These
terms and conditions of the Card Payment Processing Agreement (“Agreement”) are
a legal agreement between Pixxles Ltd, a limited
company incorporated in the United
Kingdom with its registered office at 78 Cannon Street, London EC 4N
6AF, United Kingdom (company number: 11604773) and regulated by the Financial
Conduct Authority (firm reference number: 927960) (“Pixxles”),
and the legal entity listed as the “Merchant” in the Merchant
Terms Acknowledgement. Pixxles and
Merchant may be individually referred to herein as a “Party” or collectively as
the “Parties”.
This Agreement
sets out the terms and conditions on which Pixxles or its Affiliates will provide, among
other things, card payment processing services
which allow Pixxles to clear and settle payments for
purchases of Merchant’s goods and services by way of Cards. Merchant acknowledges that this Agreement is
being presented and executed electronically, and Merchant understands that
Merchant must read the entire Agreement before accepting its terms.
In
addition to the terms and conditions set out herein, this Agreement includes
the following documents (as each may be amended, supplemented or restated from
time to time), each of which is defined and incorporated into this Agreement
herein:
(i)
the Pixxles
Service Application;
(ii)
the Merchant Terms Acknowledgement;
(iii)
the Personal Guarantee (if applicable); and
(iv)
the Cross-Corporate Guarantee
(if applicable).
This
Agreement incorporates by reference all policies, notices, and other content
that appear on the Portal.
1.
DEFINITIONS.
When
used in this Agreement (including
the recitals), the following terms will have the meanings set forth in this
Clause. Certain other capitalised terms are defined elsewhere in this Agreement
in the context of the provision in which they are used.
“Acquirer”
means the financial institution or company that is a member of the Card Schemes and, for purposes of
this Agreement, functions as an
acquiring bank. The Acquirer may be changed at any time by Pixxles
without prior notice to Merchant.
“Affiliate”
means a Person that, directly or indirectly, (i) owns
or controls a party, (ii) is owned or
controlled by a party or (iii) is under common ownership or control with a
party.
“AML
Requirements” means the requirements of any legislation, regulation or rule
applicable to either Party relating to anti-money laundering, counter-terrorist
financing, anti-bribery, economic sanctions or
any similar regulatory issue;
“API” means an Application Programming Interface;
“Applicable
Law” means any and all applicable laws, legislation, bye- laws, decisions, notices, statutes,
orders, rules (including any rules or decisions of court), regulations,
directives, edicts, schemes, warrants, local government rules, statutory
instruments or other delegated or subordinate legislation and any directions,
codes of practice issued pursuant to any legislation, voluntary codes, other instruments made or to be made under any statute and codes of conduct and
mandatory guidelines (including in all cases those that relate to audit, accounting, orfinancial
reporting) and which have legal effect, whether local, national, international
or otherwise existing from time to time, together with any similar instrument
having legal effect in the relevant circumstances, that govern or affect this
Agreement or the subject matter hereof, and shall include, for the avoidance of
doubt, AML Requirements and DP Laws.
“Business
Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business, and for purposes of this Agreement, the
end of a Business Day is 17:00 local time in London, England.
“Card” means (i) a valid credit card or debit card in the form issued under licence from a Card Scheme; or (ii) any
other valid payment card or other payment device offered by the Card Schemes and accepted by Merchant.
“Card
Issuer” means the financial institution or company which has provided a Card to
a Cardholder.
“Cardholder”
(sometimes referred to as “Card Member” in certain Card Scheme materials) means any individual authorised to use the Card in accordance with its terms of issue
or the accounts established in connection with the Card.
“Cardholder Charge” means the amount to be charged
to the Cardholder’s account for the purchase of
Merchant’s goods or services.
“Card Schemes” means Visa, Inc. (“Visa”),
Mastercard, Inc. (“Mastercard”), American Express
Company, Inc., Discover Financial Services, Inc., including any subsidiaries
that operate their respective payment networks
in Merchant’s region, and their Affiliates,
or any other payment networks offered by Pixxles and
accepted by Merchant.
“Card
Scheme Rules” means all rules, regulations, by-laws, standards, and procedures adopted or amended from
time to time by the Card Schemes, including, without limitation, the PCI DSS.
“Chargeback”
means a reversal of a previously submitted Cardholder transaction that the Card
Issuer has identified as being invalid or non- collectible after initial acceptance on account of a lost, cancelled, or non-issued Card, fraud, invalid account
identification, an unresolved Cardholder complaint, or other cause that results
in the deduction of the
Cardholder transaction from amounts settled to Pixxles
through the Card Schemes. For purposes
of this Agreement, Chargeback includes any retrieval or other dispute
initiated by a Cardholder with Card Issuer.
“Charity” shall have the meaning as provided in the PSRs.
“Cross-Corporate
Guarantee” means the Cross-Corporate Guarantee executed by Merchant, if
applicable, and incorporated herein by this reference as though set forth in
full to form part of this integrated Agreement.
“DP Laws” means any Applicable Law relating to the processing, privacy, and use of
personal data, that applies to Pixxles, the Merchant
or the Services, including the Data Protection Act 2018, in each case, as in
force and applicable, and as amended, supplemented, or replaced from time to
time.
“Duly
Authorised User” means a Merchant employee
authorised to access the
Portal in accordance with the requirements of Clause 16.
“Effective
Date” means the date this Agreement is accepted by the Merchant as per Clause
46 and comes into force for both Parties.
“Electronic
Transfer” means an electronic funds transfer using the Bacs Payment Scheme,
bank wire, or any similar payment scheme regulated or supervised by the Bank of England, including the Faster
Payments Scheme.
“Excessive
Activity Fee” means the fee payable by the Merchant to Pixxles when the value of reported
fraudulent transactions, and/or the amount of Chargebacks incurred by the
Merchant, in a month exceed either: (i) a relevant
threshold set by the relevant Card Scheme for the applicable individual payment
instrument; or (ii) 100 basis points as a proportion of the total value of all
transactions processed by Pixxles for the Merchant in
that month.
“Fee
Schedule” means the range of fees that may be applied by Pixxles
and the Card Scheme in respect of each card payment transaction and other fees,
as outlined in the Pixxles Fee Schedule document
maintained and updated by Pixxles from time to time;
“Force Majeure Event” has the meaning given in clause 38.1;
“GBP”
or “Pound” each means the currency to be used to settle all transactions
between Merchant and Pixxles contemplated in this
Agreement, being Pound Sterling.
“MCC”
or “Merchant Category Code” means the code assigned by the Card Schemes to
Merchant based on Merchant’s line of business that identifies the types of Card
transactions that Merchant will process, and the initial MCC assigned to
Merchant is set forth in the Merchant Terms Acknowledgement.
