This schedule 3 applies only if you use the axept® services.

In this schedule 3, references to ‘we’, ‘us’ and ‘our’ mean Optomany Limited (a company incorporated in England and Wales with registration number 08541806 and whose registered office is at 10 Lower Grosvenor Place, London, SW1W 0EN). Optomany is part of the DNAP Group Companies.

The specific terms defined in this schedule 3 (clause 1.1) will be more important than any conflicting terms defined in the glossary. Remember, these defined terms in this schedule 3 only matter here and will not affect the glossary's meanings.

Whenever we mention the word "agreement" in this schedule 3, it only refers to an agreement for signing up with axept® services.

In case the rest 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. DEFINITIONS AND INTERPRETATION

In this schedule 3, the words and phrases set out below have the meanings shown wherever they appear in bold type.

1.3.1. The merchant application form.

1.3.2. The order.

1.3.3. This schedule 3 - axept® terms and conditions.

1.3.4. The subscribed service specific terms set out in appendix 2 to this schedule 3.

1.3.5. The merchant conditions.

1.3.6. The data protection addendum.

1.3.7. Our acceptable use policy and our privacy policy.

1.3.8. The documentation.

1.3.9. The glossary.

1.4. If, under the agreement, you have an obligation to do something, you must make sure that your affiliates and authorised users also do that thing where appropriate.

1.5. Similarly, if you have an obligation not to do something, you must:

1.5.1. not allow that thing to be done or agree that it can be done; and

1.5.2. make sure that your affiliates and authorised users do not do that thing, allow anyone else to do that thing, or agree that the thing can be done.

2. RIGHTS OF USE

2.1. When we accept an order, we grant you a non-exclusive, non-transferable, personal right to: 

2.1.1. use each subscribed service; 

2.1.2. copy and use the documentation, when strictly necessary in order to use the subscribed services; and

2.1.3. in the subscribed territory, during the service period and for the permitted purpose.

2.2. It may take up to three business days from the date we accept your order to set up and give you access to the subscribed services.

2.3. The axept® services do not include the following:

2.3.1. Any services, systems or equipment you need to access the internet, unless the merchant application form or your order says otherwise.

2.3.2. Dedicated data backup or disaster-recovery facilities (but you should always have backups of all merchant data).

2.4. All or any part of the axept® services may be provided by a third-party service provider. Any third-party service provider: 

2.4.1. will have the same rights and protections as we have under the agreement;

2.4.2. can enforce their rights against you in the same way as we could enforce our rights under the agreement; and 

2.4.3. will not be directly liable for claims made by you.

3. AUTHORISED USERS

3.1. You must make sure that only authorised users use the subscribed services and that they keep to the agreement when doing so. The authorised users must be your affiliates, or employees or contractors of yours or your affiliates.

3.2. You must keep a list of all authorised users. If the list of authorised users needs to change (for example, when an authorised user stops being employed by you or a new employee needs to use the subscribed services), you must tell us within five business days.

3.3. You:

3.3.1. will be liable for anything that your authorised users do or fail to do in connection with the subscribed services; and

3.3.2. must make sure that each authorised user and each affiliate keeps to the obligations you have under the agreement, including those relating to confidential information.

3.4. You must make sure that all authorised users, and anyone acting on their behalf (including systems administrators), keep their password or access details for any subscribed service confidential, and do not share them with anyone else (except anyone who has administration rights at your or your affiliate’s organisation and needs them to use the subscribed service).

3.5. You and your authorised users must at all times keep to our acceptable use policy and all other parts of the agreement.

3.6. If a person who is not an authorised user finds out any password, you must tell us, and change the password, immediately.

3.7. You and your authorised users must keep to all export laws, rules and regulations that apply to the axept® services, the merchant data and the documentation (or any part of them), and must not access or use the axept® services, the merchant data or the documentation in any country or territory in which you need an export licence or other approval under applicable laws, without first getting the licence or other approval.

