Merchant Terms and Conditions of Business: PayWizard Platform
PayWizard plc is a company registered in Scotland under number SC376020, whose registered and head office is located at Cluny Court, John Smith Business Park, Kirkcaldy, Fife, KY2 6QJ, United Kingdom ("PayWizard"). PayWizard is authorised by the UK Financial Conduct Authority ("FCA") under the Electronic Money Regulations 2011 for the issuing of electronic money. We are listed on the FCA's register at: www.fsa.gov.uk/register/home.do and are subject to the applicable rules and regulations of the FCA.
1.0 Definitions & Interpretation
1.1 In these Merchant Terms and Conditions of Business: PayWizard Platform ("Merchant T&C: PayWizard Platform"), unless the context otherwise requires:
"Acceptable Use Policy" means PayWizard's Acceptable Use Policy, currently available at http://www.paywizard.com/index.php/acceptable-use-policy (as may be amended by PayWizard from time to time);
"Billing Period" means the billing period for the calculation of the Transaction Value and PayWizard Standard Charges, being each period of one Month during the term of these Merchant T&C: PayWizard Platform, beginning at the start of each Month and ending at the end of such Month, save that the first Billing Period shall commence on the date on which PayWizard notifies the Merchant in writing that it has accepted Merchant's application and shall end at the end of the following Month;
"Business Day" means 09:00 – 17:30 (UK local time) on any day which is not a Saturday, a Sunday or a public holiday in London;
"Chargeback" means any reversal of a Payment Request which PayWizard is legally or contractually obliged to carry out, pursuant to a request from a Customer or card issuer due to (i) a claim that the Payment Request was not authorised, (ii) insufficient funds being available, (iii) a processing error, (iv) a failure to deliver Products or the delivery of defective Products, (v) Customer disputes, (vi) fraudulent (or potentially fraudulent) activity or (vii) for any other reason;
"Customer" means a consumer who has registered an account with PayWizard ("MyPayWizard Account") and who may from time to time purchase Products from Merchant using the PayWizard Platform;
"Customer Identifier" means Merchant's generated combination of numbers, letters or symbols used to identify a Customer account on the PayWizard Platform;
"Dashboard" means a personalised, web-based management dashboard on the PayWizard Platform which Merchants can access through their PayWizard account(s) ("PayWizard Merchant Account") and which delivers and displays real-time commercial transaction information and marketing intelligence, as well as data on Customer behaviour;
"Device Agnostic Gateway" or "DAG" means the PayWizard suite of application programming interfaces ("API") that enable the PayWizard Platform to be accessed from the Merchant Website or from any device and the sending of Payment Requests;
"Merchant" means the recipient of the Service, being either the party identified as such in the online application for a PayWizard Merchant Account or, where the parties have executed a Service Agreement, the party identified as such in the Service Agreement;
"Merchant Content" means all information including text, words, names, logos, images, graphics, software (including all software applications), video, audio and all other media content appearing on Merchant's Website;
"Merchant Payment" means the total amount that PayWizard will forward to Merchant on the Payment Date, and which shall comprise the Transaction Value less the Service Charges (subject to the retentions under Clause 5.1);
"Merchant Website" means any website owned or operated by Merchant through which Customers will purchase Products (including all versions that may be accessed through an IP-enabled device);
"Month" means 00:00:00 (UK local time) on the first day of a calendar month until 23:59:59 (UK local time) on the last day of that calendar month;
"Payment Date" means the Business Day following the end of each Billing Period on which payment of the Merchant Payment will be transmitted to Merchant's nominated bank account as registered in the Merchant's PayWizard Account profile;
"Payment Request" means any instruction supplied to PayWizard by a Customer or Merchant for the placement, transfer or withdrawal of funds to or from a PayWizard Account;
"PayWizard Group Company" means any ultimate parent undertaking of PayWizard from time to time and all direct or indirect subsidiary undertakings for the time being of any such parent undertaking, where "parent undertaking" and "subsidiary undertaking" have the meanings given in Section 1162 of the Companies Act 2006;
"PayWizard Platform" means PayWizard's e-wallet based payment solution which supports micro-payment transactions in multiple currencies and across multiple platform devices;
"PayWizard Merchant Standard Charges" means the amount charged to Merchants for each Payment Request processed by PayWizard, as notified by PayWizard to the Merchant during the application process or otherwise specified in the Service Agreement, but which are subject to review and update at PayWizard's sole and absolute discretion in accordance with Clause 21;
"PayWizard Website" means the PayWizard website at www.paywizard.com (including all versions that may be accessed through an IP-enabled device) or any other URL notified by PayWizard from time to time;
"Product" means all products, services and offers available for purchase by Customers on or through the Merchant Website;
"Service" means the services to be provided by PayWizard to the Merchant as set out in the Service Description;
"Service Agreement" means a written, supplementary agreement (including where Merchant has completed a successful online Merchant application for a PayWizard Merchant Account) which (if applicable) the parties may agree to enter into in respect of the Service;
"Service Charges" means, for each Billing Period, the PayWizard Merchant Standard Charges and any other charges agreed between the parties in writing from time to time;
"Service Description" means the specification of the Service at http://www.paywizard.com/index.php/paywizard-service-description or such other location as PayWizard determines from time to time;
"Technical Documentation" means the documents describing the PayWizard technical requirements and process for installation and integration of the DAG on the Merchant Website, as may be amended from time to time by PayWizard, the latest copy of which is available on request;
"Transaction Value" means, for each Billing Period, all sums payable by Customers to Merchant for the purchase of Products, inclusive of VAT (unless the situation requires otherwise);
"VAT" means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.
