with the provisions of the Contract.
3.3 While We may display Your Transactions in Your Merchant Data Account and otherwise supply certain information to You in accordance with Applicable Laws, You are responsible for maintaining Your own records related to the Services, Transactions, Refunds and Chargebacks, and for reconciling these with Your own bank account data and other accounting records. Upon the termination of the Contract for whatever reason, We will have no obligation to retain, store or make available to You any Data, records or other information in connection with any of the Services or Transactions, Refunds and Chargebacks.
3.4 We will credit the amount of each Transaction to Your Merchant Data Account following Our receipt of the corresponding funds.
3.5 We shall license the Software to You on the terms set out in Schedule 2 (the ‘License’).
3.6 At your request to our customer services team we will make reference data available to you on a monthly basis for each of your Transactions, showing the value of each Transaction in the same currency in which we have credited your account and the level of interchange payable on each Transaction displayed separately from the rest of your Fees. (Interchange is the fee passed through to Card Issuers). The data will be provided to you on a monthly basis following your request. We reserve the right to charge for this provision and no historic or backdated data will be available.
4. Delivery of Terminals
Where you have ordered a Terminal from Us online through worldpayzinc.com:
4.1 We shall deliver the Terminal to You at the address You specified in Your Application.
4.2 Any dates suggested for delivery of the Terminal are estimates only and time of delivery is not of the essence and may not be made so by the service of any notice.
4.3 Subject to clause 4.4, We shall not be liable for any losses incurred by You if the delivery of the Terminal is delayed for any reason from the anticipated delivery date.
4.4 If We fail to deliver the Terminal within 30 days of Us notifying you in writing that you have been accepted for the Service, and:
(A) You notify Us as soon as possible after the anticipated delivery date that delivery has not occurred; and
(B) We have had the opportunity to make another delivery to You; and
(C) Delivery has not failed due to any action or omission by You, including Your failure to sign for the Terminal (if applicable) or Your refusal to accept delivery;
then Our liability shall be limited to the value of a refund of the cost to You of the Terminal.
4.5 We shall not be liable for any delay or failure in delivery of the Terminal that is caused by a Force Majeure Event, or Your failure to provide Us with adequate delivery instructions for the Terminal or any relevant instruction relating to the supply of the Terminal.
4.6 If You fail to accept or take delivery of the Terminal, then except where such failure or delay is caused by a Force Majeure Event or by Our failure to comply with Our obligations under the Contract in respect of the Terminal:
(A) delivery of the Terminal shall be deemed to have been completed at 9:00 am on the third Business Day following the day on which We attempted to make the first delivery of the Terminal (notwithstanding any further attempts We make to deliver the Terminal after the first attempt); and
(B) We shall store the Terminal until delivery takes place, and charge You for all related costs and expenses (including insurance).
4.7 If ten Business Days after We attempted to make the first delivery of the Terminal You have not accepted or taken delivery of it, or notified Us that delivery has not taken place, (notwithstanding any further attempts We may make to deliver the Terminal at Our discretion) We may resell or otherwise dispose of the Terminal. We shall be entitled to treat the Contract as having been cancelled by You ten Business Days after We attempted to make the first delivery of the Terminal and We reserve the right to charge a reasonable administration fee to You in respect of Your cancellation of the Contract.
4.8 We will provide you with one Terminal only at any given time unless otherwise agreed by Us.
4.9 You understand and agree that you are not permitted to re-sell the Terminal, including following any termination of this Agreement.
5. Quality of Terminals
5.1 If you purchased the Terminal online from Us then We warrant that on delivery, and for a period of 12 months from the date of delivery
(the ‘Warranty Period’) the Terminal shall:
(A) conform in all material respects with its description and any applicable Specification;
(B) be free from material defects in design, material and workmanship;
(C) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended); and
(D) be fit for any purpose held out by Us.
5.2 Subject to clause 5.1 and 5.3, if:
(A) You give notice in writing during the Warranty Period within a reasonable time of discovery that the Terminal does not comply with the warranty set out in clause 5.1; and
(B) You (if asked to do so by Us) return such Terminal (with adequate insurance over the Terminal) to the address notified to you by our WorldPay Zinc Help Desk (which will be confirmed by an email from them) at Your cost, then We shall, at Our option, having examined the Terminal, repair or replace the defective Terminal, or refund the purchase price of the defective Terminal in full.
5.3 We shall not be liable for the Terminal’s failure to comply with the warranty in clause 5.1 if:
(A) You make any further use of such Terminal after giving a notice in accordance with clause 5.2;
(B) The defect arises because You failed to follow any instructions (including the User Guide or good trade practice) as to the storage, installation, commissioning, use or maintenance of the Terminal;
(C) You are not using the Terminal with a Compatible Device;
(D) You alter or repair such Terminal without Our written consent;
(E) You fail to (i) return the Terminal to Us for maintenance, software or hardware updates or upgrades; or (ii) apply software downloads, updates or upgrades to the Terminal
at Our direction, in either case upon reasonable written notice from Us (where such notice can potentially be sent to the Terminal); or
(F) the defect arises as a result of fair wear and tear, or Your wilful damage, negligence, or abnormal working conditions or use in conjunction with items not approved by Us.
5.4 Except as explicitly provided in this clause 5, We shall have no liability to You in respect of the Terminal’s failure to comply with the warranty set out in clause 5.1 and insofar as the supply of the Terminal is concerned, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.5 We shall have no liability to You in the event that the Terminal is required to be replaced or modified in any way as a direct result of any change in the Rules and You agree to return the Terminal to Us at Our written request in these circumstances or to the Retailer as described in clause 5.7 if you bought it from a Retailer.
5.6 The terms of these Conditions shall apply to any repaired or replacement Terminal supplied by Us under clause 5.2 although any warranty in respect of a repaired or replacement Terminal will apply only for the remainder of the Warranty Period which is unexpired in respect of the first Terminal.
5.7 If you purchased the Terminal from a Retailer and not from Us and it is faulty you should return the Terminal to the Retailer within any returns period offered by the Retailer or by law, with the packaging intact and your proof of purchase.
5.8 This clause 5 does not limit or affect any statutory rights to which you may be entitled.
6. Risk and Security
6.1 The risk of loss, theft or damage to the Terminal shall pass to You on completion of delivery.
6.2 You are responsible for taking all reasonable security measures to keep the Terminal safe, including measures to prevent unauthorised use of it. If You know or suspect that the Terminal has been lost, stolen or misused, You must notify Us immediately by telephoning Us on the telephone number provided in our Customer Operating Instructions or on worldpayzinc.com (or any successor site).
6.3 You are responsible for ensuring that the Terminal is not accessed or used to commit any fraud or theft by You, the Cardholder or any third party while the Terminal is in Your possession. You will be liable for any losses that result from such criminal acts if they occur as a result of either:
(A) Your or Your employees’ negligence; or
(B) Your non-compliance with the Customer Operating Instructions or good commercial practice to prevent fraud and/or theft.
6.4 We may block use of the Terminal if:
(A) We have reasonable grounds for concern about the security of the Terminal;
(B) We have reasonable grounds to suspect that it has or may be used for a fraudulent or criminal purpose or in an unauthorised manner; or
(C) We suspect or have reasonable grounds to believe that the Terminal is being used outside the United Kingdom;
(D) We are obliged to do so to comply with Our legal or regulatory obligations howsoever arising.
We shall notify You of any such action, and the reasons and the procedure for rectifying any factual errors that led to the action unless We are prohibited from doing so under the Applicable Laws. We may charge You the reasonable costs of any such notification.
6.5 You shall undertake all responsibilities and obligations which would otherwise be Our responsibilities and obligations under the WEEE Regulations regarding the collection, treatment, recycling or recovery and safe disposal of the Terminal and for any other electrical and electronic equipment (‘EEE’) which becomes waste, as defined in the WEEE Regulations, including EEE from third parties where We would otherwise have an obligation to finance the collection, recycling, treatment and/or disposal of such EEE under the WEEE Regulations. For the avoidance of doubt, such obligations and responsibilities include, without limitation, the collection, treatment, recycling or recovery and safe disposal of:
(A) the Terminal;
(B) a redundant terminal or other EEE supplied by a third party; and/or
(C) a redundant terminal or other EEE supplied by Us.
7. Supply of Services
7.1 We shall provide the Services to You with reasonable care and skill.
7.2 We shall, in the performance of the Contract, comply in all material respects with Applicable Laws and with the Rules (to the extent that the Applicable Laws and Rules apply to Us).
7.3 We shall (if and to the extent permitted or possible having regard to the relevant circumstances and the provisions of the relevant contract with any Other Financial Institution) give You not less than six months’ prior written notice of any termination of a relationship with such Other Financial Institution.