3.8. Without affecting our obligations under the data protection addendum, you are responsible for making sure your access to and use of the axept® services, merchant data and documentation in any part of the subscribed territory or elsewhere keeps to all applicable laws.

3.9. Clauses 3.3 to 3.8 above (inclusive) will continue to apply after the agreement ends.

4. INDEMNITY

4.1. You indemnify us and anyone acting on our behalf against (that is, (that is, fully reimburse us and them and accept all liability for) any losses, claims, damages, expenses (including legal and other professional fees) and liabilities arising directly or indirectly from or in connection with you breaking the agreement.

4.2. This clause 4 will continue to apply after the agreement ends.

5. SUPPORT

5.1. For each subscribed service you will have access to the support services set out in appendix 1 for the duration of the service period for the subscribed service.

5.2. We will do everything reasonably possible to tell you about any scheduled maintenance beforehand. We may not be able to give you notice of any emergency maintenance or downtime (periods when the axept® services are unavailable) caused by events beyond our control.

5.3. We will provide the support services in line with the support service terms (appendix 1).

6. NETWORK

6.1. We will provide a SIM card for you to connect to the network.

6.2. We will always try to make sure that the subscribed services are available for processing transactions, but sometimes they may be affected by things beyond our control.

6.3. The performance of the subscribed services depends on the payment terminal being in range of base stations forming part of the network. We will have no liability if the payment terminal cannot connect properly (or at all) to the network.

6.4. We cannot guarantee network coverage. If you cannot get network coverage, we will help you to find an alternative network where possible. You will have to pay all fees and costs relating to the alternative network.

6.5. Network providers make every effort to make sure their networks are secure, but they cannot guarantee that your communications over the network will not be interrupted or accessed by people who are not meant to receive them.

6.6. You are responsible for connecting the payment terminal to the network. We will provide instructions on how to do this.

6.7. You are responsible for maintaining your connection to the network.

6.8. Any number we allocate for you to use (whether on the network or otherwise) does not belong to you and the following apply:

6.8.1. You must use the number only for the purposes for which we have allocated to you.

6.8.2. You are not entitled to use the number after the agreement ends for any reason.

6.8.3. We can reallocate or change the number from time to time and will have no liability to you in connection with this.

6.9. We are entitled to withdraw the subscribed services (or any part of them), at any time and without giving you notice, if the provider of the network (or the SIM card) ends or suspends access to, or the availability of, the network. We will have no liability to you if this happens.

6.10. You must pay all fees due under the agreement, regardless of any unavailability, suspension or disconnection of the network or any subscribed service.

7. CHANGES TO THE AXEPT® SERVICES AND AXEPT® SOFTWARE 

7.1. We may give you notice (by email or any other reasonable method of communication) about updated versions of any of the axept® services.

7.2. Any updated version of the axept® services will replace the previous version 30 days after you receive our notice of the updated version, unless we specify a different date.

7.3. If you believe that any updated version of the axept® services will harm you in any way, you can choose to end the agreement for the affected axept® services by giving us written notice at least 10 days before the previous version is replaced. You would need to tell us about the potential harm that caused you to end the agreement. If you end the agreement under this clause 7.3, you will get a refund of any fees you already paid for the affected services.

7.4. We can change the features and functionality of the axept® services. We will do everything reasonably possible to make sure that any change does not significantly disadvantage you. We may set new limits on the axept® services (or any part of them). This includes limiting the volume of data which may be used, stored or transmitted, removing or restricting APIs or altering data-retention periods (how long information is stored). The changes would be introduced in updated documents.

7.5. We may release new versions of upgrades to or patches (small pieces of software used to correct problems within an operating system or software program) for the axept® software. We will try to tell you about any new versions, upgrades or patches in advance, but we can apply them at any time, whether remotely or otherwise, whenever necessary and without giving notice. You must give us any help we need in order to apply a new version, upgrade or patch.