1.2 In these Merchant T&C: PayWizard Platform, unless the context otherwise requires:
(a) the clause, schedule and paragraph headings are included for convenience only and shall not affect the interpretation of these Merchant T&C: PayWizard Platform;
(b) use of the singular includes the plural and vice versa;
(c) any reference in these Merchant T&C: PayWizard Platform to a statute or statutory provision, refers to all orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision, each as may be amended, re-enacted, or consolidated from time to time;
(d) any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) any reference to a time of day is to the time of day in London.
2.1 These Merchant T&C: PayWizard Platform shall apply to the parties' rights and obligations in connection with the Service unless otherwise agreed between the parties pursuant to a Service Agreement.
2.3 All Merchants must be businesses offering Products to Customers. For the avoidance of doubt, sole traders making purchases in connection with their business activities and any parties purchasing Products with the intention of selling them on are deemed Merchants.
2.4 In the event of any conflict or inconsistency between the Service Agreement, the Service Description, these Merchant T&C: PayWizard Platform and the Technical Documentation, the following order of priority shall apply: (i) the Service Agreement; (ii) the Service Description, (iii) these Merchant T&C: PayWizard Platform, and (iv) the Technical Documentation.
2.5 These Merchant T&C: PayWizard Platform shall not be legally binding on either party unless and until PayWizard notifies Merchant in writing that it has accepted Merchant's application. Thereafter, these Merchant T&C: PayWizard Platform shall continue in full force and effect, until terminated by either party giving not less than three (3) months' prior written notice to the other party.
3.0 Provision & use of the service
3.1 Subject to Merchant's compliance with these Merchant T&C: PayWizard Platform, PayWizard shall provide the Service to Merchant during the term of, and in accordance with, these Merchant T&C: PayWizard Platform.
3.2 Merchant shall follow the processes detailed in the Technical Documentation to operate Merchant's PayWizard Account, to establish the DAG on the Merchant Website and to test system integration between the DAG and the PayWizard Platform.
3.3 PayWizard will use all reasonable endeavours to correct any reported technical faults in the Service as soon as reasonably practicable. However, unless otherwise agreed between the parties in writing, PayWizard does not give any guarantees as to performance or availability of the Service or PayWizard Platform, nor does it give any undertakings that they will be free from faults.
3.4 Merchant accepts that PayWizard may carry out scheduled or emergency maintenance which may result in the PayWizard Platform or Service being temporarily unavailable from time to time. In such cases, PayWizard will restore the suspended Service as soon as reasonably practicable.
3.5 PayWizard may additionally:
(a) for operational reasons, update the Technical Documentation, PayWizard Platform or the Service from time to time; or
(b) require Merchant to follow instructions which it believes are necessary for reasons of security or quality, provided that an update or requirement that represents a change to these Merchant T&C: PayWizard Platform shall be communicated by PayWizard in accordance with Clause 21.
3.6 Merchant is responsible for backing-up or saving any pricing or other data held by it prior to any suspension or maintenance work and for restoring any such data lost as a result of such suspension or maintenance work.
3.7 PayWizard will use reasonable endeavours to provide the Service by any date agreed with the Merchant but all dates are estimates.
3.8 Merchant may only use the Service and the PayWizard Platform to:
(a) receive Transaction Values;
(b) pay Service Charges;
(c) pay refunds, reimbursements or any other entitlements or sums due to Customers; and
(d) receive the Merchant Payment in accordance with Clause 8.1.
3.9 Merchant must not at any time use (or encourage a third party to use) the Service or the PayWizard Platform:
(a) fraudulently or in connection with a criminal offence;
(b) in an unlawful manner or in contravention of any applicable legislative or regulatory requirements or the Acceptable Use Policy (as may be amended from time to time by PayWizard);
(c) to advertise, promote, sell or offer for sale, send or provide unlawful or unsolicited advertising or promotional material; or
(d) in any way which tampers, ‘hacks’, modifies or otherwise corrupts the security or functionality of the Service or PayWizard Platform.
3.10 The Service is provided solely for Merchant’s own use and Merchant must not resell or attempt to resell the Service (or any part of it) to any third party.
3.11 The Merchant acknowledges and agrees that, notwithstanding any other provision of these Merchant T&C: PayWizard Platform, it is not and will not be afforded PCI DSS compliant status by virtue of PayWizard's status as such or in any other way in connection with these Terms and Conditions.
4.0 Payment requests
4.1 Merchant agrees that the submission of an electronic instruction from its servers to PayWizard’s servers using the DAG or otherwise issued through Merchant's PayWizard Account shall constitute its consent for the relevant Payment Request to be processed and for the relevant Service Charges to be charged.
4.2 Each Payment Request shall include the Merchant-generated Customer Identifier and Merchant shall provide any other details or information reasonably requested by PayWizard in order to process or verify the payment. Any Payment Request executed in accordance with a Customer Identifier provided by Merchant shall be deemed to have been correctly executed.
4.3 PayWizard shall endeavour to execute all valid Payment Requests in real time. Each Payment Request from Merchant shall be deemed to have been received at the time at which consent is provided in accordance with Clause 4.1 or (in respect of the Merchant Payment) Clause 8.1.