8. Your Obligations
8.1 You shall ensure that the information You provide in the Application Form is complete and accurate.
8.2 You shall at all times comply with:
(A) the provisions of the Contract (including, without limitation, the License);
(B) the Rules, to the extent that We inform You (whether in the form of the Customer Operating Instructions or otherwise) of obligations that the Rules directly or indirectly (via Us) impose on You or which We are obliged to impose on You, whether or not such obligations are identified as coming from the Rules;
(C) all Applicable Laws, including any applicable to 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;
(D) Your obligations relating to the provision of goods and/or services by You to Customers; and
(E) Our instructions for the use of the Terminal and installation of Software updates as and when required by Us including but not limited to updates due to the requirements of the Card Schemes.
8.3 You shall:
(A) Co-operate with Us in all matters relating to the Services;
(B) only accept payments from and/or process the payment of Refunds to Cardholders or Customers in connection with goods and/or services which You have supplied to the relevant Cardholder or Customer, and only pay such Refunds to the Cardholder or Customer using the payment method used by the Cardholder or Customer for the original Transaction;
(C) only accept payments and/or process the payment of Refunds, in respect of the genuine purchase of goods and services which you supply and which commonly fall within Your business as identified to Us;
(D) only accept payments and submit any Data to Us in respect of any Transaction where a Cardholder has authorised such Transaction in accordance with Applicable Laws, the Contract and any other information or instructions provided by Us to You from time to time;
(E) only accept payments and/or process the payment of Refunds through the Terminal and the Merchant Bank Account within the territory of the United Kingdom;
(F) refrain from doing anything which We reasonably believe to be disreputable or capable of damaging Our reputation or that of any of the Card Schemes; and
(G) not use the Services or Terminal to process Transactions for or on behalf of a third party (including any other person or business); and
(H) notify Us as soon as reasonably possible if at any time during the provision by Us of the Services there is a change in:
(1) the nature of Your business; or
(2) the status of Your business (e.g. from sole trader to partnership, limited company etc); or
(3) any other of the information You supplied to Us in Your Application Form.
8.4 You confirm that You are acting in the course of Your business and for the benefit of the same when entering into the Contract with Us and not in the capacity of a consumer.
8.5 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 and cost of all equipment, software, systems and telecommunications facilities needed to use the Services, the Terminal and/or the Software and including any Mobile Agreement, which are required to enable You to receive
the Services (including any modification or adjustments thereto pursuant to clause 26.1).
8.6 You acknowledge and agree that, in relation to any Mobile Agreement:
(A) It is Your sole responsibility to comply with the terms of Your Mobile Agreement and to ensure that Your entry into the Contract will not breach such terms in any way (for example, if the Mobile Agreement specifically states that use of the mobile phone and telecommunications services provided in accordance with its terms are to be used for personal use only and not for business purposes); and
(B) We accept no liability whatsoever for any breach or default caused under the terms of the Mobile Agreement by Your entry into the Contract.
8.7 You agree to maintain Your registered office or place of business within the United Kingdom for the duration of the Contract and as soon as reasonably possible provide Us with prior notice of any change of registered office address or place of business.
8.8 You shall ensure that the Access Codes are kept strictly confidential and are not made known to any other person. You shall use all reasonable endeavours to ensure that there is no unauthorised use of the Access Codes, the Software, Terminals or of any other confidential material or information used in the provision or use of Services and Your Merchant Data Account. If You suspect that there may be or has been or are aware that there has been unauthorised use of the Access Codes or of any other confidential material or information as aforesaid, including without limitation that is used in the provision or use of Your Merchant Data Account You shall notify Us immediately by contacting Us by telephone, with confirmation of such notification in writing. Upon receiving such notification of any actual or suspected unauthorised use of Your Merchant Data Account, We will use reasonable endeavours to help prevent further unauthorised use of Your Merchant Data Account. This may include blocking your Terminal.
8.9 You acknowledge that You are solely responsible for establishing and applying adequate security systems and procedures:
(A) to comply with the provisions of clause 8.8;
(B) for monitoring all use of or access to Your Access Codes, the Software, Terminals and Merchant Data Account in order to ensure that no Transactions have been effected by an unauthorised persons in possession of Your Access Codes; and
(C) in relation to Data after it has been accessed via, or printed or downloaded from, Your Merchant Data Account.
8.10 You shall only access and use the Data that We make available via Your Merchant Data Account solely in accordance with the license granted to You by Us under clause 3.2.
8.11 Except as may be expressly permitted under this Contract, You must not copy, download, disclose or make available to any third party any Data from Your Merchant Data Account in whole
or in part for any purpose whatsoever.
8.12 If Our performance of any of Our obligations in respect of the Services is prevented or delayed by any act or omission by You or failure by You to perform any relevant obligation (‘Default’):
(A) We shall without limiting Our other rights or remedies have the right to suspend performance of the Services until You remedy the Default, and to rely on the Default to relieve Us from the performance of any of Our obligations to the extent the Default prevents or delays Our performance of any of Our obligations;
(B) We shall not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Our failure or delay to perform any of Our obligations as set out in this clause 8.12; and
(C) You shall reimburse Us on written demand for any costs or losses sustained or incurred by Us arising directly or indirectly from Your Default.
8.13 You will ensure that you respect the rights of Cardholders including:
(A) Cardholders can refuse to give an email or mobile number and request a receipt directly at Point of Sale Transactions;
(B) Cardholders may contact you to request another copy of the electronic receipt (lost receipt, not received receipt etc.); and
(C) the Cardholder’s mobile number and email address (obtained for sending a receipt electronically) cannot be used for any other purpose than for sending the receipt, unless express Cardholder consent is obtained in writing.
9. Fees, Charges, and other Payments due from You
9.1 In return for Us providing You with the Acquiring Services and the Terminal (if applicable), You shall pay to Us the Fees and all other charges and sums payable by You in accordance with the provisions of the Contract and terms of the invoices that We issue to You in respect of such payments due from You.
9.2 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.
9.3 You shall pay sums due under any invoice from Us within eighteen (18) days of the date of receipt of such invoice or such time period as applies to any direct debit.
9.4 We may from time to time vary the Fees and/or introduce new charges in addition to the Fees in accordance with clause 26.
9.5 The form and procedure for making Refunds is specified in the Customer Operating Instructions applicable to the type of Refund. Where a Refund is not authorised in accordance with this clause 9.5 and the Customer Operating Instructions and You notify us under clause 9.11, then (subject to any investigation We may make in relation to the unauthorised Refund), We will refund the amount of the unauthorised Refund to You and refund any charges made by us in respect of the unauthorised Refund not later than:
(A) the same day that We receive a notification from You in accordance with clause 9.11 in relation to the unauthorised Refund; or
(B) if such notification is received by us after 16.00 (CET), not later than the next Business Day.
9.6 Subject to the provisions of the Contract, the value of any Refund will be credited to the Customer’s payment service provider’s account by no later than the end of the Business Day after You submit the Refund, unless You submit the Refund after 16.00 (CET), in which case the Refund will be deemed to have been submitted on the next Business Day. The time periods in this clause 9.6 shall not apply where the Customer’s payment service provider is located outside the EEA.
9.7 We may refuse to execute a Refund if it does not meet the conditions in the Contract or is prohibited by law. If We do refuse to execute a Refund, within the time for processing the Refund We will notify You (unless prohibited by law) of the refusal and, if possible, the reasons for such refusal and the procedure for correcting any factual mistakes that led to it. Any payment order that We refuse will be deemed not to have been received for the purposes of execution times and liability for non-execution or defective execution.
9.8 Where We execute a Transaction or Refund in accordance with details provided by You, the Transaction or Refund will be deemed to have been correctly executed by us and each Other Financial Institution involved. Where the details provided by You are incorrect, We are not liable for the non-execution or defective execution of the Transaction or Refund, but We will make reasonable efforts to recover the funds involved in such a Transaction or Refund and We may charge You for any such efforts.
9.9 Subject to the provisions of clause 9.8 and where You are not a Large Enterprise or a Large Charity, We are liable for:
(A) the correct execution of Refunds unless We can prove to the Customer and, where relevant, the Customer’s payment service provider that the Customer’s payment service provider received the amount of the Refund in accordance with clause 9.6. Where applicable, on Your request, We will make immediate efforts to trace a non-executed or defective Refund and notify You of the outcome and without undue delay refund to You the amount of the non-executed or defective Refund and, where applicable, restore Your Merchant Data Account to the state it would have been in had the non-execution or defective execution not taken place; and
(1) charges for which You are responsible; and
(2) interest You must pay.
as a consequence of the non-execution or defective execution by Us.
9.10 Subject to the provisions of clause 9.8, where You are not a Large Enterprise or a Large Charity and a Transaction is initiated by You as a payee (e.g. direct debit) as opposed to through You (e.g. a Point of Sale Transaction), We are liable for the correct transmission of the payment order in accordance with Applicable Law. If We become aware of the non- execution or defective execution of a Transaction in circumstances where We are liable, We will immediately re-transmit the payment order in question and make immediate efforts to trace the Transaction and notify You of the outcome. Where We can prove to You and, where relevant, to the Customer’s payment service provider that We are not liable in respect of a non-executed or defectively executed Transaction, the Customer’s payment service provider is liable to refund to You the amount of the non-executed or defective Transaction and, where applicable, restore Your Merchant Data Account to the state it would have been in had the non-execution or defective execution not taken place.