7.6. If we cannot apply a new version, upgrade or patch because you do not give us the help we need, this may affect the performance of the axept® software and may lead to performance issues or any warranty of the axept® software becoming invalid. We will not be responsible for this.

8. FEES

8.1. You must pay the subscription fees, and any other charges and expenses which you and we have agreed in writing, as described in the merchant application form or your order.

8.2. DNAP, acting on our behalf, will invoice you for all subscription fees monthly in advance. They will invoice you for all other fees due under the agreement monthly in arrears. DNAP will collect the payments by direct debit, in line with clause 11.2 of schedule 1.

8.3. Unless the merchant application form or order says otherwise, you need to pay the subscription fees by direct debit on the 10th day of each month (or the next business day if the 10th is not a business day). We will invoice you for any other fees, and you will need to pay them on or before the date mentioned in the invoice.

8.4. If, for any reason, DNAP cannot collect the full subscription fees when they are due, they may deduct the subscription fees from any amount due to you at any time.

8.5. You are responsible for paying all subscription fees and other fees and amounts described in this schedule 3. You must make the payments in full and on time, without needing to be asked for them and without deducting any amounts.

8.6. You must not cancel any direct debit you have set up for paying any amounts due under the agreement unless we agree in writing that you can.

8.7. We can charge interest on overdue invoices, at a rate of 8% above the published Bank of England base rate at the time, from the date the payment was due until the date we receive the payment, even if that is after any court order or judgment we may get against you.

8.8. We can increase the fees for any and all axept® services at any time, but:

8.8.1. we must give you at least one month’s notice in writing; and

8.8.2. we cannot increase fees more than once every 12 months.

8.9. When the agreement ends for any reason (other than you ending it under clause 7.3 above), you will not be entitled to any refund of any subscription fees, or other fees of charges, you have paid for any time during which the axept® services are not provided.

9. WARRANTIES

9.1. We do not warrant (guarantee) that the subscribed services (or any part of them) will meet your needs, be uninterrupted or error-free, or be compatible with your software or equipment. Under no circumstances do we warrant that all errors in the axept® software (or any other software) can be fixed.

9.2. We warrant the following:

9.2.1. Each subscribed service will operate mostly in keeping with its description when it is used normally, in normal circumstances, and in line with the agreement, during the relevant service period.

9.2.2. We will provide each axept® service with reasonable care and skill.

9.3. Clause 9.2 above does not apply to free or trial services, or to support services provided in connection with free or trial services. We do not provide any warranty in connection with free or trial services or any support services provided in connection with them, except as required by applicable laws.

9.4. The axept® services may be affected by delays, interruptions, errors or other problems arising as a result of the internet or public electronic communications networks being used by you, us or other parties. We will have no liability for any such delays, interruptions, errors or other problems.

9.5. If we fail to meet any warranty set out in clause 9.2 above, we will either: 

9.5.1. repair or replace the affected axept® services within a reasonable time; or 

9.5.2. refund the subscription fees for the affected axept® services for the period during which we failed to meet the warranty (after the first three days).

9.6. The limitations set out in clause 16 below apply to the warranties in clause 9.2 above, and those warranties do not apply to any error that arises in the axept® services as a result of the following:

9.6.1. Incorrect use of the axept® services (including any failure to follow the documentation or meet minimum specifications).

9.6.2. Any of the axept® services being used for purposes they were not intended for.

9.6.3. Any of the axept® services being used with software, services or equipment they are not compatible with (unless we recommend or require the use of that software, service or equipment).

9.6.4. The actions of any third party (including hacking or introducing a computer virus).

9.6.5. Any modification of axept® services not made by us or on our behalf.

9.6.6. You or an authorised user breaking the agreement.

9.7. We may make third-party materials available for you to use in connection with the axept® services. If we do this, the following will apply: 

9.7.1. We will have no responsibility for the consequences of you using the third-party materials.

9.7.2. Your use of any third-party materials will be governed by the terms and conditions of the third party that owns, or grants licences to use, the third-party materials. You must keep to those terms and conditions.

