Terms & Conditions

NOW IT IS AGREED AS FOLLOWS:

1. Definitions

"Cardholder(s)" Means a consumer(s) using a credit or debit chard to pay for goods or services supplied by a Merchant using the Facility Service;
"Facility Service" Means the card payment processing services by which Cardholders pay Merchants;
"Fee" Means the fee of £25 in respect of each Merchant purchasing a 'Gateway' product or the fee of £50 in respect of each Merchant purchasing a 'Bureau' product, as detailed in the email sent to You confirming the access codes for the Site payable by Us pursuant to the terms of clause 2.1 and which are subject to variation by Us from time to time;
"Confidential Information" Means information of any kind which is confidential by its nature and in any form provided by or obtained from one party ("Discloser") to or by the other party ("Recipient") relating to the other or its business methods, customers or suppliers, and includes in particular (but without limitation) all matters concerning the Facility Services and also all Intellectual Property Rights;
"Intellectual Property Rights" Means patents, trade marks, service marks, design rights (whether registrable or otherwise), copyright, moral rights, know-how, trade secrets, rights in databases and other similar rights or obligations whether registrable or not in any country;
"Merchant" Means an entity that processes payments from Cardholders using any of the Facility Services;
"Merchant Agreement" Means a Merchant Agreement to be entered into between Us and a Merchant on terms acceptable to Us in respect of the use of the Facility Service by that Merchant, as and referred to in clause 2.1;
"PayPoint Group" Means any and all companies which are subsidiaries of PayPoint plc (company registered number 3581541);
"Permitted Purposes" Means (a) discussions and negotiations between the parties hereto concerning the entering into or operation by Us of Merchant Agreements, (b) the demonstration of the Facility Service to potential Merchants and (c) the installation of the required part(s) of the Facility Service for use by a Merchant under a Merchant Agreement - and no other purposes whatsoever;
"Site" means the web site at www.paypoint.net/partner or such other site as may be notified to You by Us from time to time;
"We, Us or Our" Means PayPoint.net Limited (company number 3539217) whose registered office is at 1 The Boulevard, Shire Park, Welwyn Garden City, Herts AL7 1EL.

2. Payment of Fee

2.1 Upon the direct introduction to either or both of Us by You of a Merchant who wishes to enter in to an agreement with Us to use the Facility Service, and upon that Merchant being acceptable to Us and providing all forms of security and information as We may require, and upon that Merchant then signing a legally binding Merchant Agreement with Us, We agree to pay You a Fee which shall be payable in accordance with clause 2.2, subject to the Merchant having paid to Us all the sums due under the Merchant Agreement and also to the Merchant going live.
2.2 PayPoint.net will send You up to two reports via email on the 15th day of each month for the duration of this Agreement of the term of thePayPoint.net, where You are provided with two reports each report shall each relate to different products provided by PayPoint.net or the PayPoint Group (the "Report"). On receipt of the Report You shall send Us an invoice which shall reflect the Report. PayPoint.net shall pay You the Commission by BACS transfer 10 banking days following the receipt by Us of a correct invoice. The invoicing procedure as set out in this clause 2.2 shall be subject to change by Us at any time on giving You reasonable notice.
2.3 A Merchant will not be deemed to be introduced to Us by You if:

2.3.1 We or any other member of the PayPoint Group have a pre-existing relationship with the Merchant or with any business entity in which the Merchant has an interest; or
2.3.2 We or any other member of the PayPoint Group have a pre-existing relationship with, or have previously come in to contact with any director or officer or owner or senior manager of the Merchant in that or in any other capacity; or
2.3.3 The Merchant is more directly introduced to Us by another introducer or is not introduced to Us primarily by Your efforts.