9.11 You must notify us promptly and, in any event, no later than 13 months after becoming aware of any unauthorised or incorrectly executed Transactions or Refunds in Your Merchant Data Account.
10. Payments to You
10.1 Following the value, dating and crediting of Transactions to Your Merchant Data Account in accordance with clause 3.4 and subject to clauses 10.2 to 10.8(D) (inclusive), We shall on the Remittance Date make each relevant Remittance by bank transfer to the Merchant Bank Account.
10.2 Remittance shall fall due on the occurrence of the later of the following:
(A) the Remittance Date; and
(B) the expiry of any period of deferment pursuant to clause 10.8 in respect of the relevant Transactions.
10.3 On a monthly basis, We will supply to You the following information:
(A) a reference enabling You to identify the payment;
(B) the amount of the Remittance;
(C) any charges payable by You in respect of the Remittance; and
(D) the credit value date.
10.4 At Our option (which We may exercise in Our absolute discretion) We shall:
(A) deduct any or all of the sums set out in clause 10.5 from any Remittance; and/or
(B) be entitled to send You an invoice separately for any or all of the sums set out in clause
10.5 and to require that You pay such sums to Us in accordance with the terms of such invoice within eighteen (18) days of the date of receipt of such invoice and, if and to the extent applicable, make Remittance.
10.5 The sums referred to in clauses 10.4(A) and (B) are:
(A) any Refunds processed since the previous Remittance Date (or, in the case of the first Remittance Date, since the Activation Date);
(B) any Chargebacks;
(C) any Assessments;
(D) any Chargeback Costs;
(E) any amounts reasonably required to cover any:
(1) potential or expected Refunds, Chargebacks, Chargeback Costs, any liability or expected liability relating to a Transaction or Assessments;
(2) liability or potential liability of Yours under the Contract; and
(F) any other charges or amounts due by You under the Contract or otherwise, in addition to the Fees.
10.6 In the event and to the extent that the value of the sums set out in clause 10.5 exceed the aggregate value of all payments which would otherwise be due to You in respect of the Transactions on the relevant Remittance Date:
(A) We may not make any Remittance on such Remittance Date; and
(B) the resulting shortfall may be held over by Us for deduction of such shortfall (together with interest charged in accordance with clause 14 against the following (and any subsequent) Remittance
and We reserve the right at any time to require payment of all or part of such shortfall (together with interest charged in accordance with clause 14 by invoicing You in accordance with clause 10.4(B).
10.7 In the event and to the extent that sums that We deduct pursuant to clause 10.4(A) or in respect of which We defer payment pursuant to clause 10.8 significantly exceed the amount We reasonably require for the purposes set out in clause 10.4(A) and/or 10.8, We shall deduct such amounts from invoices that We send You for payment of Fees.
10.8 Throughout the term of the Contract and after its termination for any reason, We shall be entitled to defer any relevant Remittance to You as follows:
(A) if, following any deductions pursuant to clause 10.3, the amount of such Remittance to be made falls below the minimum threshold as notified by Us to You from time to time, until the total Remittance payable to You reaches the threshold. Such threshold shall be an amount as We may reasonably determine taking into account the cost and technical requirements of paying the Remittance to You;
(B) to the extent necessary to cover Your liability to Us (whether potential or actual), if We reasonably conclude that any Chargebacks, claims, any action in connection with the Contract, any Transaction or otherwise or any Assessments may arise, until either:
(1) the relevant liability is incurred (when You shall be paid the balance of the amount of such sums, if any, after deducting the amount of such liability); or
(2) We are, acting reasonably, satisfied that no such liability will be incurred;
(C) where We reasonably believe that a Transaction may be fraudulent or involves other criminal activity, until the satisfactory completion of Our investigation, or that of any third party. We shall notify You of any such deferral, and the reasons and the procedure for rectifying any factual errors that led to the refusal unless We are prohibited to do so under the Applicable Laws. We may charge You the reasonable costs of any such notification; or
(D) without limit in amount or time, if We become aware or reasonably believe that You are in breach of or likely to be in breach of Your obligations under the Contract.
10.9 We have the right to suspend the processing of any Transaction where We reasonably believe that the Transaction may be fraudulent or involves any criminal activity, until the satisfactory completion of Our investigation or that of any third party. We shall notify You of any such action, and the reasons and the procedure for rectifying any factual errors that led to the refusal unless We are prohibited from doing so under the Applicable Laws. We may charge You the reasonable costs of any such notification.
10.10 In the event that We exercise our rights under this clause 10 as a result of any matters referred to under clauses 10.5(E), 10.5(F), 10.8(C) or 10.9, We shall notify You of any such action, the reasons for it and the procedure for rectifying any factual errors that led to the refusal, unless We are prohibited from doing so under the Applicable Law. Subject to reasonable security measures and Applicable Law, We will notify You before any suspension of processing under clause 10.9 if We are able to do so, or otherwise immediately after such suspension. If You are a Large Enterprise or a Large Charity,
We may charge You the reasonable costs of any such notification.
10.11 Subject to clause 20.2, You shall not be entitled to any interest or any other compensation whatsoever in respect of any sums held by Us in accordance with the Contract prior to Remittance being made to You for any period for which payment may be:
(A) deferred under this clause 10;
(B) not paid under clause 11; or
(C) not paid due to a suspension of Services (or part thereof) under clause 17.5, unless You demonstrate that such non-payment results from Our breach of Our obligations under the Contract in which case interest accrues on a daily basis until the date of payment calculated at a rate equal to the published base rate of The Royal Bank of Scotland plc. This base rate may be found on www.rbs.co.uk.
10.12 On the occurrence of Settlement, You and We acknowledge that:
(A) the value of any Remittance will be at Your disposal by no later than the end of the third Business Day following Settlement until 31 December 2011; and
(B) from 1 January 2012, the end of the Business Day following Settlement
but subject always to the provisions of the Contract, including, but not limited to this clause 10, and clauses 11, 15 and 17.
10.13 Remittance shall be paid in GBP.
10.14 If You believe that the amount of a Remittance is incorrect, You must notify Us by contacting Us using the details provided in the Customer Operating Instructions or on Our Website as soon as You become aware of it. We will not be obliged to correct any such error unless You notify Us not later than 13 months after the date of the Remittance in question.
10.15 In circumstances where We receive Transaction funds, You hereby unconditionally instruct and authorise us or any Other Financial Institution to remit Transaction funds to one or more WorldPay Customer Payments Accounts for the purpose of holding Your Transaction proceeds (net of any amounts due to us) on Your behalf, prior to making each Remittance to You. You shall not be entitled to receive interest, if any, paid by our bank service provider in connection with funds held in the WorldPay Customer Payments Account and any such interest may be retained by us.
11. Chargebacks and Assessments
11.1 Where a Chargeback and/or an Assessment occurs, this represents an immediate liability from You to Us and the amount of such Chargeback and/or Assessment is a debt owed
by You to Us. At Our option, We shall immediately be entitled to debit the Merchant Bank Account and/or make a deduction from any Remittance and/or We may invoice You in accordance with clause 10 to recover:
(A) the full amount of the relevant Chargeback and/or Assessment; and
(B) any Chargeback Costs.
11.2 You acknowledge and agree that 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 in respect of the supply of the goods or services concerned. To the extent permitted by Applicable Laws, We shall notify You as soon as reasonably practicable of any applicable Chargebacks and Chargeback Costs which have occurred or incurred.
11.3 Any Chargebacks for which You are required to reimburse Us shall correspond to the whole or part of the Settlement value of the original Transaction or, with Your written consent
(not to be unreasonably withheld or delayed), to an amount converted to the Settlement currency from the currency of Chargeback by the Card Scheme to Us at the rate of exchange quoted by Us and calculated with reference to the standard reference rate of The Royal Bank of Scotland plc for Settlement purposes on the day the Chargeback is processed or such other reference rate as We notify to You from time to time.
11.4 You agree that, in the event of a Chargeback that You dispute, it is Your responsibility to prove to Our reasonable satisfaction (or that of the relevant Card Scheme, Card Issuer or Other Financial Institutions) that the debit of a Customer’s or Cardholder’s account was authorised by such Customer or Cardholder.
11.5 Subject to the Rules, We shall not be obliged to investigate the validity of any Chargeback or Assessment by any Card Issuer, Card Scheme or Other Financial Institution. You acknowledge and agree that any decision or determination of the relevant Card Scheme as to the validity and extent of any Chargeback and/or Assessment shall be final and binding.
11.6 As Chargebacks may arise a considerable period of time 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 (and, where relevant, from any Person who has provided Us with a guarantee or security relating to Your obligations under the Contract) in respect of all Chargebacks that occur in relation to Transactions effected during the term of the Contract.