9.7.3. The continued availability and performance of the third-party materials, and compatibility with the axept® services, is beyond our control and we have no responsibility for any issues arising from the availability, performance and compatibility of any of the third-party materials.

9.8. We have no obligation to make sure that the subscribed services will:

9.8.1. meet your needs, whether or not you have told us your needs;

9.8.2. work correctly, without any errors or faults; or

9.8.3. be compatible with any other software, service, hardware or equipment, unless we have assured you otherwise.

9.9. Other than as set out in this clause 9 and clause 16.6 below, or where applicable laws say otherwise, we provide no warranty for and have no obligations relating to the quality, fitness for purpose or performance of third-party materials.

10. YOUR RESPONSIBILITIES

10.1. You must at all times keep to all applicable laws relating to using or receiving the axept® services, including the following:

10.1.1. Applicable laws relating to privacy, data protection, and the use of systems and communications.

10.1.2. Rules imposed by the payment schemes.

10.1.3. Rules imposed by any other relevant bank or third party.

10.1.4. Rules relating to data-security standards and resources for safe payments, as set by the Payment Card Industry Security Standards Council.

10.2. You must:

10.2.1. co-operate with us in all matters relating to the axept® services; and

10.2.2. be authorised by DNAP or the relevant acquirer named in the merchant application form to process transactions using the subscribed services throughout the service period. (If DNAP or the relevant acquirer has not authorised you, we will not be liable for you not being able to use the subscribed services.)

10.3. You must not:

10.3.1. resell, hire, lease, or otherwise make the subscribed services available to any third party;

10.3.2. use the subscribed services for any third party;

10.3.3. maintain or adjust any part of the subscribed services, or make any modifications to them; or 

10.3.4. alter or deface in any way anything that we provide in connection with the subscribed services.

10.4. The subscribed services enable you to accept transactions through the payment terminal when it is offline or in ‘flight mode’. You are responsible for regularly reconciling all transactions processed when the payment terminal is offline or in ‘flight mode’. We will not be liable for any loss or corruption of transactions or merchant data processed by the payment terminal when it is offline or in ‘flight mode’.

11. INTELLECTUAL PROPERTY

11.1. We (or third-party providers, where appropriate) own all intellectual property rights in and to all:

11.1.1. axept® services; and 

11.1.2. the documentation and our materials (services, data, information, content, websites, software and other materials created or provided by us, or on our behalf, in connection with the axept® services, excluding merchant data).

11.2. If third-party materials are made available to you in connection with any subscribed service, use of the third-party materials (including all licence terms) will be governed by the third party’s terms, not the agreement. We grant no intellectual property rights, or other rights, in or to any third-party materials.

11.3. We may use your feedback and suggestions for improving the axept® services as we see fit and without paying you for your feedback and suggestions. We will have all intellectual property rights in and to the feedback and suggestions provided to us.

11.4. Except for the rights expressly granted in the agreement, you (and any authorised user) will not gain any rights, including rights of ownership or intellectual property rights, in and to the axept® services (or any part of them, including the documentation). No intellectual property rights (whether yours or ours) are transferred or licensed as a result of the agreement.

11.5. This clause 11 will continue to apply after the agreement ends.

12. DEFENCE AGAINST IPR CLAIMS

12.1. As long as clause 12.2 below is met, and except as stated otherwise in clause 12.4 below, the following will apply:

12.1.1. We will, at our own expense, defend any IPR claim.

12.1.2. We will pay all costs and damages awarded or agreed in settlement or final judgment of an IPR claim.

12.2. Clause 12.1 above will only apply if you:

12.2.1. tell us as soon as you become aware of any actual or threatened IPR claim, giving us full written details;

12.2.2. do not say or do anything that may reduce our ability to defend or settle the IPR claim;

12.2.3. provide all help we reasonably need in relation to the IPR claim (for which we will pay your reasonable costs); and

12.2.4. give us, and only us, authority to defend or settle the IPR claim as we consider appropriate.

