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:http://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 Payment Gateway (“Merchant T&C: Payment Gateway“), unless the context otherwise requires:
“Acceptable Use Policy” means PayWizard’s Acceptable Use Policy, currently available at http://www.paywizard.ratiocreative.com/index.php/acceptable-use-policy(as may be amended by PayWizard from time to time);
“Bank Rules” means the requirements, terms, rules, conditions, regulations and procedures (as the same may be in effect from time to time) of Visa, MasterCard and other applicable card associations, the acquiring bank and BACS, in each case as they relate to the operation and use of the Payment Gateway;
“Billing Period” means the billing period for the calculation of the PayWizard Merchant Standard Charges, being each period of one Month during the term of these Merchant T&C: Payment Gateway, 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;
“Customer” means a consumer who may from time to time purchase Products from Merchant;
“Customer Identifier” means Merchant’s generated combination of numbers, letters or symbols used to identify a Customer account on the Payment Gateway;
“Dashboard” means a personalised, web-based management dashboard which Merchants can access through their PayWizard account(s) 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 PSP Platform to be accessed from the Merchant Platform 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 Merchant application for a PayWizard 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 any applicable retentions);
“Merchant Platform” 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 Request” means any instruction supplied to PayWizard by a Customer or Merchant for the placement or transfer of funds on the PSP Platform;
“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 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 as otherwise specified in a 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.ratiocreative.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;
“Payment Gateway” means PayWizard’s payment gateway service platform as more particularly described in the Service Description;
“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 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.ratiocreative.com/index.php/paywizard-psp-platform-service-descri… or such other location as PayWizard determines from time to time;
“Technical Documentation” means the documents describing the PayWizard technical requirements and (if applicable) the process for installation and integration of the DAG on the Merchant Platform, as may be amended from time to time by PayWizard, the latest copy of which is available on request;
“Transaction Value” means 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: Payment Gateway, 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: Payment Gateway;
(b) use of the singular includes the plural and vice versa;
(c) any reference in these Merchant T&C: Payment Gateway 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: Payment Gateway 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 Bank Rules, the Service Agreement, the Service Description, these Merchant T&C: Payment Gateway and the Technical Documentation, the following order of priority shall apply: (i) the Bank Rules; (ii) the Service Agreement; (iii) the Service Description; (iv) these Merchant T&C: Payment Gateway; and (v) the Technical Documentation.
2.5 These Merchant T&C: Payment Gateway 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: Payment Gateway 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: Payment Gateway and subject always to the Bank Rules, PayWizard shall provide the Service to Merchant during the term of, and in accordance with, these Merchant T&C: Payment Gateway.
3.2 Merchant shall follow the processes detailed in the Technical Documentation to operate Merchant’s PayWizard account and (if applicable) to establish the DAG on the Merchant Platform and to test system integration between the DAG and the Payment Gateway.
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 Payment Gateway, 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 Payment Gateway 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, Payment Gateway 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: Payment Gateway 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 Payment Gateway to:
(a) receive Transaction Values;
(b) pay Service Charges; and
(c) pay refunds, reimbursements or any other entitlements or sums due to Customers.
3.9 Merchant must not at any time use (or encourage a third party to use) the Service or the Payment Gateway:
(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 PSP 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: Payment Gateway, 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 Merchant T&C: Payment Gateway.
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 or Payment Gateway 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, although Merchant acknowledges that PayWizard’s ability to do so may be subject to the Bank Rules. 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.
4.4 The Merchant acknowledges that, once received, a Payment Request cannot be revoked.
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: Payment Gateway, the Acceptable Use Policy, the Technical Documentation or the Bank Rules; or
(b) which is (or PayWizard reasonably believes to be) suspicious or connected to money laundering, the financing of terrorism, fraud or other illegal activities.
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.
5.0 Payment Requests and Security Checks
5.1 The PayWizard Merchant Standard Charges shall be payable in respect of all Payment Requests, 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.
5.2 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 After the end of each Billing Period, PayWizard shall be entitled to send to the Merchant an invoice setting out details of the applicable Service Charges for such Billing Period, and the Merchant shall pay such invoice within fifteen (15) Business Days of the date of such invoice.
8.1 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
(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.
8.2 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.
8.3 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.
8.4 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.
8.5 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.
8.6 Notwithstanding any of the foregoing, if Merchant becomes liable for the payment of monies to PayWizard, Merchant shall make a corresponding payment to PayWizard within seven (7) days of PayWizard’s request or demand for such payment.