11.7 You shall not be liable for any Chargebacks, Chargeback Costs or Assessment to the extent that they are caused by Our breach of Our obligations under the Contract.
12. Floor and Trading Limits
12.1 We may from time to time notify You of a monetary limit:
(A) on the maximum aggregate value of one or more Transactions in respect of any specified period up to a total of £10,000 (‘Trading Limit’); and/or
(B) above which You agree to obtain Our Authorisation prior to completing a Transaction or more than one connected Transaction (‘Floor Limit’).
12.2 You shall not exceed the Trading Limit or complete a Transaction in excess of the Floor Limit without Our prior written approval (to be given at Our absolute discretion). For the purposes of this Clause 12.2 We may give such written approval via an electronic authorisation through the Terminal that You may not be able to store. Such restriction shall continue to apply unless We notify You otherwise in writing.
12.3 Unless otherwise agreed by Us or notified by Us in accordance with clause 12.1 the monetary value of:
(A) the Floor Limit shall be zero; and
(B) a single transaction shall be limited to a maximum sum of £5,000.
13. Bank Accounts and Payments
13.1 You shall, throughout the term of the Contract and for such period as may be required thereafter, for the purposes of any applicable provisions of the Contract open and maintain in Your name a bank account that is acceptable to Us for the purpose of receiving payments from Us and making payments to Us (a ‘Merchant Bank Account’). You shall be required to maintain with Your bank an instruction to authorise us to directly debit from the Merchant Bank Account all sums that become due and payable by You to Us under or in connection with this Contract.
13.2 In addition to, and without prejudice to the exercise of any rights under clauses 10.4 and 10.8, We may debit the Merchant Bank Account, at Our option, for all sums that become due and payable by You to Us under or in connection with the Contract, in accordance with the terms of the direct debit mandate maintained by You under clause 13.1.
13.3 If Your Merchant Bank Account is held with an RBS Account Bank then You agree that the RBS Account Bank shall be entitled to debit Your Merchant Bank Account with any amounts owed by You under the Contract.
13.4 Subject to clause 13.6 but notwithstanding any other provision of the Contract, all amounts payable by You under the Contract are payable to both Us and the relevant RBS Account Bank.
13.5 If You pay to the relevant RBS Account Bank any amount payable by You under the Contract, or if that RBS Account Bank debits Your Merchant Bank Account in respect of that amount, then Your obligation to pay that amount to both of Us and the RBS Account Bank will be satisfied.
13.6 The rights granted to the RBS Account Bank in clause 13.3 shall not limit or affect any of Your or Our other rights or obligations under the Contract and shall not have the effect of increasing any amount payable by You under the Contract.
13.7 You will ensure that the Merchant Bank Account shall at all times have a credit balance sufficient to meet any debits and other amounts due to Us from You under or in connection with the Contract.
13.8 We shall if practicable notify You in advance of any sums payable by You to Us which We intend to debit by direct debit.
13.9 You shall notify Us in writing in advance of any changes proposed by You or any third party in respect of the Merchant Bank Account (including, without limitation, the location of the branch at which such account is held) and shall not implement such changes without Our prior written consent (such consent not to be unreasonably withheld or delayed). If any change in the Merchant Bank Account details is imposed on You, You shall notify Us in writing immediately, giving full details of such changes and the reasons.
13.10 This clause 13 shall not prejudice Your rights under Applicable Laws or the UK Direct Debit Guarantee Scheme to recover payments made to Us by direct debit.
Without prejudice to clauses 10.11, 10.15, 16 and 20.4, if either Party fails to pay any amount under the Contract when due, then You or We (as appropriate) shall be entitled to charge default interest (from the date the amount was due until the date it is paid) at a rate equal to three (3) per cent per. annum above the base rate that is published by The Bank of England from time to time.
15.1 You hereby irrevocably authorise each of Us and any Other Financial Institution 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 or any Other Financial Institution (as appropriate) under the Contract or any other contract (whether such liabilities are present, future, actual or contingent or potential, liquidated or unliquidated and irrespective of the currency of their denomination) against any Remittance due to You or against any sums (whether or not related to the Transaction that gave rise to the liability) held by Us or any Other Financial Institution (as appropriate) or owed to You under the Contract or any accounts referred to in clauses 16.1(C) and 16.1(D). Any credit balance, with Us or any Other Financial Institution, will not be repayable, or capable of being disposed of, charged or dealt with by You until Your liabilities to Us and any Other Financial Institution have been met. Neither We nor any Other Financial Institution allowing You to make withdrawals from any account You hold with Us or any Other Financial Institution will waive this restriction. We will notify You as soon as reasonably practicable upon exercising Our rights, and/or upon any Other Financial Institution exercising its rights under this clause 15.1.
15.2 You are not entitled to set-off any of Our or any Other Financial Institution’s liabilities under the Contract or any other Contract (whether such liabilities are present, future, actual, contingent or potential) against any amounts due to Us or any Other Financial Institution from You.
15.3 Any exercise of Our or any Other Financial Institution’s rights under this clause 15 shall be without prejudice and in addition to any other rights or remedies available to Us or any Other Financial Institution under the Contract or otherwise.
16.1 We may at any time require that You:
(A) procure that a Person or Persons reasonably satisfactory to Us, provide Us with a guarantee in respect of Your obligations (including contingent or potential obligations) from time to time under the Contract;
(B) procure that a Person or Persons reasonably satisfactory to Us, provide Us with an indemnity in respect of Your obligations (including contingent or potential obligations) from time to time under the Contract;
(C) grant to Us, or procure the granting to Us of, security other than guarantees or indemnities in such form, including, for the avoidance of doubt, the requirement to put funds into the Merchant Bank Account and/or any other account which We may specify to You and over such assets as We may reasonably require (and free of other security interests or subject only to such other security interests and other rights as We shall permit) to secure to Our reasonable satisfaction the performance of Your obligations (including contingent or potential obligations) from time to time under the Contract; and/or
(D) on giving You not less than thirty (30) days prior written notice, provide:
(1) a charge over the Merchant Bank Account and/or other account in Our favour; or
(2) any other security which We reasonably require.
16.2 We may exercise Our rights under clause 16.1 either to reasonably require additional security or to reasonably require the replacement of a previous security which has been withdrawn or which We reasonably require to be replaced.
17. Term and Termination
17.1 The Contract shall come into force on the Activation Date and, unless terminated earlier in accordance with any provision of the Contract, will remain in effect until terminated in accordance with the provisions of this clause 17.
17.2 You or We may terminate the Contract upon:
(A) Us giving You two (2) months’ written notice; and
(B) You giving Us one (1) months’ written notice.
17.3 Without limiting Our other rights and remedies, We may suspend the Services or terminate the Contract with immediate effect by giving written notice if You:
(A) commit a material breach of the Contract which:
(1) is not, in Our reasonable opinion capable of remedy; or
(2) if capable of remedy, is not remedied to Our reasonable satisfaction within twenty-one (21) days of service of the notice requiring such remedy,;
(B) are Insolvent;
(C) are the subject of a petition, order, or resolution or any step in connection with winding up (whether solvent or insolvent), or cease or threaten to cease to carry on all or a material part of Your business, except for the purpose of and followed by a bona-fide reconstruction, amalgamation, reorganisation, merger or consolidation;
(D) begin negotiations for, take any proceedings concerning, propose or make any agreement for the deferral, rescheduling or other readjustment (or propose or make a general assignment or an arrangement or composition with or for the benefit of some or all of Your creditors) or all of (or all of a particular type of) Your debts, or
a moratorium is agreed or declared in respect of or affecting all or a material part of (or of a particular type of) Your debts;
(E) are the subject of a petition for an administration order or an application for an administration order, or an administrator is appointed to You or notice of intention to appoint an administrator is given, or any other step is taken by any person with a view to the administration of You under the Insolvency Act 1986 including the passing of any resolution by Your directors or shareholders approving the presentation of any such petition, the making of any such application or appointment or the giving of any such notice;
(F) are the subject of any step to enforce security over or a distress, execution or other similar process is levied or served against the whole or a substantial part of the assets or undertaking of You, including the appointment of a receiver, administrative receiver, manager or similar officer to enforce that security in respect of all or any part of the property or undertaking of You;
(G) suffer or are subject to any equivalent event, circumstance or procedure to those set out above in this clause 17.3(B) to (F) (inclusive) in any other jurisdiction; or
(H) fail to pay any undisputed sums due within forty-five (45) days of notice from Us of failure to make such payment.
