01/02/17 Merchant Services
Terms and Conditions
IMPORTANT NOTE: THESE ARE THE STANDARD TERMS AND CONDITIONS PURSUANT TO WHICH WE WILL PROVIDE THE CASHFLOWS ACQUIRING SERVICES, AND ANY ADDITIONAL SERVICES TO YOU, AND ON WHICH WE INTEND TO RELY. FOR YOUR BENEFIT AND PROTECTION, YOU SHOULD READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ACCEPTING THEM. IF YOU DO NOT UNDERSTAND ANY POINT PLEASE ASK FOR FURTHER INFORMATION.
THESE TERMS AND CONDITIONS are entered into between CashFlows Europe Limited, CPC1, Capital Park, Cambridge CB21 5XE, United Kingdom, a company registered in the United Kingdom under company register number 05428358 ("CashFlows", "we", "our", "us") and you the merchant ("you", "merchant") and become legally binding on the Operative Date.
CashFlows is authorised and regulated by the Financial Conduct Authority under the Electronic Money Regulations 2011 for the issuing of electronic money and related payment services (firm reference number: 900006).
"Additional Services" means any product or service provided to you by us or our affiliates from time to time in addition to the CashFlows Acquiring Services including, but not limited to, the CashFlows Business Account;
"Applicable Laws"; means all laws, statutes, statutory instruments, acts, regulations, orders and directives including but not limited to the Banking Act, the Financial Services and Markets Act 2000, the PSRs and the Electronic Money Regulations 2011, and all orders, regulations and rules issued there under, as amended from time to time (including for the avoidance of doubt the Money Laundering Regulations 2007, and related schedules, as well as legislation, regulations and guidance notes relating to money laundering and terrorist financing, including those which implement Directive 2005/60/EC), the Consumer Credit Act 1974, the DPA and all codes of practice and guidance issued by government agencies, self-regulatory bodies and trade associations (whether or not having the force of law) including, the Information Commissioner, the Direct Marketing Association, the Advertising Standards Authority, the Office of Fair Trading, the Financial Conduct Authority and the Card Schemes or any other relevant trade or industry body applicable to the conduct of our business or in connection with their rights and obligations under this Agreement;
"Application" means your application to us for the provision of any of the Services;
"Approved Products" means the goods and/or services you provide to Cardholders and which we have approved in writing either as part of the Application or from time to time thereafter;
"Assessments" means any and all assessments, fines, levies, costs, expenses, charges, liquidated damages or imposition of liabilities of any nature which a Card Scheme or any other third party levies on you or us at any time, directly or indirectly, in relation to any aspect of our relationship with you under these Terms and Conditions (examples of Assessments can be found on our website at http://support.cashflows.com/merchant-monitoring);
"Authorisation" means the process whereby we obtain at the time of the Transaction (directly or indirectly, for example, where the Gateway Services are provided by a third party) from the Card Issuer confirmation that the Card has not been listed as lost or stolen and that there are sufficient funds for the relevant Transaction;
"Bank Account" means an account held in your name maintained at a Bank or financial institution acceptable to us and held in the currencies in which we receive funds for Remittance (which may be any of Pounds Sterling, Euro or US Dollar) in order to facilitate payment of Remittances;
"Card" means a credit, debit, charge, purchase, prepaid or other card issued by a Card Issuer and licensed by a Card Scheme which we have agreed to process in accordance with these Terms and Conditions (as notified by us to you from time to time);
"Cardholder" means a Person who or which is the authorised user of a Card;
"Card Issuer" means a financial institution which issues Cards;
"Card Schemes" means Visa Europe, Visa Inc, MasterCard Worldwide and/or such other scheme that offers a payment method that is accepted by CashFlows for processing;
"Chargeback" means where a Card Issuer or Card Scheme requires repayment in respect of a Transaction previously settled to us and/or Remitted to you, notwithstanding that Authorisation may have been obtained (and for the purposes of this definition a Transaction shall also include a Transaction where a Cardholder has used his Card in order to purchase and/or load value onto a prepaid card or prepaid account issued or provided by us and such prepaid value (or part of it) is used to purchase goods or services from you);
"CashFlows Acquiring Services" means the services allowing you to accept Cards in order to initiate Transactions pursuant to the Rules, to receive payment for Transactions via Remittances, to affect Refunds and any related or supporting services as provided by CashFlows to you under these Terms and Conditions and, where such services are provided by us, the Gateway Services;
"CashFlows Business Account" means a payment account which we may, on request, make available to merchants in accordance with the CashFlows Business Account terms and conditions found on our website;
"Confidential Information" means information that is designated as "confidential" or which by its nature is clearly confidential including any information relating to a Cardholder or a Cardholder's use of a Card or information concerning any one of the Card Schemes or information concerning our or (as the case may be) your technology, technical processes, procedures, business affairs, finance, security procedures and premises and may take the form of (but is not limited to) documents, technical specifications, unpublished patent specifications, data, drawings, plans, processes, photographs, databases, computer software in disk, cassette, tape or electronic form and items of computer hardware or oral descriptions or demonstrations;
"Contract" means our contract with you for the provision of the Services which is made up of these Terms and Conditions, the Application, the Pricing Plan, and where you have requested us to provide Additional Services, the supplemental terms and conditions relating to the provision of the relevant Additional Services;
"Control" means the right to control directly or indirectly, the activities of a Person, whether through ownership or the ability to control the voting powers of shares, the ability to control the board or management of such Person or otherwise (and "Controls" and "Controlled" shall be construed accordingly);
"Copy Request" means a request from a Card Scheme or Card Issuer which we pass on to you for information regarding a Transaction which is the subject of a potential Chargeback or a Dispute;
"Credit Transaction" means a Payment Transaction (as defined by MasterCard) or Original Credit Transaction (as defined by VISA) that results in a credit to the account of a Cardholder for a purpose other than processing a Refund;
"Data" means documents, data and records of any kind relating to Transactions (including, for the avoidance of doubt, data relating to Cards and Cardholders);
"Dispute" means any issue concerning a Transaction or concerning your behaviour which is relevant to the Services which is raised with us by any third party;
"DPA" the Data Protection Act 1998 and all other applicable data protection legislation codes and published guidance in force from time to time;
"Fees" means the fees payable by you to us for the provision by us of the Services as set out in the Pricing Plan or as notified to you by us from time to time;
"Fixed Fee" means the fixed fee charged as part of the Merchant Service Charge as set out in the Pricing Plan;
"Fraud Report" means a report notified to us by a Card Scheme or Card Issuer relating to a Transaction or Transactions which are believed to be in some way fraudulent as notified by us to you;
"FX Margin" means 3% of the relevant Oanda exchange rate or such other FX margin as may be set out in the Pricing Plan;
"Gateway Services" means the provision of a communication network to transfer Transaction information between the payment page of your online store and the payment processing system we use to deliver the CashFlows Acquiring Services;
"Group Companies" means CashFlows, any subsidiary or holding company from time to time of CashFlows and any company which is a subsidiary from time to time of any holding company of CashFlows;
"Gateway Services Fee" means the fee payable by you to us for the provision of the Gateway Services which, where relevant, will be set out in the Pricing Plan.