4.4 Once received, a Payment Request cannot be revoked, except that Merchant's ongoing authority to process the Merchant Payment may be revoked up to the Business Day before the Payment Date.
4.5 Without prejudice to its other rights and remedies, PayWizard may reject or refuse to execute a Payment Request:
(a) which PayWizard in its sole discretion deems to be in breach of these Merchant T&C: PayWizard Platform, the Acceptable Use Policy or the Technical Documentation;
(b) which is (or PayWizard reasonably believes to be) suspicious or connected to money laundering, the financing of terrorism, fraud or other illegal activities; or
(c) where Merchant has insufficient funds in its PayWizard account.
Where PayWizard rejects or refuses to execute a Payment Request it will use reasonable efforts to inform Merchant unless it is prohibited from doing so by law or under an order from a competent court or authority.
4.6 Each Merchant PayWizard Account shall be designated a currency from among those offered by PayWizard. Merchant may hold multiple accounts, each designated to a different currency but may only hold one account in each currency.
4.7 Where PayWizard receives a Payment Request that requires currency conversion in to the currency of Merchant's account or the account of any party receiving Merchant funds, the amount to be paid shall be calculated based on the currency exchange rate at the time of the Payment Request available from a reputable daily currency exchange rate service provider used by PayWizard. The total amount to be collected from or paid to the Merchant's PayWizard Account will be displayed at the time of the transaction (if Merchant is logged into their account) and on the Dashboard.
5.0 Collection of transaction value
5.1 PayWizard will be entitled to retain in the Merchant's PayWizard Account for up to six (6) weeks from the end of each Billing Period, an amount equivalent to the total Transaction Values due over that Billing Period, to cover any Chargebacks or other potential liabilities of Merchant to Customers or to any other third parties. The amount and period for which it will be held shall be determined by individual risk assessment by PayWizard or as otherwise agreed between the parties (acting reasonably) and any amounts not required to cover such liabilities will be refunded to the Merchant upon expiry of the agreed period.
5.2 If PayWizard is not able to retrieve Transaction Values from a Customer, PayWizard may elect to terminate the Customer's MyPayWizard Account in accordance with the MyPayWizard Customer T&C. Merchant will assume responsibility for recovering at its own expense all debts from such Customer and expressly acknowledges that PayWizard shall have no further liability to Merchant for the same.
5.3 The PayWizard Merchant Standard Charges shall be payable in respect of all Transaction Values that are credited to Merchant's PayWizard Account, whether or not the relevant amounts are subsequently recovered from the Customer, or the amount in question is disputed by the Customer, or the amount is subsequently refunded to the Customer.
5.4 PayWizard may carry out fraud and security checks on each Customer Payment Request. If the Payment Request is rejected pursuant to Clause 4.5(b) Merchant may not receive the Transaction Values, and will not in such cases incur a PayWizard Merchant Standard Charge.
6.1 The Dashboard shall display details of all Payment Requests (both credits and debits) and Service Charges relating to Merchant's PayWizard Account.
7.0 Service charges
7.1 On the Payment Date, PayWizard will deduct the applicable Service Charges from the Transaction Value in Merchant's PayWizard Account before making the Merchant Payment.
8.0 Transfer of merchant payment & taxes
8.1 On the Payment Date, Merchant hereby requests and consents to the transfer of the Merchant Payment from Merchant’s PayWizard Account to a bank account nominated by Merchant and registered in Merchant's Account profile. This Payment Request will be deemed as having been received by PayWizard on the Payment Date.
8.2 No Merchant Payment shall be made unless the Service Charges due for the relevant period have been paid in full. Where the balance of Merchant’s PayWizard Account is insufficient to cover the Service Charges amount due on a Payment Date, then without prejudice to any other rights or remedies of PayWizard (including the right to terminate or suspend under Clause 17), Merchant agrees that the shortfall may be deducted at the next Payment Date or from the next Merchant Payment or paid to PayWizard on reasonable demand. All such payments will be made in the designated currency of Merchant’s PayWizard Account.
8.3 Merchant acknowledges that it is solely responsible for:
(a) the determination and payment of any and all taxes and duties of whatever nature levied or imposed by whatever jurisdiction in connection with the promotion, sale, licensing, supply or other exploitation of all Products and the receipt of the Merchant Payment; and
(b) reporting and remitting the correct tax to the appropriate tax authority and filing the appropriate returns
and shall indemnify PayWizard on demand and hold it harmless from and against all losses, damages, fines, judgments, demands, fees, costs, expenses and liabilities of any nature arising out of or in connection with such tax liabilities.
8.4 For the avoidance of doubt, PayWizard is not obliged to determine whether taxes apply to a Payment Request, and is not responsible for the collection, reporting, or remittance of any taxes arising from a Payment Request. Neither PayWizard nor any PayWizard Group Company provides any advisory services to the Merchant regarding taxation or import/export duties.
8.5 Any information that PayWizard provides to Merchant or Customers in respect of tax or VAT shall merely represent the data that Merchant has initially provided to PayWizard and does not remove the obligation from Merchant to account correctly to HM Customs & Excise or other relevant bodies for the VAT or other applicable tax on the Products supplied by Merchant.
8.6 Merchant must immediately inform PayWizard of any changes to Merchant’s tax or VAT registration number or if Merchant ceases to be registered for tax or VAT.