12.3. If any IPR claim is made against you, we may end the agreement immediately and refund an appropriate proportion of the subscription fees, or other fees of charges, you have paid in advance.

12.4. We will have no liability to defend or settle any IPR claim which arises as a result of or in connection with the following:

12.4.1. Any change made to the axept® services (or any part of them) without our permission in writing.

12.4.2. Any third-party materials.

12.4.3. Any merchant data.

12.4.4. Any free or trial services, or any support services provided in connection with them.

12.4.5. Any open source software (software that anyone is allowed to use, study, change and distribute for any purpose).

12.4.6. You breaking the agreement.

12.4.7. The axept® services (or any part of them) being installed or used other than in line with the agreement and the documentation.

12.4.8. The axept® services (or any part of them) being installed or used in combination with any software, hardware or data that has not been supplied or authorised by us.

13. MERCHANT DATA 

13.1. Merchant data will at all times remain the property of you or your licensors.

13.2. Unless applicable laws relating to data protection require otherwise, we have no control over any merchant data hosted as part of the axept® services, but we may monitor or have access to it. You are responsible for making sure the merchant data is accurate and complete, and that its use keeps to all applicable laws and to all intellectual property rights that apply.

13.3. If we become aware of any allegation that merchant data may not keep to our acceptable use policy or any other part of the agreement, we can, without consulting you, suspend, permanently delete or otherwise remove the merchant data from the axept® services and give the merchant data to law-enforcement authorities. Where reasonably possible and lawful, we will tell you before taking such action.

13.4. Unless we have agreed otherwise in the agreement, we do not at any time need to give you any help with extracting, transferring or recovering any data, including merchant data.

13.5. You are responsible for keeping backups and copies of any merchant data safe. You (or someone acting on your behalf) must regularly back up all merchant data (at intervals to meet your needs) and extract it from each subscribed service before the agreement ends or any of the axept® services end or are suspended.

13.6. We routinely back-up the subscribed services (which may include merchant data) for our own purposes. This does not make us responsible for making sure the merchant data does not become inaccessible, damaged or corrupted as a result. To the extent allowed by applicable laws, we will not be responsible for any unavailability or corruption of, or damage to, any merchant data.

13.7. Unless the merchant application form or the support service terms in appendix 1 say otherwise, or you and we agree otherwise in writing, we will, within 60 days of the axept® services (or any part of them) ending, dispose of any applicable merchant data (and all copies of it), unless any applicable laws require us to store the merchant data. We will have no liability whatsoever for deleting or destroying any merchant data in line with the agreement.

14. CONFIDENTIALITY AND SECURITY OF MERCHANT DATA

14.1. We will keep the merchant data confidential and not share or copy it without your written permission, other than as necessary for you to be able to use the axept® services, or for us to meet our obligations or apply our rights under the agreement.

14.2. We will maintain technical and organisational security measures in line with the data protection addendum.

14.3. We will:

14.3.1. provide the merchant data only to our personnel who need it for the purposes of the agreement; and

14.3.2. be responsible to you for anything that our personnel do or fail to do in connection with the confidentiality and security of merchant data.

14.4. This clause 14 does not apply to any merchant data, other than the personal data specified in appendix 1 of schedule 8, which is in the public domain through no fault of ours or our officers, employees, agents, contractors or subcontractors.

14.5. This clause 14 does not apply to any merchant data we need to use or share in order to keep to any applicable laws or court order.

14.6. This clause 14 will continue to apply for five years after the agreement ends.

14.7. We will make sure that any merchant data that is personal data specified in appendix 1 of schedule 8 will only be shared or used in line with the data protection addendum.

15. CONFIDENTIALITY

15.1. You must not share, copy or change our confidential information without our permission, unless you need to do so to meet your responsibilities or apply your rights under the agreement.