“Merchant
Operating Account” means a payment, deposit, or current account maintained by
Merchant for the crediting of collected funds under this Agreement and in respect
of which a direct debit mandate can be
given, and is given by the Merchant, in accordance with Clause 7 of this Agreement.
“Pixxles Service
Application” means the Pixxles Service
Application executed by Merchant and incorporated herein by this reference as
though set forth in full to form this integrated Agreement.
“Merchant
Terms Acknowledgement” means the Merchant Terms Acknowledgement document
executed by Merchant and incorporated herein by this reference as though set
forth in full to form part of this integrated Agreement.
“Micro-Enterprise” shall have the meaning as provided
in the PSRs.
“Monthly
CB Threshold” means the maximum limit of Chargebacks allowed per month by Merchant as established by the Card Scheme Rules from time to time, or
such lower limit as may be established by Pixxles in its sole discretion and
notified to Merchant in writing from time to time.
“PCI”
means the payment card industry as used in connection with the PCI Security
Standards Council, which develops the PCI Data Security Standard (“PCI DSS”)
and the PCI Payment Application Data Security Standard (“PA-DSS”).
“Penalties”
means such fines and other charges as may be assessed imposed, or levied by the
Card Schemes, Acquirer, or Supervisory Authority, or by Pixxles
or its Affiliates, as set forth in this Agreement.
“Person”
means an individual, corporation, partnership, sole trader, sole
proprietorship, trust, association, or any other legally recognised
entity or organisation, other than Merchant or Pixxles.
“Personal Guarantee” means the guarantee
referred to in clause 28.
“Portal”
means the electronic system that Pixxles provides for
Merchant to access information
related to the Service, such as transaction details,notices,
statements, and amendments to this Agreement and to update Merchant’s own
information, and it includes any method provided by or on behalf of Pixxles to access the Portal, such as via a URL or a Pixxles mobile application.
“Protected
Data” means any Cardholder or purchaser personal data received by Pixxles from or on behalf of the Merchant in connection
with the performance of the Services, including contact information, bank
details, transaction information and purchase history.
“PSRs”
means the Payment Services Regulations 2017 as amended from time to time.
“Refund”
means a payment initiated by the Merchant to a Cardholder for returned goods or
services, a price adjustment, or reasons related to the initial sale of goods
and/or services.
“Reserve(s)” means an amount that Pixxles may retain from the Merchant’s Total Revenue in a Reserve Account in accordance with Clause 9.
“Reserve Account”
means one or more financial accounts in the name
of Pixxles held at a third party
financial institution in which Pixxles may retain
amounts of Merchant’s Total Revenue as Reserve or which Pixxles
may require Merchant to fund in accordance with the terms of this Agreement.
The Reserve Account provides Pixxles with security
against the risk of loss associated with Merchant or Merchant’s processing
activities under this Agreement. Pixxles and its
Affiliates shall be entitled to debit the Reserve Account to pay for Chargebacks,
Refunds, Service Fees, and Penalties, any amount for or in respect of which
Merchant has given an indemnity under or in connection with this Agreement,
and/or any other obligations or liability (present, future, actual or
contingent) owed by Merchant to Pixxles under or in connection with this Agreement.
“Reserve
Account Minimum Balance” means the amount set forth in the Merchant Terms
Acknowledgement or such other amount as may be set by Pixxles
in accordance with Clause 9.2.
“Resolution Period” has the meaning set out in Clause 9.4.
“Service”
means the Pixxles card payment processing services
and any related products and services provided pursuant to this Agreement,
including access to and use of the Portal.
“Service
Fees” means the charges, fees and prices for the Services set forth in the
Merchant Terms Acknowledgement, as amended from time to time.
“Software”
means the software products, including the Portal and any API, and related
documentation provided by Pixxles to Merchant in connection
with the Service.
“Supervisory
Authority” means any local, national or multinational agency, department, official,
parliament, public or statutory person or
any government or professional body, regulatory or supervisory authority, board
or other body responsible for administering Applicable Law or overseeing,
regulating or supervising any party.
“Total
Revenue” means Merchant’s gross revenues from the transactions submitted to Pixxles for processing, before the deduction of applicable
Reserve, Service Fees, Refunds, Chargebacks and any other charges or
obligations owed by Merchant under this Agreement.
“Trademarks”
means all trademarks and logos of Pixxles that exist
now or in the future, both registered
and non-registered, in addition to their associated commercial goodwill, all as
may be specified by Pixxles from time to time.
“URL”
means uniform resource locator, also known as a web or internet address.
2.
SUBJECT OF THE AGREEMENT.
Pixxles will
provide the Services on and subject to the terms of this Agreement. Merchant
agrees that Pixxles, in providing the Services,
does not act as principal in any transaction between Merchant and its
customers, but rather, Pixxles functions only as
a payment facilitator with an Acquirer to enable Merchant
to enter into Card transactions with Merchant’s customers.
Merchant authorises Pixxles to act as a payment
facilitator for the purpose of processing such Card transactions. Merchant
acknowledges that some of the services to be provided by Pixxles
hereunder may be provided by third parties. Merchant agrees that except for its right to use such
services in connection with this Agreement, (i) it
does not (a) acquire any right, title or interest in any such services (b) have
a contractual relationship with any third party
providing services under this Agreement and (ii) that it is not a third party beneficiary of any agreement between Pixxles
and such third party. Each of the Card Schemes and Acquirer is a third-party
beneficiary of this Agreement and has beneficiary rights, but not obligations,
and may enforce this Agreement against Merchant. Some of these third parties may require a direct agreement with Merchant (for instance as per Clause
5.11
of this Agreement). If Merchant is required to enter into such an agreement and
declines to do so, Pixxles may suspend or terminate
the Merchant’s processing account and the Services under this Agreement.
3.
NON-APPLICATION OF CERTAIN REGULATIONS.
3.1
This Clause does not apply if
Merchant is a Micro-Enterprise or a Charity.
3.2
Merchant represents and
warrants to Pixxles that it is not a Micro-Enterprise or Charity as at the
time of execution of this Agreement and on each day the Services are provided. Merchant
undertakes to notify Pixxles immediately if at any
time during the term of this Agreement this representation and warranty ceases to apply.
3.3
In accordance with regulations
40(7) and 63(5) of the PSRs, Merchant agrees that all regulations in Part 6 of
the PSRs and regulations 66(1), 67(3),
67(4), 75, 77, 79, 80, 83, 91, 92, and 94
of the PSRs shall not apply in respect of this Agreement and the Services, and
that the notification period in regulation 74(1) of the PSRs shall be amended by this Agreement.
4.
MERCHANT VERIFICATION PROCEDURES.
