In case any of the bold terms are unfamiliar to you, a comprehensive glossary is available for reference here. The glossary provides explanations and definitions for better understanding of the terms used throughout the schedules.
1. INTERPRETATION
1.1. If, under the agreement, you have an obligation to do something, you must make sure that your personnel also do that thing where appropriate.
1.2. Similarly, if you have an obligation not to do something, you must:
1.2.1. not allow that thing to be done, or agree that it can be done;
1.2.2. make sure that your personnel do not do that thing; and
1.2.3. make sure that your personnel do not allow anyone else to do that thing or agree that it can be done.
1.3. If there is any inconsistency between the terms and conditions in this schedule 1 and those in any other schedule, these terms and conditions will apply, except as follows.
1.3.1. Schedule 8 will take priority over this schedule 1 in connection with processing personal data.
1.3.2. Schedule 3 will take priority over this schedule 1 in connection with the axept® services.
1.3.3. Schedule 9 will take priority over this schedule 1 in connection with goods (payment terminals and related accessories, spare parts, documents and other items set out in the merchant application form or order) which we provide to you under the agreement.
1.4. If there is any inconsistency between:
1.4.1. a payment scheme’s rules (their rules, by-laws, regulations, operating guidelines, and so-on, relating to acquiring services, cards, transactions, approved payment methods and transaction processing information); and
1.4.2. the merchant conditions; the payment scheme’s rules will apply.
1.5. Any rights, obligations or liabilities which the relevant acquirer has under the agreement apply only in relation to them providing the RA services.
1.6. The headings in the schedules are for ease of reference only and do not affect their interpretation.
2. MERCHANT SITES
2.1. If you want any affiliate that is not specified in the merchant application form to be a merchant site, and so to receive services under the agreement, you must request this and give us full details of the affiliate, their relationship to you and the services they need.
2.2. When we receive a request from you under clause 2.1, we will decide whether or not to accept the affiliate as a merchant site and, if so, which services will be provided to them.
2.3. We are not obliged to provide any services to a merchant site unless we have confirmed in writing that we will.
2.4. The following terms and conditions in this clause 2 apply only if we have agreed to provide services to any merchant site (whether agreed by us under clause 2.2 or specified in the merchant application form).
2.5. You assure us (and Optomany and the relevant acquirer where appropriate) that:
2.5.1. you have the necessary authority to enter into the agreement on behalf of each merchant site; and
2.5.2. you will make sure each merchant site meets the merchant conditions as if it were entering into an agreement direct with us (and the relevant acquirer, if appropriate).
2.6. Where appropriate in the agreement:
2.6.1. references to you (other than in this clause 2) include references to the merchant site; and
2.6.2. references to your personnel will be considered to include references to the relevant merchant site’s personnel.
2.7. Unless we agree otherwise with you in writing, for all services provided to a merchant site you must pay the fees due under the agreement at the same rate as set out in the merchant application form.
2.8. We and the relevant acquirer can issue instructions to you, and request information from you, for all merchant sites. You must promptly pass the instructions and requests on to the merchant sites and make sure that the merchant sites act on them accordingly.
2.9. We and the relevant acquirer can issue instructions direct to a merchant site or ask the merchant site for information in connection with the agreement.
2.10. If the services to be provided to a merchant site include acquiring services, the following will apply:
2.10.1. If agreed by you and us, we will pay all settlement amounts to you for the merchant sites. When we make that payment, we will have met our payment obligations to the merchant sites.
2.10.2. The merchant sites (or you acting on behalf of the merchant sites) may need to pay a security deposit or agree to a rolling reserve.
2.10.3. If we pay the settlement to you for any merchant site, we will have first deducted any refunds, chargebacks, transaction fees or other allowed deductions relating to the merchant site.
2.11. No merchant site can enforce the agreement directly (whether against us, the relevant acquirer or any other person), and only you can enforce the agreement in connection with any services provided (or to be provided) to a merchant site.
2.12. We and the relevant acquirer (and the payment schemes, the card issuers and any DNAP group company, when appropriate) can enforce any part of the agreement against each merchant site. You and each merchant site have ‘joint and several liability’ for each merchant site under the agreement. This means that you are each liable, together and separately, for the merchant site meeting their obligations under the agreement, and we can take enforcement action against either or both of you.
3. PROVIDING THE SERVICES
3.1. We and the relevant acquirer are not obliged to provide the services or sell goods (and Optomany is not obliged to provide axept® services) unless we tell you in writing that we have accepted your application for the services and have received any security deposit we have asked for.
3.2. Your obligations (and our and the relevant acquirer’s rights) under the agreement will apply from the commencement date, regardless of whether or not we accept your application for the services.
3.3. Regardless of whether or not we accept your application for the services, we may (to the extent allowed by applicable laws) let you accept, perform and process transactions. Any such transaction may be reversed if the appropriate funds are not paid to us within 30 business days.
3.4. We do not have to pay any settlement to you:
3.4.1. before we receive the funds from the relevant payment schemes or other relevant third parties, including relevant acquirers; or
3.4.2. if we reject your claim for a settlement.
3.5. From the commencement date, or the date we tell you the services will start (whichever is later):
3.5.1. we will provide the DNAP services; and
3.5.2. the relevant acquirer will provide the RA services.
3.6. When providing the services, we and the relevant acquirer will do so with reasonable care, and will keep to:
3.6.1. the terms and conditions of the agreement; and
3.6.2. all applicable laws.