15.2. You must do the following:

15.2.1. Only share our confidential information with your personnel who need to know it for the purposes of the agreement.

15.2.2. Make sure that any of your personnel you share our confidential information with know that they must meet confidentiality obligations equal to those stated in this clause 15 and get them to agree to this.

15.2.3. Accept responsibility for the actions and failures of any of your personnel you share our confidential information with.

15.3. If you become aware of any unauthorised use, sharing, theft or loss of our confidential information, you must tell us straight away.

15.4. The obligations under this clause 15 will not apply to any information that:

15.4.1. becomes public knowledge without being disclosed by you or your personnel;

15.4.2. you lawfully receive from a third party without any obligation to keep it confidential;

15.4.3. you independently create without using or having access to our confidential information; or

15.4.4. has to be shared under any applicable laws (but you must tell us about this as soon as possible before sharing the information, unless applicable laws say you cannot tell us).

15.5. This clause 15 will continue to apply for 10 years after this agreement ends.

16. EVENTS BEYOND OUR CONTROL

16.1. As far as allowed by applicable laws, we accept no liability for any failure to meet, or any delay in meeting, any of our obligations under the agreement if this is a result of, or contributed to by:

16.1.1. you breaking the agreement; or 

16.1.2. any event or circumstances beyond our reasonable control.

17. LIMITS OF LIABILITY

17.1. Except as stated in clauses 17.2 and 17.6 below, our liability for each individual subscribed service (and the support services provided in connection with it) will be limited to:

17.1.1. the subscription fees paid for the relevant subscribed service in the 12 months immediately before the liability arose under the agreement; or

17.1.2. 12 times the subscription fees due or paid for the relevant subscribed service for the first month of the service period for that subscribed service,

whichever is higher.

17.2. Except as stated in clause 17.6 below, our liability for any individual free or trial services (and the support services provided in connection with it) will be limited to £100.

17.3. Except as stated in clause 17.6 below, our total liability altogether arising under or in connection with the agreement will be limited to:

17.3.1. the fees paid for all axept® services in the 12 months immediately before any liability under the agreement arose; or

17.3.2. 12 times the fees due or paid for all axept® services provided in the first month after we accept your order,

whichever is higher.

17.4. We will not be liable for any consequential, indirect or special losses (losses that are not a direct and foreseeable consequence of something we have done or failed to do).

17.5. We will not be liable for any of the following:

17.5.1. Loss of profit.

17.5.2. Destruction or corruption of data (other than personal data).

17.5.3. Loss or corruption of software or systems.

17.5.4. Loss of or damage to equipment.

17.5.5. Loss of use.

17.5.6. Loss of production.

17.5.7. Loss of contract.

17.5.8. Loss of business opportunity.

17.5.9. Loss of savings, discount or rebate (whether actual or anticipated) .

17.5.10. Harm to reputation or loss of goodwill.

17.5.11. Wasted expenditure.

17.6. Our liability for:

17.6.1. death or personal injury caused by negligence;

17.6.2. fraud or fraudulent misrepresentation; or

17.6.3. any other losses which cannot be removed or limited by applicable laws,

will not be removed or limited in any way.

17.7. This clause 17 will continue to apply after the agreement ends.

18. SUSPENDING OR ENDING SERVICES

18.1. We may suspend the axept® services (or any part of them), or end the agreement, if any of the following apply:

18.1.1. We suspect that the axept® services have been misused or the agreement has been broken.

18.1.2. You have failed to pay any amount due to us by the date it was due.

18.1.3. We are required to suspend access to the axept® services (or any part of them) or end the agreement by any applicable laws or court order. (Applicable laws may prevent us from giving you notice that we will suspend the subscribed services.)

18.1.4. DNAP or the relevant acquirer (as appropriate) has stopped processing your transactions for any reason, or requires the subscribed services to be changed in a way which is outside the scope of the agreement, and you cannot find a suitable replacement within the time frame that we specify.