4.1
Merchant shall, before entering
into this Agreement, and at any time during
this Agreement’s term, provide to Pixxles such
information regarding itself and its operations (and any other matter) as Pixxles shall require
from it, including but not limited
to information related to the financial
and credit history of Merchant’s owners, directors, officers, and principals,
and information required to
meet applicable AML Requirements or comply with any other Applicable Law.
4.2
Based on the information provided
by the Merchant about its business, Pixxles will assign (a) a risk profile and (b) one (1) or
more MCCs to the Merchant. The assignment of the risk profile and
respective MCC to the Merchant shall be at Pixxles’s
reasonable and sole discretion, having regard to the content of the Card Scheme Rules. Pixxles may change the MCCs at any
time if and to the extent Pixxles deems necessary
after a reassessment of the Merchant,
taking into account the Merchant’s reasonable interests. Notwithstanding
the foregoing, the Merchant shall promptly notifyPixxles of any change in its business at any time as per Clause 5.6 to enable Pixxles to
adjust the MCC as appropriate.
5.
MERCHANT OBLIGATIONS.
5.1
Honour All Cards. Merchant’s
payment transactions will be processed by
Pixxles pursuant to the terms of
this Agreement, the Card Scheme Rules, the rules, policies and requirements of
Acquirer, and Applicable Law. Merchant,
whether dealing with the public or otherwise, shall honour
all valid Cards (as permitted under this Agreement) when properly presented as
payment in connection with a legitimate business transaction.
5.2
Prohibited Conduct and
Transactions. Merchant shall not engage in
any conduct or business practice described in this Clause (collectively,
“Prohibited Conduct”). Merchant acknowledges and agrees that (in addition and
without prejudice to Pixxles other rights and
remedies) if it engages in any Prohibited Conduct, Pixxles
shall be authorised to exercise its right to withhold payment pursuant
to Clause 7, and Merchant
shall relinquish to Pixxles any claim to any funds held by Pixxles
in the Reserve Account (or otherwise). Merchant acknowledges that Merchant
shall be fully responsible for any violation of this Clause by any employee, agent or representative of Merchant. Any violation
of this Clause shall be a material breach and good cause for termination of
this Agreement by Pixxles in its sole discretion.
5.2.1
In respect of the Service and
performance under this Agreement, Prohibited Conduct includes any conduct or
business practice that:
(a)
violates the Card Scheme Rules or Applicable Law;
(b)
is harmful or abusive to Pixxles or its Affiliates, including their affiliates and independent contractors, as determined by
each in its sole discretion; and/or
(c)
may reflect negatively upon or
damage the goodwill or reputation of the Card Schemes, Acquirer, Pixxles, or their Affiliates, including employees and
independent contractors of the foregoing, as
determined by each in its sole discretion.
5.2.2
In respect of Card transactions, Prohibited Conduct includes:
(a)
engaging in “transaction
aggregating,” which for purposes of
this Agreement, is submitting, directly or indirectly, to Pixxles
for processing, any Card transaction:
(i)
other than a bona fide Card transaction between a Cardholder and Merchant for
such Cardholder’s purchase of goods or services directly from Merchant,
(ii)
on behalf of another Person, or
(iii)
from any URL that does not comply with Clause 5.5;
(b)
engaging in “load balancing,” which
for purposes of this Agreement, includes distributing the submission of Card
transactions for processing across multiple payment service providers or
multiple undisclosed accounts in an effort to allocate or shift Merchant’s
higher-risk or other transactions to a particular payment service provider or
to obscure the overall risk profile of Merchant’s business;
(c)
submitting to Pixxles
for processing any Card transaction
for goods or services that are not included in or appropriate for Merchant’s
MCC;
(d)
acceptance of Cardholder payments
for previous Cardholder Charges incurred at the Merchant location;
(e)
establishment of minimum or maximum
amounts for Cardholder Charges or credit vouchers unless required or permitted
by the Card Scheme Rules;
(f)
imposition of any surcharge or
convenience fee on Cardholder Charges or Card transactions unless required or
permitted by the Card Scheme Rules and Applicable Laws;
(g)
requesting or using a Cardholder
account number for any purpose other than as payment for Merchant’s goods or services;
(h)
disbursement of funds in the form of travellers cheques or other non-cash media, if the
sole purpose is to allow a Cardholder to make a cash purchase of goods or
services from Merchant;
(i)
unless specifically permitted or required by the
Card Scheme Rules or Applicable Laws, requiring a Cardholder to provide
fingerprints or other personal information, such as address, licence, telephone number or national insurance or
identification number as a condition
for honouring a Card;
(j)
acceptance of Cards for
transactions that are classified as cash or “quasi-cash transactions,”
including but not limited to the sale
of casino gaming chips, money orders, vouchers, gift cards, opening deposits on
financial or other accounts, wire transfer money orders, or the issuance of
scrip (or any other items which would violate any Card Scheme Rules);
(k)
acceptance of a Card to collect or refinance an existing debt including any
debt that has been deemed uncollectible by Merchant;
(l)
acceptance of a Card that
represents collection of a dishonoured cheque;
(m)
requiring a Cardholder, as a
condition of honouring a Card, to sign a statement that waives the Cardholder’s
rights to dispute the transaction with the Card Issuer;
(n)
submission of a Card transaction
for a Card bearing the account number of an account issued to Merchant, an
Affiliate of Merchant, or a Merchant-related entity or individual;
(o)
conducting any continuity, negative
option, or recurring billing of a Card without satisfying the complete requirements of the Card Scheme Rules and
Applicable Law in the jurisdiction where Merchant is located and where the
Cardholder of such Card is located or resides;
(p)
engaging in any unfair or deceptive
business practice that would violate any Applicable Law regarding consumer
protection in the jurisdiction where Merchant is located or where the
Cardholder of such Card is located or resides; and/or
(q)
engaging in fraud
of any kind.
5.2.3
In respect of the Portal, Prohibited Conduct includes:
(a)
permitting anyone other than a Duly
Authorised User to access or use the Portal; and / or
(b)
using, or permitting use of, the
Portal other than to use the Services in accordance with this Agreement.
5.3
Authorisation. Before honouring any
Card, Merchant shall request authorisation from Pixxles
via the Pixxles’ API or the Portal, as designated by Pixxles. If authorisation is denied, Merchant shall not complete
the transaction. Merchant
may request but must not require a Cardholder to provide
additional identification information as a condition of Card acceptance, unless
such information is required
to complete the transaction, such as
for delivery purposes, or Card Scheme Rules or Applicable Law specifically
permit or require such information to be collected. Merchant may require the Cardholder’s postal
code to complete a transaction where Address Verification Service (AVS) is available
for the transaction.
5.4
Cardholder Disputes. Merchant must
respond to Cardholder disputes and handle Chargebacks in accordance with the
Card Scheme Rules and Applicable Law. All disputes between Merchant and any
Cardholder relating to any Card transaction shall be settled between
Merchant and such Cardholder.
