PAYOFFLINE MERCHANT TERMS AND CONDITIONS
1.INTERPRETATION
1.1 Unless
the context requires otherwise, in this Agreement the following words and expressions
have the following meanings:
"Agreement" means these terms and conditions, including
the Schedules, and the Completed Application Form;
"Application Form" means the electronic application
form to be completed by an online retail merchant who wants to open a PayOffline
Account that can be found at the following link http://www.payoffline.com;
"Business Day" means a day not being a Saturday, Sunday
or public holiday in the United Kingdom ;
"Commencement Date" means the date of the notice given
by the Company to the Merchant to confirm that the Merchant has successfully registered
for a PayOffline Account;
"Company" means PayOffline Limited (company number 06194989)
whose registered office is
400 Harrow Road, London W9 2HU
;
"Company's Email Address" means clientservice@payoffline.com;
"Completed Application Form" means the Application Form
correctly completed by the Merchant and submitted to the Company in accordance with
the instructions provided on the Application Form;
"Confidential Information" means any secret or confidential
information or know-how concerning the business, financial or contractual arrangements
or other dealings or affairs of the other party, including but not limited to details
of the Software or its source code, the methodology behind or information relating
to the operation of the Service, any terms of this Agreement or the performance
by either party of them under it, any proprietary or trade secrets or any written
information which is expressed to be confidential or should reasonably be understood
to be confidential by the party receiving that information;
"Customer" means a customer of the Merchant who wishes
to make offline payment for Product(s);
"Data Protection Legislation" means all legislation
and regulations relating to the protection of Personal Data including (without limitation)
the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive)
Regulations 2003, the EU Data Protection Directive, the Regulation of Investigatory
Powers Act 2000, the Data Protection (Processing of Sensitive Personal Data) Order
2000 and all other industry guidelines (whether statutory or non-statutory) or Codes
of Practice issued by the Information Commissioner relating to the processing of
Personal Data or privacy or any amendments and re-enactments thereof;
"Event of Force Majeure" means any circumstances beyond
the reasonable control of either party (including, without limitation, any of the
following: act of god, governmental act, war, fire, flood, explosion, civil commotion,
strike, lockout or other industrial action, power failure or breakdown in any program,
process, equipment or telecommunications systems howsoever caused, inaccurate or
unclear information given to the Company by the Merchant, Customer, a bank or any
other third party);
"Intellectual Property" means all vested, contingent
and future intellectual property rights, including without limitation copyrights,
database rights, patents, trademarks, trade names, rights in goodwill, know-how
and look and feel or other intellectual property rights or rights of a similar or
equivalent nature anywhere in the world whether registered or unregistered and any
rights relating to the methodology behind or operation of the Service;
"Initial Term" means a period of 1 year from the Commencement
Date;
"Merchant" means the online retail merchant whose details
are set out in the Completed Application Form;
"Merchant's Email Address" means the Merchant's email
address set out in the Completed Application Form;
"Merchant's Payment" means the Offline Payment less
the Transaction Charges;
"Merchant's Website" means the Merchant's website, details
of which are set out in the Completed Application Form;
"Offline Payment" means a payment submitted by or on
behalf of a Customer by means of cash or debit card at a 'payzone outlet' or other
designated location within the PayOffline payment network
from time to time;
"PayOffline Account" means the Merchant's account with
the Company;
"Personal Data" shall have the meaning given to it by
the Data Protection Act 1998;
"Products" means the goods or services the Merchant
makes available for purchase on the Merchant's Website;
"Processing" shall have the meaning given to it by the
Data Protection Act 1998 and the term "processed" shall have a corresponding meaning;
"Retention" means the retention by the Company of any
Merchant's Payment as described in Clause 6.2;
"Retention Period" means the period of time for which
any Retention will be held as described in Clauses 6.2 and 2.6 (e);
"Service" means the collection or obtaining of Offline
Payment and the subsequent transfer of such Offline Payment to the Merchant by the
Company;
"Software" means the software solution used by the Company
to provide the Service;
"Territory" means the
United Kingdom
;
"Trade Mark" means the trade mark set out at Schedule 2; and
"Transaction Charges" means the charges payable by the
Merchant to the Company for the Service as set out in Schedule 1.
1.2 Any reference
in this Agreement to "writing" or cognate expressions, includes a
reference to any communication affected by telex, facsimile transmission, email
or similar means.