18.1.5. We are required by applicable laws or any regulatory body to suspend or end the agreement or any part of it. 

18.1.6. You have repeatedly broken any of the terms of the agreement in a way that cannot reasonably be justified.

18.1.7. You are a sole trader or your business is a partnership and you or any partner in your business has died or has become insolvent (unable to pay amounts when they are due), whether or not formal or informal proceedings have started relating to that insolvency.

18.1.8. Any event (or series of related or unrelated events) has arisen which may, in our opinion, affect your ability or willingness to meet all or some of your obligations under the agreement.

18.1.9. In our opinion, anything affects you, or you do or fail to do anything, which damages (or could damage) our business, or the business of the acquirer or a payment scheme.

18.1.10. We have good reason to believe that the nature or type of business that you undertake has changed in a way that we don’t agree to.

18.2. We may end or suspend the free or trial services (and the related support services) at any time without giving you notice.

18.3. If we suspend the axept® services (or any part of them) because we suspect that they have been misused or that you have broken the agreement, we will take steps to investigate the matter. Depending on the outcome of the investigation, we will either maintain or lift the suspension.

18.4. If we suspend the axept® services (or any part of them) because you have failed to pay an amount to us when it was due, we will lift the suspension after we receive the payment in full.

18.5. The subscription fees and other fees and amounts described in this schedule 3 will continue to become due during the period of any suspension.

19. RENEWALS

19.1. When the first service period for a subscribed service ends, the service period will automatically renew for a further 12 months. The service period will then automatically renew on each anniversary of the first renewal.

19.2. If you or we want the service period to end on the next renewal date, you or we must give the other at least 30 days’ notice before the renewal date.

19.3. This clause 19 does not apply to free or trial services, which will not renew unless the merchant application form or order says otherwise.

20. CONSEQUENCES OF THE AGREEMENT ENDING

20.1. If the agreement ends for any reason, your rights under the agreement will end and you must do the following:

20.1.1. Stop using the axept® services.

20.1.2. Destroy and delete (or, if requested by us, return) any copies of the documentation.

20.1.3. Remove the axept® software from all payment terminals in line with our instructions (unless we remove the axept® software from all payment terminals).

20.1.4. Pay all amounts you owe under the agreement, whether or not they have yet been invoiced.

20.2. The agreement ending does not affect any rights and liabilities you or we had before it ended, or any clause that is intended to stay in force after the agreement ends (whether or not any such clause is expressly stated to stay in force).

20.3. If the agreement ends for any reason before the end of the minimum term set out in the merchant application form or order (or as amended by the agreement), you must also immediately pay us (as well all other amounts you owe us under the agreement):

20.3.1. a closure fee;

20.3.2. all subscription fees which would have been paid for the remainder of the minimum term; and

20.3.3. any buy-out contribution you must repay under clause 21 below.

21. BUY-OUT CONTRIBUTION

21.1. If you ended a third-party agreement in order to enter into the agreement, we will pay you a ‘buy-out contribution’ to cover the fees you must pay to the other party to end that third-party agreement, as long as:

21.1.1.  you ending the third-party agreement did not break the terms of that third-party agreement; 

21.1.2. the other party to that third-party agreement did not end the third-party agreement as a result of you breaking (or being suspected of breaking) the terms of that third-party agreement; and

21.1.3. within three calendar months of the agreement coming into force, you give DNAP an invoice issued by the other party to the third-party agreement for those fees.

21.2. The ‘buy-out contribution’ will be no more than:

21.2.1. the fees which relate directly to the cost of ending the third-party agreement (not including fees for any other services, or other costs or liabilities you have under or in connection with the third-party agreement); or

21.2.2. £500, including any VAT,

whichever is more.

21.3. If the agreement ends for any reason before the end of the minimum term set out in the merchant application form or order (or as amended by the agreement), you must, when asked, reimburse us for any ‘buy-out contribution’ we paid. The amount you must pay us will be calculated in line with clause 21.4.