17.4 Without limiting Our other rights or remedies, We may terminate the Contract with immediate effect by giving You written notice if:
(A) You undergo a Merchant Material Adverse Change;
(B) You undergo a Change of Control;
(C) You breach any applicable Trading Limit or Floor Limit;
(D) You fail to comply with clauses 22.8 and 22.10;
(E) there is any change in Your circumstances (including a deterioration or change in Your financial position) or in the nature of Your business (including a sale or other disposal of any substantial division or part) or in the goods and/or services You supply to Customers or Cardholders that We in Our reasonable discretion consider material to the continuance of the Services;
(F) 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 or individual activity) that We in Our reasonable discretion consider:
(1) disreputable or capable of damaging Our reputation or that of any Card Scheme or Other Financial Institution;
(2) detrimental to Our business or that of any Card Scheme or Other Financial Institution; or
(3) may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity;
(4) is outside the business use which you stipulated in your application for the Terminal and/or Service;
(G) any failure to perform any of Your obligations under clause 16 (strictly in accordance with the timeframe set out therein);
(H) any security granted to Us by You in connection with the Contract ceases to be enforceable or is withdrawn;
(I) You grant any security or charge over all or a significant proportion of Your assets;
(J) We or any Group Company of Ours become entitled to terminate any other agreement with You or We become entitled to enforce any guarantee or security from You;
(K) We are required to do so by any Card Scheme or Regulatory Authority or under the Rules or Applicable Laws;
(L) a Card Scheme, another Acquirer or Other Financial Institution ceases to provide Us with any Services necessary for Us to provide the Services to You;
(M) You change Your registered office address to outside the United Kingdom without Our prior written consent;
(N) We become aware that You have at any time accepted a payment or processed a Refund of a payment through the Merchant Bank Account using the Terminal in any country outside of the United Kingdom;
(O) You do not use the Acquiring Services for a continuous period of 13 months;
(P) You commit a breach of the terms of the License;
(Q) any similar or analogous event to any of the above provisions in this clause 17.4 in relation to You in any other jurisdictions;
(R) any of the above provisions of this clause 17.3 and 17.4 applies to a Person who provides Us with any security under clause 16.1; or
(S) as otherwise provided by the terms of the Contract.
17.5 We may suspend the provision of any Service with immediate effect by giving notice:
(A) for any event set out in clauses 17.3 and 17.4; or
(B) if We reasonably consider that any act or omission of Yours falls within a Reason Code for such time until such event has ceased or been resolved or until We give You notice to terminate the Contract.
17.6 You shall inform Us upon becoming aware of any of the events set out in the following clauses: clauses 17.3(A) to (G) (inclusive), clauses 17.4(A), (B), (D), (I), (K), (M) and (N).
17.7 Where any Party serves notice to terminate the Contract pursuant to this clause 17, We shall during the relevant period of notice prior to termination provide reasonable assistance to You, or ensure that You are provided with reasonable assistance, for You to make arrangements for the processing of the relevant transactions by another service provider. We may charge You for providing such assistance and if so You shall be liable to pay Us for any costs reasonably incurred in so doing.
18. Consequences of Termination
18.1 Upon termination of the Contract all rights and obligations of any Party shall cease to have effect immediately, save that:
(A) the clauses of these Conditions which expressly or by implication have effect after termination will continue to be enforceable notwithstanding such termination (including clauses 10, 11.6, 13, 14, 15, 18, 19, 20, 22.2, 22.4, 22.7, 22.8, 23, 24,25, 27, 34 and 35); and
(B) termination shall not affect accrued rights and obligations of any Party under the Contract as at the date of termination.
18.2 Upon termination of the Contract, the License shall immediately terminate and:
(A) all rights granted to You under the License shall cease; and
(B) You must cease all activities authorised by the License.
18.3 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 pursuant to clause 10, any sums which We are entitled to set-off pursuant to clause 15.1 and recover any Chargebacks and Chargeback Costs We are entitled to recover pursuant to clause 11.
19.1 You shall indemnify and hold Us indemnified from and against all actions, proceedings, costs, claims, demands, charges, expenses (including legal expenses), Assessments, losses and damages, whether arising in tort, contract, for breach of statutory dutyor otherwise (‘Claims’), which We may suffer or incur to the extent arising out of or in consequence of or in connection with:
(A) any Claim brought against Us by a Customer, Cardholder, Card Scheme, Card Issuer, Other Financial Institution, Acquirer or other third party arising from a Transaction whether or not paid as Remittance by Us to You and including Assessments, Chargebacks and Chargeback Costs;
(B) any other Claim brought against Us (including Assessments) arising from any security breach as described in clause 22.10, compromise or theft of Data held by You or on Your behalf;
(C) the enforcement or attempted enforcement of the Contract (which includes the recovery or attempted recovery of any sum owing to Us under the Contract);
(D) any reasonable steps taken in the protection of Our interests in connection with any of the following aspects of Our relationship with You that arises from any act or omission by You other than in accordance with the Contract:
(1) any actual security breach or a security breach reported to Us by a Card Scheme, Acquirer, Card Issuer or You relating to Data (whether or not You have complied with PCI DSS Standards (as defined in clause 22.9));
(2) the requirements of a Card Scheme, the Rules, a Regulatory Authority or Applicable Laws; or
(3) any allegation of fraud made in relation to Your business, except, in respect of each of 19.1(A) to 19.1(D) (inclusive) above, if and to the extent caused by or contributed to by Our fraud or any breach of the Contract by Us;
(E) a failure by You to comply with the requirements of a Regulatory Authority or Applicable Laws; and
(F) a failure by You to comply with the requirements of clause 6.5.
20.1 Subject to clause 20.2, We shall only be liable for any proven direct losses (excluding any loss of profit or good will) which You suffer or incur as a direct result of any breach by Us of Our obligations under the Contract. We shall not be liable for any such losses if and to the extent that such breach is caused or contributed to by You.
20.2 Nothing in the Contract shall operate to exclude or restrict a Party’s liability for:
(A) fraud or fraudulent misrepresentation; or
(B) death or personal injury resulting from a Party’s negligence or that of its Personnel; or
(C) any matter to the extent to which liability cannot be excluded or restricted under any Applicable Law; or
(D) breach of the terms Section 2 of the Supply of Goods and Services Act 1982.
20.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
20.4 Each of the following shall apply in respect to the Parties’ liability:
(A) 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 is due to:
(1) circumstances beyond Our reasonable control (or that of Our Personnel);
(2) any cessation or interruption of any part of the Services which are due to any act or omission of a Card Scheme, Acquirer (other than Us) or Other Financial Institution and is not caused by Our breach of the Contract;
(3) Us complying with any relevant requirement under the Rules or any Applicable Laws;
(4) Your failure to provide complete and/or correct Data to Us and/or Your breach of the Contract;
(5) a suspension of Services by Us under clause 17.5; or
(6) a Default.
(B) Subject to the requirement to correct Remittances in accordance with clause 10.14, Our aggregate 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 Services or otherwise in connection with or related the Agreement (whether in contract, tort (including negligence) or otherwise shall be limited to the Fees due to Us in the twelve (12) months immediately preceding the first event giving rise to any relevant Claim or, where the date of such event arises during
the period of twelve (12) months from the Activation Date, an amount based on the total amount of Fees which have been paid in the period from the Activation Date to the first event giving rise to the relevant Claim, as increased on a pro-rata basis to reflect the length of that period as a proportion of twelve (12) months.
(C) Without prejudice to any Party’s rights to terminate the Contract, or Your rights under clause 5.2 in respect of the Terminal, Your sole remedy at law, in equity or otherwise in respect of any claim against Us shall be limited to damages.
20.5 Notwithstanding clause 20.4(A)(4), where You provide incomplete or incorrect (including duplicate) Data to Us, We may make reasonable efforts to recover any funds paid and may make a reasonable charge to You for doing so.
20.6 We shall have no liability to You in relation to any decision of an Acquirer (other than Us or Other Financial Institution), save if and to the extent that such decision is made as a direct result of Our breach of the Contract.
20.7 We shall not be liable for any loss or damage caused by a distributed denial-of-service attack, virus or other technologically harmful material that may infect the Terminal, Software or Data due to Your downloading of any software or upgrades onto the Terminal, providing that We have taken reasonable technical security measures to prevent such occurrence.
20.8 We shall not be liable for the Data made available via Your Merchant Data Account. This Data is supplied to You on an ‘as is’ basis for Your information only and is not intended to be relied upon by You for any purpose whatsoever. We do not warrant that the Data available via Your Merchant Data Account is accurate, up-to-date, reliable or error-free.
20.9 You are responsible for all losses resulting from any unauthorised activity in connection with Your Merchant Data Account if You have acted fraudulently or You have either intentionally or through negligence failed to comply with the provisions of the Contract (including failing to protect Your Access Codes under clause 8.8 or 8.9 or failing to notify Us of the unauthorised transaction).
20.10 If You are a partnership, each partner shall be jointly and severally liable under the Contract.
20.11 You acknowledge and agree that, given the nature of the Services, the availability to You of suitable alternative payment methods for the Customers and Your ability to choose other providers of services similar to the Services before entering into the Contract, the limitations on liability contained in this clause 20 are reasonable in all the circumstances and that the Fees have been calculated taking into account such limitations (which would be higher but for such limitations) and accordingly You have accepted the risk of any losses which You may suffer because of the limitation on Our liability under this clause 20.