"High Risk Warning Fee" means the fee set out in the Pricing Plan payable by you to us each time a fraudulent transaction is reported to us under this Contract;
"Intellectual Property Rights" means any and all intellectual property rights of whatever nature including patents, inventions, know-how, trade secrets and other confidential information, registered designs, copyrights, database rights, rights in software, design rights, rights affording equivalent protection to copyright, trademarks, service marks, logos, domain names, business names, trade names, moral rights, and all registrations or applications to register any of these, rights in the nature of unfair competition rights and rights to sue for passing off and all such rights in any country or jurisdiction;
"Interchange Fees" means the fees charged to us by the Card Issuer which relate to the processing of a Transaction;
"Merchant Service Charge" means our Fees excluding the Interchange Fees, the Scheme Fees and any other fees charged to us by the Card Issuer or Card Schemes, and which we charge to you;
"Online Portal" means the secure online system that allows you and us to manage and exchange information in relation to the Services;
"Operating Instructions" means any operating instructions setting out procedures, information and instructions which you must follow in connection with the Services provided by CashFlows and any amendments from time to time;
"Operative Date" means the date when we process your first Transaction;
"PCI DSS" means the Payment Card Industry Data Security Standards published and updated from time to time by the Payment Card Industry Security Standards Council at https://www.pcisecuritystandards.org and which merchants and others processing Data must comply with;
"Person" means any individual, corporation, firm, unincorporated association, government, state or agency of a state and joint venture;
“Pricing Plan” means the document setting out the Fees payable by you for the Services and provided to you following submission of your Application;
"Primary User" means your representative (as notified to, and approved by us as part of your Application) authorised by you to access the Online Portal;
"PSRs" means the Payment Services Regulations 2009 (and any amendments made to the PSRs from time to time);
"Reason Code" means codes designated by some or all of the Card Schemes categorising undesirable or non-compliant acts or omissions of merchants;
"Refund" means the reimbursement of a Transaction to a Cardholder at your request (or as initiated by us in accordance with these Terms and Conditions) by such electronic means as shall have been approved by us which represents the complete or partial reversal of a Transaction with the intention of crediting the Cardholder's account;
"Remittance" means the payment due to you from us in respect of Transactions (and "Remitted" shall be construed accordingly);
"Rules" means the rules, regulations, operating guidelines and procedures issued by the Card Schemes pertaining to Cards, Cardholders, Transactions and any related activity including the processing of Data (as amended or extended from time to time);
"Scheme Fees" means the fees charged by the Card Schemes which we incur and which relate to the processing of a Transaction;
"Security Credentials" means the password and username that is required for accessing the Online Portal;
"Services" means the CashFlows Acquiring Services, the Gateway Services (where provided by us) and, where relevant, any Additional Services provided to you;
"Trading Limit" means any limit on the aggregate value of Transactions that you may complete in any specified period which we may notify to you from time to time;
"Transaction" means any payment to you for goods or services using a Card, or any Refund, or otherwise to debit or credit the applicable Cardholder's account with the Card Issuer; and
"Void Transaction" means a transaction which is abandoned by you or by the Cardholder or by us after an Authorisation has been obtained but before the Cardholder account has been debited.
We shall be entitled to charge you interest at the rate of 3% per annum over the Bank of England Base Rate on all amounts due in accordance with the terms of the Contract for the period they remain payable but unpaid. If we charge you interest, we will notify you in the relevant statement of fees that will be provided by us to you from time to time via the Online Portal.
You acknowledge that if you breach these Terms and Conditions or the Rules we may be required to provide information to the Card Schemes or the Persons nominated by them on the nature of the breach (including where relevant the Reason Code), your business, your conduct relating to the Contract and your principals or officers. You further acknowledge that the Card Schemes may retain and store this information in a database for use by the Card Schemes or related third parties to assist in identifying merchants involved in, amongst other things, fraud or suspected fraud, insolvency, or breaches of a merchant services agreement. You agree and consent to such reporting by us in the event of your breach and you agree that where we have acted in good faith we shall have no liability to you in relation to any of the information we provide to any third parties pursuant to this clause 21.
11/03/13 CashFlows Business Account Terms and Conditions
GENERAL TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS are entered into on the Operative Date in accordance with the Provisions herein.
These Terms and Conditions govern the relationship between (i) CashFlows Europe Limited of CPC1, Capital Park, Cambridge, United Kingdom, CB21 5XE, a company registered in the United Kingdom under company registration number 05428358 (CashFlows", "We", "Us, "Our"), and (ii) You (the CashFlows Business Account holder) which:
The CashFlows Business Account is available to customers based in the EEA. Money held in these accounts is held by CashFlows Europe Limited in its capacity as an E-Money Institution authorised by the Financial Conduct Authority (FCA) in accordance with the provisions of the E-Money Regulations 2011 (FCA reference number 900006). It is held in designated accounts which are segregated from CashFlows' own assets at one or more banks, as selected by CashFlows.
We are also licensed by Visa Europe and Mastercard to accept payments from merchants (acting as an "Acquirer"). If You wish to benefit from Our Acquiring Services, our Acquiring Services, please see our Website for further details.
The following documents are incorporated into and form part of the CashFlows Business Account Terms and Conditions:
Any terms and conditions implied by law will also apply to Our relationship with you except to the extent that the law permits Us to amend them by any particular terms and conditions relating to a CashFlows Business Account, the Services and these Terms and Conditions.
We may amend these Terms and Conditions by giving You at least 2 months' prior notice in accordance with Clause 14. If You do not accept the change, the provisions of Clauses 14 and 17 below will apply. If We do not hear from You before the change comes into effect, then You will be deemed to have accepted it and it will take effect on that date. We may also agree separate terms with You in writing.
Every Application is considered individually and the provision of these Terms and Conditions do not guarantee or imply acceptance by Us of any Application. We reserve the right to reject an Application should it be considered appropriate to do so.
Your CashFlows Business Account shall be opened for an initial period of 12 months (the "Initial Term") and will continue automatically for subsequent periods of 12 months unless notice to terminate is served by Us or You before the end of the Initial term or any subsequent renewal period in accordance with clause 17.
please see Our Website for the applicable terms and conditions.
Credit Reference Checks
17/07/12 CashFlows Prepaid Card
Terms and Conditions
These terms and conditions apply to your reloadable Prepaid Card. You must read them carefully. In these terms and conditions "you" means the named primary Cardholder and Additional Cardholder and anyone properly authorised as a user of the Card.
The Card and, any Additional Cards and the CashFlows Business Account will be operated by CashFlows Europe Limited ("we", "us" or "our").
"CashFlows Business Account" means your account with us into which payments are received (including where relevant from your customers though our CashFlows Acquiring Service) or as otherwise authorised by us from time to time and from which you can use funds to make payments and also to load value onto your Card, and "Website" means our website at www.cashflows.com
You can use the Card at any location that displays the Visa/Mastercard acceptance mark, including shops, restaurants, online, or on the telephone. You can also use your Card overseas. Before using the Card you need to make sure there are enough funds loaded on it. You will not be able to use your Card after its expiry date. However we will issue you with a new Card prior to expiry in accordance with the terms of this agreement.