3.7. Unless we agree otherwise in writing, the services do not include providing any training to you or your personnel, whether relating to using our services or otherwise.
3.8. We may change the services at any time, without notice, if this is necessary to meet any legal or regulatory requirement, to protect the security of our systems, to make improvements, or to follow industry good practice.
3.9. We may change the technical specification of our services at any time, without notice, if the change:
3.9.1. is necessary for operational or technical reasons; and
3.9.2. does not significantly reduce the performance of the services.
3.10. We may immediately suspend all or any part of the services if any of the following apply.
3.10.1. We need to suspend the services for operational reasons (including for repairs, maintenance and improvement), as long as we give you as much notice as is reasonably possible and we restore the service as soon as reasonably possible.
3.10.2. We or the relevant acquirer identifies or suspects any unusual or out-of-character activity relating to your use of the services.
3.10.3. We have good reason to believe that continuing to provide the services would pose a risk (or potential risk) to the operation, security, reliability or performance of all or any part of:
3.10.3.1. your or our server’s hardware, systems, equipment, software and operations, or those of any DNAP group company, the relevant acquirer or any third party; or
3.10.3.2. any services, software or supplies provided to a third party by or on behalf of us, a DNAP group company or the relevant acquirer.
3.10.4. We have good reason to believe that any third party’s system or operations may pose a risk to the operation, security, reliability or performance of all or part of our services or our business (including our obligations under any applicable laws).
3.11. For axept® services that you receive under the agreement, the service provider is Optomany and schedule 3 will apply in addition to this schedule 1 and all other relevant schedules.
3.12. When providing axept® services, Optomany are entitled to the same rights, remedies and protections we have under the agreement. They:
3.12.1. are entitled to enforce their rights directly against you to the same extent as we could; and
3.12.2. will not be directly liable for claims made by you.
3.13. We act as Optomany’s agent with regard to the axept® services and are entitled to enter into and enforce the agreement on their behalf.
4. API AND SOFTWARE
4.1. We may provide an API and software to enable you to use the services.
4.2. We can at any time:
4.2.1. change the API or the software;
4.2.2. provide a new version of the API or the software; or
4.2.3. require you to install or update any and all software to enable you to continue using the services.
4.3. We will not make any change referred to in clause 4.2 if it would significantly reduce the performance of the services, unless we need to make the change for any of the following reasons:
4.3.1. to adopt generally accepted changes in payment-industry standards.
4.3.2. to meet any applicable laws.
4.3.3. to improve security after we have identified any security risks, or we have another good reason to justify the change.
4.4. If any change we make under any of these circumstances significantly reduces the performance of the services, you can end the agreement by giving us written notice within 30 days of us telling you about the change.
4.5. If we need to make any change under clause 4.2 above, we will try to give you at least two months’ notice. However, we may need to give you less (or no) notice depending on the circumstances (including if we need to make a change for a reason described in clause 4.3 above).
5. MERCHANT INFORMATION
5.1. We may use the information in the agreement, and any information we get about you and your personnel (from any source) in connection with the agreement, for various purposes as set out in the agreement and, in the case of personal data, our privacy notice. This clause will continue to apply after the agreement ends for any reason.
5.2. We are entitled to use any information you (or someone acting on your behalf) provide to the relevant acquirer or a payment scheme in connection with the agreement as if the information had been provided directly to us.
5.3. We, the relevant acquirer or a payment scheme (or any or all of us) may do the following:
5.3.1. Maintain databases containing information about transactions accepted, performed or processed by you.
5.3.2. Record and monitor any instances of you failing to meet your duties relating to collecting, using and storing information.
5.3.3. Record undesirable actions or failures under certain categories (referred to as ‘reason codes’).
5.4. The payment schemes are entitled to tell us and the relevant acquirer about any information in the databases and records referred to in 5.3 above.
5.5. As well as our rights set out in our privacy notice relating to personal data about you and your personnel, we can use and share your information (about you, your personnel, your business, your conduct relating to the agreement, and transactions you have accepted, performed and processed) with the relevant acquirer, any DNAP group company, card issuers, the payment schemes, any regulatory body, our professional advisors and credit-reference agencies, to help us or them to do the following:
5.5.1. Manage and assess information security.
5.5.2. Manage and assess financial and insurance risks.
5.5.3. Recover debt.
5.5.4. Develop customer relations, services and systems.
5.5.5. Prevent and detect fraud and other crime.
5.5.6. Prevent and detect instances of any applicable laws being broken.
5.6. You authorise us to release information relating to you or your personnel, the services or the agreement (including all information, documents and materials you provide under clause 5.2) to our personnel, any DNAP group company, the payment schemes, card issuers, the relevant acquirer or any other person or organisation, for any of the reasons below:
5.6.1. It is necessary for us to provide the services.
5.6.2. It is necessary for us to fulfil our obligations, or exercise our rights, under the agreement.
5.6.3. We need to do so in connection with the purposes set out in clause 5.3.
5.6.4. We need to do so in connection with the agreement ending under clause 21.5.6.
5.6.5. We must do so (or are allowed to do so) under any applicable laws, or we need to do so in order to keep to any applicable laws.
5.6.6. It is necessary in order for us to legally transfer, assign or subcontract our rights or obligations under the agreement.