8.7 Should PayWizard receive repeated or high levels of Customer complaints, Chargebacks, fines, penalties or other liabilities relating to Merchant's PayWizard Account, PayWizard may impose conditions on Merchant's PayWizard Account such as specifying a minimum reserve amount which may not be withdrawn from Merchant's PayWizard Account or used to purchase Products from other Merchants, and Merchant shall promptly comply with any such request.
8.8 Merchant shall provide PayWizard with such information about its financial and operational status as may be reasonably requested by PayWizard in order to provide or continue providing the Service, including Merchant's most recent financial statements.
8.9 Notwithstanding any of the foregoing, if Merchant incurs a negative balance on its PayWizard account or becomes otherwise liable for the repayment of monies to PayWizard, Merchant shall make good such negative balance or make a corresponding payment to PayWizard within seven (7) days of PayWizard's request or demand for such payment.
8.10 If either party fails to pay by the due date any amount payable by it under these Merchant T&C: PayWizard Platform, the other party shall be entitled but not obliged to charge that party interest on the overdue amount, payable immediately on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of three per cent (3%) per annum above the base rate for the time being of Royal Bank of Scotland Plc. Such interest shall accrue on a daily basis and be compounded quarterly.
9.0 Merchant's products and warranties
9.1 Merchant's use of the Service and all Products sold by it must comply with the Acceptable Use Policy.
9.2 Merchant shall promptly notify PayWizard in writing of any proposed change to its Product ranges or any new Product ranges offered or made available through the Merchant Website, particularly if such change has or may reasonably be expected to have an impact on Merchant's legal or regulatory obligations and PayWizard shall be under no obligation to provide the Services for any such new/amended Product ranges or business which it has not approved.
9.3 Merchant warrants and undertakes to ensure at all times that:
(a) it has and will maintain all required rights, powers and authorisations to enter into these Merchant T&C: PayWizard Platform and perform its obligations hereunder;
(b) all funds deposited or withdrawn from its PayWizard Account have not been obtained from an illegal source and have not been (or will not be) used in connection with any illegal or fraudulent, activities;
(c) the Products will be consistent with the description appearing on the Merchant Website or otherwise provided to Consumers at the time of purchase;
(d) the Transaction Values appearing on the Merchant Website or otherwise provided to Customers are accurate in all respects and are not misleading, and specify all applicable taxes, duties and delivery charges of whatever nature;
(e) the Products shall be of satisfactory quality, and where the Product consists of services, supplied with reasonable skill and care and in accordance with good industry practice;
(f) the Merchant Website, Merchant Content and all commercial activities conducted by Merchant in relation to the promotion and sale of Products comply and shall continue to comply with all applicable laws and regulations in any jurisdiction in or to which they are made available, including without limitation those relating to:
(ii) foreign exchange, currency;
(iii) customs requirements;
(iv) advertising, consumer protection, product liability,
(v) data protection and privacy laws;
(vi) the protection of children or young persons; and
(vii) lotteries, gambling, betting, gaming or similar activities
and Merchant has all requisite licences and permits in place to engage in the promotion and sale of such Products;
(g) the Products, Merchant Website and all Merchant Content do not and shall not infringe any rights (including intellectual property rights), of a third party, it being acknowledged that the Merchant is and shall remain responsible for the creation, maintenance, design and control of the same;
(h) the Products, Merchant Website and Merchant Content shall not contain any viruses, faults or other harmful programmes which are liable to interfere with the Service, PayWizard Platform or the DAG; and
(i) the Merchant Website is and shall remain available for use with the Service, and Merchant shall immediately notify PayWizard of any recognisable faults or malfunctions in relation to the Merchant Website.
9.4 Merchant shall indemnify PayWizard on demand and hold it harmless from and against all claims, actions, losses, damages, fines, judgments, demands, fees, costs, expenses and liabilities of any nature (including legal fees and disbursements) arising out of or in connection with any breach of this Clause 9.
10.0 PayWizard disclaimer & customer disputes
10.1 Merchant acknowledges and agrees that PayWizard provides the Service merely as a payment intermediary and gives no representations, warranties or guarantees regarding the quality, safety or legality of any Products. Merchant shall make it clear to all Customers purchasing Products that they are entering into a contract of sale with Merchant, which is separate from their contract for services with PayWizard, and shall, if requested by PayWizard, ensure that a suitable disclaimer is prominently displayed confirming that PayWizard is not a party to the contract of sale and shall not be liable for any loss or damage arising out of or in connection with it (as may be provided or approved by PayWizard).
10.2 PayWizard shall refer all enquiries, disputes or complaints concerning the delivery, performance, quality, quantity or use of the Products, Merchant Website or Merchant Content to Merchant for resolution and Merchant acknowledges and agrees that PayWizard shall have no liability for the same. Merchant must ensure that its registered legal name, postal address, electronic mail address and telephone number are included in clear and legible form on all Merchant Websites for the receipt of all such enquiries, disputes or complaints and shall immediately inform PayWizard of any changes to these details. Merchant shall respond to any such enquiries or complaints in a professional, prompt, and diligent manner.
10.3 Merchant shall provide all Customers with a clear and fair return and refund policy, both prior to the purchase and as part of the purchase confirmation, which shall comply with all applicable consumer laws. Upon request, Merchant shall provide to PayWizard a copy of such policy and shall notify PayWizard of any subsequent change to such policy.