1.3 Any reference
in this Agreement to a statute or any provision of a statute shall be construed
as a reference to that statute or provision as amended, re-enacted or extended at
the relevant time.
1.4 Any reference
to "include" or "including" shall be construed without
limitation.
1.5 As used
in this Agreement, unless the context otherwise requires, the singular includes
the plural and vice versa.
1.6 The headings
in this Agreement are for convenience only and shall not affect its interpretation.
1.7 References in
this Agreement to Clauses and Schedules are to clauses and schedules of this Agreement.
1.8 The Company and
the Merchant shall each individually be known as a "party" and together known
as the "parties".
2.
eligibility
2.1 In order to use
the Service the Merchant must be registered for a PayOffline Account.
2.2 In order to register
for a PayOffline Account the Merchant shall complete and submit the Application
Form to the Company in accordance with the instructions provided on the Application
Form. Completion and submission only of an Application
Form does not constitute a legally binding contract or the award of a PayOffline
Account to the Merchant.
2.3 Following receipt
of a Completed Application Form the Company shall in its sole discretion determine
whether the Merchant is eligible for a PayOffline Account.
2.4 Following receipt of a valid Completed
Application Form the Company shall notify the Merchant whether the Merchant's application
to register for a PayOffline Account has been successful.
2.5 The Company shall
have the right from time to time to request further information from and to carry
out credit checks on the Merchant. The Merchant will
provide all reasonable co-operation to the Company to assist with such checks.
2.6 If the Company
reasonably believes the Merchant is acting or has acted in an illegal or disreputable
manner or in a manner that has or may have a negative impact on the reputation of
the Company then the Company has the right to:
(a) suspend
the Merchant's PayOffline Account until the Company is satisfied that the Merchant
is not acting and has not acted in such a manner;
(b) withhold
the transfer to the Merchant of any Merchant's Payment until the Company is satisfied
that the Merchant is not acting and has not acted in such a manner;
(c) take further
action that is reasonable and appropriate in the circumstances, which may include
without limitation:
(i)
reporting the Merchant's behaviour to the relevant authorities; and
(ii) carrying
out, or instructing a third party to carry out, investigations necessary to confirm
whether the Merchant is acting in an illegal or improper manner;
(d) terminate
this Agreement upon written notice to the Merchant; or
(e) extend
any Retention Period for an indefinite period of time and take such steps as are
reasonable in the circumstances with regard to the Retention, including return of
the Merchant's Payment held under the Retention to the Customer.
2.7 If this Agreement
is terminated in accordance with Clause 2.6 (d) then:
(a) Clause
15.1 (f) shall not apply;
(b) the Company
has the right but not the obligation to return to the Customer any Offline Payment
that it holds, made in respect of the Merchant's Products; and
(c) the Merchant
shall not be entitled to:
(i) any Merchant's
Payment; or
(ii) be informed of
the receipt by the Company of any further Offline Payments.
3.
term
This Agreement comes into effect on the Commencement Date and continues
thereafter unless or until terminated in accordance with Clause 2.6 (d), Clause
14 or Clause 17.3.
4.
PROVISION OF SERVICE
4.1 From the Commencement
Date the Company grants to the Merchant a non-transferable and non-exclusive right
to use the Service in the Territory for the duration of this Agreement, subject
to the terms and conditions of this Agreement.
4.2 The Company
shall provide the Service to the Merchant with reasonable skill and care and in
accordance with accepted industry practice.
4.3 The appointment
of the Company for the supply of the Service to the Merchant under this Agreement
shall be on an exclusive basis.
4.4 Any dates specified
by the Company for the provision of Service are for guidance only, and time for
the provision of Service shall not be made of the essence whether by notice or otherwise.
5.
FEES
5.1 In consideration
of the Company providing the Service to the Merchant, the Merchant agrees to pay
the Transaction Charges to the Company.
5.2 The Company shall
be entitled to change the Transaction Charges at any time upon 30 days' written
notice to the Merchant.
5.3 The Company shall
deduct the Transaction Charges from the Offline Payment prior to the Merchant's
Payment being transferred to the Merchant.
5.4 The Company shall
provide VAT invoices showing the Transaction Charges to the Merchant on a monthly
basis in arrears.
5.5 In the
event of any action being taken by the Company as a result of a breach of any payment
obligations by the Merchant, the Merchant shall indemnify and hold the Company harmless
from and against all losses, costs, liabilities and expenses (including legal expenses)
which the Company may incur or suffer in taking such action.