Merchant acknowledges that Pixxles has no legal relationship with the Cardholders and
shall not enter into any negotiations, correspondence or disputes with Cardholders with regards to any transaction processed under this
Agreement. Cardholder complaints, inquiries, Refunds and Chargebacks regarding
Merchant’s services may be cause for termination of this Agreement as
determined by Pixxles in its sole discretion.
5.5
Merchant URLs. Merchant must provide Pixxles a complete and accurate list of all URLs used by
Merchant at the time of completing the Pixxles
Service Application for compliance review by Pixxles,
and thereafter by the end of the third (3rd) Business Day following the date of
any request by Pixxles. Merchant acknowledges that Pixxles may request that Merchant execute a separate
Merchant Terms Acknowledgement for each URL used by Merchant in which case
Merchant must return each such executed Merchant Terms Acknowledgement
requested by Pixxles by the end of the third (3rd)
Business Day following the date of any such request. It is Merchant’s
responsibility to update these initial disclosures on an ongoing
basis and notify
Pixxles of any new URLs for compliance review
prior to accepting live transactions through such URLs. Merchant acknowledges
and agrees that Pixxles may require any changes to Merchant URLs as Pixxles
deems necessary or appropriate in its sole discretion, including without
limitation for purposes of compliance with any Card Scheme’s business risk
mitigation or compliance programs, Card Scheme Rules, or Applicable Law.
Notwithstanding the foregoing, Pixxles shall have no
liability whatsoever to Merchant or any third party regarding
Merchant’s URLs. Merchant
shall not submit to Pixxles for processing any transaction flowing from a URL that has not been
subject to such compliance review (including any change or addition to the
content to the page located at a URL, even if such URL or page is offline or
inactive), and any such submission shall be a
material breach hereunder, and may result in immediate suspension of
Services or termination of this Agreement by Pixxles
in its sole discretion.
5.6
Other Merchant
Information. Merchant is responsible for providing information
that is timely, complete, truthful, and not misleading. If Merchant, in
connection with this Agreement and the Services, including in the Pixxles Service Application or through the Portal, provides
to Pixxles any false or misleading information,
including but not limited to information that misrepresents or omits material facts concerning Merchant’s
business, business activities, ownership, number of employees, address, goods
or services, and/or financial
condition such conduct
may constitute a criminal
offence and may result in the withholding of payments due to Merchant as additional Reserves
in an amount sufficient to
cover the anticipated risk of loss to Pixxles arising
from the misrepresentation(s) or omission(s). The Merchant shall promptly
inform Pixxles of any changes, whether adverse or
not, in the information provided at the time of entering into this Agreement.
5.6.1
Merchant agrees to notify Pixxles immediately and in any case
by the end of the second (2nd) Business Day following the date Merchant becomes
aware of (i)
of any change in its circumstances which may affect its condition or status or ability to perform
its obligations under this Agreement, (ii) any actual or pending changes in
Merchant’s ownership, trading address, head office address, phone number, email
address, bank account, financial condition
(including any projection or forecast provided to Pixxles),
legal form, name, business name, trading address, or business activities (including any change in the goods or
services offered by Merchant), (iii) any actual or pending changes in
the information provided in accordance with
the laws against money laundering or terrorist financing and (iv) of any other actual or
pending changes or developments related to Merchant or Merchant’s
business (including any sale or lease of the Merchant’s company
and any investigation or action by a Supervisory Authority) that are
relevant to this Agreement or that could materially affect Pixxles’
rights under this Agreement. Merchant further agrees that, if at any time,
Merchant learns that it is the subject of any civil or criminal investigation
or action regarding Merchant’s business, goods, services or other
activities, by any authority, or that it has or is suspected to have violated
any Applicable Law or the Card Scheme Rules, or
that it is subject to any
litigation related to this Agreement, Merchant shall inform
Pixxles by
the end of the second (2nd) Business Day following the date that
Merchant learns about such investigation, violation, or litigation. Any failure
by Merchant to so inform Pixxles within
such timeframe shall be a material breach and good cause for termination of this Agreement by Pixxles.
5.6.2
Notwithstanding Clause 5.6.1, at
least one (1) month in advance the Merchant shall inform Pixxles
of any intended change of types
of goods or services or introduction of new categories. During this period Merchant
will not implement
the notified changes until Pixxles
in writing approved or rejected the notified changes. If Pixxles
rejects the notified changes, the Merchant will not offer use of the Services
in respect of such goods or services. This Agreement will remain operational in
respect of the goods or services approved before notification of these requested changes.
5.7
If Merchant ceases to be a member
of any trade association or affinity group as a result of which any
preferential terms were being applied, Merchant shall notify immediately Pixxles and Pixxles reserves the
right to withdraw such terms.
5.8
The Merchant agrees and
acknowledges that if it breaches its obligations under Clauses 5.5, 5.6 and/or 5.7
such may cause a new underwriting review and approval of terms and Pixxles may retrospectively from the Effective Date charge
the Service Fees that would apply for the Services if the Merchant initially
provided correct and fair information. An increase of the Service Fees will
apply in any case incorrect or unfair information was provided or information
was omitted or withheld.
5.9
Confidentiality of Cardholder
Information and Data Security Standard Compliance. Except as otherwise required or permitted by law, Merchant shall not, without the
Cardholder’s and Pixxles’ prior written consent,
sell, purchase, provide, or otherwise disclose the Cardholder’s account
information or other Cardholder information to any third
party other than Pixxles, Merchant’s agents and
processing organisations for the purpose of
assisting Merchant in its business, or in response to a valid government demand. Merchant shall at all times
comply with and shall ensure
Merchant’s agents comply with all applicable data security standards and
programs, including, without limitation, PCI
DSS, PA-DSS, the Visa Cardholder Information Security Program, the Mastercard
Site Data Protection Program, and any other
program or requirement mandated by the Card Schemes or DP Laws (“Data Security
Requirements”). The Merchant shall be responsible for and shall indemnify Pixxles on demand for the amount of any costs, claims,
losses, liabilities, damages, penalties, fines, and/or expenses which Pixxles and/or any of
its Affiliates may suffer or incur and which may arise (directly or indirectly) out of or in connection with any non-compliance by the Merchant (or any of its agents) with any such Data
Security Requirements. The indemnified amounts shall be immediately
due and payable to Pixxles without any damage or
losses being required to be proven by Pixxles and
without prejudice to any other rights of Pixxles
under Applicable Law. This Clause shall survive termination of this Agreement.