21.1 You shall only use such materials identifying the Services, Us, any Group Company of Us or any Card Scheme if such materials have previously been approved by Us in writing (such approval not to be unreasonably withheld).
21.2 You shall display prominently on each of Your premises, trading venues or website where You accept Cards for payment, the Card and Card Scheme identification as required by the Rules.
22.1 Whenever We request it, You shall give Us reasonable assistance to facilitate 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 reasonable charges for doing so. You shall promptly pay such reasonable charges to Us on demand.
22.2 You shall ensure that all Applicable Laws, rules, regulations or similar obligations in any relevant territory governing the use, storage and/or Processing of Personal Data are observed and performed with regard to it (including by obtaining all requisite consents to provide Personal Data to Us).
22.3 The Parties agree that:
(A) You shall be a Controller and We shall be a Processor in respect of Transaction Personal Data; and
(B) all Parties shall be Controllers in respect of their Processing of Other Personal Data.
22.4 We shall to the extent that We are a Processor,:
(A) take appropriate technical and organisational measures against unauthorised or unlawful processing of, and accidental loss or destruction of, or damage to Transaction Personal Data; and
(B) only Process Transaction Personal Data as required to perform Our obligations under the Contract and as otherwise envisaged in the Contract and in accordance with Your instructions.
22.5 You acknowledge and, by entering into the Contract with Us, consent to Our transfer of Transaction Personal Data to sub-contractors of Ours in connection with the provision of the Services.
22.6 You acknowledge that We are reliant on You alone for direction as to the extent We are entitled to use and process the Transaction Personal Data. Consequently, We shall be entitled to relief from liability in circumstances where a ‘Data Subject’ (as defined in the Data Protection Act 1998) makes a claim or complaint with regards to Our actions to the extent that such actions directly result from instructions received from You.
22.7 You understand that the Terminal or software application that is downloaded to Your smartphone or tablet may include geo-location functionality which allows Us or service providers acting on our behalf to identify where the Terminal is being used and/or a Transaction is being processed from. We will use such information for fraud detection purposes and for monitoring your compliance with the terms of this Agreement including without limitation clause 8.3(E). By using the Terminal or software application that is downloaded to your smartphone or tablet, you agree that y our information may be used by Us in this way.
22.8 The Parties shall, and We shall procure that each of Our sub-contractors shall, comply at all times with the Data Protection Legislation and shall not perform their obligations under the Contract in such a way as to cause any Party to breach any of its obligations under the Data Protection Legislation. We shall notify You as soon as practicable in the event that We become aware of any breach of the Data Protection Legislation by Us or any of Our sub- contractors in connection with the Contract.
22.9 You acknowledge and agree that You (and Your agents, sub-contractors or any third parties used by You) shall abide by any data security standards of the Payment Card Industry Security Standards Council (or any replacement body notified to You by Us) and the Card Schemes (including the Payment Card Industry Data Security Standard, Payment Application Data Security Standard and the PIN Transaction Security Standard) as updated from time to time (the ‘PCI DSS Standards’) and where failure to abide by such PCI DSS Standards will incur additional charges payable under clause 9. You can find details of the PCI DSS Standards on the Card Schemes’ websites and the Customer Operating Instructions.
22.10 You represent, warrant and undertake that no security breach relating to Data relating to Transactions Processed by or on behalf of You has occurred before the date on which the Contract was signed by the Parties. If You breach the foregoing representation, warranty and undertaking, You acknowledge and agree that We may suspend Services (including as required under the Rules) and/or take such other steps as We reasonably consider necessary.
22.11 You shall notify Us immediately if You become aware of or suspect any security breach relating to Data (whether or not You have complied with the PCI DSS Standards). As soon as reasonably practicable, You shall also (and without prejudice to any other remedy We have in respect thereof) immediately identify and remediate the source of such security breach and take any steps that We may require of You including but not limited to the procurement (at Your cost) of forensic reports from third parties recommended by Us.
22.12 You shall not store, at any time or in any way:
(A) Card verification value in the magnetic stripe;
(B) Card verification value printed on the Card in or next to the signature panel;
(C) Card verification value contained in the magnetic stripe image in a chip application; (D) PIN verification value contained in the magnetic stripe;
(E) the full contents of any track from the magnetic stripe (on a Card, in a chip or elsewhere); or
(F) any other Data that the Card Schemes mandate from time to time.
22.13 Without prejudice to any other provision of the Contract, any failure by You to comply with the provisions of clauses 22.8 and 22.12 shall give rise to Our right to terminate the Contract pursuant to Clause 17.4(D).
23.Retention of Records
23.1 Subject to the requirements of the PCI DSS Standards, You shall retain legible copies of Data for a minimum period of eighteen (18) months from the date of each Transaction.
23.2 Subject to compliance with clause 24, We may, from time to time, reasonably request You to provide copies of Data and such copies shall be provided within fourteen (14) days of such request being received.
23.3 You hereby authorise Us to release Data and any other information relating to the Services or the Card Schemes (or, if instructed by Us, You shall provide such Data or information
or procure that such Data or information is provided) to any of Our agents (as applicable), or to any other Person:
(A) as is necessary for the purpose of fulfilling Our obligations under the Contract (including for the avoidance of doubt, to any sub-contractor of Ours) or the Rules or requirements of a Card Scheme or otherwise as required by Applicable Laws;
(B) to assess financial and insurance risks and to recover debt; or
(C) where We, or any third party, are investigating any suspected criminal activity.
24. Provision and Disclosure of Information
24.1 You shall at all times throughout the term of the Contract (and for such subsequent period as may be necessary thereafter):
(A) disclose to Us or any Other Financial Institution such information as We or any Other Financial Institution reasonably require relating to the performance of the Contract including any information:
(1) required to satisfy Our obligations to any Card Scheme, Other Financial Institution or Regulatory Authority or otherwise under Applicable Law;
(2) relating to any aspect of the processing of Data by You or by any Person with whom You have a commercial relationship for that purpose; and
(3) required to enable Us to assess Your financial position throughout the term of the Contract (including copies of accounts);
(B) take all reasonable steps to assist Us and/or any Other Financial Institution in handling any claim or query raised by a Cardholder, Customer, a Card Issuer, a Card Scheme, an Acquirer, an Other Financial Institution or any other third party in relation to the Services;
(C) give Us and/or any Other Financial Institution reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of Transactions; and
(D) permit or procure Us or Our duly authorised representatives to have access to any premises where Your business trades to examine any books and records relating to Transactions.
24.2 You shall advise Us in writing as soon as You become aware of any:
(A) other agreement that You enter into or are contemplating entering into concerning Your acceptance of Transactions;
(B) act, omission or error which does or may:
(1) cause material loss or damage to Us or any Other Financial Institution (including damage to Our reputation or to any Other Financial Institution’s reputation, which for the avoidance of doubt shall be deemed to be material in every instance in which it occurs); or
(2) adversely affect Your ability to perform Your obligations under the Contract;
(C) actual or suspected violation or compromising of the security or integrity of any Data or any other information relating to the Services or the Card Schemes or any of Our Confidential Information at any time obtained or held by You;
(D) 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;
(E) change of Your Control, or any proposed or reasonably anticipated change of Your Control; and/or
(F) any known or suspected criminal or fraudulent activity concerning the Services.
24.3 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.
24.4 We and/or any Other Financial Institution may use and share Your information (except Transaction Personal Data) with Our Group Companies, Card Issuers, Card Schemes, law enforcement agencies, credit reference agencies and third party suppliers to help Us and/ or them:
(A) assess financial and insurance risks;
(B) recover debt;
(C) develop customer relationships, services and systems or otherwise allow Us to deliver the Services; and
(D) prevent and detect crime.
24.5 From time to time We may change the way We use Your information (other than Transaction Personal Data). 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 sixty (60) days, You consent to that change.
24.6 A link between You and anyone with whom You have a joint account or similar financial association will be recorded at credit reference agencies, creating a ‘financial association’. All parties’ information will be taken into account in future applications until one of you successfully files a ‘notice of disassociation’ at the credit reference agencies.
24.7 We may make periodic searches of and provide information about You to credit reference agencies, fraud prevention agencies, Card Issuers, Card Schemes and Our Group Companies to manage and take decisions about their relationship or prospective relationship with You. Such information may be used by other credit providers to take decisions about You and Your financial associates. We may also review You and Your business activities (including without limitation by electronic means and as described in clause 22.7) to monitor Your compliance with the Contract.
24.8 We may disclose information concerning You to third parties where We aggregate data to facilitate cross industry analysis and comparisons.
24.9 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 sub-contractors or suppliers in connection with the Contract (including the purposes referred to in this clause 24).
24.10 We and/or any Other Financial Institution may disclose information concerning You to third parties for use in Our or any Card Scheme’s or Other Financial Institution’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 such matter which would assist Us or other third parties in their efforts to prevent fraud. We and/or any Other Financial Institution may also disclose information concerning You to law enforcement bodies where We and/or any Other Financial Institution suspect that fraud or other criminal activity may have occurred.