10.4 PayWizard shall have no obligation to investigate, examine or mediate any complaint or dispute between Merchant and a Customer. Where instructed by Merchant, PayWizard shall refund or charge to the Customer’s PayWizard account any amounts agreed between Merchant and the Customer following resolution of the complaint or dispute. Merchant's instructions in this matter shall be conclusive and any Payment Request executed by PayWizard in accordance with such instructions shall be deemed to have been correctly carried out.
10.5 Merchant shall indemnify PayWizard on demand and hold it harmless from and against all claims, actions, losses, damages, fines, judgments, demands, fees, costs, expenses and liabilities of any nature (including legal fees and disbursements) arising out of or in connection with any breach of this Clause 10.
11.0 Customer data
11.1 Merchant may collect Customer data including Personal Data (as defined under the Data Protection Act 1998) through the Merchant Website ("Merchant Data"). If and to the extent that Merchant makes the Merchant Data available to PayWizard:
(a) Merchant warrants, undertakes and shall ensure that the provision of such Merchant Data to PayWizard, and its use by PayWizard for the purposes of providing the Services shall comply with all applicable laws, including the Data Protection Act 1998 and the Merchant shall, at its own cost, obtain all necessary consents or authorisations for this purpose;
(b) Merchant may provide written reasonable instructions to PayWizard for the processing of such Merchant Data (including appropriate technical and organisational measures required to prevent the unauthorised access to, or accidental loss, damage or destruction of, such data); and
(c) the Merchant Data shall at all times remain owned and controlled by the Merchant.
11.3 The PayWizard Data shall at all times remain owned and controlled by PayWizard and Merchant shall acquire no rights to the same except:
(a) a right to view and download information about transactions made by Customers through the PayWizard Platform displayed on the Dashboard;
(b) a right to view and download any anonymous data reports supplied by PayWizard to enable Merchant to track general Customer usage and patterns;
(c) as may be disclosed for the purposes of recovering Transaction Values under Clause 5.2; or
(d) pursuant to Clause 11.5 below.
11.4 All PayWizard Data and any information disclosed by PayWizard may only be used by Merchant for its own internal purposes or for the purposes of obtaining services which are similar to the Service in accordance with Clause 11.5 below.
11.5 Upon expiry of these Merchant T&C: PayWizard Platform, or their termination by Merchant in accordance with these Merchant T&C: PayWizard Platform, PayWizard shall (if requested by Merchant) grant a non-exclusive royalty-free, non-transferable licence of the data referred to in Clauses 11.3(a) and 11.3(b) above (excluding payment card and/or bank details) (the "Transaction Data") to a replacement payment services provider appointed by Merchant: (i) provided that such replacement payment services provider complies with the Payment Card Industry Data Security Standard ("PCI DSS"), and (ii) subject to Merchant or replacement payment services provider obtaining all necessary consents and authorisations for this purpose, it being acknowledged that Customers may choose for their Transaction Data not to be used or transferred in this way.
11.6 Where a Customer opts to complete a simultaneous registration with PayWizard and Merchant, PayWizard may pre-populate the relevant fields required for registration with Merchant. PayWizard assumes no responsibility for the accuracy or completeness of such details. It shall be Merchant's sole responsibility to ensure that its collection and use of such pre-populated data (which shall become Merchant Data) complies with applicable data protection laws and its privacy policies, both at the time of collection and thereafter.
11.7 Where one party acts as the data processor (as defined in the Data Protection Act 1998) of personal data processed by the other party as data controller (as defined in the Data Protection Act 1998), the data processor shall at all times follow the data controller's reasonable instructions with regards to the personal data processed.
11.8 PayWizard and Merchant undertake and agree to each maintain accurate and up to date entries on the register of data controllers maintained by the UK Information Commissioner (or any other relevant regulatory body) in respect of their respective data processing activities under these Terms and Conditions.
12.0 Intellectual property rights
12.1 All Intellectual property rights in
(a) the PayWizard Platform;
(b) the PayWizard Website;
(c) the Technical Documentation;
(d) the PayWizard trade marks, logos and brand; and
(e) the Device Agnostic Gateway (and any other software or documentation supplied by PayWizard for or in connection with the Service, including any custom graphic interfaces, design elements, graphics or other applications or content)
(together "PayWizard IPR"), are and shall remain the property of PayWizard or its licensors.
12.2 PayWizard grants Merchant a non-exclusive, worldwide, royalty-free, revocable, non-transferable licence to use the PayWizard IPR strictly to the extent necessary for the sole purpose of receiving the Service, provided that any such use shall comply with these Merchant T&C: PayWizard Platform, the Technical Documentation and the PayWizard Brand Guidelines (being PayWizard's guidelines relating to use of its brand, as may be updated from time to time by PayWizard and which are available on request).
12.3 Merchant shall not, without PayWizard's prior written consent, copy or (except as permitted by law) decompile or modify any software comprised in the PayWizard IPR, nor copy any related manuals or documentation, except that Merchant may make one copy of such materials for backup purposes only. All information required to achieve inter-operability of the PayWizard IPR with the Merchant Website is available from PayWizard on request.
12.4 Merchant grants to PayWizard a non-exclusive, worldwide, royalty-free, non-transferable (other than in accordance with Clause 18) licence to use and display Merchant's trademarks, logos, brand as may be reasonably required by PayWizard in order to provide the Service.