2.4 In the event of any dispute, the onus will be on You to prove that you were the primary introducer of a Merchant and that a Merchant Agreement, on terms acceptable to us, was signed as a result of that introduction.
2.5 You shall have such functionality as is from time to time made available to You online at the Site by Us via the partner relationship management user login tool.
2.6 You are responsible for Your own connection to the internet in order to use the Site and for ensuring that You have adequate internet bandwidth, via Your internet service provider, so as to provide adequate browser response times. In order to access the Site You must have available the operating systems and browser as notified to You by Us and adhere to the settings required by Us. These requirements are subject to alteration by Us on notice due to the development of the Site, the internet, the Facility Service and this program.
2.7 Routine maintenance of the Site shall usually take place at such hours as are likely to cause the least inconvenience to You.
2.8 You will initially have to set up an access code to access the Site, You will then be responsible for the access code's safekeeping and shall have procedures in place to limit access and loss, including (without limitation) only allowing up to three of Your senior employees to have access to the Site. We shall not be responsible for any losses, liabilities and expenses due to or arising from any failure to keep the access code safe in accordance with this clause 2.10.
2.9 Any materials appearing on the Site are not intended to amount to advice on which reliance should be placed. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by You. The material displayed on the Site is provided without any guarantees, conditions or warranties as to its accuracy.
2.10 Any material You upload to the Site will be considered non-confidential and non-proprietary, and We have the right to use, copy, distribute and disclose to third parties any such material for any purpose.
2.11 You must not misuse the Site by introducing viruses or other material which is technologically harmful. You must not attempt to gain unauthorised access to the Site, the server on which the Site is stored or any server, computer or database connected to our Site.
2.12 If You have any concerns about any of the contents of the Site including any unauthorised use then You must contact us immediately at marketing@paypoint.net.
2.13 2.13 We reserve the right to suspend Your access to the Site at any time without notice to You.

3. Confidentiality

3.1 Each party shall at all times during and after termination of this Agreement for so long as is permissible at law:

3.1.1 Keep confidential all of the Discloser's Confidential Information in whole or in part, and not disclose it to any third party;
3.1.2 Use the Discloser's Confidential Information bona fide only for the Permitted Purposes;
3.1.3 Exercise in relation to all Confidential Information no lesser security measures and degree of care than those which it applies to its own confidential information, each party hereby warranting to the other that its security measures provide adequate protection against unauthorised disclosure, copying or use;
3.1.4 Allow access to the Confidential Information of the other party only to those persons who need access for the Permitted Purposes and to notify each of such persons of the confidential nature of the said Confidential Information before allowing them such access;
3.1.5 Obtain from any person to whom it intends to disclose the Discloser's Confidential Information a written obligation of confidence on no less onerous terms than are contained in this Agreement, send a copy thereof to the Discloser and fully enforce the terms thereof;
3.1.6 Not make any copies of any documents, programs or other matter comprising or containing the Discloser's Confidential Information save as absolutely necessary for the Permitted Purposes;
3.1.7 Return all of the Discloser's Confidential Information as is in written form and all copies thereof to the Discloser immediate upon request and in any event immediately upon termination of this Agreement, together with a certificate signed by a director of the Recipient confirming that the Recipient has retained no copies and that, so far as it is aware, none exist in the possession of any third party save as already being used by a Merchant under a Merchant Agreement.

3.2 The provisions of clause 3.1 shall not apply to any Confidential Information which:

3.2.1 is or comes into the public domain other than due to a breach of this Agreement by the Recipient; or
3.2.2 the Recipient can prove (by it being in its use or being recorded in its files or computers or other recording media) was already in its possession or known to it before being obtained from the Discloser; or
3.2.3 is required to be disclosed by an order of any court of competent jurisdiction provided that the Recipient has given the Discloser notice as soon as is reasonably practicable of the intention to discloser and the disclosure is limited to the letter of the court order.

4. Term

This Agreement shall come into force immediately and shall operate for an initial period of 12 months. At the end of the initial period, this Agreement shall be automatically extended for additional one year periods without notice unless either party serves written notice of termination on the other no later than 60 days and no earlier than 90 days prior to the end of the then current term, in which case, this Agreement will automatically terminate at the end of the said term.

5. Termination

5.1 Either party may terminate this Agreement at any time by written notice in the event that the other party materially breaches this Agreement and fails to remedy the breach within 30 days of written notice of such material breach.
5.2 Without prejudice to their other rights, either party may terminate the Agreement on giving written notice to the other, taking immediate effect if an interim order is made or a voluntary arrangement approved, or if a petition for a bankruptcy order is made against the other party or if a receiver or trustee is appointed of its estate or a voluntary arrangement is approved or an administration order is made, or a receiver or administrative receiver is appointed of any of its assets or undertaking or a resolution or petition to wind the party up is passed or presented (otherwise than for the purpose of reconstruction or amalgamation), or if any circumstances arise which entitle the court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order.
5.3 Notwithstanding anything else in this Agreement to the contrary, we may terminate this Agreement by service on You of at least 30 days written notice.

6. Consequences of Termination

Termination of this Agreement shall not affect any accrued rights or liabilities of either party, nor of the operation of clauses 3, 4 and 5.