6.
Company obligations
6.1 Subject to Clauses
2.6 and 2.8 the Company shall:
(a) notify
the Merchant of receipt of an Offline Payment within 24 hours from the start of
the next working day following receipt of such Offline Payment; and
(b) subject
to any Retention, transfer or instruct the transfer of the Merchant's Payment to
the Merchant's nominated bank account via the BACS system.
Such transfer will normally be initiated within 24 hours from the start of the next
working day following receipt of the corresponding Offline
Payment funds.
6.2 If the
Merchant does not have an established trading history or "internet merchant ID"
then the Company may at its sole discretion decide that any Merchant's Payment will
be subject to a Retention. If this is the case, upon
commencement of this Agreement, the Company will provide the Merchant with a schedule
setting out the period of time for which the Retention will be held "Retention Period". Any Merchant's Payment that is subject to a Retention
will be held in an account maintained by Alliance & Leicester Plc.
Following expiry of the Retention Period the Company will transfer the Merchant's
Payment to the Merchant's nominated bank account via the BACS system within 24 hours
from the start of the next Working Day following expiry of the Retention Period.
7.
MERCHANT obligations
7.1 The Merchant
shall:
(a) upon receiving
notice from the Company that the Company has received Offline Payment for the Products
from a Customer, ensure that such Products are promptly delivered to that Customer
in accordance with the Merchant's usual practice;
(b) in
the event of a Customer returning the Products to the Merchant in accordance with
the Merchant's returns policy, return the full amount of the Offline Payment direct
to the Customer. The Merchant acknowledges that the Transaction Charge is still
payable to the Company even in the event of a return of the goods by the Customer. Provided that the Merchant has received the Merchant's
Payment, the Merchant acknowledges it is solely liable for issuing any refunds that
may be due to the Customer;
(c) comply
with all applicable laws and regulations in carrying out activities relating to
or under this Agreement, including but not limited to the Consumer Protection (Distance Selling) Regulations 2000;
(d) provide
the Company with all co-operation, access to information and assistance as shall
be deemed reasonably necessary by the Company (in its sole discretion) in order
to provide the Service from time to time;
(e) be responsible
for the provision, operation and support of any hardware, internet connections and
software necessary for effective use of the Service and, in particular, for ensuring
that such hardware, connections and software meet such specifications as may be
notified by the Company from time to time;
(f) check
that any specification, design, plan or scheme produced by the Company in the course
of the supply of the Service is accurate and suitable for its purposes.
Accordingly, the Company shall not be liable if such specification, design,
plan or scheme is not suitable for the purposes of the Merchant as a result of any
omissions, errors or inaccuracies therein;
(g) perform
its obligations under this Agreement in a timely and efficient manner.
In the event of any delays in the Merchant's performance of its obligations,
the Company may adjust any timetable or delivery schedule set out in this Agreement
or delay or interrupt the provision of the Service to the extent, in its sole discretion,
the Company deems reasonably necessary;
(h) take adequate
precautions to prevent the transmission of any computer virus or other harmful code
as a result of its use of the Service;
(i)
notify the Company immediately if it becomes aware of any unauthorised use of the
Service by anyone; and
(j)
notify the Company immediately if it is using or intends to use the Service for
the supply of any Products that require authorisation, approval, consent, licence,
exemption, filing or registration with any governmental or public bodies or authorities
of or in the United Kingdom or are substantially different in nature to those identified
in the Completed Application Form.
7.2 The Merchant
shall not and shall use reasonable endeavours to ensure that its Customers shall
not:
(a) use the
Service for any purpose or in any manner not specifically authorised in this Agreement;
(b) use the
Service for any fraudulent or unlawful purpose;
(c) take steps
to or encourage or in any way help a third party take steps to, establish a competitive
service to the Service;
(d) refer to,
obtain guidance from or use the Service as part of any effort to develop computer
software having any functional attributes, visual expressions or other features
similar to those of the Service; and
(e) transmit
a computer virus or other harmful code which does or may affect the Service, the
Company's systems or otherwise causes damage (including loss or corruption of data,
or other information) to the Service, the Company or any of the Company's other
clients.
8.
trade mark licence
8.1 On and
from the Commencement Date the Company shall grant to the Merchant the non-exclusive
right to use the Trade Mark in the Territory solely as set out in this Clause 8.
8.2 The Merchant
may only use the Trade Mark on the Merchant's Website and on publicity materials
in accordance with the relevant guidelines issued by the Company from time to time.