5.6.7. It is necessary because we, or any third party, are investigating suspected criminal activity.
5.7. You must:
5.7.1. if instructed by us, promptly provide the information referred to in clause 5.4 above direct to any third party, for the purposes set out in that clause; and
5.7.2. give us any reasonable help we need to collect or provide all required information.
5.8. We may carry out reasonable checks on you and any director, shareholder or owner of your business, including regular checks with, and providing information about you to, credit-reference agencies, fraud-prevention agencies, card issuers, payment schemes, other providers of acquiring services and DNAP group companies, to manage and make decisions about their relationship or future relationship with you. We also have the right to add new risk and fraud-prevention features or checks relating to any aspect of the services or the agreement and to change any existing features or checks, without giving you notice.
5.9. You agree that, as long as we have acted in good faith, we will have no liability to you if any of the information we provide to any third party under this clause 5 is incorrect.
6. MERCHANT ASSISTANCE
6.1. You must, when asked, promptly give us:
6.1.1. direct access to your personnel;
6.1.2. access to your retail outlets and your other premises, and to information and documents; and
6.1.3. any co-operation and help from you and your personnel (and any other relevant third parties), when this is reasonably necessary in connection with providing the services, performing our obligations and exercising our rights under the agreement, or keeping to any applicable laws.
6.2. You must, throughout the term of the agreement and for any period we specify after it has ended, do the following:
6.2.1. Promptly give us, when asked, information we need about you and your business, including the following:
6.2.1.1. Your trading names, legal status, financial status and activities.
6.2.1.2. The approved payment methods you accept.
6.2.1.3. The equipment, software, technical standards and procedures you use to accept, perform and process transactions and to gather, store, use or otherwise process information in connection with the agreement.
6.2.1.4. Your shareholders and ultimate beneficial owners.
6.2.1.5. A detailed description of the goods and services you sell (including any licences and registrations you need to sell the goods or services).
6.2.1.6. Details of your online outlets and retail outlets.
6.2.1.7. Your ability to provide goods and/or services.
6.2.1.8. Details of the actual or expected delivery dates of sale items and estimates for the average time between a card payment and the delivery date.
6.2.2. Promptly provide all documents, information, materials and help we reasonably need in connection with the agreement, including information that we need:
6.2.2.1. to keep to all applicable laws;
6.2.2.2. to fulfil our obligations to any payment scheme, the relevant acquirer, any regulatory body or any other third party;
6.2.2.3. in connection with preventing and detecting fraud; and
6.2.2.4. in connection with you (or any person or organisation acting on your behalf) collecting, storing and using information.
6.2.3. Promptly follow all instructions (including any requirements set out in a procedure guide) issued by or on behalf of us or the relevant acquirer in connection with the services, processing transactions, or fulfilling your obligations under the agreement.
6.2.4. Fully co-operate with us and the relevant acquirer, and promptly provide all information we ask for in connection with any dispute relating to a transaction (including a dispute between you and us).
6.2.5. Promptly give us and the relevant acquirer, when asked, your latest audited accounts and any other financial information we may need.
6.2.6. Promptly give us and the relevant acquirer any help, documents and information we or they need in order to keep to any applicable laws relating to:
6.2.6.1. anti-money laundering, detecting and preventing financial crime, and conducting identity checks; and
6.2.6.2. our and the relevant acquirer’s duties relating to providing the services.
6.2.7. Promptly provide, when asked, all reasonable help we need to prevent and detect fraud, or any other criminal activity, relating to transactions.
6.2.8. Take all reasonable steps to help us manage any claim or query raised by a customer, a card issuer, a payment scheme, the relevant acquirer, any other provider of acquiring services, a regulatory body, or any other third party, in relation to the services.
6.3. You must immediately tell us, in writing, about the following:
6.3.1. Any other agreement that you enter into for accepting transactions which are the same as or similar to the transactions conducted under the agreement.
6.3.2. Any act, failure or mistake, regardless of who is responsible, which has or could:
6.3.2.1. cause loss or damage (including damage to reputation) to us or the relevant acquirer; or
6.3.2.2. reduce your ability to meet your obligations under the agreement, including your financial deals.
6.3.3. Any issue that has or could compromise the security, accuracy or reliability of:
6.3.3.1. any data relating to transactions;
6.3.3.2. the equipment, software, technical standards and procedures you use to accept, perform and process transactions and to gather, store, use or otherwise process information in connection with the agreement;
6.3.3.3. any information relating to the services or the payment schemes; or
6.3.3.4. any confidential information relating to us, the relevant acquirer, any other provider of acquiring services or any customer.
6.3.4. Any significant change (or proposed change) in the nature of your business, including details of the following:
6.3.4.1. Any changes in the goods or services you sell.
6.3.4.2. Any additional business you perform.
6.3.4.3. Any change in your business’s ownership, shareholders, directors or senior managers.
6.3.4.4. Any change in your business’s trading name, trading hours or contact details.
6.3.4.5. Changes to your online outlets and retail outlets, including any new outlets or you stopping trading (at a particular online outlet or retail outlet or in general).
6.4. You must only use the services for business purposes, not as a consumer (that is, for personal use) or a charity. You must immediately tell us about any change that results in you becoming a charity or a consumer at any time during the term of the agreement.
7. YOUR COMMITMENTS
7.1. All the information you have provided (or will provide) to us, the relevant acquirer or the payment schemes in connection with the agreement must be complete, accurate and up to date.