21.4. We will work out the amount you need to reimburse by dividing the amount of the ‘buy-out contribution’ we paid by the number of months in the full minimum term, and then multiplying the result by the number of full or part months remaining in the minimum term when the agreement ends.

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 3 or in the Agreements (Rights of Third Parties) Act 1999 gives a third party any benefit under this schedule 3, 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 3, 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. This 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.

24.3. Nothing in this clause 24 restricts or removes liability for fraud.

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 3 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 3:

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.

APPENDIX 1 – SUPPORT SERVICE TERMS

1. SOFTWARE UPDATES

1.1. We will provide software updates when they become generally available. The software updates may include the following:

1.1.1. Error corrections (as described in section 3 of this appendix).

1.1.2. Security updates.

1.1.3. Updates needed to meet applicable laws.

1.1.4. Other improvements, modifications or extra features.

1.2. We will provide software updates and technical support only for the supported version. If you want to continue to receive software updates or technical support, you must switch to the supported version.

2. TECHNICAL SUPPORT 

2.1. You will have access to our helpdesk during the ‘support hours’, which are between 8am and 11pm UK time on Monday to Saturday, and between 9.30am and 5.30pm UK time on Sundays and bank holidays (except Christmas Day, when the helpdesk is not available).

2.2. Contact details for the helpdesk are on our website at https://optomany.com/.

2.3. We will keep a record of all requests for support and give each request a reference number. If we receive a support request by email, we aim to acknowledge the request within 30 minutes (during a ‘support hour’).

2.4. The table below shows the levels of severity of issues you may experience. 

3.1. Error corrections are:

3.1.1. changes or additions to the axept® software, which cause it to function substantially in line with the latest published specifications, if it hasn’t been doing so; or 

3.1.2. procedures or routines that, when followed, eliminate the adverse effects of the axept® software failing to function substantially in line with the latest published specifications.

3.2. If the axept® software is not functioning substantially in line with the latest published specifications, we will promptly start work to develop a correction that reflects the severity of the problem. We will not be responsible for correcting errors in any versions of the axept® software that are not the supported version.

3.3. For any severity 1 (critical) error in a supported version that you use in production, we will:

3.3.1. provide a ‘temporary fix’ to the axept® software;

3.3.2. then include the necessary error correction in subsequent software updates.

3.4. For other severities of errors, we will include the necessary error correction in subsequent software updates, which you will need to install.

4. EXCLUSIONS

4.1. We will not correct program errors if you will not maintain the correction, or errors that will be perpetuated by you, or which are caused by the manufacturer’s fault, including errors in the payment terminal’s software.  We do not have to provide support that is needed as a result of the following: 

4.1.1. Your negligence, or misuse of the axept® software.

4.1.2. Causes beyond our reasonable control.

4.1.3. Any communication software installed on hardware that is not supported by us.

4.1.4. Any SIM card that is not supported by us.

4.1.5. The axept® software being used in a way it was not designed for.

4.1.6. Any alterations or additions made to the axept® software, or any part of it, by anyone other than us.

4.1.7. Changes to the operating system, or environment, which have an adverse effect on the axept® software, or any part of it.

4.1.8. The axept® software, or any part of it, being used in combination with other hardware or software products not authorised or supported by us. 

4.1.9. The axept® software, or any part of it, being used on an unsupported platform or without the necessary licence.

4.1.10. Data which is not in our specified data format.

4.1.11. Any other cause which, in our reasonable opinion, is not built into the axept® software.

5. ON-SITE SUPPORT

5.1. We will provide technical support remotely (not on your premises) unless you and we agree otherwise. If we agree to provide on-site support, we may charge the following daily rates for that support:

5.2. The amount you must pay for on-site support includes charges for:

5.2.1. staff time; and

5.2.2. reasonable charges for travel and accommodation (if necessary); 

5.2.3. miscellaneous expenses; and 

5.2.4. any taxes that apply.