Your Card is not a credit card. It is for use in association with your CashFlows Business Account. It is not in any way connected to your bank account.
You will not earn any interest on any funds loaded on your Card.
Where you have requested additional cards for your account, you authorise us to issue such Cards ("Additional Cards") and a PIN to the designated Cardholder(s) ("Additional Cardholders") and you authorise each Additional Cardholder to authorise transactions on your behalf.
In these terms and conditions the term "Card" shall include "Additional Cards" where the context admits or requires.
To be eligible for a Card you must be a UK based business with a CashFlows Business Account with us. Sole traders, partnerships, limited companies and other approved entities as specified by us from time to time are eligible. We will require evidence of who you are and your address. We may ask you to provide some documentary evidence to prove this and/or we may carry out checks on you electronically.
Cards and Additional Cards will be issued in our absolute discretion and subject to availability.
You must sign the signature strip on the back of the Card as soon as it is received. You will also need to activate your Card before you will be able to use it. Details of the Card activation process are on our Website. Please refer to our Website for all Card loading options and to the "Loading your Prepaid Card" section below.
By using the Prepaid Card you are agreeing to these terms and conditions.
Funds can be loaded to your Card from your CashFlows Business Account. Follow the instructions at the Website.
The maximum initial load on your Card is £10,000.
Your Card cannot be loaded more than twice in any one day.
The balance on your Card can never exceed £10,000 at any time.
We reserve the right to refuse to accept any particular loading transaction.
Please see the fee summary table on the Website for loading timescales.
Detailed instructions on how to use your Card are found on the Website.
We will deduct the value of your transactions from the balance on Your Card as soon as they are made. We will also deduct any applicable fees as soon as they become payable by you. See the Fees section of our Website for details of our fees.
The Card and any Additional Cards belong to us. We may ask you to stop using your Card and any Additional Card and return it to us or destroy it. We may at anytime suspend, restrict or cancel your Card or refuse to issue or replace a Card for because:
If we do this, we will tell you as soon as we can or are permitted to do so after we have taken these steps.
Like other payment cards, we cannot guarantee that a retailer will accept your Card. We may also refuse to pay a transaction:
If we refuse to authorise a transaction, we will, if practicable, tell you why immediately unless it would be unlawful for us to do so. You may correct any information we hold and which may have caused us to refuse a transaction by contacting us, using the Website.
Subject to the features of the particular Card, the authorisation of a transaction can include authorising any single transaction, a series or recurring transactions (including transactions for an indefinite period) or pre-authorising future transactions of a certain or uncertain amount.
A Card transaction will be regarded as authorised by you where you;
Authorisation for a transaction may not be withdrawn (or revoked) by you after the time it is received.
A transaction (the payment order) will be received as follows:
It is your personal responsibility to ensure you do not spend more than the amount of the funds you load.
When you carry out a transaction the company involved will take a 'pre-authorisation' to reserve the amount they intend to collect. Some companies will pre-authorise a higher or lesser amount than the cost of the transaction. The funds are usually collected from your account when the company has requested a settlement for the transaction following completion of the transaction.
Pre-authorisation reserves the funds from your available balance for generally a maximum of 30 days. After this time if the monies have not been collected by the merchant they will return to your available balance again. This is because if the transaction did not take place you may want to re-spend the funds elsewhere.
Please be aware that the amount £50 has been reserved on your Card for offline transactions (where the transaction is taken as authorised even though the merchant has not at the time of sale been able to contact the card schemes). This amount is not available as part of your loaded funds for internet transactions.
It is important to consider that although transactions are pre- authorised at the time an order is placed, for some purchases such as mail order, your account may not be debited until the goods are despatched, which may be longer than 30 days. Therefore you must make allowances for this in your spending to prevent your account falling into a debit balance. The same would apply to car hire companies who will take a pre-auth upon your collection of the hire vehicle but will only debit your account at the end of the hire period.
This agreement will continue indefinitely unless terminated. You have the right to cancel your Card at any time without notice and any balance will be returned to you within 5 days subject to satisfactory checks being completed.
We may also cancel your agreement for any reason by giving you at least 2 month's notice:
We may also cancel this agreement or suspend your Card or CashFlows Business Account immediately if we believe your Card is deliberately being used by you to commit fraud or for other illegal purposes. If we do this we will tell you as soon as we are permitted to do so.
If we or you cancel your Card you must tell us what you want us to do with any unused funds within 3 months of the date your Card is cancelled.
If your Card is cancelled, we will immediately block your Card so it cannot be used.
You will not be entitled to a refund of money you have already spent on transactions authorised, or pending or any fees for use of the Card before the Card is cancelled or expires. You can cancel your Card by sending an email to us using the "contact us" function on the Website, and confirming that you have destroyed your Card.
If you cancel your Card, once all transactions and fees have been deducted, we will arrange for any unused funds to be refunded to you, see "Your Right to a Refund" section below for further information. A Refund Fee may be charged unless you have arranged to transfer any unused funds to another Card managed by us.
Your Card will be valid for three years. When it expires, unless we are told otherwise, we will issue you with a replacement card.
You should treat your Card like cash. If it is lost or stolen, you may lose some or all of your money on your Card, in the same way as if you lost cash in your wallet or purse. As a result, you must keep your Card safe and not let anyone else use it. If you are issued with a PIN, you should memorise the PIN, then destroy the notification. You must keep your PIN secret at all times. You should not write your PIN down or reveal it to anyone. You can change you PIN to something more memorable at most ATM machines by following the on screen instructions.
We recommend that you check the balance on your Card regularly online at the Website. We will provide you with your Card balance and a statement of recent transactions on our secure webpage at any time. Your statement will show:
You must tell us without undue delay by calling us on our 24 hour lost and stolen card helpline (01223 550920) if you know or suspect that a Card is lost or stolen or that the PIN or password is known to an unauthorised person or if you think a transaction has been incorrectly executed.
Provided you notify us and you have not acted fraudulently or with gross negligence we will refund the amount of any transactions which our investigations show are not authorised by you.
However, if the investigations show that any disputed transaction was authorised by you, or you have acted fraudulently or with gross negligence (for example by failing to keep your Card or PIN secure), you may be liable any loss we suffer because of the use of the Card.
We will not be liable for any loss arising from:
We are also not liable for:
You are responsible for the use your Card and any Additional Cards by anyone authorised by you and for any fees and charges that they may incur. You may cancel any Additional Card at any time.
The Funds on your Prepaid Card
You may request a refund of the funds on your Card provided the balance is greater than the Refund Fee. To do so, send us an e-mail using the "contact us" facility on the Website requesting a refund and confirming that you have destroyed your Card by cutting it up. When we process your refund, we may charge a Refund Fee (as stated in the fee table on our website).
We will credit any refund to the balance on your CashFlows Business Account. However, to enable us to comply with our legal obligations, we may ask you to provide us with certain information before we can process your refund request.
You may be entitled to claim a refund in relation to transactions where:
A claim for a refund in the circumstances set out above will not be accepted if the amount of the transaction was made available to you at least 4 weeks before the transaction date or it is made more than 8 weeks after being debited to your account.