7.2. You guarantee and assure us and the relevant acquirer of the following:
7.2.1. You will always keep to:
7.2.1.1. all applicable laws;
7.2.1.2. the requirements of any procedure guide;
7.2.1.3. the merchant conditions; and
7.2.1.4. the terms of your merchant application form.
7.2.2. You will get, and always have, all licences, permits and consents you need in connection with using the services, keeping to the agreement and performing all your business activities.
7.2.3. You will not enable payments to be made to other sellers or organisations in an ‘aggregator model,’ meaning that you will not:
7.2.3.1. enable other sellers to take different payment methods through you, without entering into a merchant agreement themselves, on the basis that you would manage the online payment systems and process all online transactions; or
7.2.3.2. partner with other sellers, as part of a network of businesses that share the same target market, to market their products through your online outlets.
7.2.4. You will not use the services for anything which is illegal or widely considered to be unacceptable.
7.2.5. You will not accept, perform or process any transaction that is illegal, or that you should have known was illegal.
7.2.6. You will deal with all customer complaints about sale items in the same way as you would deal with complaints about goods or services paid for in cash and will provide any help a customer needs if they dispute a transaction.
7.2.7. You will change your website, policies and procedures as soon as possible if we ask you to in order to keep to any applicable laws.
7.2.8. You must not keep card details in any way whatsoever. If you need to store card details on your systems, you must tell us so that we can assess whether you doing so would keep to the PCI Data Security Standards. These security standards apply to all businesses worldwide that process, store or transmit card and cardholder details. They aim to make sure the details are managed, stored, and processed in a secure way, in order to reduce the risk of fraud.
7.3. If the security standards are met, we will authorise you to store card numbers only if your systems have PCI Data Security Standards level 1 approval. You must prove this to us by giving us a copy of each annual certificate from your PCI Qualified Security Assessor as soon as possible after you get the certificate.
7.4. If we give you a password for any aspect of the services, you must do the following:
7.4.1. Keep the password secure and confidential, and not reveal it to any unauthorised person.
7.4.2. Regularly change the password.
7.4.3. Use the password correctly.
7.4.4. Not allow anyone other than you and your personnel to use the password or get access to the services unless we have agreed otherwise.
7.4.5. Tell us immediately if any of the services have been compromised by unauthorised use of the password.
7.5. You are responsible for the security and proper use of all passwords, usernames and other security details we provide in connection with the services. You are liable for everything people do by using those security details, whether or not the person is authorised to use them.
7.6. If you receive any passwords, usernames or other security details from a third party in connection with the agreement, you must protect those security details as instructed by the third party.
8. PORTAL
8.1. You can use the portal to access information relating to the agreement and the services.
8.2. We will also use the portal to give you information we have to provide under the applicable laws. We will provide the information within any relevant timescales stated in those regulations.
8.3. We will do everything reasonably possible to provide access to the portal at all appropriate times. We cannot guarantee that the portal will be available at all times, and there may sometimes be planned and unplanned interruptions.
8.4. We may add features to, or remove features from, the portal at any time and without giving you notice, as long as you can still get the information referred to in clauses 8.1 and 8.2 above.
8.5. You may be able to use the portal to make certain changes to your nominated account or other information about you. Only you are allowed to do this, and any information you provide or update through the portal must be accurate and will be legally binding on you. You are responsible for making sure any information you provide through the portal is accurate and complete.
9. FEES
9.1. You agree to pay all fees, interest, charges and other amounts due under the agreement.
9.2. If you have chosen to receive the axept® services, you must pay the subscription fee to us. We collect the fee on behalf of Optomany, and by paying the subscription fee to us you are meeting your obligation to pay for the axept® services.
9.3. The fees, interest, charges, subscription fee (if appropriate) and all other amounts due under the agreement can be paid in one or more of the following ways:
9.3.1. By direct debit from your nominated account.
9.3.2. By us deducting them from the funds from the settlement due to you.
9.3.3. By you paying an invoice from us, which must be paid within five business days.
9.4. Your obligations to pay all amounts due under the agreement will not be affected if the services are ever suspended or unavailable for any reason.
9.5. All amounts due from you to the relevant acquirer in connection with the agreement must be paid to us. We receive the amounts on behalf of the relevant acquirer.
9.6. Unless stated otherwise, all amounts due under the agreement do not include VAT and any other relevant taxes. You are responsible for paying any taxes that are due.
9.7. The terms and conditions that relate to you paying us for the goods as set out in schedule 9.
10. NOMINATED ACCOUNT AND PAYMENTS
10.1. You must, throughout the term of the agreement (and for any period afterwards that we specify), maintain:
10.1.1. the nominated account; and
10.1.2. any direct debits and other such facilities arranged with us for you to pay fees and other amounts due to us under the agreement.
10.2. You agree that we can collect any and all amounts you owe us under the agreement by direct debit from the nominated account.
10.3. You must not, without our permission in writing:
10.3.1. close or change your nominated account (including the branch the account is held at); or
10.3.2. cancel any direct debit which has been set up to pay any amounts due in connection with the agreement.
10.4. Without affecting clause 10.3 above:
10.4.1. you must give us at least 20 business days’ notice before you close or change your nominated account or direct debit; and
10.4.2. if you cancel your direct debit without immediately putting a new one in place, we can charge you (and you must immediately pay) a fee of £1 a day until the direct debit is reinstated or a new one set up.