8.7 If either party fails to pay by the due date any amount payable by it under these Merchant T&C: Payment Gateway, 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 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: Payment Gateway and perform its obligations hereunder;
(b) the PSP Platform and the Merchant Platform will not be used for obtaining funds from an illegal source and will not be used in connection with any illegal or fraudulent activities;
(c) the Merchant Platform, 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;
(d) the Products, Merchant Platform 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; and
(e) the Products, Merchant Platform and Merchant Content shall not contain any viruses, faults or other harmful programmes which are liable to interfere with the Service, Payment Gateway or the DAG.
9.3 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 is not entering into a Contract with Customers in relation to the Payment Gateway 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 and not a contract 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 Platform 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 Platforms for the receipt of all such enquiries, disputes or complaints. Merchant shall respond to any such enquiries or complaints in a professional, prompt, and diligent manner.
10.3 PayWizard shall have no obligation to investigate, examine or mediate any complaint or dispute between Merchant and a Customer.
10.4 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 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 Platform (“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.
11.2 PayWizard may collect Customer names, payment card and bank details through processing Payment Requests on the Payment Gateway (“PayWizard Data”).
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 the following, subject always to applicable law and the Bank Rules:
(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; or
(c) 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: Payment Gateway, or their termination by Merchant in accordance with these Merchant T&C: Payment Gateway, PayWizard shall (if requested by Merchant and subject to applicable law and the Bank Rules) grant a non-exclusive royalty-free, non-transferable licence of the data referred to in Clauses 11.3(a) and 11.3(b) above (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 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.
11.7 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 Merchant T&C: Payment Gateway.
12.0 Intellectual Property Rights
12.1 All Intellectual property rights in:
(a) the Payment Gateway;
(b) the PayWizard Website;
(c) the Technical Documentation;
(d) the 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 In addition to the rights set out in the Service Description, 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: Payment Gateway, 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 Platform 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 trade-marks, 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: Payment Gateway (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 PSP 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: Payment Gateway;
(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: Payment Gateway;
(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: Payment Gateway for as long a period as permitted by applicable law.
15.0 Limitation of Liability & Remedies
15.1 Nothing in these Merchant T&C: Payment Gateway 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: Payment Gateway;
(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: Payment Gateway 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, save that the Merchant acknowledges that PayWizard may not be able to pass through any refund in respect of such Error (subject to clause 15.6).
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 8.7. 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: Payment Gateway 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; or
(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).
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),or (c), 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: Payment Gateway and/or suspend the Service (or any part of it) immediately on written notice to the Merchant:
(a) if PayWizard is requested by an acquiring bank or by BACS not to process Payment Requests for the Merchant;
(b) if Merchant violates or fails to comply with any applicable law, regulation or any order by a competent court or government authority;
(c) if Merchant is subject to, or it appears to PayWizard is likely to be subject to, an investigation by a regulator or authority;
(d) 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: Payment Gateway; or
(e) 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: Payment Gateway 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: Payment Gateway (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.
(c) if Merchant is subject to, or it appears to PayWizard is likely to be subject to, an investigation by a regulator or authority;
17.5 Upon termination or expiry of these Merchant T&C: Payment Gateway for any reason:
(a) PayWizard shall process all Payment Requests submitted prior to termination or expiry;
(b) PayWizard shall issue a final invoice to Merchant and Merchant shall pay directly to PayWizard all applicable outstanding Service Charges within fifteen (15) Business Days of the date of such termination or expiry;
(c) 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;
(d) each party shall have no further rights or obligations towards each other except that Clauses , 3.9, 8.1, 8.7, 9.2, 9.3, 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 & Subcontracting
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: Payment Gateway, 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: Payment Gateway to a PayWizard Group Company and other third parties.
19.1 Any notice given under these Merchant T&C: Payment Gateway 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 Platform 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: Payment Gateway, 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: Payment Gateway 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: Payment Gateway 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 Merchant T&C: Payment Gateway are cumulative and (unless otherwise provided in these Merchant T&C: Payment Gateway) do not exclude any other rights or remedies available in law.
20.5 Entire Agreement: These Merchant T&C: Payment Gateway (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: Payment Gateway by any representation, warranty or other assurances not expressly incorporated into it; and
(b) in connection with these Merchant T&C: Payment Gateway, 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: Payment Gateway; however PayWizard Group PLC’s consent shall not be required for any amendment to these Merchant T&C: Payment Gateway. In all other cases, a person who is not a party to these Merchant T&C: Payment Gateway has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Merchant T&C: Payment Gateway 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: Payment Gateway is English and any notifications or information to be given in connection with these Merchant T&C: Payment Gateway 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: Payment Gateway 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: Payment Gateway (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: Payment Gateway or their enforceability or the legal relationships established by these Merchant T&C: Payment Gateway (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. 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:16th April 2013