We may change these terms at any time by notifying you by e-mail or other agreed means at least two months before the change is due to take effect (unless any change is solely to your advantage when it can be effected immediately). The up-to-date version of the Card terms and conditions will always be available on the Website. Any change will automatically take effect and you will be taken to have accepted the notified change unless you tell us that you do not agree to the change. In that event, we will treat that notice as notification that you wish immediately to terminate. In such circumstances we will refund any balance on the card in accordance with section 10 above and you will not be charged a Refund Fee.
A table of our relevant fees is available on the website.
We do not charge any fees for checking your on-line balance and transactions. However when you use your Card at an ATM, you may be subject to applicable fees, surcharge rules and regulations of the relevant ATM, or other financial institution or association.
If we decide to increase or impose any new fees, we will tell you by e-mail, text, or notice on the website, at least two months before any changes take effect. Authorisation will be requested for all transactions at the time of each transaction. In the unlikely event, for any reason whatsoever, a transaction is completed when there are insufficient funds on the Card for that transaction (a "Shortfall"), the Shortfall shall be reimbursed by you unless it is due to an error on the part of the retailer where the Card was presented, in this circumstance we may seek the Shortfall from the retailer.
You agree that once we make this Shortfall known to you, we may charge you for the Shortfall amount. We may charge the amount of the shortfall from any Card or Additional Card, to any other payment method which you may designate at that time, or against any funds which you may subsequently load onto your Card or any Additional Card or to your CashFlows Business Account. Until we are reimbursed the Shortfall amount, we may suspend your Card and any Additional Card. In addition, we reserve the right to charge you an administration fee for each transaction that you make using your Card that results in a Shortfall or increases the Shortfall amount on your Card.
You must let us know as soon as possible if you change your name, address, phone number or e-mail address. If we contact you in relation to your Card, for example, to notify you that we have cancelled your Card or to send you a refund, we will use the most recent contact details you have provided to us. Any e-mail to you will be treated as being received as soon as it is sent by us. We will not be liable to you if your contact details have changed and you have not told us.
If we suspect that we have been given false or inaccurate information, we may record our suspicion together with any other relevant information. Personal data may also be transferred confidentially to other organisations involved in issuing or operating your Card so that we can administer your Card correctly.
We may obtain information about you to help us verify your identity for fraud prevention and/or money laundering. Scoring methods may be used in the verification process. A record of this process may be kept and used to help other companies to verify your identity. All personal information given by you may be checked with fraud prevention agencies and other organisations involved in crime prevention and may be used for the investigation of fraudulent activity and crime prevention to meet our obligations under the card scheme regulations, and if you have given false or inaccurate information and we suspect fraud we will record this.
We may monitor and/or record telephone calls we have with you or any Additional Cardholder to help us maintain and improve the quality of our Customer Service or as required by applicable law.
If you have any disputes about purchases made using your Card, you should settle these with the person you bought the goods or services from. We are not responsible for the quality, safety, legality or any other aspect of any goods or services purchased with your Card. Remember that once you have used your Card to make a purchase we cannot stop that transaction.
If you have an enquiry relating to your Card, you can use the "Contact Us" facility on the Website. We will deal with your enquiry promptly. If you do not wish to enquire in this way you can alternatively call our Customer Service telephone line on (0)1223 550920. The customer services telephone line is a chargeable service. Calls will be charged at standard rates. Call costs may vary between networks.
The Card programme is managed by FIS Metavante. If you are unhappy in any way with your Card or the way it is managed, tell us by using the e-mail enquiry facility on the Website so we can investigate the circumstances for you. Any complaints you have will be dealt with quickly and fairly. You may be able to take unresolved complaints to the Financial Ombudsman Service at South Quay Plaza, 183 Marsh Wall, London E14 9SR. Telephone: 0845 080 1800 and e-mail: firstname.lastname@example.org
The Card is an electronic money product and although it is a product regulated by the Financial Conduct Authority (FCA), it is not covered by the Financial Services Compensation Scheme. No other compensation scheme exists to cover losses claimed in connection with the Card. This means that in the unlikely event that we become insolvent your funds may become valueless and unusable and as a result you may lose your money.
We may assign the benefit and burden of these terms and conditions to another company at any time, on giving you two months prior notice of this. If we do this, your rights will not be affected.
We may transfer your unused balance to a new Card provided by another prepaid Card issuer other than us at any time. Before we do this, we will give you two month's notice of the new prepaid Card arrangements and the new prepaid Card terms and conditions. Unless you advise us within the two month period that you do not want a new prepaid Card from the new prepaid Card issuer, you agree that we can automatically transfer the unused balance on your prepaid Card to a new prepaid Card provided by the new prepaid Card issuer.
This Agreement is concluded in English. All communications with you will be in English. These terms and conditions will be construed in accordance with English law and subject to the jurisdiction of the English Courts.
As a responsible e-money issuer, we ensure that once we have received your funds they are deposited in a secure account, specifically for the purpose of redeeming transactions made by your Card. In the unlikely event that we become insolvent funds that you have loaded which have arrived with and been deposited by us are protected against the claims made by creditors.
Your Prepaid Card is issued by CashFlows Europe Limited whose principal office is at First Floor, CPC1, Capital Park, Cambridge CB21 5XE and is authorised by the Financial Conduct Authority (FCA) (registered number 900006) as an issuer of e-money. Your Prepaid Card is the property of CashFlows Europe Limited and is not transferable to anyone else.
CashFlows is a registered trading name of CashFlows Europe Limited.
17/07/12 Additional Services
Terms and Conditions
"Additional Services" means CashFlows eInvoicing and CashFlows Virtual Terminal and each and any of them
THESE TERMS AND CONDITIONS are entered into on the Operative Date in accordance with the Provisions herein.
These Terms and Conditions set forth the legal relationship with CashFlows Europe Limited of CPC1, Capital Park, Cambridge, United Kingdom, CB21 5XE, a company registered in the United Kingdom under company registration number 05428358. CashFlows Europe Limited ("CEL") and the Partner being the entity which has applied to CEL and been accepted by it as an introduction partner in accordance with these Terms and conditions and whose authorised representative has read and agreed to these Terms and Conditions on its behalf.
WHEREAS CEL provides Transaction Processing Services (as defined below) to various entities worldwide; and
WHEREAS Partner desires to offer certain of its clients the option to complete transactions where payment is made or received by means of a credit card; and
WHEREAS Partner desires to offer the CEL Transaction Processing Services to its clients;
NOW THEREFORE FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES ACCEPT THE FOLLOWING:
In addition to any other capitalised term elsewhere defined in these Terms & Conditions, the following capitalised terms shall have the meaning given them below for purposes of these Terms & Conditions and any addenda or amendments relating thereto.
2.1.1 "Account" means a unique and individually referenced trading account set up by CEL for a Customer where the Partner has acted as intermediary in accordance with CEL's then standard practice in order to facilitate the creation of the Account and through which the Card payments made to a Customer are processed by CEL and to which Transaction funds are credited in accordance with the terms of the relevant Transaction Processing Services agreement.