8.3 The Merchant
shall not use the Trade Mark:
(a) as part
of the legal name of the Merchant or any other legal entity; or
(b) for any
purpose other than as permitted under this Agreement.
8.4 All
rights to the reputation and goodwill associated with the Trade Mark throughout
the Territory, including any reputation and goodwill that may accrue as a result
of the Merchant’s use of the Trade Mark, accrue to the benefit of, are reserved
to and shall belong absolutely to the Company. The Merchant agrees to execute such
documents and do such other things as the Company may reasonably request from time
to time, including after termination of this Agreement, to assign any such rights
to the Company.
8.5 The Company
warrants that it has all necessary rights in the Trade Mark to grant the licence
purportedly granted to the Merchant in this Clause 8 and that the Trade Mark does
not infringe the intellectual property rights of any person.
8.6 The Company
shall defend, indemnify and hold the Company harmless from and against all claims,
losses, actions, proceedings, damages, costs, awards, liabilities and expenses howsoever
arising out of or in connection with the Merchant's use of the Trade Mark as permitted under this Agreement, provided that the Merchant shall:
(a) promptly
provide written notice to the Company when it becomes aware of any such liability
and include sufficient details;
(b) allow the
Company to conduct all negotiations and proceedings and provide the Company with
such reasonable assistance as is required by the Company, each at the Merchant's
cost; and
(c) not, without
prior consultation with the Company, make any admission or attempt any settlement.
8.7
The Merchant shall promptly inform the Company of any suspected
unauthorised use of the Trade Mark (or any confusingly
similar mark) in the Territory of which it becomes aware, and shall provide the
Company with such documents, information and assistance as it can in relation thereto.
8.8 The Merchant
shall defend, indemnify and hold the Company harmless from and against all claims,
losses, actions, proceedings, damages, costs, awards, liabilities and expenses howsoever
arising out of or in connection with the Merchant's use of the Trade Mark in breach
of this Agreement.
9.
CONFIDENTIALITY
9.1 Each party
undertakes to the other of them that it shall not and it shall procure that its
directors, officers, employees, agents and sub-contractors shall not, whether during
the term of this Agreement or thereafter, except with the prior written consent
of the other party, divulge or communicate to any other person, other than its directors,
officers, employees, agents, professional advisors, or sub-contractors who need
to know the same for the purposes of this Agreement, any Confidential Information.
9.2 The provisions
of Clause 9.1 shall not apply to information in the public domain (other than through
breach of this Agreement) information already in the possession of the receiving
party, information obtained from a third party who is free to divulge such information
and information required by law, or other regulatory or governmental authority,
to be divulged.
9.3 Without
prejudice to any other rights or remedies that either party may have, the parties
acknowledge that remedies at law for any breach of Clause 9.1 (including, without
limitation, damages) may not be adequate and that therefore either party will be
entitled to equitable relief for any such breach including injunctive relief.
9.4 The
obligations of confidentiality in this Clause 9 will survive the termination
of this Agreement.
10.
INTELLECTUAL PROPERTY
10.1 All Intellectual
Property in the Service is owned by or licensed to the Company.
Except as expressly granted herein, the Company does not grant the Merchant
any rights to or in any Intellectual Property or any other rights or licences in
respect of the Service, the Software or any other software or related documents. The Merchant agrees to take such steps as may reasonably
be required from time to time by the Company to protect or confirm the Company's
Intellectual Property in the Service, the Software and other software and documents.
10.2 The rights granted
by this Agreement are conditional upon the Merchant and/or its Customers making
fair use of the Service, "fair use" meaning use of the Service in accordance with
honest commercial practices to facilitate the Merchant's existing business otherwise
than in competition with the Company and/or the Service.
The parties acknowledge and agree that any use of the Service the aim or likely
effect of which is to reproduce the Service shall not be classed as "fair use".
11.
Warranties
Each party warrants to the other that:
(a) it has
the full right title and authority to enter into this Agreement;
(b) it is free
and able to grant the rights and perform the obligations undertaken by it in this
Agreement;
(c) it has
not entered into any agreement with any third party that conflicts with the terms
of this Agreement, nor will it do so in the future; and
(d) it has
disclosed all information, within its knowledge, which would be prejudicial to the
other party's decision to enter this Agreement.
12.