12.5 Any use by a party of the intellectual property rights of the other party in connection with the Service shall be subject to prior written approval of the licensing party (except for non-material adaptation or amendments necessitated by the use for a particular purpose as contemplated by the parties) and the licensee shall comply with any reasonable instructions of such licensing party. Except as expressly set out in these Merchant T&C: PayWizard Platform (or the documents referred to in it) neither party shall acquire any right, title or interest in the intellectual property rights of the other party.
13.1 Merchant is responsible for the secure and proper use of all user names, passwords and other details used in connection with the Service. Merchant shall take all reasonable steps to ensure that they are kept confidential and not disclosed to unauthorised persons or used in an unauthorised way and shall comply with any security features of the Service and any other reasonable security precautions notified to it by PayWizard pursuant to Clause 3.5(b).
13.2 Merchant must immediately notify PayWizard by contacting the relevant nominated representative if it becomes aware of any unauthorised use of the Service or its PayWizard account or if any other security feature of the Service has been breached or compromised. Merchant shall, if requested by PayWizard, promptly change its passwords or other security check words if there is any reason to believe that these details have or are likely to become known to someone not authorised to use them or are being or are likely to be used in an unauthorised way.
13.3 Merchant acknowledges that any unencrypted data made available to PayWizard, via e-mail or other means of communication, may be obtained by unauthorised third persons, and that PayWizard shall have no obligation to prevent this by technical means. Merchant agrees not to provide PayWizard with any such unencrypted data.
13.4 On request, Merchant shall provide PayWizard with any information available to it regarding its transactions and use of the PayWizard Platform and Service as may be required by PayWizard for the prevention, detection or deterrence of crime, or to meet PayWizard's legal or regulatory obligations. PayWizard may, where it considers appropriate, pass on any information received from the Merchant to the relevant law enforcement agency or other competent authority.
14.1 Each of the parties will keep in confidence any information relating to the other party (whether written or oral) of a confidential nature (including without limitation agreements, documents, software, drawings and manuals) obtained in connection with the Service, and will not disclose that information to any third party (other than their employees or professional advisers, or in the case of PayWizard the employees of a PayWizard Group Company or their suppliers, who need to know the information) without the written consent of the other party. Each party shall make the necessary contractual arrangements to ensure that their employees, professional advisors and suppliers are bound by similar obligations of confidentiality.
14.2 Clause 14.1 will not apply to any information which is or becomes:
(a) in the public domain other than through a breach of these Merchant T&C: PayWizard Platform;
(b) lawfully in the possession of the recipient before prior to disclosure of such information other than through a breach of these Merchant T&C: PayWizard Platform;
(c) obtained from a third party who is free to disclose it;
(d) independently developed by the recipient: or
(e) which a party is required to disclose by applicable law or regulation.
14.3 Neither party will issue any promotional or advertising material or press release relating to the other, without first obtaining the other party’s prior written consent, except that PayWizard reserves the right to list all registered Merchants on the PayWizard Website.
14.4 The restrictions in this Clause 14 will survive the termination or expiry of these Merchant T&C: PayWizard Platform for as long a period as permitted by applicable law.
15.0 Limitation of liability & remedies
15.1 Nothing in these Merchant T&C: PayWizard Platform excludes or limits the liability of PayWizard for:
(a) death or personal injury to the extent arising from its negligence (or that of its employees, agents and subcontractors);
(b) fraud or fraudulent misrepresentation; or
(c) any other any other liability that cannot be excluded by law.
15.2 PayWizard shall not be liable in contract, tort (including negligence), breach of statutory duty or otherwise for:
(a) any loss arising from or in connection with loss of profit, loss of revenue (excluding the processing of Payment Requests as part of the Service), loss of contracts, business or failure to realise anticipated savings (whether direct or indirect);
(b) loss of or destruction to data; or
(c) any other indirect or consequential loss or damage.
15.3 Without prejudice to Clause 15.2, PayWizard shall not be liable for any loss suffered by Merchant pursuant to:
(a) any rejection of a Payment Request or suspension of the Services carried out in accordance with these Merchant T&C: PayWizard Platform;
(b) any Payment Requests received by PayWizard which contain incorrect or incomplete information, (unless caused by the negligence or wilful default of PayWizard in which case Clause 15.6 shall apply);
(c) any Payment Requests received by PayWizard from Merchant which are made using Merchant's valid and current user ID and password; or
(d) an event of force majeure as described in Clause 16.
15.4 PayWizard's total aggregate liability to Merchant either in contract, tort (including negligence), for breach of statutory duty or otherwise in relation to these Merchant T&C: PayWizard Platform in any twelve (12) Month period is limited to a sum no greater than the total Service Charges paid in that twelve (12) Month period.
15.5 Where Merchant becomes aware of any unauthorised or incorrectly executed Payment Request (an "Error"), it shall promptly notify PayWizard. Provided that Merchant has notified PayWizard of the Error within no more than five (5) Business Days of the Payment Request, PayWizard shall within a reasonable period correct the Error by refunding or charging the relevant amount to the relevant PayWizard account or re-executing the Payment Request (as applicable).
15.6 Where Merchant can prove that the Error has been caused by PayWizard's negligence or wilful default, no PayWizard Merchant Standard Charges will apply to the re-execution or re-performance of the Payment Request and PayWizard shall account to Merchant for any interest Merchant has had to pay as a consequence of the Error in accordance with Clause 8.10. This shall be Merchant's sole and exclusive remedy for an Error caused by PayWizard. In all other circumstances, Service Charges will apply and Merchant shall not be entitled to any interest on overdue or corrected amounts.