24.11 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 and/or any Other Financial Institution shall notify the Card Schemes or Persons nominated by them and, where We and/or any Other Financial Institution 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 and/or any Other Financial Institution consider relevant to such matters. The Persons who We and/or any Other Financial Institution notify and the information notified may Well vary from time to time as legal requirements and industry practices change.
24.12 In particular, You acknowledge that:
(A) some or all of the Card Schemes may operate databases containing information regarding the conduct of Card transactions by merchants;
(B) We and/or any Other Financial Institution may disclose information to the Card Schemes pursuant to this clause 24; and
(C) some or all of the Card Schemes categorise undesirable acts and omissions of merchants under certain codes including the Visa Merchant Alert Service and Merchant Alert to Control High-Risk-Merchants (each such code being a ‘Reason Code’).
24.13 If We consider that any act or omission of Yours falls within a Reason Code We may treat this as a material breach of the Contract and We may immediately terminate the Contract in accordance with clause 17.3. Where applicable, details of any such act or omission shall be advised to You and shall also be available on request. In that event, the fact of termination and the Reason Code forming the grounds for termination shall be notified to (and may be recorded by) Visa and MasterCard and thereafter be maintained by them in accordance with their normal practice. The aforementioned database records are available for enquiry by any Acquirer and Card Issuer. In certain circumstances, they are also made available to crime enforcement authorities.
24.14 Subject to clauses 20.2 and 20.6, We shall not have any liability to You for any inaccuracy in the information We provide to any third parties pursuant to this clause 24.
25. Intellectual Property
25.1 The Contract does not transfer, and is not intended to transfer to any Party any of the Intellectual Property Rights that any other Party owns at the date of the commencement of the Contract or any Intellectual Property Rights that are created, acquired or developed during the term of the Contract.
25.2 All Intellectual Property Rights in or arising out of or in connection with the Services shall vest in Us automatically and be owned by Us and You agree to execute all documents and perform all acts reasonably required by Us to record such ownership of Intellectual Property Rights. You shall not acquire any Intellectual Property Rights in any Merchant Data Account, or any Data or Software, that We make available to You under the Contract.
25.3 Each Party shall obtain the written consent of the other Party prior to using or referring to any of that Party’s trade marks, logos, copyrighted materials, business names or other similar Intellectual Property Rights in any promotional materials or literature, agreements or on any website.
25.4 On termination of the Contract, each Party shall remove any reference to the other Parties from any promotional materials or literature, agreements or on any websites.
26. Service Adjustments and Contract Variations
26.1 From time to time, We may adjust the content and interfaces of the Services or change the hardware or software in order to enhance the Services. If such adjustments lead to a change in Software, interfaces or operating procedures, We shall notify You as soon as reasonably practicable prior to the implementation of such adjustments.
26.2 Subject to clause 26.3, We shall be entitled to vary the provisions of the Contract from time to time, including without limitation the Fees, by giving You at least two (2) months’ prior written notice. If We do this, You shall be entitled to terminate the Contract immediately by providing written notice to Us, provided that such notice is served upon Us within two (2) months of You receiving the notice of variation. Otherwise, You will be deemed to have accepted any variation of the provisions of the Contract, including without limitation the Fees, two (2) months from receipt of the notice.
26.3 We may vary the interest referred to at clause 14 without notice and with immediate effect, where such variation is due to a change in Bank of England base rate or is more favourable to You.
27. Confidential Information
27.1 Except to the extent set out in this clause 27, each Party shall:
(A) treat as confidential all Confidential Information obtained from the other Party under the Contract;
(B) use the other Party’s Confidential Information solely for the specific purposes for which it was disclosed;
(C) not publish or otherwise disclose to any person the other Party’s Confidential Information without the owner’s prior written consent; and
(D) take all action reasonably necessary to secure the other Party’s Confidential Information against theft, loss or unauthorised disclosure.
27.2 Each Party may disclose Confidential Information that would otherwise be subject to clause 27.1 but only if it can demonstrate that the Confidential Information:
(A) is required to be disclosed by any court of competent jurisdiction, governmental or other regulatory authority, by the rules of a recognised stock exchange or by Applicable Laws or the Rules;
(B) was lawfully in its possession prior to disclosure to it by any other Party without an obligation restricting disclosure;
(C) is already public knowledge or which becomes so at a future date (otherwise than as a result of breach of this clause 27);
(D) is received from a third party who is not under an obligation of confidentiality in relation to the information;
(E) is developed independently without access to, or use or knowledge of, the Confidential Information; or
(F) is trivial or obvious.
27.3 Notwithstanding the provisions of clauses 27.1 and 27.2, We may use Your Confidential Information (including the Data) by aggregating it with any information and disclosing it to any third parties in an aggregated and anonymised form.
27.4 Other than as expressly permitted under the Contract, on termination or expiry of the Contract for whatever reason, each Party shall forthwith cease to use any Confidential Information of the other Parties 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 a Party will be permitted to retain such part of the Confidential Information for the purposes of and for so long as required by any Applicable Laws or by judicial or administrative process or its legitimate internal compliance issues.
28. Assignment and Sub-Contracting
28.1 The Contract is personal to You and You may not assign it or transfer it or any of Your rights under it.
28.2 Subject to the Rules, We shall be entitled to use the services of agents and sub-contractors in respect of all or any aspect of the Services.
28.3 Subject to the Rules, We shall be entitled at any time to assign or transfer the benefit of any or all of Our rights under the Contract and/or to subcontract Our obligations under the Contract without Your consent. Upon request, You shall execute any documents required to effect any such assignment, transfer or subcontract.
29.1 No failure or delay by a Party in exercising any of its rights or remedies provided under the Contract or under Applicable Laws 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, by which a Party is deemed to have affirmed a decision to proceed with a contract notwithstanding the enlivening of a right to terminate, shall have no application to the Contract.
29.2 No single or partial exercise of any of a Party’s rights or remedies under the Contract or under Applicable Laws 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.
29.3 The rights and remedies of a Party under the Contract are cumulative and not exclusive of each other or of any rights or remedies provided by Applicable Laws.
30.1 Subject to clause 26.2, 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 post (or registered airmail in the case of an address for service outside the United Kingdom) or by email or by facsimile to the postal address, email address or fax number of the other Party as notified by such Party from time to time.
30.2 Unless otherwise agreed with Us, notice from You to Us to terminate the Contract must be delivered by post.
30.3 Any notice given in accordance with clauses 30.1 or 26.2 shall be deemed to have been received:
(A) if delivered personally, at the time of delivery;
(B) if sent by first class post within the United Kingdom, two (2) days from the date of posting;
(C) if sent by second class post within the United Kingdom, four (4) days from the date of posting; (D) in the case of registered airmail, seven (7) days from the date of posting; and
(E) in the case of facsimile, on the date it is transmitted subject to confirmation of uninterrupted transmission by a transmission report provided that (i) any notice despatched after 17:00 hours on any Business Day or at any time on a day which is not a Business Day shall be deemed to have been given at 09:00 on the next Business Day;
(F) if sent by email, on the day on which the communication is sent and no report of non- delivery is received by the sender provided that (i) any notice despatched after 17:00 hours on any Business Day or at any time on a day which is not a Business Day shall be deemed to have been given at 09:00 on the next Business Day;
30.4 A Party may specify (by giving notice to the other Parties in accordance with this clause 30) a particular individual or office holder to whom any notices to be served are to be addressed, in which case a notice shall not be validly given unless so addressed.
31. Entire Agreement
31.1 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 Us, and You 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, sets out the entire agreement and understanding We have with You.
31.2 Each Party warrants that it has not relied on any representations, arrangements, understanding or agreement (whether written or oral) not expressly set out or referred to in the Contract. The only remedy available to any Party in respect of any such representations, arrangement, understanding or agreement shall be for the breach of contract under the provisions of the Contract.
31.3 Nothing in this clause 31 shall operate to exclude any liability for fraud.
32.1 If any provision of the Contract or any part of it is held by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable:
(A) the legality, validity and enforceability of the remainder of the Contract shall not be affected; and
(B) 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.
33. Force Majeure
33.1 For the purposes of the Contract, ‘Force Majeure Event’ means an event beyond Our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving Our workforce or that of any other Party), failure of a communications system, an information technology system, connectivity, a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
33.2 We shall not be liable to You as a result of any delay or failure to perform Our obligations under the Contract as a result of a Force Majeure Event.
33.3 If the Force Majeure Event prevents Us from providing any of the Services and/or Terminal(s) for more than six weeks, We shall, without limiting Our other rights or remedies, have the right to terminate the Contract immediately by giving written notice to You.
34.1 Nothing in the Contract shall be construed as constitution of a partnership between the Parties nor, except as expressly provided, shall it constitute, or be deemed to constitute, one Party as the agent of any other Party for any purpose.