INDEMNITY
12.1 The Merchant
shall defend, indemnify and hold the Company harmless from and against all claims,
losses, actions, proceedings, damages, costs, awards, liabilities and expenses howsoever
arising out of or in connection with the Merchant's (or Customer's) use of the Service
other than as permitted under this Agreement.
12.2 The Merchant
shall defend, indemnify and hold the Company harmless from and against all claims,
losses, actions, proceedings, damages, costs, awards, liabilities and expenses howsoever
arising out of or in connection with the Merchant's failure to comply with its obligations
to pay refunds to Customers in accordance with Clause 7.1 (b).
13.
EXCLUSIONS AND LIMITATION OF LIABILITY
13.1 The terms of
this Agreement set out the full extent of the Company's obligations and liabilities
in respect of the Service. The Merchant shall have no
remedy in respect of any untrue statement made to it upon which it relied in entering
into this Agreement (unless such untrue statement was made knowing that it was untrue)
other than any remedy it may have for breach of the express terms of this Agreement. Accordingly, any condition, warranty or other term which
might but for this Clause 13.1 have effect between the parties or would otherwise
be implied into or incorporated into this Agreement or any collateral contract (including,
without limitation, the implied terms of satisfactory quality and fitness for purpose),
whether by statute, common law or otherwise, is hereby excluded and the Company
shall not be liable to the Merchant in tort or otherwise than pursuant to the express
terms of this Agreement in respect of the subject matter of this Agreement.
13.2 The Company
shall have no liability whatsoever for any damage or losses caused by or related
to:
(a) any errors
or omissions in information or instructions provided to the Company by the Merchant
or any Customer in connection with the Service;
(b) any actions
taken by the Company at the Merchant's or Customer's directions;
(c) any failure
by the Customer to pay for the Products ordered from the Merchant or to complete
a transaction with the Merchant;
(d) the legal
capacity of the Customer to purchase the Products from the Merchant;
(e) the legality,
quantity, quality, genuineness, safety or fitness either generally or for a specific
purpose of the Products;
(f) any other
issues that arise in relation to the Merchant/Customer relationship;
(g) any claims
regarding refunds for goods purchased by a Customer.
13.3 Nothing in this
Agreement shall exclude or limit the Company's liability for:
(a) personal
injury (including sickness and death) to the extent that such injury results from
the negligence or wilful default of the Company or its employees; or
(b) fraud
or fraudulent misrepresentation.
13.4 Without prejudice
to Clause 13.3 (but subject to Clause 13.5), the Company's maximum aggregate liability
to the Merchant for loss, damage to goods or property, whether in contract, tort
(including negligence) or otherwise, and all losses arising under this Agreement
incurred in any twelve month period shall be limited to a sum equal to the amount
of Transaction Charges paid to the Company by the Merchant under this Agreement
(net of value added tax) during such twelve month successive period less the Company's
direct costs incurred in generating the same unless such liability arises before
the end of the Initial Period in which case the maximum aggregate liability of the
Company shall be limited to a reasonable projection of the Transaction Charges for
the Initial Period.
13.5 Subject to Clause
13.3, the Company shall not be liable for any consequential loss or damage, loss
of profits, depletion of goodwill or any type of special or indirect loss (including
loss or damage suffered by the Merchant as a result of any action or claim brought
by a Customer or other third party) in respect of any breach of its contractual
obligations arising under this Agreement or for any representation, statement or
tortious act or omission (including negligence) of it arising under or in connection
with this Agreement even if such loss was reasonably foreseeable.
13.6 Other than as
expressly set forth in this Agreement, the Service is provided on an "as is" basis. It is the Merchant's sole responsibility to assess the
suitability and fitness of the Service for its own intended use.
13.7 The internet
is an inherently unstable medium, and unavailability of the internet, interruption
in internet connectivity or other interference in access to the Service and Software
is acknowledged by the Merchant to be beyond the Company's control and the Company
hereby excludes all liability for any and all losses resulting from or relating
to such interruption to or unavailability of the Service.
14.