16.0 Force majeure
16.1 PayWizard shall be not liable for any delay or failure to perform any obligation under these Merchant T&C: PayWizard Platform where such delay or failure is due to lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving its employees), or acts of local or central Government or other competent authorities, the quality or speed of the internet connection or any other circumstances beyond its reasonable control. PayWizard will use reasonable endeavours to notify Merchant upon the occurrence of any such event and the likely duration of the delay.
17.0 Suspension & termination of the service
17.1 Without prejudice to its other rights and remedies, PayWizard may suspend the Service (or a part of it) immediately:
(a) for operational reasons such as maintenance, or due to an emergency;
(b) if Merchant uses the Service in a way that is not permitted under Clause 3;
(c) if it considers that there is or is likely to be a breach of security in relation to Merchant's use of the Service, or if it suspects unauthorised, illegal or fraudulent use of the Service (in any jurisdiction); or
(d) if the Chargeback levels exceed two per cent (2%) of the overall Transaction Values in any Month.
17.2 Where PayWizard suspends the Service, it will use reasonable efforts to inform Merchant unless it is prohibited from doing so by law or under an order from a competent court or authority. Where PayWizard elects to suspend the Service pursuant to Clauses 17.1(b), (c) or (d), PayWizard may refuse to restore the Service until PayWizard receives what it considers to be an acceptable assurance from Merchant that there will be no further repeats of the event giving rise to the suspension.
17.3 PayWizard may terminate these Merchant T&C: PayWizard Platform and/or suspend the Service (or any part of it) immediately on written notice to the Merchant:
(a) if Merchant violates or fails to comply with any applicable law, regulation or any order by a competent court or government authority;
(b) if Merchant is subject to, or it appears to PayWizard is likely to be subject to, an investigation by a regulator or authority;
(c) if Merchant undergoes a change of control (where "control" means the power directly or indirectly to direct or cause the direction of the management and policies of Merchant whether through the ownership of voting shares, by contract or otherwise), which PayWizard in its sole discretion believes will or is reasonably likely to have a material adverse impact on Merchant's ability to comply with its obligations under these Merchant T&C: PayWizard Platform; or
(d) if PayWizard reasonably considers that the continued performance by either party of their obligations breaches or may breach applicable laws or regulations.
17.4 Either party may (without prejudice to its other rights and remedies) terminate these Merchant T&C: PayWizard Platform and/or require payment of any amounts due under them at the date of termination with immediate effect by written notice to the other party, if the other party:
(a) commits a material or persistent breach of its obligations under these Merchant T&C: PayWizard Platform (including failing to pay any sums due by the due date) which either cannot be remedied or, if capable of remedy, it fails to remedy it during the period of thirty days (30) starting on the date of receipt of notice from the terminating party specifying the breach and requiring it to be remedied; or
(b) (i) becomes insolvent (including being unable to pay its debts as they fall due and/or that the value of its assets is less than the amount of its liabilities taking into account its contingent and prospective liabilities), (ii) proposes an individual, company or partnership voluntary arrangement, (iii) has a receiver, administrator or manager appointed over the whole or any part of its business or assets, (iv) has any petition presented, order made or resolution passed for its winding up (except for the purpose of a bona fide amalgamation or reconstruction), bankruptcy or dissolution (including the appointment of provisional liquidators/interim receivers or special managers), (v) proposes or enters into any composition or arrangement with its creditors or any class of them, (vi) ceases or threatens to cease to carry on business, (vii) claims the benefit of any statutory moratorium, or (viii) suffers or there occurs in relation to that party, any event which, in the reasonable opinion of the terminating party, is analogous to any of the foregoing events in any jurisdiction.
17.5 Upon termination or expiry of these Merchant T&C: PayWizard Platform for any reason:
(a) PayWizard shall honour all Payment Requests submitted prior to termination or expiry;
(b) PayWizard shall deduct all due Service Charges from Merchant’s PayWizard Account, provided that, if there are insufficient funds in Merchant's PayWizard Account, PayWizard shall be entitled to issue an invoice to Merchant and Merchant shall pay directly to PayWizard all applicable outstanding Service Charges;
(c) PayWizard shall be entitled to retain an amount equivalent to fifty per cent (50%) of the final Merchant Payment for a period of six (6) Months following termination to cover any Chargebacks or other potential liabilities to Customers or other third parties arising during this period in accordance with Clause 5.1. At the end of this period, PayWizard shall return to Merchant any retained amounts which have not been used to cover such liabilities;
(d) each party shall immediately cease all use of the other party's intellectual property rights (except that Clause 11.5 shall apply in respect of the PayWizard Data), and shall promptly (and in any event within thirty (30) days of termination return any hardware, software, documentation, information or other materials provided to that party by the other party;
(e) each party shall have no further rights or obligations towards each other except that Clauses 3.9, 8.3, 8.10, 9.3, 9.4,10, 11, 12.1, 13, 14, 15, 17.5, 19, 20 and 22 together with those provisions which by their content or nature are intended to survive shall continue to have effect.
18.0 Assignment & subscontracting
18.1 Merchant may not assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with its rights under these Merchant T&C: PayWizard Platform, or sub-contract any or all of its obligations under the same (or purport to do any of the foregoing) without the prior written consent of PayWizard.