2.1.2 "Account Data" and "Customer Data" means any and all personally identifying information, including information about usage of the Transaction Processing Services, supplied by or collected about an Account or Customer.
2.1.3 "Account Application" means an application made by a Customer or by a Partner on behalf of the Customer for an Account.
2.1.4 "Affiliated Entities" means an individual or entity controlling, controlled by or under common control with a Party to these Terms & Conditions during the Term hereof where control means ownership or control, directly or indirectly, of more than 50% of the voting power of all the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.
2.1.5 "Assessments" means any and all assessments, fines, levies, costs, expenses, charges or imposition of liabilities of any nature which are directly or indirectly demanded or recovered by CEL from Customers at any time and which relate to any aspect of CEL's relationship with Partner or any Customer (including the Transactions and the provision of the services) and which may or may not relate to any actual or potential liability of CEL to any bank or a card scheme.
2.1.6 "Terms & Conditions" means the body of these Terms & Conditions, including its schedules and any and all addenda or amendments thereto.
2.1.7 "Card" means any credit, debit, charge, purchase, store or other value card issued and processed by a Visa or Mastercard member bank (or such other card scheme as CEL may accept), and for which CEL performs certain Transaction Processing Services.
2.1.8 "Confidential Information" means these terms and conditions, and all information about the disclosing Party's business or activities that would be reasonably considered to be proprietary or confidential, including: business, operational, customer, financial and technical information; business plans and forecasts; techniques, programs, formulae and computer programs; information about such Party's products and services (e.g., launch and release dates, product development plans, new or improved features, technical architecture and system design; preliminary versions of software or online services; know-how and processes); and other information of a Party that is marked or designated by such Party as "confidential" or "proprietary" at the time of disclosure.
2.1.9 "Customer" means the seller of approved products or services that is a Party to a Transaction Processing Services agreement with CEL.
2.1.10 "Customer Sign Up" means the process of CEL assessing and if approved accepting an application made by a Prospective Customer introduced by a Partner or an application made by a Partner on behalf of the Prospective Customer and with its authority to become a Customer.
2.1.11 "Fees" means the amounts charged to, and subsequently paid by, Customers for the Transaction Processing Services pursuant to an agreement between CEL and the Customer.
2.1.12 "Operative Date" means the date nominated by CEL and notified to the Partner; from which these Terms and Conditions comes in to force.
2.1.13 "Partner" means the Partner which is a party to these Terms and Conditions or where the context admits any other partner of CEL which is acting for a Customer or Prospective Customer in relation to Account Applications and applications for Customer Sign Ups.
2.1.14 "Party" means one of the entities that have signed and are bound by these Terms & Conditions. "Parties" means all entities that have signed and are bound by these Terms & Conditions.
2.1.15 "Partner Marks" means those logos, trademarks, service marks and trade names specified in Schedule 4.2.1 as belonging to Partner, including any updates to such schedule provided by Partner to CEL from time to time.
2.1.16 "Partner Rebates" are the amounts owed to, and subsequently paid to, the Partner for trade processed through an Account. For the avoidance of doubt a CEL Customer may have multiple accounts each with different Partners and Partner Rebates will only be payable to the Partner linked to each account and no other Partner.
2.1.17 "Prospective Customer" means a business that is qualified to be introduced to CEL and which, if accepted and enters an agreement for Transaction Processing Services, could become a Customer.
2.1.18 "Risk Level" means the relative degree of economic, business or legal risk that CEL (or any relevant bank, card scheme or financial institution) may incur as a result of providing or being associated with the Transaction Processing Services. The risk level will be determined at CEL's total discretion and communicated to the Customer in such manner as CEL may determine from time to time.
2.1.19 "Transaction Processing Services" means a combination of: (i) enabling the secure transmission of card information across the Internet or a similar communications network, (ii) the screening of such information to reduce or prevent fraud by purchasers, (iii) the authorisation of purchases by the purchaser's issuing bank, (iv) the delivery of confirmation of the purchase to the purchaser, (v) the delivery of notification of the transaction to the Customer, (vi) the preparation and presentment of transaction records for Customer administration, (vii) the electronic transfer of funds between the purchaser's card account and the Customer's merchant account or similar account designated by the Customer, and (viii) technical and general support provided to the Customer.
2.1.20 "CEL Mark(s)" means those logos, trademarks, service marks and trade names specified by CEL to Partner from time to time.
2.1.21 "CEL Properties" means VoicePay and any CEL Web sites used in connection with rendering the Transaction Processing Services.
2.1.22 "VoicePay" means the CEL proprietary software, including source code and object code, which is used to provide Transaction Processing Services.
2.2 Where the context admits or requires reference in these Terms and Conditions to CEL shall also include reference to its Affiliated Entities and anything to be done by CEL in accordance with these Terms and Conditions may at CEL's discretion be undertaken by any of its Affiliated Entities.
3.1 General Terms & Conditions. During the term of these Terms & Conditions, each Party shall perform its respective obligations as set forth in these Terms & Conditions. Nothing contained in these Terms & Conditions, or acts by either Party, shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture between the parties hereto, other than the relationship of independent Partners contracting for services. Neither Party to these Terms & Conditions has, and shall not hold itself out as having, any authority to enter into any contract or create any obligation or liability on behalf of, in the name of, or binding upon the other Party to these Terms & Conditions.
3.2 Partner and Customer Relationships. CEL understands that the Partner may introduce a Prospective Customer initially or may re-introduce an existing Customer to CEL that is already known to CEL. So far as CEL is concerned, when a Prospective Customer or Customer is introduced to CEL by a Partner in relation to an Account Application CEL will ensure that the Partner is associated with the specific Account resulting from that introduction so long as the Account is activated within the required timescale and the Partner facilitated the activation by managing the Prospective Customer or Customer through the Account Application approval process. Rebates relating to that Account (or Accounts) will then be paid to the Partner. For the avoidance of doubt the Prospective Customer or Customer will not be associated with the Partner, only Accounts can be associated with a Partner. Any Prospective Customer or Customer has the right to apply for additional subsequent Accounts using either the Partner or another Partner or direct itself at any time and it is the Partner's responsibility to ensure that the Prospective Customer or Customer remains satisfied with the Partner and its service and continues using the Account associated to them.
3.2 Project Management. Each Party shall assign an Account Manager, who shall have primary responsibility for managing the resources dedicated to perform such Party's responsibilities pursuant to these Terms & Conditions and act as the principal liaison between them on matters relating hereto. Each Party may change its Account Manager at its sole discretion upon reasonable written notice to the other Party hereto.
3.3 Products and Services. Subject to any express exceptions set forth in these Terms & Conditions, each Party will have sole responsibility for providing resources as needed to timely and continuously perform its obligations set forth in these Terms & Conditions. Subject to any express exceptions set forth in these Terms & Conditions, CEL will have sole control over the "look and feel," material and information of VoicePay and the CEL Properties.