TERMINATION
14.1 This Agreement
may be terminated forthwith by either party upon notice to the other:
(a) after the
expiry of 90 days written notice such notice not to be served before the expiry
of the Initial Term.;
(b) if the
other party commits a breach of any term of this Agreement and such breach (in the
case of a breach capable of being remedied) shall not have been remedied within
30 days of written notice to remedy the same, such notice giving reasonable particulars
of the breach and requiring it to be remedied; or
(c) if the
other party goes into liquidation (except for the purposes of an amalgamation, reconstruction
or other reorganisation and in such manner that the company resulting from such
reorganisation effectively agrees to be bound by or to assume the obligations imposed
on that other party under this Agreement), is unable to pay its debts within the
meaning of section 123 of the Insolvency Act 1986, makes a composition or arrangement
with its creditors, puts a proposal to its creditors for a voluntary arrangement
for a composition of its debts or a scheme of arrangement, passes a resolution putting
it into voluntary liquidation (other than in any case for the purpose of a solvent
amalgamation or reconstruction), there is appointed a provisional liquidator, a
receiver, manager or an administrative receiver of it or on the dissolution of it
or (being a sole trader) has a bankruptcy order made against him or makes an arrangement
or composition with his creditors, or otherwise takes the benefit of any statutory
provisions for the time being in force for the relief of insolvent debtors.
14.2 Without prejudice
to the Company's other rights under this Clause 14, at any time the Company may
by serving written notice suspend the right of the Merchant to use the Service and/or
terminate this Agreement with immediate effect:
(a) upon breach
of either Clause 7.1 (a), 7.1 (b), 7.2 (c) or 10.2; or
(b) if the
Company determines in its sole discretion that the Merchant is or may no longer
be eligible to be registered for an PayOffline Account.
14.3 The right to
terminate this Agreement given by this Clause 14 shall not prejudice any other right
or remedy of either party in respect of the breach concerned (if any) or any other
breach and shall not affect any accrued rights or liabilities of either party nor
the coming into or continuation in force of any provision hereof which is expressly
or by implication intended to come into or continue in force on or after such termination.
15.
CONSEQUENCES OF TERMINATION
15.1 Subject to Clause
2.7 (a) on termination or expiry of this Agreement for any reason:
(a) the rights
granted to the Merchant to use the Service shall cease immediately;
(b) the Merchant
shall forthwith return to the Company all documentation, information, sales, marketing
or other materials relating or belonging to the Company whether in paper format
or any other format including electronic format;
(c) the Merchant
shall immediately cease all use of the Service and shall not utilise and shall cease
any use of the Trade Mark or any Intellectual Property of the Company and shall
not from the date of termination, refer to itself as a merchant of the Company;
(d) the Company
shall render an invoice in respect of any supply of Service since the date of the
last invoice and up to the date of actual termination or expiry of this Agreement;
(e) the Merchant
shall deliver all Products to the Customer which have been paid for by the Customer
using Offline Payment but are not delivered at the date of termination; and
(f) the Company
shall transfer or instruct the transfer of any outstanding Merchant's Payments to
the Merchant provided that the Company is satisfied that all Products ordered by
the Customer have been delivered to the Customer.
15.2 The termination
or expiry of this Agreement shall not affect the obligations of either of the parties
expressed or intended to continue after such termination or expiry.
16.
DATA PROTECTION
16.1
The Merchant warrants that it is fully authorised to use all elements
of the Customer's Personal Data as required for the Service and that processing
of the Customer's Personal Data by the Company on behalf of the Merchant or Customer
in accordance with this Agreement, will comply with all relevant legislation and
regulations including to the extent applicable and without limitation, the Data
Protection Legislation. The Merchant further warrants
and covenants, on behalf of itself and its Customers, that to the best of its knowledge
the Customer Data is accurate, complete, not misleading and up to date.
16.2 Where the Company has access to and processes Personal
Data belonging to a Customer in the course of providing the Services, the Company
warrants that:
(a)
its processing of the Personal Data will be carried out in accordance with the Data
Protection Legislation (in the Company's capacity as a data processor) and any instructions
given by the Merchant from time to time;
(b)
it will take appropriate technical and organisational measures against unauthorised
or unlawful processing of the Personal Data and accidental loss or destruction of,
or damage to the Personal Data; and
(c) it will take reasonable steps to ensure that its employees who have
access to such Personal Data have the relevant degree of data protection knowledge
and are reliable in their handling of it.
17.
FORCE MAJEURE
17.1 Subject to due
compliance with Clauses 17.2 and 17.3, neither party shall be liable to the other
for any delay or non-performance of its obligations under this Agreement arising
from any Event of Force Majeure.
17.2 In the event
of a party being delayed or prevented from performing its obligations under this
Agreement by reason of an Event of Force Majeure that party shall give notice to
the other party of such Event of Force Majeure, use reasonable endeavours to mitigate
the affects of such delay or prevention upon the performance of its obligations
and resume performance of its obligations as soon as reasonably possible.