18.2 PayWizard may freely, subcontract or assign or subcontract its rights under these Merchant T&C: PayWizard Platform to a PayWizard Group Company and other third parties.
19.1 Any notice given under these Merchant T&C: PayWizard Platform shall be in writing and delivered by hand, e-mail, prepaid post or by fax as follows:
(a) to PayWizard: to the address and contact details which PayWizard notifies to the Merchant for such purpose from time to time;
(b) to Merchant: to the address and contact details specified in the online Merchant application for a PayWizard account. Merchant must promptly inform PayWizard of any changes to these details.
19.2 Any notice shall be deemed to have been received at the time of delivery (if hand delivered or sent by prepaid first class recorded or registered post or prepaid international recorded airmail) or at the time of transmission in the case of fax, provided that if deemed receipt occurs before 9.00am on a Business Day the notice shall be deemed to have been received at 9.00am on that day, and if deemed receipt occurs after 5.00pm on a Business Day, or on any day which is not a Business Day, the notice shall be deemed to have been received at 9.00am on the next Business Day.
20.1 No Agency: PayWizard and Merchant accept that they are independent contractors and that neither is acting as the agent of the other (and that PayWizard is not acting as agent for any Customer). Neither party has any authority to bind or contract or negotiate on behalf of the other or to incur any debt or other obligation on behalf of the other or to create any liability against the other in any way or for any purpose. Merchant acknowledges and accepts that any contracts for the purchase or other acquisition of Products appearing on the Merchant Website are strictly and solely between Merchant and the Customer.
20.2 Waiver: In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under these Merchant T&C: PayWizard Platform, or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time or times subsequently.
20.3 Severance: If any provision of these Merchant T&C: PayWizard Platform shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these Merchant T&C: PayWizard Platform which shall remain in full force and effect.
20.4 Cumulative Remedies: Except as set out in Clause 15.6, the rights and remedies provided by these Terms and Conditions are cumulative and (unless otherwise provided in these Merchant T&C: PayWizard Platform) do not exclude any other rights or remedies available in law.
20.5 Entire Agreement: These Merchant T&C: PayWizard Platform (and the documents referenced therein) contain the whole agreement between the parties and supersede all previous written or oral agreements relating to their subject matter. Merchant acknowledges and agrees that:
(a) it has not been induced to enter into these Merchant T&C: PayWizard Platform by any representation, warranty or other assurances not expressly incorporated into it; and
(b) in connection with these Merchant T&C: PayWizard Platform, and except in the case of fraud or fraudulent misrepresentation, its only rights and remedies in relation to any representation, warranty or other assurance shall be for breach of the terms of any agreement and that all other rights and remedies are excluded.
20.6 Third parties: PayWizard is a part of the PayWizard group, and PayWizard Group plc may rely upon and enforce these Merchant T&C: PayWizard Platform; however PayWizard Group plc's consent shall not be required for any amendment to these Merchant T&C: PayWizard Platform. In all other cases, a person who is not a party to these Merchant T&C: PayWizard Platform has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Merchant T&C: PayWizard Platform but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.
20.7 Language: The language of these Merchant T&C: PayWizard Platform is English and any notifications or information to be given in connection with these Merchant T&C: PayWizard Platform shall be provided in English. If a document is translated into another language, both parties agree that this is done for their own benefit and if there are any discrepancies between the translated version and the English language version the text of the English language version shall prevail.
21.1 PayWizard may amend these Merchant T&C: PayWizard Platform and shall provide Merchant with at least seven (7) days' prior notice of the proposed changes by email (or sixty (60) days in the case of a change to the PayWizard Merchant Standard Charges). Merchant shall be deemed to have accepted the changes unless it notifies PayWizard in writing that it objects to the change prior to it coming into effect.
21.2 If no such notification is received, Merchant will be deemed to have accepted the change. Merchant's notice of objection shall, if received prior to the change coming into effect, be deemed to constitute a notice of termination, effective from the date on which the proposed change comes into effect.
22.0 Governing law & jurisdiction
22.1 The validity, construction and performance of these Merchant T&C: PayWizard Platform (and any claim, dispute or matter arising under or in connection with it or its enforceability) shall be governed by and construed in accordance with the laws of England.
22.2 The parties irrevocably agree for the exclusive benefit of PayWizard that the courts of England and Wales shall have exclusive jurisdiction over any claim, dispute or matter arising under or in connection with these Merchant T&C: PayWizard Platform or their enforceability or the legal relationships established by these Merchant T&C: PayWizard Platform (including non-contractual disputes or claims) and that accordingly any proceedings in respect of any such claim, dispute or matter to be brought by the Merchant must be brought in such courts. Nothing in this clause shall limit the right of PayWizard to take proceedings against the Merchant in any other court of competent jurisdiction, nor shall the taking of proceedings by PayWizard in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction or jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction or jurisdictions.
23.0 The Financial Ombudsman Service ("FOS") is an independent body that helps settle complaints between consumers and firms regulated by the Financial Conduct Authority ("FCA"). Complaints can also be brought by "micro-enterprises" (an EU term covering smaller businesses) as long as they have an annual turnover of less than two million euros (€2,000,000) and fewer than ten (10) employees. If any complaint is not resolved to Merchant's satisfaction, Merchant may (if the relevant criteria are met) contact the FOS at South Quay Plaza, 183 Marsh Wall, London, E14 9SR, United Kingdom (see www.financialombudsman.org.uk for further information).
Last updated: 16 April 2013