5.10
Audit. Merchant agrees to allow Pixxles, Acquirer, Card Schemes, and Supervisory Authorities to audit or review Merchant’s records, systems, processes,
procedures, and facilities to assess Merchant’s financial position and/or
confirm compliance with this Agreement, Card Scheme Rules, or Applicable Law. Pixxles shall be
entitled to inspect and request, make and retain copies of any books, records
or other documents relating to this Agreement
or any other related affairs of the Merchant, and Merchant shall afford such
access and co-operation as may be reasonable in the circumstances to facilitate the
carrying out of such audit or
review. At Pixxles’
request, Merchant shall make all reasonable changes required by, and take any
other action necessitated by, any such audit or review within the time period
specified by Pixxles. Any failure by Merchant to so cooperate and provide
financial or other information upon request shall be a material breach and good
cause for termination of this Agreement by Pixxles or
to seek injunctive relief. Upon failure to cooperate and/or depending on the
outcome of the audit Pixxles reserves the right to
assign a different risk profile to the Merchant. Any negative consequences of
Merchant’s non-cooperation may cease to exist upon the Merchant’s compliance.
5.11
Direct Agreement with Acquirer.
In accordance with the
Card Scheme Rules, if Merchant exceeds the applicable sales volume threshold, Merchant will be required to enter into a
direct agreement with Acquirer. At the time of execution
of this Agreement, the applicable threshold for each of Visa and
Mastercard is USD 1,000,000 in any twelve (12) month period.
6.
FEES PAYABLE
BY MERCHANT.
6.1
Service Fees. Merchant agrees to
pay all Service Fees. The Service
Fees in this Agreement, including in the Merchant Terms Acknowledgement, are
exclusive of any value added tax (“VAT”) that is chargeable in connection with
such Service Fees, and such
VAT shall be paid by Merchant in addition to the Service
Fees (at the applicable rate in force). Pixxles
may modify the Service Fees at any time during the term of this Agreement upon
at least thirty (30) days’ (or two (2) months’ if the Merchant is a Micro-
Enterprise or Charity) prior written notice to Merchant by email, (or, except where the Merchant is a Micro-Enterprise
or a Charity) posting a notice on the Portal or another
method. Upon receipt of such notice, Merchant shall be
entitled to terminate this Agreement by providing written notice to Pixxles, provided that such notice is served within thirty
(30) days (or two (2) months if Merchant is a Micro-Enterprise or Charity), of
the Merchant being notified of the change to the Service Fees. Merchant shall
be deemed to have accepted the modified Service Fees if Merchant does not
exercise such right of termination before such notice period expires.
6.2
Blended Rates. Unless agreed
otherwise between Parties in the Merchant Terms Acknowledgement, by accepting the terms of this Agreement, the Merchant requests
and agrees that Pixxles aggregates fee information on
all Card Scheme brands, rates of interchange fees applicable to the Card
transaction and Pixxles own processing fee. The
Merchant further confirms that Pixxles may charge a
fixed rate and does not have to provide individually specified information
about the different interchange fees or Card Scheme fees that would otherwise
apply to the Card transactions to be processed under this Agreement.
Notwithstanding Clauses
5.8 and 6.1, Pixxles has the right to
proportionally adjust the blended pricing with immediate effect if the
transactions differ materially from the information provided by Merchant upon entering into this Agreement. If the Merchant does
not understand the Service Fees set out in the Fee Schedule or has any
questions about the Service Fees or wish to receive blended or unblended
rates for Card transaction processing, the Merchant is entitled to contact Pixxles.
6.3
Penalties by Card Schemes, Acquirer
and Supervisory Authorities. Merchant shall be responsible for paying (and
shall indemnify Pixxles on demand and in full from
and against) any and all Penalties assessed by the Card Schemes, Acquirer,
and/or (to the extent permitted under
Applicable Law) by Supervisory Authorities against Pixxles
related to Merchant’s activities or the processing of Merchant’s Card transactions. In addition to such Penalties,
Merchant shall pay (and shall
indemnify Pixxles
on demand and in full from and against) such amount as specified by Pixxles to meet its administrative costs in communicating
with, and for managing the delivery of documents and other information related
to the Merchant, its activities or the processing of Merchant’s Card
transactions as may be requested by, the Card Schemes Acquirer or Supervisory
Authorities. Merchant acknowledges and agrees that, subject to Applicable Law, Pixxles may refuse to share any documentation, correspondence, or other information received by Pixxles from the Card
Schemes, Acquirer, or Supervisory Authorities relating to such Penalties in Pixxles’ sole discretion.
6.4
Damages for Violation of Monthly CB
Threshold. Merchant’s Chargeback activity must remain below the Monthly CB Threshold, and Merchant acknowledges and
agrees that any Chargeback activity in excess of the Monthly CB Threshold shall be deemed excessive, may cause Pixxles and Merchant to incur Penalties (which Penalties
shall be the exclusive responsibility of, and
indemnified by, Merchant
in accordance with Clause 6.3),
and shall constitute good cause for termination of this Agreement by Pixxles. If Merchant
exceeds the Monthly CB Threshold in a given month, Merchant shall be subject to
Penalties calculated at
the rate set out in the overview of Service Fees per Chargeback
accrued by Merchant during the applicable month,
which shall be in addition to
any Penalties assessed by the Card Scheme or Acquirer and any other Service
Fees, including Chargeback fees. The Merchant agrees and acknowledges that
(without prejudice to any of Pixxles other rights and remedies) (i)
these Penalties represent a genuine pre-estimate of Pixxles’
losses and (ii) are to protect Pixxles’ legitimate
business interests.
6.5
Excessive Activity Fee. If the
value of reported fraudulent transactions and/or the amount of Chargebacks
incurred by the Merchant in any month exceeds either: (i)
any relevant limit set by a Card Scheme for the relevant payment
instrument; or (ii) 100
basis points as a proportion of the total value of all transactions processed
by Pixxles for the Merchant in that month then the
Merchant may be charged and shall be responsible to pay an Excessive Activity
Fee which will be an additional charge per transaction which will match
the applicable excessive ratio. If both the fraud-to-sales ratio and monthly Chargeback-to-sales ratio are excessive,
the Excessive Activity Fee will match the higher ratio. The Excessive Activity
Fee will be in addition to the standard Service Fee and may be charged by Pixxles and will be payable by the Merchant retrospectively and arrears
based on the relevant months’ transactions once the relevant level of
Chargebacks and fraud have been ascertained.
For example, if for June the Merchant had a chargeback-to-sales rate of 105 basis points, an additional fee of 1.05%
per transaction would be charged for processing transactions in June. If
the Merchant also had a fraud-to-sales rate of 120 basis points for June, the
applicable additional fee would be 1.20% per
transaction in addition to the standard Service Fees. In July, the
Excessive Activity Fee will be
calculated retroactively for the
calendar month in breach and will be payable by the Merchant in August.