17.3 If the Event
of Force Majeure continues for more than one month after the date it began, then
either party may give written notice to the other terminating this Agreement. The
notice to terminate must specify the termination date, which must be not less than
30 clear days after the date on which the notice to terminate is given. Once a notice
to terminate has been validly given, this Agreement will terminate on the termination
date set out in the notice. Neither party shall be liable to the other in respect
of the termination of this Agreement as a result of an Event of Force Majeure, but
rights and liabilities which have accrued prior to termination shall subsist including,
without limitation, those under Clause 5.
18.
DISPUTE RESOLUTION
In the event of a dispute in relation to any matter under this Agreement, including
the provision of the Service, the persons responsible for the day to day management
of this Agreement on behalf of the parties shall meet to try to resolve any such
dispute and in the event of their failure to do so the matter in dispute shall be
referred to the persons signing this Agreement on behalf of the Company and the
Merchant or (if they shall have left the employ of the Company or the Merchant (as
the case may be)) their replacement, for them to try to resolve the matter in dispute.
19.
WAIVER
The waiver by either party for breach or default of any of the provisions of this
Agreement by the other party shall not be construed as a waiver of any succeeding
breach of the same or other provisions nor shall any delay, failure or omission
on the part of either party in exercising or availing itself of any right to power
or privilege that it has or may have hereunder operate as a waiver of any breach
or default by the other party.
20.
AMENDMENTS
No amendments to this Agreement shall be valid unless they have previously been
agreed in writing by the Company and the Merchant.
21.
NOTICES
21.1 Notices under
this Agreement shall be in writing and sent by email to the Company's Email Address
for notice sent to the Company or the Merchant's Email Address for notice sent to
the Merchant.
21.2 Notices
sent to the correct email address shall be deemed to have been received when the
sender receives confirmation of successful transmission by a return delivery receipt
email. If pursuant to this Clause 21.2 any notice shall
be deemed to have been served on a day which is not a Business Day it shall be deemed
to be served on the next Business Day.
22.
GOVERNING LAW
22.1 This Agreement
shall be governed by and construed in accordance with the laws of
England
. Both parties submit to the non-exclusive jurisdiction
of the English courts.
22.2 This Agreement
is intended for merchants within the
UK
.
23.
partnership
Nothing in this Agreement shall be deemed to create a partnership or any employment
relationship between the parties nor shall anything in this Agreement be deemed
to constitute one party the agent of the other for any purpose.
24.
entire agreement
24.1 This Agreement:
(a) contains
the entire agreement between the parties with respect to its subject matter;
(b) supersedes
and cancels all previous negotiations, agreements and understandings by or between
the parties with respect to its subject matter; and
(c) may not
be changed or modified except by an instrument in writing signed by the duly authorised
representatives of the parties.
24.2 Each party acknowledges
that in entering into this Agreement it does not do so on a basis of or rely on
any representation, warranty or other provision except as expressly provided in
this Agreement, and accordingly all conditions, warranties or other terms implied
by statute or common law in respect of the supply of Service under this Agreement
are excluded to the fullest extent permitted by law.
25.
ENFORCEABILITY
If any provision of this Agreement is held by any court or other competent authority
to be invalid, void or unenforceable in whole or in part, the other provisions of
this Agreement and the remainder of the affected provision shall continue to be
valid.
26.
ASSIGNMENTS
26.1 Other than as
part of a legitimate intra-group corporate restructuring or reorganisation neither
party shall be entitled to assign this Agreement or all or any of their rights hereunder
without the prior written consent of the other, such consent not to be unreasonably
withheld.
26.2 The Company
shall be entitled to perform any of the obligations undertaken by it and to exercise
any of the rights granted to it under this Agreement through any company which at
the relevant time is its holding company or subsidiary (as defined by section 736
of the Companies Act 1985) or the subsidiary of any such holding company, and any
act or omission of any such company shall for the purposes of this Agreement be
deemed to be the act or omission of the Company.
26.3 Subject to Clause
26.2, a party to this Agreement may not sub-contract the whole or any part of its
obligations under this Agreement except with the written consent of the other party.
27.
THIRD PARTY RIGHTS
The parties hereby confirm that, notwithstanding any other provision of this Agreement
(but subject to Clause 26.2), this Agreement shall not purport to confer on any
third party