11. SET-OFF AND WITHHOLDING FUNDS
11.1. As well as any right we and the relevant acquirer may have under applicable laws or under the agreement, we and the relevant acquirer can, without giving you notice, ‘set-off’ all or some of the merchant liabilities by taking them from any of the following:
11.1.1. The security deposit (including by withdrawing amounts from the reserve account).
11.1.2. Any settlement or other payment due to you (whether or not related to the services or transaction that gave rise to the liability).
11.1.3. Any other amounts we or the relevant acquirer hold for or on behalf of you.
11.2. If, at any time (including after the agreement ends for any reason), we or the relevant acquirer finds out (or has good reason to suspect) that you have broken, may have broken or are likely to break any of the merchant conditions, we or the relevant acquirer may (without giving notice) withhold any amounts (including any settlement) which would otherwise be due to you. We or the relevant acquirer can withhold the payment for a period we or they think fit.
11.3. We or the relevant acquirer can suspend processing the relevant transaction (and all associated services), or withhold settlement for that transaction, for a period we or they think fit, if any of the following apply:
11.3.1. The relevant acquirer has given us notice of a chargeback.
11.3.2. A card issuer or a payment scheme has given us, or the relevant acquirer notice of a chargeback.
11.3.3. We, or the relevant acquirer, have found out (or have good reason to suspect) that a transaction:
11.3.3.1. may be fraudulent or involve any Illegal activity;
11.3.3.2. was not (or may be suspected to be not) in the ordinary course of your business; or
11.3.3.3. did not meet the PCI Data Security Standards.
11.4. We or the relevant acquirer may continue to withhold funds until we or they (as appropriate) decide that the matter no longer applies or there are no further transactions which may be disputed.
11.5. Exercising our rights under this clause 11 will not affect any other rights we have under the agreement or otherwise.
11.6. You must pay all amounts due to us in full, without any ‘set-off’ or deduction, or withholding any amount, unless you are required to do so by applicable laws. You cannot ‘set-off’ any of our or the relevant acquirer’s liabilities to you against any amounts due to us or the relevant acquirer (including transaction fees and non-transaction fees).
12. INTEREST
12.1. Except where clause 12.2 below applies, if you or we fail to pay any amount under the agreement when due, the other can charge interest on that amount, at a rate equal to 4% above the published Barclays Bank plc base rate at the time, until the amount due has been paid in full.
12.2. You will not be entitled to any interest or compensation in connection with any amounts held by us or the relevant acquirer, including any settlement we have not yet paid to you, any security deposit (including interest on the rolling reserve in the reserve account) or any other amount we or the relevant acquirer is entitled to withhold under the agreement.
13. RECORDS AND AUDIT
13.1. In line with the PCI Data Security Standards, you must do the following:
13.1.1. Keep the original copy of each terminal receipt and, if appropriate, any sales draft or credit voucher, for at least 12 months from the date they were issued.
13.1.2. Keep legible copies of data relating to transactions for at least 18 months from the date of each transaction (unless any applicable laws say otherwise).
13.1.3. Keep full and accurate records of all things you do in relation to meeting your obligations under the agreement.
13.2. Without affecting clause 13.3, you must provide us with any of the documents referred to in clause 13.1 within 14 days of us asking for them.
13.3. You agree to give us (and our authorised personnel and representatives of any regulatory body) free access to your retail outlets and other premises to make sure you are keeping to the agreement and to inspect any of the documents referred to in clause 13.1.
13.4. You must promptly give all reasonable co-operation and help we need at your premises, including:
13.4.1. giving us reasonable access to your personnel;
13.4.2. allowing us to inspect any documents and records that are relevant to the agreement; and
13.4.3. providing a reasonable number of copies of any documents or records we need.
14. TAX
14.1. You are responsible for finding out whether any taxes, including VAT, are due in connection with transactions.
14.2. You agree to charge all necessary taxes, and to report and pay these to the appropriate tax authority. You accept liability for, and will not hold the indemnified parties liable for, any losses, claims, damages, expenses (including legal fees and court fees) and other liabilities arising out of or in connection with you failing to charge, report or pay taxes as required by applicable laws. If any of the indemnified parties become involved in any legal or similar proceedings relating to you failing to charge, report or pay necessary taxes, that indemnified party is entitled to (but does not have to) settle any such claims at your expense.
15. MATERIALS AND INTELLECTUAL PROPERTY
15.1. We may (but do not have to) supply you with:
15.1.2. sales drafts;
15.1.2. logo stickers and transfers;
15.1.3. plastic logo stands; and
15.1.4. any other promotional or advertising materials or stationery needed to promote, handle and process transactions by you.
15.2. We will decide how often to provide these, how many to provide, and how much to charge for them.
15.3. You may, at any time, ask us for any of the items referred to in clause 15.1. We do not have to supply you with them, but if we do then we would provide those at the cost we tell you at the time of your request (or as published by us at the time).
15.4. Each party (you, we, any of our subsidiary or holding company, the relevant acquirer) will each keep all rights and interests (including intellectual property rights) that they:
15.4.1. owned, or had a licence to, before the commencement date; or
15.4.2. developed outside the scope of the agreement and not in connection with any of the other parties’ intellectual property rights.
15.5. Each party will keep any intellectual property rights to anything they developed in connection with the agreement unless they agree otherwise in writing.
15.6. We grant you a licence to use logos and trademarks we specify:
15.6.1. in the UK;
15.6.2. during the term of the agreement;
15.6.3. for the purpose we specify; and
15.6.4. in line with any guidelines and terms of use we issue and all other terms of the agreement.