6.6
Legal Fees. If Merchant breaches
this Agreement or takes any action to block or prevent Pixxles
from exercising any of its rights or obligations under this Agreement,
including Pixxles’ right to withhold payment, Pixxles shall be authorised to charge, and Merchant agrees
to pay and shall indemnify Pixxles on demand and in
full from and against, the reasonable and properly incurred legal fees (including costs, disbursements, and
expenses) Pixxles incurs to enforce its rights under
this Agreement and cure any breaches by Merchant of this Agreement.
6.7
Technical Assistance from Pixxles. In the event
Merchant requires technical assistance (including but not limited to phone and
email support) from Pixxles’ technicians
that is outside the normal scope of
technical support provided in connection with the Services, Pixxles
may elect in its sole discretion to bill Merchant (and Merchant shall be
responsible to pay) for such technical support services on an hourly basis at
the rate set out in the overview of Service Fees for such services as part of
the monthly Services invoice to Merchant.
6.8
Other Services. From time to time,
Pixxles may need to amend or supplement the Services it
provides to Merchant based on Merchant’s
processing activity (for example, additional monitoring services). Pixxles will provide Merchant
with written notice of such additional services at
least thirty (30) days (or two (2) months if the Merchant is a Micro-Enterprise
or Charity) before their implementation. Merchant shall if the amendment or
supplemental services could cause an increase in the Service Fees paid by the Merchant, be entitled to terminate this Agreement
by providing written notice to Pixxles, provided that
such noticeis served within thirty (30) days, (or within two (2) months if
Merchant is a Micro-Enterprise or Charity), of the Merchant being notified of the change. and
Merchant hereby agrees that Merchant’s continued use of the Services without
terminating this Agreement before the effective date of the proposed additional
services shall be deemed acceptance by Merchant of such additional services and
related Service Fees.
6.9
Inactive Accounts. Without prejudice to Pixxles’
right to terminate this Agreement and any other rights under this Agreement, if there (i) is no
activity in Merchant’s processing
account (such as a Cardholder Charge) for a continuous period of at least
thirty (30) days and/or (ii) are any funds remaining in Merchant’s processing account one (1) year after the termination date of
this Agreement, Pixxles may charge at its
discretion an increased monthly Service Fee for maintaining the processing
account, a research fee and/ or the
Maintenance Fee set forth in Clause 29.7 at the rate set out in the overview of Service Fees from the total outstanding
balance of the processing account. Pixxles may notify Merchant of any inactivity or funds remaining and if Merchant does not
initiate settlement of the funds or respond to the notice within the time
period specified therein (which in the case of a Micro-Enterprise or Charity shall be at least two (2)
months), Pixxles may close Merchant’s processing
account and deliver such funds (less any charged Service Fee or other fee) to
the appropriate government authority in accordance with Applicable Law, unless
such funds are permitted to accrue up
to Pixxles. The
negative consequences of Merchant’s processing account being inactive cease to
exist upon the Merchant’s processing account ceases to be inactive. The Merchant agrees and acknowledges that any inactivity for a period of three (3) or more months will, and for a period of
less than three (3) months may, cause a new underwriting
review and approval of terms. Any fees relating to ongoing management of
inactive accounts will also continue to be charged following closure of the
Merchant’s processing account and termination of this Agreement as per Clause
29.7. This provision shall survive expiration or termination of the
relationship between the Parties. The Merchant agrees and accepts herein not to
hold Pixxles liable for any loss or damage arising in
respect of the foregoing.
7.
PAYMENT TO MERCHANT.
7.1
Account Activation. Merchant must comply fully with Pixxles’ set up
requirements, including proper configuration and troubleshooting of the API
prescribed for Merchant’s use by Pixxles, in order to
enable the activation of Merchant’s processing by Pixxles.
7.2
Timing and
Calculation of Payment. Unless Pixxles informs
Merchant otherwise and subject to any technical issues with the
operating systems of the Card Schemes, Pixxles will
deliver payments of amounts received to the Merchant Operating Account. After Pixxles receives
settlement for Merchant’s transactions through
the Card Schemes, Pixxles will deliver
payments to Merchant in accordance with the schedule and days in arrears set
forth in the Merchant Terms Acknowledgment. If
Merchant has executed more than one (1) Merchant Terms Acknowledgement
under Clause 5.5, then Merchant
acknowledges and agrees to be bound by the terms of each such Merchant Terms Acknowledgement even if the terms, including the payments
schedule, in each such Merchant Terms Acknowledgement differ
from each other.
Such delivery of payments
is also subject
to Pixxles’ rights
in this Agreement to offset, deduct, retain,
and/or holdback sums due to Merchant
or collected from Merchant’s sales. Pixxles
has no obligation to deliver payment for any Card transactions that violate the
terms of this Agreement or the Card
Scheme Rules, and the proceeds from any such transactions are not amounts
due to Merchant. The
payment due to Merchant Operating Account is equal to the sum of Merchant’s
Total Revenues during the specified time period along with any Reserve due to
be released minus the sum of:
(a)
all Chargebacks processed
during the period;
(b)
all Refunds processed
and requested during the period;
(c)
the amount required to cure any
deficiency in the Reserve Account;
(d)
the applicable Service
Fees; and
(e)
all other fees, fines, Penalties,
taxes and other items reimbursable, deductible, or chargeable in this Agreement or otherwise
occurring during the period, including
but not limited to any offsets, retentions, deduction, and/or holdbacks
permitted hereunder as determined by Pixxles in its
sole discretion.
7.3
In case the Card transaction
currency is not in the billing
currency specified in the Pixxles Service Application or Merchant Terms Acknowledgment, Pixxles shall convert the payment into a billing currency when deducting
Service Fees and Chargebacks from the Merchant Operating Account. The Merchant
agrees and acknowledges that the conversion rate will be (i)
the rate used by the third-party service provider which performs the conversion and (ii) is subject to a currency
conversion fee at the rate set
out in the overview of Service Fees above the third-party service provider’s
wholesale exchange rate at which Pixxles obtains foreign currency. The third-party service
provider’s exchange rate reflects movements in foreign-exchange market and is
adjusted regularly based on market conditions. The Merchant agrees and
acknowledges that Pixxles does not control
and cannot display the third-party service
provider’s exchange rate. Changes in the third-party service provider’s
exchange rates may be applied immediately and without notice to the Merchant. Pixxles is not liable for any loss or damage arising as a
result of the currency conversion referred to in this paragraph.