3.4 Intellectual Property Rights. CEL shall own all rights, title and interest in and to the CEL Marks and the intellectual property associated with the CEL Site, the CEL Properties and VoicePay including, but not limited to, the related look and feel, copyrights, patent rights (including patent applications and disclosures), rights of priority, mask work rights, trade secrets, trademarks or service marks except for the following proprietary rights which are retained by Partner: (1) any Partner Marks displayed on the CEL properties as Marks or links (2) any Confidential Information disclosed to CEL by Partner.
4.1 Partner License to CEL. CEL shall grant to Partner a limited license to be the non-exclusive reseller/marketer of Transaction Processing Services.
4.2 Limited License of Trademarks
4.2.1 License. Each Party (a "Licensor") hereby grants to the other Party hereto (a "Licensee") a royalty-free, non-exclusive, worldwide, non-transferable and limited license to use its Marks for the Term of these Terms & Conditions solely in connection with offering and promoting the Transaction Processing Services in accordance with the terms of these Terms & Conditions. The Licensor, in its sole discretion from time to time, may change the appearance and/or style of is Marks, provided that it shall give the Licensee sufficient advance notice to implement any such changes (which implementation shall be at Licensor's expense to the extent that any creative materials have already been created by Licensee using the previous Marks in accordance with these Terms & Conditions). All such usage shall be in accordance with each Party's reasonable policies regarding advertising and trademark usage as shall be established or changed from time to time in each Party's sole discretion upon written notice to the other Party. Partner shall supply CEL with guidelines for use of the trademarks pertaining to the Partner Properties. The CEL guidelines for use of the CEL Marks that are current as of the Operative Date are as set out on its website or as notified to Partner from time to time. All usage by Licensee of Licensor's Marks shall include the appropriate registered or unregistered trademark symbol and, where space reasonably permits, a legend stating that the "[Licensor's Mark] is a registered trademark of [Licensor]" or a reference to the effect that third Marks are owned by their respective owners.
4.2.2 Restrictions and Acknowledgements. The Licensee hereby acknowledges and agrees that (i) the Licensor's Marks are owned solely and exclusively by the Licensor, (ii) except for the limited license granted pursuant to 4.2.1, the Licensee has no rights, title or interest in or to the Licensor's Marks, and (iii) all use of the Licensor's Marks by Licensee shall ensure to the benefit of Licensor. Licensee shall not apply for registration of the Licensor's Marks (or any mark confusingly similar thereto) anywhere in the world, and shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the Marks. Upon the expiration or termination of these Terms & Conditions, each Party will cease using the Marks of the other except as the parties may agree in writing.
5.1 Rebates Payable by CEL.
5.2 Reporting. CEL shall provide Partner with complete and accurate reports on its payment obligations under Section 5 and the volume of Account transactions
5.3 Transaction Processing Agreement. Prospective Customers desiring to use Transaction Processing Services must enter into a Transaction Processing agreement with CEL to which the Partner will not be a Party.
6.1 Customer Sign Up and Account Applications: Partner will be responsible for collecting such information as CEL may require in order to allow it to accept a Prospective Customer as a Customer and to accept an Account Application from a Customer or a Partner on behalf of a Customer. Upon receipt of a completed application for a Customer Sign Up or Account Application, CEL will conduct a timely review of the information submitted and make a determination to accept or reject the application. If a Prospective Customer is accepted as a Customer CEL will further establish agreements, pricing and terms for the Customer's relationship with CEL. CEL shall have the right, in its sole discretion, to approve or reject any Prospective Customer introduced by the Partner or any Account Application and to determine all legal terms and services pricing. CEL will provide timely notice to the Prospective Customer (or Customer as the case may be) and the Partner of the approval or disapproval of their application.
6.2 Service Development and Delivery. CEL shall develop and deliver reliable Transaction Processing Services as necessary to fulfil its obligations to Customers introduced by Partner. CEL shall provide all the necessary technical and human resources for Customers to achieve operational and technical integration to CEL's Services. CEL shall provide, host and maintain the CEL Properties as necessary to support the Transaction Processing Services specifically including the maintenance and management of all servers, telecommunications and operations necessary to support Transaction Processing Services for the benefit of Customers.
6.3 Integration. CEL shall provide all the necessary technical and human resources to achieve integration to permit Customers access to the Transaction Processing Services.
6.4 Application Processing. CEL shall promptly respond to applications for Customer Sign Ups and Account Applications.
6.5.1 CEL will compensate Partner for creation of approved Accounts of Customers by the payment of Rebates.
6.5.2 A Customer shall be entitled to use the Partner which introduced it to CEL as a Prospective Customer or at the Customer's discretion any other Partner to act as its Partner in the process of applying for an Account. Where more than one Partner is involved in the creation of an Account, CEL shall decide in its reasonable discretion which Partner is the Partner that shall be associated with that Account and shall receive the relevant Partner Rebates.
6.5.3 Prospective Customer approval and Account approval processes shall expire after 30 days unless CEL is in receipt of all relevant information from the Customer or Prospective Customer (as the case may be) and/or its acting Partner.
6.6 Privacy and Security. With respect to the operation of the Transaction Processing Services and any other dealings with Customers, CEL shall abide by any and all applicable federal and provincial privacy legislation. CEL shall furthermore maintain the highest standards for customer data security customary within the industry of processing online credit card transactions, and shall comply with all applicable legislation and regulations regarding the security of financial transactions.
7.1 Customer Introduction. From time to time during the term of these Terms & Conditions, Partner may, but shall not be obligated to:
and in respect of each activity Partner such use its best endeavours to obtain such information as CEL may require.
7.2 No Exclusivity. Nothing in these Terms & Conditions shall preclude Partner from (i) soliciting Prospective Customers to enter into a contract with a service provider other than CEL or (ii) offering or promoting to Customers other client services, data processing services, or software products by entities other than CEL.
7.3 Information Accuracy. Partner warrants that the information supplied in relation to applications for Customer Sign Ups and Account Applications is accurate to their knowledge and belief. Partner shall report any information to CEL that could appear to be a misrepresentation of material fact. Partner shall be advised of any missing information in relation to any application for a Customer Sign Up or Account Application and will reasonably assist the Prospective Customer or Customer (as the case may be) in submitting any and all information required to complete the application process. In no instance may Partner fabricate, delete or change information, initial or sign any document in relation to any application for Customer Sign Up or Account Application.
7.4 Non-Solicitation. Partner shall not during the term of these Terms and Conditions and for a period of six months after their termination attempt to persuade any Customer to use Transaction Processing Services provided by any party other than CEL or its Affiliated Entities.
7.5 Branding and Link. Partner shall prominently display CEL's authorised decal and/or logo so as to provide a link from the Partner's website to the designated website of CEL when requested by CEL.
7.6 Taxes on Partner Rebates. The Partner is responsible for all tax payments of any kind on the Partner Rebates received.
7.7 Partner Responsibility for other Parties. The Partner is responsible for any costs or fees owed to other parties, including any other parties that may claim to have assisted in any way with initiating the introduction of Prospective Customers to CEL. CEL will pay no portion of compensation owed to any other Party, nor is CEL obligated in any way to reimburse expenses or pay compensation to any other Party related to the introduction of Prospective Customers.