7. Liability

7.1 You shall indemnify Us and keep Us indemnified against any loss, liability, damage, cost or expense (including reasonable legal fees) arising out of any claim or liability of whatever nature and however arising which may be suffered by or brought against Us by reason of Your breach of this Agreement.
7.2 For the avoidance of doubt, it is expressly agreed that save for any Fees that are validly due We shall not be liable to You or to any third party in respect of any claim suit, demand, expense, cost or other liability in any way arising from or in respect of this Agreement or the Facility Service. In particular but without limitations We shall not be liable for:

7.2.1 any misuse or fraudulent use by any person of the Facility Service;
7.2.2 any content or information inputted by You.

7.3 For the avoidance of doubt, neither party is seeking to limit its liability with respect to any claim for death and/or personal injury.

8. Intellectual Property Rights

Neither party shall acquire any rights to Intellectual Property Rights belonging to the other as a result of the provisions of this Agreement.
You shall not use the name, brand and/or logo of PayPoint.Net and/or any other member of the PayPoint Group ("PayPoint Brand") without the prior written consent of Us. We shall notify You in writing, from time to time, of the way in which you are licensed to use the PayPoint Brand during the term of this Agreement. Any such use shall only be permitted in order to promote Our services and shall not be used in a negative or derogative manner.

9. Assignment/Sub-Contracting and Joint Referrals

9.1 You may not assign or otherwise transfer any of Your rights or obligations under this Agreement without Our prior written consent.
9.2 We shall have the right to assign, sub-contract or otherwise transfer all or any of Our rights under this Agreement.

10. Force Majeure

Neither party shall be liable to the other under this Agreement for any loss or damage which may be suffered by the other party due to any cause beyond the first party's reasonable control, including without limitation any Act of God, inclement weather, failure or shortage of power supplies, network failures, inability to obtain telecommunications services, flood, drought, lightening or fire, the act or omission of Government, other telecommunications operator, war, military operations, acts of terrorism or riot, difficult, delay or failure in manufacture, production or supply by third parties of equipment or services.

11. Entire Agreement

11.1 This Agreement represents the entire understanding between the parties in relation to its subject matter and supersedes all prior agreements, understandings or arrangements made by either party whether oral or written. Any waiver, variation or amendment of any term or condition of this Agreement shall be effective only if signed by authorised representatives of both parties hereto.
11.2 Each party acknowledges that it is not entering into this Agreement in reliance on any representation of the other except those contained in this Agreement and in the event of misrepresentation (other than fraudulent misrepresentation) the only possible remedy available shall be a claim for a breach of contract.

12. Dispute Resolution

If any dispute or difference shall arise between the parties in relation to or in connection with this Agreement then the following shall be adopted:
12.1 either party may request appropriate senior managers meet (or hold a telephone conference call) to discuss the dispute in which case the meeting or conference call shall take place within seven days of the date of the request;
12.2 if neither party has made a request under clause 14.1, or if the procedures set out therein are unsuccessful, then the matter shall be referred to the English courts.

13. Third Party Rights

A person who is not a party to this agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party that exists or is available apart from that Act.

14. Waiver and Severability

14.1 Failure by either party to exercise or enforce any right conferred by the Agreement shall not be deemed to be a waiver of any such rights, nor operate so as to bar the exercise or enforcement thereof or of any other right on any later occasion.
14.2 Each provision of this Agreement is separate and severable. If any is found to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in force.

15. Counterparts

This Agreement may be executed in any number of counterparts which taken together shall constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission.

16. No Partnership

16.1 Regardless of the title of this Agreement, this Agreement does not constitute and shall not be construed as constituting a partnership, agency or joint venture between either or both of Us and the Affiliate. No party shall have any right to obligate the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.
16.2 The parties acknowledged that You do not have any exclusive rights to promote our business to Merchants or our potential customers.

17. Notices & Variation

17.1 Any written notice may be delivered in person or sent by email, post, airmail or by fax to:

17.1.1 You at the address shown in Our records as notified by You from time to time; and
17.1.2 Us at 46-48 East Smithfield, London, EIW lAW, UK.

17.2 Notices shall be deemed duly given 48 hours after posting by first class post (72 hours if second class and airmail), or immediately if delivered in person or if by email or fax then at the time of transmission if within normal business hours failing which the start of the next business day.
17.3 You agree that We may vary this Agreement from time to time. Any such variation shall become effective by Us notifying You in accordance with this Clause.
17.4 You agree that we may act on email notices or instructions that reasonably appear to emanate from You or an authorised employee or agent.

18. Governing Law

This Agreement shall be governed by and construed and interpreted in accordance with English law and the parties hereby submit to the non exclusive jurisdiction of the English courts.