34.2 Subject to any express provisions to the contrary in the Contract, no Party shall have any right or authority to and shall not act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind, on behalf of any other Party or bind any other Party in any way.
34.3 Nothing in the Contract shall render a Party or any of their respective employees an employee of any other Party or render a Party or any of its employees capable of incurring any liability or obligation on any other Party’s behalf, and no Party shall hold itself out as such.
34.4 The Contract is not intended to confer any benefit on any third party other than any Other Financial Institution and any RBS Account Bank to the extent expressly provided, and no Person who is not party to the Contract shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provisions of the Contract, except any such Other Financial Institution and any RBS Account Bank to the extent expressly provided. Notwithstanding the foregoing sentence, the rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any Person which is not a Party.
34.5 The provision of the Services under the Contract is not exclusive and accordingly:
(A) save as provided in the Contract, You shall be free to process Card and other Transactions by submitting them to other Acquirers; and
(B) We shall be free to accept Transactions from other payment service providers for processing and acquiring.
34.6 At any time after the Activation Date, each of the Parties shall, at the request and cost of the other Parties, execute or procure the execution of such documents and do or procure the doing of such acts and things as the Party so requesting may reasonably require, for the purpose of giving to the Party so requiring full benefit of all the provisions of the Contract, subject to any express restrictions in the Contract on the extent of any Party’s obligations under the Contract.
34.7 Except as provided herein, each Party shall pay its own costs in relation to the negotiation, preparation, execution and carrying into effect of the Contract and in carrying out any related due diligence.
34.8 The Contract may be executed in any number of counterparts, which together constitute one Contract. Any Party may enter into the Contract by signing such counterpart.
35. Governing Law and Jurisdiction
35.1 The Contract and any non-contractual obligations arising from or in connection with it shall be governed by English law and the Contract shall be construed in accordance with English law.
35.2 The Parties irrevocably submit to the exclusive jurisdiction of the English courts over any claim or dispute arising out of or in connection with the Contract (whether arising out of
or in connection with contractual or non-contractual obligations), or the legal relationships established by or in connection with it.
35.3 If You do not have a place of business in England and Wales, Scotland, or Northern Ireland, You must appoint a process agent in England or Wales and inform Us of the contact details of Your process agent as soon as possible, and in any event within five (5) Business Days, following execution of the Contract. If the appointment of Your process agent ceases to be effective or such person ceases for any reason to act as process agent for You, You will as soon as possible, and in any event within five (5) Business Days, appoint a replacement process agent in England or Wales for the purposes of this clause and immediately will notify Us of the change in accordance with this clause 35.3.
36.1 If You are not satisfied with Our Services, We have a complaint handling procedure that You can use to resolve such matters. For more information about this process please telephone Us or visit such URL as We notify to You from time to time. If You are still not satisfied after following our complaints procedure, You can ask the Financial Ombudsman Service (subject to Applicable Law governing eligible complainants), to review the complaint by writing to the Financial Ombudsman Service at South Quay Plaza, 183 Marsh Wall, London E14 9SR or by telephone on 0845 080 1800. Further information is available on www.financial-ombudsman.org.uk.
36.2 You may also be able to submit complaints to the Financial Conduct Authority.
37. Regulatory Information
37.1 WorldPay (UK) Limited is authorised by the Financial Conduct Authority under the Payment Services Regulations 2009 (No. 530923) for the provision of payment services.
37.2 WorldPay (UK) Limited is a member of the Financial Ombudsman Service.
Schedule 1: Acquiring Services
The Acquiring Services are Card payment processing and settlement services provided by Us which enable You to accept payment being made by Cardholders using Cards and receive value in respect of Card payments in accordance with the applicable Rules of the Card Schemes.
1.The Acquiring Services include the services set out in this paragraphs 1.1, 1.2 and 1.3 below:
1.1 Liaising (directly or indirectly) with the Card Issuer of the Card which is used in a Transaction and the Card Scheme by way of:
(A) transmitting to the Card Issuer the details of the Transactions and the Cards for use in the Transactions, such details being entered by You or the Customer, for the Card Issuer to: (i) inform Us whether the Cardholder’s account has funds which are sufficient to discharge his payment obligations for the Transaction and whether the Card has been reported to have been lost, stolen or otherwise invalid; and (ii) either (a) Authorise payment of the amount of the Transaction and reserve those funds against the Cardholder’s account for future payment or (b) decline the Transaction;
(B) sending the message to You to the effect that the Transaction has been Authorised (in the case of paragraph (A)(ii)(a) above) or declined (in the case of paragraph (A)(ii)(b) above), as applicable; and
(C) sending instructions to the Card Issuer in order to enable them to debit the value of the Transaction (in the case of paragraph (A)(ii)(a) above) from the Cardholder’s account.
1.2 Performance of Our obligations relating to Settlement pursuant to clause 10.
1.3 Performance of Our obligations relating to Chargebacks and Assessments pursuant to clause 11 in respect of the Transactions for which the Acquiring Services described in paragraphs 1.1 and 1.2 above are provided.
Schedule 2: License
1. Grant and scope of license
1.1 In consideration of You entering into the Contract with Us, We hereby grant to You a non-exclusive, non-transferable license to use the Software in the United Kingdom on the terms of this License.
1.2 You may:
(a) download, install and use the Software for Your internal business purposes only onto a Compatible Device and/or the Terminal (whichever is applicable depending on the Software) and only for the purpose of utilising the Services;
(b) receive and use any free supplementary software code or update of the Software incorporating ‘patches’ and corrections of errors as may be provided by Us from time to time; and / or
(c) use the Software in accordance with the Customer Operating Instructions and any applicable user guides during the term of the Contract.
2. Your Undertakings
2.1 Except as expressly set out in this License or as permitted by any local law, You undertake:
(a) not to copy the Software or Customer Operating Instructions except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software;
(c) not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by You during such activities:
(i) is used only for the purpose of achieving inter-operability of the Software with another software program; and
(ii) is not unnecessarily disclosed or communicated without Our prior written consent to any third party; and
(iii) is not used to create any software which is substantially similar to the Software;
(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) to supervise and control use of the Software and ensure that the Software is only used in accordance with the terms of this License and the Customer Operating Instructions;
(g) to replace the current version of the Software with any updated or upgraded version or new release provided by Us under the terms of the Contract or this License immediately on receipt of a new version or directions from Us to download such a new version;
(h) to include Our copyright notice on all entire and partial copies You make of the Software on any medium;
(i) not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person without Our prior written consent;
(j) save for use with the Compatible Device and/or Terminal not to use the Software via any communications network or by means of remote access.
2.2 You will provide such assistance and/or information as reasonably demanded by the Software licensor from You from time to time in order for the Software licensor to comply with Applicable Laws.
2.3 You will notify Us as soon as possible and no later than 14 days from the day You find any discrepancy in Your Transactions records.
2.4 The Software licensor has no responsibility in respect of any authorisation and/or settlement of Transactions save where the failure is due to its negligent act or omission in which case the Software licensor’s sole remedy will be to re-process the Transaction.
Our technical support staff will endeavor to answer by telephone any queries which You may have regarding the use or application of the Software. For telephone support, please call on the number provided and during the hours detailed as set out in the Customer Operating Instructions.
4. Intellectual Property Rights
4.1 You acknowledge that all Intellectual Property Rights in the Software and the Customer Operating Instructions anywhere in the world belong to Us, that rights in the Software are licensed (not sold) to You, and that You have no rights in, or to, the Software or the Customer Operating Instructions other than the right to use them in accordance with the terms of this License.
4.2 You acknowledge that except to the limited extent that may be permitted by law. You have no right to have access to the Software in source code form or in unlocked coding or with comments.
4.3 The integrity of this Software is protected by technical protection measures (TPM) so that the Intellectual Property Rights, including copyright, in the Software are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor apply or manufacture for sale or hire, import, distribute, sell or let for hire, offer or expose for sale or hire, advertise for sale or hire or have in Your possession for private or commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of such TPM.
5.1 We warrant that:
(a) for the Warranty Period, the Software will, when properly used, perform substantially in accordance with the functions described in the Customer Operating Instructions or the applicable user guides (provided that the Software is properly used on the Terminal compatible device and for the purposes for which it was designed).
5.2 You acknowledge that the Software has not been developed to meet Your individual requirements, and that it is therefore Your responsibility to ensure that the facilities and functions of the Software as described in the Customer Operating Instructions meet Your requirements.
5.3 You acknowledge that the Software may not be free of bugs or errors, and agree that the existence of minor errors shall not constitute a breach of this License or of the warranty.
5.4 If, within the Warranty Period, You notify Us in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Customer Operating Instructions, and such defect or fault does not result from You having amended the Software or used it in contravention of the terms of this License or of the Customer Operating Instructions, We will, at Our sole option, either repair or replace the Software, provided that You make available all the information that may be necessary to help Us to remedy the defect or fault, including sufficient information to enable Us to recreate the defect or fault.