7.8 Best Practices. Partner at all times will conduct himself or herself in an ethical, truthful, professional and courteous manner consistent with the current best practices and policies of Visa, Mastercard, CEL and any relevant banks and financial institutions and will not perform any act or make any statements that in any way will or may harm CEL, or the Customer. It is Partner's obligation to know what the industry best practices are, whether or not a written document listing best practices has been provided by CEL. Further, Partner is responsible for proper conduct of all its affiliates who may have contact with Prospective Customers or Customers.
8.1.1 Each Party acknowledges that in the course of the performance of these Terms & Conditions, it may obtain Confidential Information from the other Party. The Party receiving such Confidential Information ("Receiving Party") shall, at all times, both during the Term of these Terms & Conditions and thereafter, keep in confidence and trust all of the Confidential Information of the other Party ("Disclosing Party"). The Receiving Party shall not use the Confidential Information of the Disclosing Party other than for the purposes of performing its obligations pursuant to these Terms & Conditions or as described in a separate written agreement. The Receiving Party shall take reasonable steps to prevent unauthorised disclosure or use of the Disclosing Party's Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorised persons, but in any case not less than those steps it takes to protect its own Confidential Information. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its Affiliated Entities, officers, employees, consultants, auditors and attorneys who need access to such Confidential Information, and who are subject to confidentiality obligations with such person's employer or the Receiving Party, which would protect the Confidential Information of the Disclosing Party. The Receiving Party shall not make any copies of the Disclosing Party's Confidential Information except as reasonably required to perform its obligations under these Terms & Conditions, and shall return (or delete in case of electronic copies of such information) any and all Confidential Information, and all copies thereof, upon Disclosing Party's request and, in any event, within thirty days after the termination or expiration of these Terms & Conditions. The Receiving Party shall immediately give notice to the Disclosing Party of any unauthorised use or disclosure of Disclosing Party's Confidential Information, and agrees to assist the Disclosing Party to remedy such unauthorised use or disclosure of its Confidential Information.
8.1.2 The obligations set forth in Section 8.1.1 shall not apply to the extent that Confidential Information includes information which: (a) is already known to the Receiving Party at the time of the disclosure, which knowledge the Receiving Party shall have the burden of proving; (b) is or, through no act or failure to act of the Receiving Party, becomes publicly known; (c) is received by the Receiving Party from a third party that is not subject to a restriction on the disclosure of such information; (d) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party, which independent development the Receiving Party will have the burden of proving; or (e) is approved for release by written authorization of the Disclosing Party, or is required to be disclosed by a government agency or by a subpoena, order or decree of a court of competent jurisdiction or a governmental agency or self-regulatory organization having jurisdiction over the Receiving Party, provided that the Receiving Party shall notify the Disclosing Party of such circumstances and reasonably cooperate with Disclosing Party in limiting the amount of Confidential Information disclosed or obtaining confidential treatment of such disclosures to the maximum extent reasonably possible. Notwithstanding any provision to the contrary, Partner may provide pre-release or other limited distribution versions of the Partner Products to third parties, such as press reviewers, that include content about Company relating to the performance of these Terms & Conditions.
8.2 Performance. Each Party shall provide any services required by it pursuant to these Terms & Conditions in a workmanlike manner.
8.3 Mutual Representations and Warranties. Each Party hereto represents and warrants to the other Party hereto that: (i) the execution, delivery, and performance of these Terms & Conditions by such Party shall not conflict with or result in any breach of, or constitute a default under, any material agreement, instrument or undertaking to which it is a party or by which any of its property is bound; (ii) it has the power to make and carry out the terms of these Terms & Conditions and each has taken, and shall take, all actions, corporate or otherwise, necessary or advisable to authorize the execution, delivery and performance of, and to perform, its respective obligations under these Terms & Conditions; (iii) that the use, reproduction, distribution, transmission, or display of its respective Marks provided to the other Party pursuant to these Terms & Conditions shall not constitute an infringement of any intellectual property rights of any third party or be defamatory or violate any third party's rights of publicity, privacy or personality; (iv) its performance under these Terms & Conditions is in compliance with any and all applicable laws; and (v) it has acquired and will comply with any and all material licenses and approvals required under rules and regulations of any governmental entity or agency applicable to the performance of its obligations under these Terms & Conditions, that it has paid or will pay any necessary fees, costs or expenses associated therewith, and that it has made all disclosures required by such rules and regulations.
9.1 Mutual Indemnity. Each Party (an "Indemnifying Party") agrees to defend at its expense, indemnify, and hold the other Party and its Affiliated Entities, and its and their directors, officers, employees and agents (the "Indemnified Party"), harmless from and against losses resulting from any claims, suits, actions or other proceedings (collectively, "claims") made by a third party to the extent that such claims arise from or relate to: (i) a violation of law asserted against the Indemnified Party to the extent caused by the acts or omissions of the Indemnifying Party in the course of its performance of these Terms & Conditions, (ii) a breach of or inaccuracy in the Indemnifying Party's representations and warranties set forth in these Terms & Conditions, or (iii) the Indemnifying Party's error or omission in the performance of or failure to perform its covenants set forth in these Terms & Conditions; except to the extent such claims result from the Indemnified Party's acts or omissions, or materials provided by it.
9.2 Infringement Remedies. In the event of a claim relating to an infringement, the Indemnifying Party may at its option and sole expense: (i) procure for the Indemnified Party the right to continue to perform these Terms & Conditions without the claimed infringement, or (ii) modify its performance to eliminate any claimed infringement so long as such performance of these Terms & Conditions is not materially degraded below the level that existed prior to such modification. If the Indemnifying Party is unable to settle, correct or avoid such infringement to the Indemnified Party's reasonable satisfaction and such infringement continues to materially degrade the performance of these Terms & Conditions within thirty (30) days of the receipt of the claim, then the Indemnified Party may terminate these Terms & Conditions pursuant to Section 12.
9.3 Related Matters. The Indemnified Party shall promptly give written notice to the Indemnifying Party of its receipt of any claim for which it would be indemnified pursuant to Section 9.1 provided, however, that the failure of the Indemnified Party to provide prompt notice shall only relieve the Indemnifying Party from its obligations hereunder to the extent that such late notice prejudiced its defence or resulted in increased losses. The Indemnifying Party shall have the right to control and direct the investigation, defence and settlement of such matter, provided that the Indemnified Party may, at its own cost, participate in such investigation, defence and settlement of such matter and any appeal arising therefrom. Upon request, the Indemnified Party shall cooperate in all reasonable respects, at the Indemnifying Party's cost and expense, with the Indemnifying Party and such attorneys in the investigation, trial and defence of such claim, and any appeal arising therefrom. The Indemnified Party has the right to review and approve any counsel selected by the Indemnifying Party to defend the Indemnified Party and the terms and conditions of any settlement affecting the Indemnified Party, which approvals shall not be unreasonably withheld.