7.4
Remittance statements. The Merchant
may access statements (remittance statements or invoices) via the Portal. The
Merchant must check each statement on receipt and notify Pixxles
within thirty (30) days of receipt of any errors in it or, if the Merchant
is a
Micro-Enterprise or Charity,
without undue delay and
in any event within thirteen (13) months of the date of the transaction which
the Merchant claims is incorrect. Failure to object in time shall be deemed an
approval. Pixxles reserves the right to reissue
corrected statements or correct any payments
after the expiration of this deadline. If the Merchant notifies Pixxles after such time period, Pixxles may, at its discretion and at the Merchant’s expense, assist the
Merchant in investigating whether any adjustments are appropriate and whether
any amounts are due to or from other parties, but Pixxles will not have any obligation to investigate or
effect any such adjustments. Any voluntary efforts by Pixxles to assist Merchant in investigating such matters
will not create any obligation to continue such investigation or any future investigation. Except as required by law, the Merchant shall
be solely responsible for keeping records of all Card transactions and other data related
to the Merchant’s account and use of the Services.
7.5
Withdrawal of Transactions. The
Merchant may not withdraw an instruction to process a transaction once
submitted to Pixxles.
7.6
Merchant Operating Account. The
Merchant shall maintain with the
provider of the Merchant Operating Account a direct debit mandate to authorise Pixxles to Bacs Direct Debit from the Merchant Operating
Account all amounts due from the Merchant to Pixxles under this
Agreement. The Merchant Operating Account must remain available
for debiting such amounts for at least eighteen (18) months after the last Card
transaction was processed and an appropriate Direct Debit Instruction must remain in place for that period. The
Merchant hereby authorises Pixxles to collect all amounts due from the Merchant under this Agreement, including any costs
and expenses incurred in connection with the collection of these amounts,
directly from the Merchant
Operating Account, whether
under the direct debit mandate or otherwise, or as
otherwise provided in this Agreement. Merchant agrees that Pixxles
shall, only if practicable, notify the Merchant in advance of any sums payable
by the Merchant to Pixxles which Pixxles intends to debit by direct
debit. The Merchant must ensure that (a) the financial institution specified in the direct debit mandate
accepts and acts upon
direct debits for the Merchant Operating Account and (b) the account details
specified in the direct debit mandate are correct. Merchant agrees to maintain
sufficient funds in the Merchant Operating Account to satisfy all such direct
debits for payment. The modifications to which Merchant has agreed in this
Clause shall not prejudice Merchant’s rights under Applicable Law or the UK
Direct Debit Guarantee Scheme to recover payments made by direct debit. Without
limiting Pixxles’ remedies, Merchant’s failure to maintain
a Merchant Operating Account in accordance with this Clause, including the failure
or return of any direct debit due to insufficient funds or an indemnity claim,
will permit Pixxles, without advance notice, to
suspend processing Card transactions and Refunds and shall be a material breach
and good cause for termination of this Agreement by Pixxles.
7.7
Payment Delays. Pixxles
will not be liable to Merchant for any delays in payments or errors caused by
third parties, including without limitation the Card Scheme or the financial
institution at which the Merchant Operating
Account is held. Merchant is solely responsible for providing Pixxles with and maintaining accurate contact, payment, and
account information for the Merchant Operating Account, and Pixxles
will not be liable to Merchant for any delays in payments or errors caused by
Merchant’s failure to maintain such information.
7.8
Method of Payment. Pixxles may make payment to Merchant by Electronic Transfer
to the Merchant Operating Account, and shall issue a charge against the Merchant
Operating Account for any fee for such payment.
Unless in relation
to a final payment at the end of any Resolution Period
(defined below) Pixxles shall have no obligation to issue payment when the amount due to
Merchant for the applicable billing
cycle is less than twenty- five Pounds (GBP 25) or, if the
payment is to be made by wire transfer, when such amount is less than fifty
Pounds (GBP 50). Any outstanding balance not credited to Merchant shall roll
over to Merchant’s next billing cycle.
Merchant authorises Pixxles to deposit amounts owed
to Merchant by initiating credit entries to Merchant’s financial institution. Merchant
further authorises Merchant’s financial institution to accept and credit any
entries indicated byPixxles to the
Merchant Operating Account. If Pixxles erroneously
deposits funds into the Merchant
Operating Account, including as payment for any transaction that subsequently is contested
or results in a Chargeback or Refund, Merchant
authorises Pixxles to debit the Merchant
Operating Account for an amount not
to exceed the original amount of the erroneous credit, and Merchant shall
be liable for any deficit
in the amount available for
such debit. This authorisation shall remain in full force and effect until Merchant has satisfied all payment obligations due to Pixxles under this Agreement
and has provided both Pixxles’ and Merchant’s financial institutions with proper notice of the
termination of this Agreement.
7.9
To
Whom Payment May Be Made.
Pixxles will only direct payments due to Merchant under this Agreement
to the Merchant Operating Account unless Pixxles and
the Merchant agree otherwise in writing.
7.10
Set-Off Rights. Anytime there is an
obligation, liability or amount owed by Merchant to Pixxles,
whether under this Agreement or otherwise (and whether such liabilities,
obligations, or amounts are present,
future, actual or contingent or potential, liquidated
or unliquidated), Pixxles may offset, withhold and/or
deduct by whatever means the whole or part of any such amount against any deposit balances or other money now or
hereafter owed to Merchant by Pixxles or against any
Merchant Operating Account (where possible),
without notice or demand of any kind.
Merchant shall have no right to counterclaim or withhold or offset
payments against any amounts owed by Merchant to Pixxles
under this Agreement.
7.11
Anti-Money Laundering Controls. Pixxles reserves the right to require Merchant to furnish Pixxles with information concerning Merchant’s business or
its ownership as may be necessary to assure Pixxles’
compliance with Applicable Law and, specifically, AML Requirements. Pixxles may refuse to provide Services or withhold payments
to Merchant, without liability, if Merchant does not furnish Pixxles with any information requested hereunder by the end
of the third (3rd) Business Day following receipt of such request or if Pixxles reasonably suspects that Merchant’s conduct may be
in violation of relevant law.
7.12
Right to Suspend Services
and Withhold Payment.