15.7. We grant the licence to you on a ‘non-exclusive, revocable, royalty-free basis.’ This means that you are not the only merchant who has such a licence, we can withdraw the licence, and you do not need to pay a fee for the licence.
15.8. You grant us, any of our subsidiary or holding company, the relevant acquirer and the card issuers a licence (on a non-exclusive, royalty-free basis) to use your name, address, phone number, logos, trading names, trademarks and other intellectual property rights, anywhere in the world and throughout the term of the agreement:
15.8.1. in all our, the relevant acquirer’s and the card issuers’ correspondence or publications; and
15.8.2. for the purposes of providing the services, meeting our and their obligations and exercising our and their rights under the agreement.
15.9. You also give us the right to grant sub-licences for the same purposes to any person or organisation we consider appropriate.
15.10. Each party confirms that their intellectual property rights being used by the other parties (and their authorised personnel), as allowed under the agreement, will not violate any third party’s intellectual property rights.
15.11. We grant you, or will arrange for you to get, a licence (on a non-exclusive, revocable, royalty-free basis) to use a payment scheme’s logos, trademarks, symbols (and so-on) in advertising or signs relating to the services (and for no other purposes):
15.11.1. in the UK;
15.11.2. during the term of the agreement; and
15.11.3. in line with all applicable laws and guidelines relating to the services, cards, transactions, approved payment methods, and to collecting, storing and using personal data.
15.12. We or the relevant payment scheme can immediately end the licence by giving you notice.
15.13. You must not copy or alter (or try to copy or alter) any software or intellectual property rights relating to the services without our permission in writing.
16. INDEMNITY AND LIABILITY
16.1. You agree to indemnify the indemnified parties against (that is, fully reimburse them and accept all liability for) any losses, claims, damages, expenses (including legal fees and court fees) and other liabilities arising directly or indirectly from or in connection with the following:
16.1.1. You failing to keep to the agreement, any procedure guide, or any instructions given by us, any of our subsidiary or holding company, or the relevant acquirer.
16.1.2. Your (or your personnel’s) fraud or negligence.
16.1.3. You (or your personnel) failing to perform, or any delay in performing, any of your obligations under the agreement.
16.1.4. You using the services or any additional services.
16.1.5. You using axept® services.
16.1.6. Any transaction, including due to any alleged misrepresentation to a customer, or due to you (or your personnel) not meeting your duty to a customer.
16.2. Each indemnified party:
16.2.1. is entitled to have full control over all proceedings and negotiations relating to any claim referred to in clause 16.1;
16.2.2. can accept, dispute, settle or otherwise deal with the claim as they see fit; and
16.2.3. will have no liability to you in connection with the claim.
16.3. You must give the relevant indemnified party any reasonable help they need in connection with any claim under this clause 16.
16.4. Except where clause 16 says otherwise, we and the relevant acquirer will not be liable to you for any:
16.4.1. loss of profit;
16.4.2. loss of anticipated savings;
16.4.3. loss of business;
16.4.4. loss of opportunity;
16.4.5. loss of reputation;
16.4.6. loss of goodwill;
16.4.7. loss of contracts;
16.4.8. loss of, or corruption to, information and data (except personal data); or
16.4.9. indirect or consequential loss or damage of any kind, that arises for any reason, whether or not the loss could have been foreseen.
16.5. Our and the relevant acquirer’s maximum liability to you under or in connection with the agreement, or any related contract, however it arises, is limited to:
16.5.1. 125% of the transaction fees and non-transaction fees paid or due within the previous six months; or
16.5.2. £500, whichever is more.
16.6. Nothing in this clause 16 or otherwise under the agreement removes or limits our, your or the relevant acquirer’s liability for the following:
16.6.1. Fraud, death or personal injury caused by negligence.
16.6.2. Failing to meet obligations under schedule 8, ‘Data processing terms and conditions’.
16.6.3. Failing to meet obligations, under the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982.
16.6.4. Any other liability that cannot be removed or limited under any applicable laws.
17. CONFIDENTIALITY
17.1. Except where clause 17.2 says otherwise, you:
17.1.1. must keep the existence of the agreement, and all data provided by us or the relevant acquirer, or entrusted to you by customers under or in connection with the agreement, confidential; and
17.1.2. must not, without our or the customer’s (as appropriate) permission in writing, give any data provided by us or the relevant acquirer, or entrusted to you by customers under or in connection with the agreement, to any third party or use it for any purpose except as strictly necessary in connection with the agreement or your obligations to customers (as appropriate).
17.2. The restrictions in clause 17.1 do not apply to information which:
17.2.1. is publicly available or becomes publicly available without clause 17.1 being broken;
17.2.2. must be given to any regulatory body; or
17.2.3. must be provided by applicable laws or under the rules of a recognised stock exchange.
17.3. Your obligations under this clause 17 will continue to apply after the agreement ends for any reason.
18. DATA PROTECTION
18.1. This clause 18 relates to your, our and the relevant acquirer’s obligations when collecting, storing and using personal data only (without affecting obligations when handling information in general under the agreement), whether you, we or they have those obligations under the agreement or under any applicable laws.
18.2. You, we and the relevant acquirer must keep to all applicable laws relating to privacy and protecting personal data, including:
18.2.1. the UK GDPR;
18.2.2. the Data Protection Act 2018; and
18.2.3. the Privacy and Electronic Communications Regulations 2003.
