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. General terms & conditions
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. Grant or rights
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. Financial terms
5.1 Rebates Payable by CEL.
5.1.1 In consideration for its services rendered under these Terms & Conditions, Partner shall receive from CEL during the term of these Terms & Conditions compensation (the "Partner Rebates") based upon the value of transactions processed for each Account linked with the Partner and in accordance with the rates notified by CEL to Partner from time to time.
5.1.2 Rebates will be paid for such period as the relevant Account remains in operation and shall be calculated on the value of transactions accepted for processing by CEL and paid to the Customer, less all adjustments for unpaid fees, chargebacks, credits, voided transactions and Assessments.
5.1.3 CEL shall have the right, upon 30 days' written notice to Partner, to adjust the Rebates.
5.1.4 All Partner Rebates set out in this Section 5 shall be payable on the 15th day of each month (for transactions made between 1st day and the last day of the previous month). Should the 15th day of the month fall on Sunday or Bank Holiday, the Partner Rebates shall be paid on the first working day following Sunday or Bank Holiday. Payments will be remitted within 5 working days of these dates on trade through the Account in the relevant period, via direct deposit to Partner's bank designated depository account.
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. Obligations of CEL
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. Obligations of partner
7.1 Customer Introduction. From time to time during the term of these Terms & Conditions, Partner may, but shall not be obligated to:
7.1.1, introduce Prospective Customers to enter into a Transaction Processing Services Agreement with CEL or to request Accounts for Prospective Customers (or Customers as the case may be).
7.1.2 act for Customers in securing the approval of CEL to Account Applications
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. Covenants, representations and warranties
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. Disclaimers and limitation of liability
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.
11. Ownership and use of customer and account data
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. Term and termination
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.
13. Future collaboration
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.