10.1 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS & CONDITIONS, NEITHER PARTY MAKES ANY WARRANTIES OR CONDITIONS EITHER EXPRESS, IMPLIED, OR STATUTORY AS TO THE SERVICES, PRODUCTS, MATERIALS, OR INFORMATION PROVIDED HEREUNDER, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS INCLUDING THOSE OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
10.2 Limitation on Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY (INCLUDING SUCH PARTY'S AFFILIATED ENTITIES) FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, UNINTERRUPTED ACCESS, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR RELATED TO THESE TERMS & CONDITIONS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. EXCLUDING AMOUNTS THAT ARE PAID OR PAYABLE IN THE ORDINARY COURSE PURSUANT TO THE TERMS OF THESE TERMS & CONDITIONS (INCLUDING ANY ADDENDA ISSUED HEREUNDER), THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED THE AMOUNT OF FEES GENERATED UNDER SECTION 5 DURING THE MOST RECENT SIX (6) MONTH PERIOD. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY.
To the extent that Customer and Account Data is stored or otherwise in the possession of CEL during the Term, CEL shall not use any such Data for either direct or indirect solicitation of the Customers, other than to provide the Transaction Processing Services as requested by Customers and the technical and customer support customarily related thereto.
12.1 Term. The initial term of these Terms & Conditions ("Term") shall commence on the Operative Date and continue in force until either party gives the other at least 30 days notice of Termination.
12.2 Termination of Rights. After giving notice to the defaulting Party and following the expiration of a cure period set forth in Section 12.5, a non-defaulting Party may declare the other Party to be in default of these Terms & Conditions and may immediately terminate these Terms & Conditions where the defaulting Party is in material breach. Further, either Party may terminate these Terms & Conditions where the other Party (1) becomes insolvent or makes an assignment for the benefit of its creditors; or (2) has filed a petition or application under any bankruptcy act, receivership or like law or statute as they now exist or may subsequently be amended or had such petition or application filed by a third Party against it and such petition is not dismissed or discharged or otherwise favourably resolved within sixty (60) days.
12.3 CEL may terminate, upon five (5) days' notice, these Terms & Conditions, if there is a material change in the nature of Partner's business.
12.4 CEL may terminate these Terms & Conditions automatically if the regulations of any relevant bank, financial institution or card scheme are amended in any way that the continued existence of these Terms & Conditions would cause CEL to be in breach of such regulations.
12.5 Notice and Cure Period. Upon receipt of a notice of default delivered pursuant to Section 12.2 containing a reasonably detailed statement of the alleged default, the alleged defaulting Party shall have a period of thirty (30) days in which to cure the alleged default. If the alleged default has not been cured during the foregoing period, then the non-defaulting Party may terminate these Terms & Conditions immediately following expiration of the foregoing cure period upon further written notice to the defaulting Party. During any notice and cure period, both parties shall continue to be bound by all the terms and conditions of these Terms & Conditions.
12.6 Licenses. Upon termination of these Terms & Conditions, any licenses or intellectual property rights granted by one Party to the other shall automatically be terminated, unless otherwise agreed by the parties in writing.
12.7 Survival. Notwithstanding anything to the contrary contained herein, the rights and obligations of the parties pursuant to any provision which by its nature or express terms should survive termination, shall survive any termination or expiration of these Terms & Conditions.
The parties agree to work collaboratively during the Term of these Terms & Conditions to explore further areas of mutual benefit, which may include bank acquiring and fraud/risk management.
14.1 Entire Terms & Conditions. These Terms & Conditions shall not be effective unless and until the parties have fully executed and delivered it. These Terms & Conditions, including all schedules, exhibits and addenda, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings, letters of intent or other agreements, written or oral, regarding such subject matter. The headings used in these Terms & Conditions are for convenience only and shall not be considered in its interpretation. Each Party has reviewed the provisions of these Terms & Conditions and had the opportunity to participate fully in any negotiations relating to its terms and conditions. Any additional or conflicting terms in the parties' communications, whether acknowledegments, invoices or otherwise, are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. These Terms & Conditions may be executed in any number of counterparts, all of which taken together will constitute a single instrument. Execution and delivery of these Terms & Conditions may be evidenced by facsimile transmission.
14.2 No Agency. Partner at all times will act solely as an independent entity. Neither the Partner, nor any of its employees or affiliates are employees of CEL nor entitled to any benefits, workspace, expenses reimbursement, or reimbursement or other privileges and authorities. Partner is not authorised to obligate CEL to Customers, Prospective Customers or to any other parties on behalf of CEL.
14.3 Waiver and Modification. No failure of either Party to exercise or enforce any of its rights under these Terms & Conditions will act as a waiver of such rights, nor will a failure by either Party to enforce any provision of these Terms & Conditions be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of these Terms & Conditions will be effective upon notice from CEL to the Partner.
14.4 Applicable Law. These Terms & Conditions shall be governed by and construed in accordance with the laws of England and Wales in connection with any action to enforce the provisions of these Terms & Conditions or otherwise arising under or by reason of these Terms & Conditions.
14.5 Severability. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms & Conditions to be unenforceable, that provision of these Terms & Conditions will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms & Conditions will continue in full force and effect.
14.6 Notices. The Partner agrees that CEL may act on email notices or instructions that reasonably appear to emanate from the Partner or an authorised employee of the Partner.
All notices required by these Terms and Conditions to be given by either Party to the other Party should be in English, unless otherwise specifically agreed between the Parties. CEL may assign these Terms and Conditions, in whole or in part, without the Partner's written consent, at any time upon a written notice to Partner.
14.7 No Assignment. CEL may assign these Terms & Conditions, in whole or in part, without the Partner's written consent, at any time upon a written notice to Partner. Partner may assign these Terms & Conditions with CEL's written consent. Any attempt to assign these Terms & Conditions, other than in accordance with this provision, will be null and void. These Terms & Conditions shall be binding on all successors and permitted assigns of the parties.
14.8 Relationship of Parties. The parties acknowledge and agree that each Party has entered into these Terms & Conditions as an independent Partner, and nothing herein will be construed as creating an agency, partnership or any other form of legal association (other than as expressly set forth herein) between the parties.
14.9 No Third Party Beneficiaries. Except for any indemnified parties set forth in Section 9 or permitted assigns, no provisions of these Terms & Conditions, express or implied, create, and shall not be construed as creating, any rights enforceable by any person or entity not a Party to these Terms & Conditions.
14.10 Expenses. Except as specified elsewhere within these Terms & Conditions, Partner and CEL will be solely responsible, without any right of reimbursement, for all internal and third party costs and expenses incurred by it in connection with the performance of such Party's performance obligations under these Terms & Conditions.
14.11 Force Majeure. Neither Party shall be liable to the other for a failure or delay in its performance of a required obligation pursuant to these Terms & Conditions (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by events such as fire, riot, flood, labour disputes, natural disaster, regulatory action, Internet or telecommunications failures, or other causes beyond such Party's reasonable control, provided that the non-performing Party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible and, provided further, that either Party may terminate these Terms & Conditions upon delivery of written notice to the other Party if such condition continues for a period in excess of sixty (60) days.
14.12 Currency. All references to payments in these Terms & Conditions are understood to be in Pounds Sterling, unless otherwise specified.
THE PARTIES HERETO HAVE EXECUTED THESE TERMS AND CONDITIONS ON THE OPERATIVE DATE.