18.3. When we collect, store and use personal data under the agreement as the ‘data controller’ (the party that decides how and why personal data is collected, used and stored), you agree that we may use any of your (and your personnel’s) personal data that we receive under clause 5 for various purposes, including as set out in your merchant application form, schedule 8 and our privacy notice.
18.4. If you provide personal data about your personnel in connection with the agreement, you assure us that you have their permission:
18.4.1. to give us their personal data;
18.4.2. for us to use and share their personal data for any of the purposes set out in our privacy notice; and
18.4.3. if appropriate, for us to conduct any financial and other checks referred to in clause 5.8 above.
When we are collecting, storing and using personal data on your behalf, the terms and conditions of schedule 8 will apply.
You, we and the relevant acquirer must have appropriate technical and organisational measures in place to protect against the unauthorised or unlawful collection, storage and use of personal data, and against accidental loss or destruction of or damage to personal data.
You, we and the relevant acquirer must have adequate security programmes and procedures in place to make sure that unauthorised people do not have access to personal data or to any equipment or systems used to collect, store and use personal data.
19. ENDING THE AGREEMENT OR SUSPENDING SERVICES
19.1. The agreement will start on the commencement date and will stay in force until we or you end it under clause 19.1, 19.3, 19.4 or clause 19.6, as appropriate.
19.2. We can, at any time, end the agreement by giving you at least two months’ notice in writing.
19.3. We (acting on behalf of Optomany) can, at any time, end the parts of the agreement that relate only to the axept® services by giving you at least two months’ notice in writing.
19.4. You can end the agreement at any time by giving us one month’s notice.
19.5. If you end the agreement within six months from the commencement date, you must pay a termination fee equal to six times the monthly transaction fees and non-transaction fees you paid before the date of your notice.
19.6. After the minimum term ends, you can at any time end the parts of the agreement that relate only to the axept® services by giving us at least one month’s notice in writing. If you do this, you must pay us an amount equal to the amount we would have received from you if the agreement had run until the end of the minimum term set out in the merchant application form.
19.7. We can immediately end the agreement or suspend all or any part of the services if any of the following circumstances arise:
19.7.1. You fail (or we or the relevant acquirer suspects that you may fail) to keep to any of the terms of the agreement.
19.7.2. You fail to pay any transaction fee or non-transaction fee on time, as required under the agreement.
19.7.3. You fail to provide any document, information or help we or the relevant acquirer asks for in line with clause 6 or fail to follow any procedure guide or instructions we or the relevant acquirer gives you in connection with the agreement.
19.7.4. You tell us, or it becomes clear to us, that you are a consumer or a charity.
19.7.5. The relevant acquirer, a card issuer, a payment scheme or a regulatory body asks us to.
19.7.6. We or the relevant acquirer considers (or is informed) that anything you have done or failed to do falls within a ‘reason code’ (a record of undesirable actions or failures).
19.7.7. We or the relevant acquirer considers that the total value of all refunds, chargebacks and other amounts credited to customers’ cards is high.
19.7.8. You do not process any transactions for two months or more or the number and value of transactions per month is negligible.
19.7.9. You repeatedly break any of the terms of the agreement in such a way that we can reasonably justify ending the agreement or suspending all or any part of the services.
19.7.10. All (or a substantial part of) your business stops trading.
19.7.11. You become (or are at risk of becoming) insolvent because you cannot pay your bills or debts when they are due, or you have more liabilities than assets on your balance sheet.
19.7.12. You are a sole trader or partnership and you or any partner dies.
19.7.13. Any step is taken for you to enter into a voluntary arrangement with creditors, whether formal or informal and in the UK or any other country.
19.7.14. Any other event or series of events (whether related or not and including any significant change in your business assets or finances) could, in our opinion, affect your ability or willingness to keep to all or any of your obligations under the agreement or to meet the merchant liabilities.
19.7.15. We believe that any circumstance affecting you damages (or could damage) our, the relevant acquirer’s or a payment scheme’s reputation or business.
19.7.16. There has, in our opinion, been a significant change in the nature or type of business you conduct.
19.7.17. We know or suspect that you or any of your personnel:
19.7.17.1. participates in (directly or indirectly) or promotes unlawful activities (including threats of violence, intimidation, fraud or spreading false rumours); or
19.7.17.2. is a member of, or is otherwise involved in or supports, any person, group or organisation which engages in (directly or indirectly) or promotes unlawful activities.
19.7.18. We are charged any fines by, or other claims are brought against us by, the relevant acquirer, a card issuer, a payment scheme or any other third party because of any aspect of our relationship with you.
19.7.19. The RA services (or part of them) are suspended or otherwise stop being provided by the relevant acquirer.
19.7.20. A payment scheme or the relevant acquirer introduces or changes any terms and conditions relating to, or otherwise affecting, the services.
19.7.21. You are listed on HM Treasury's financial sanction lists, the OFAC list or a payment scheme's fraud and risk databases.
19.7.22. You significantly change the type of goods or services you provide or substantially change the average transaction value (as shown in your merchant application form) without getting our or the relevant acquirer’s written permission to continue using the services.
19.7.23. Your business’s ownership or structure changes.
19.8. If we give notice to end the agreement under this clause 19, it will end on the date we give you the notice or any later date we specify in it.
19.9. We do not have to give you notice about suspending the services under the agreement. Any such suspension will be to the extent, and for the period, we see fit.
19.10. If we have suspended any part of the services as allowed under the agreement, we can charge you (and you must immediately pay) a fee of £20 to restore them.
19.11. When the agreement ends, this will not affect any liabilities that have already arisen, or any term that says it will continue to apply after the agreement ends.
19.12. When the agreement ends for any reason, you must stop using or referring to our logos or trademarks, or any payment scheme’s logos, trademarks, symbols (and so-on), and you must return to us (at your own expense) all items bearing such logos or trademarks.
19.13. When the agreement ends, you must immediately pay all amounts you owe us under the agreement. Until we have received payment in full, we can withhold or ‘set-off’ amounts (as described in clause 11), deduct any amount from any security deposit or the rolling reserve, and recover any chargebacks or other merchant liabilities.
20. ASSIGNMENT AND SUBCONTRACTING
20.1. You cannot assign, transfer or subcontract all or any of your rights or obligations under the agreement.
20.2. We can assign, transfer or subcontract all or any part of our rights or obligations under the agreement, at any time and to any person or organisation.
21. CIRCUMSTANCES BEYOND OUR CONTROL
21.1. We will not be liable for failing to perform (or any delay in performing) any of our obligations under the agreement if that failure or delay arises from events or circumstances beyond our reasonable control, including natural disasters, war, national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, pandemic or epidemic, industrial action (whether or not relating to our workforce), or the actions or failures of our suppliers or subcontractors.
22. COMMUNICATIONS
22.1. You agree that we can send you messages in connection with the axept® services. These may include marketing messages about us, any of our group companies, or the axept® services, as well as messages about delivering the axept® services and information about your subscription fees and other fees and amounts payable by you.
22.2. We will send these messages electronically – by email, by text messages to your mobile phone, or through the axept® control centre. By receiving these messages, you agree that they meet any legal requirement to provide written communication or use any specific method of contact for the purposes of the agreement. It is important for you to keep your contact information up to date.
22.3. This clause 22 does not apply to notices given in legal proceedings or arbitration.
23. THIRD-PARTY RIGHTS
23.1. Nothing in this schedule 1 or in the Agreements (Rights of Third Parties) Act 1999 gives a third party any benefit under this Schedule 1 or the right to enforce it. This clause 23 does not affect any right a person or organisation has other than under the Agreements (Rights of Third Parties) Act 1999.
24. ENTIRE AGREEMENT
24.1. This schedule 1 and schedule 2, along with the merchant application form, make up a complete and independent agreement between you and us for the axept® services. That agreement replaces and takes priority over any previous agreement relating to the axept® services.
24.2. Schedule 3 explains all your and our responsibilities and liabilities relating to the axept® services. We each agree that no other conditions, representations and so-on are binding on either of us. Any conditions, representations and so-on that might otherwise be interpreted as being part of the agreement will not apply.
25. ASSIGNMENT AND SUB-CONTRACTING
25.1. Except where the agreement says otherwise, we may at any time assign, transfer, sub-contract, sublicense or otherwise pass on or deal in any way with any or all of our rights or obligations under the agreement.
25.2. Except as specifically allowed under the agreement, you cannot assign, transfer, sub-contract, sublicense or otherwise pass on or deal in any way with any or all of your rights or obligations under the agreement, unless you have our permission in writing.
26. AMENDMENTS TO THIS SCHEDULE
26.1. We can change the terms of this Schedule 1 whenever we want, including by adding new clauses. We will give you at least two months’ notice before we make any changes.
26.2. If we give you notice of any change, you have 30 days to let us know if you do not accept the changes. If you do not say anything within the 30-day period, this means you accept the changes and they will take effect after the 30 days. You will be entitled to end this agreement without having to pay anything at any time before the end of the 30-day period.
27. MISCELLANEOUS
27.1. You must make sure that all your personnel follow the applicable laws relating to corruption, bribery and money laundering where relevant to this agreement.
27.2. In addition to the general requirement under clause 27.1 above, you agree that you and your affiliates will not give or promise money or anything else of value, directly or indirectly, to government officials or employees, political parties or candidates, or any other person or organisation, with the aim of gaining an unfair advantage or getting or keeping business related to the activities described in this agreement. If clause 27.1 or this clause 27.2 is broken, we can end the agreement immediately.
27.3. You and we need permission from the other before making any public statements or announcements about the agreement. The permission should not be unreasonably denied or delayed.
27.4. Each party is responsible for their own costs of entering into the agreement, including costs of preparing and negotiating any related document, unless you and we agree otherwise in writing.
27.5. Except as otherwise stated, nothing in this schedule 1:
27.5.1. creates any partnership or joint venture between you and us;
27.5.2. makes you or us an agent, officer or employee of the other; or
27.5.3. authorises you or us to make or enter into any commitments for or on behalf of the other.
27.6. If we don’t make you meet the terms of the agreement, or if we overlook your breaking any term, this doesn’t mean that we can’t enforce those terms at any other time.
27.7. If any part of the agreement is found to be invalid, illegal or unenforceable, this doesn’t affect the other parts of the agreement, unless the invalid part significantly harms the rights or obligations of you or us.
27.8. All communications relating to the agreement will be in English. If there is any conflict between the English version and a translated version, the English version will apply.
27.9. The agreement, and any issues relating to it, will be governed by and interpreted in line with the laws of England and Wales. Any legal action in connection with the agreement will be dealt with in the courts of England and Wales.