Pixxles may
with immediate effect suspend the Services, delay and/
or withhold any and all payments due to Merchant, including amounts owed to
Merchant but not released to Merchant from Card transactions, or charge the
applicable higher Service Fee for any of the following reasons:
(a)
Pixxles
suspects Merchant engaged in any Prohibited Conduct;
(b)
Pixxles
believes it is desirable or necessary to do so on security grounds;
(c)
Pixxles
is obliged to do so as a result of Applicable
Law or at the direction of any competent body, Supervisory Authority, Card Scheme, or Acquirer;
(d)
Merchant’s
volume of sales during a particular period exceeds the limit
set forth in the Merchant Terms Acknowledgment
or there has been no submission of any Card transactions for processing for six (6) consecutive
months, both without having notified that its business is seasonal;
(e)
Pixxles identifies an unexpected, unusual
or suspicious pattern in Merchant’s transactions,
including without limitation sudden or erratic
increases or decreases in volume of sales or average ticket amount;
(f)
Merchant exceeds the Monthly CB
Threshold;
(g)
Merchant has any other activity in
excess of a Card Scheme program and/or a limit in this Agreement
during any monthly period, including but not limited
to (i) the combined count or amount of credits and Refunds exceeding a market standard percentage of the sales
Card transactions (captures and payments) processed by Pixxles for the account of the Merchant in the same monthly
period; and/or (ii) the count or amount of reported fraud (transactions
reported to any fraudulent transaction database maintained by the Card Schemes) exceeding a market standard percentage of the sales transactions (captures and
payments) processed by Pixxles for the account
of Merchant in the same monthly period;
(h)
Merchant does not remedy a
deficiency in the Reserve Account, pursuant to Clause 9.3;
(i)
Pixxles
is holding Reserves after termination, pursuant to Clause 9.4;
(j)
Merchant fails
to maintain accurate contact, payment, and account information for the Merchant Operating Account;
(k)
Merchant revokes the direct debit
mandate in respect of the Merchant Operating Account at any time;
(l)
change of control in Merchant or
any guarantor, or any significant change in the nature of the Merchant’s or any
guarantor’s business;
(m)
upon commencement of bankruptcy or
insolvency proceedings by or against Merchant or any guarantor, or Merchant or any guarantor
has a receiver, administrator
or liquidator appointed or enter into arrangement or composition with
creditors; or
(n)
Merchant otherwise breaches
the terms of this Agreement.
Subject to Applicable Law, Pixxles will
inform Merchant of the reason for taking action in accordance with this Clause
save where to do so would breach
Applicable Law or compromise Pixxles’ security
measures. In respect
of (d) and (e) in this Clause, to avoid suspension of Services and withholding of payments
for these reasons, Merchant must notify Pixxles by the end of
the fifth (5th) Business Day following the date when Merchant became aware of
any such expected increases or decreases in volume or average ticket amount so
that Pixxles may in its sole discretion modify such
limits.
The period for such suspension of the Services, delay or withholding
of payments is determined by Pixxles in its sole
discretion. Notwithstanding Pixxles’ rights under Clause 6.4, the higher Service Fee and the Excessive
Activity Fee shall be proportionate to the Merchant’s excessive activity first
occurred until the Merchant’s activities cease to exceed the thresholds as
notified by Pixxles from time to time. The Merchant
agrees and acknowledges that (without prejudice to Pixxles
other rights and/ or remedies) the higher Service
Fee and Excessive Activity Fee
(i)
represent a genuine pre-estimate of
Pixxles’ losses and (ii) are to protect Pixxles’ legitimate business interests. The Excessive
Activity Fee shall be payable
on a rolling basis in the monththat follows the month in respect of which it was accrued. The
Merchant further agrees and acknowledges that in case a limit is exceeded, such may cause a new
underwriting review and approval of
terms. The Merchant agrees and accepts
herein not to hold Pixxles liable for any loss or
damage arising in respect of the foregoing.
7.13
Special terms. Pixxles
may at any time require Merchant to apply special terms or conditions in relation to Merchant’s acceptance of Card transactions.
8.
INTEREST; OVERDUE
PAYMENTS.
8.1
Interest. The Merchant will not receive
interest or any other earnings on any funds in the Merchant’s account. The
Merchant irrevocably assigns to Pixxles all rights
and legal interests to any interest and/or other earnings that may accrue or
are attributable to the funds in the Merchant’s account.
8.2
Overdue payments. If either Party
fails to pay any undisputed amount due under this Agreement to the other Party
when due and payable, then the relevant
Party to whom such sum was owed shall be entitled to charge default
interest at the rate prescribed from time to time in accordance with the Late
Payment of Commercial Debts (Interest) Act 1998 (as amended from time
to time) or any successor legislation. Such interest shall
accrue on a daily basis from the day following the due date until actual
payment of the overdue amount and interest thereon has been made in full. Any interest which may accrue on the amount of any
unpaid or late-paid sum which Pixxles is entitled to
deduct from the Merchant Operating
Account (but which Pixxles was unable to deduct due to there being
insufficient funds in such account), shall begin to accrue on the date that Pixxles provides the relevant
notice that such withdrawal has failed or will fail. Each Party acknowledges and agrees that the interest payments set out in
this Clause are, in the context of the activities contemplated under this
Agreement, a “substantial remedy” (as this expression is used in the Late Payment of Commercial Debts (Interest) Act
1998 (as amended from time to time)).
9.
MERCHANT RESERVES.
9.1
Reserve Account. The Merchant acknowledges and agrees that:
9.1.1
Pixxles
may withhold a risk-profile-based Reserve at its sole discretion at any time
for the Merchant’s use of the Services;
9.1.2
when a Reserve is paid to Pixxles such funds shall be held by Pixxles
for itself in the Reserve Account,
and the Merchant ceases to have any entitlement to such funds;
9.1.3
Pixxles
is authorised to make any charge, withdrawal or debit against the Reserve
and/or the Reserve Account in respect of indebtedness or any liability (whether
present, future, actual or contingent) of the Merchant for Chargebacks,
Refunds, Service Fees and Penalties
payable from Merchant
to Pixxles and for
any other charges or amounts due or which may become due to Pixxles under this Agreement, including damages, indemnification obligations,
and other charges;
9.1.4
Merchant is not entitled to any
interest on the funds held in the Reserve Account, and it has no right to
direct in any way the use or expenditure of such funds;
9.1.5
Other than pursuant to Clause 10,
Merchant cannot and will not attempt to assign or grant any security
interest in the Reserve
or the Reserve Account, and it cannot and will not allow any encumbrance
against those funds; and
9.1.6
Merchant has no legal or beneficial
interest in the Reserve, the Reserve Account or any funds held in the Reserve
Account until released in accordance with this Agreement.
9.2
Reserve Account balance. Pixxles may apply such amounts of the Merchant’s Total Revenue as is
necessary to ensure that the available balance
of the Reserve Account at no time falls below the Reserve Account Minimum Balance. Pixxles may from
time to time upon at least twenty-four (24) hours’ notice to Merchant increase
the Reserve Account Minimum Balance
if Pixxles determines in its sole discretion that Merchant’s activities and/or risk
profile require such a change. Grounds for such an increase include, but are
not limited to, excessive Chargebacks, excessive Refunds, increases in transaction volume, and a deterioration in Merchant’s financial condition or business activities. The
Merchant authorises Pixxles to debit the
Merchant Operating Account under Clause 7 to
remedy a breach of this obligation. Pixxles may
deduct from the Merchant’s Total
Revenue as a Reserve such amount as it reasonably considers necessary to
prevent the Reserve Account Minimum Balance obligation being breached ahead of
the next date any payment to the Merchant is
due. Pixxles may release such amounts from the
Reserve Account that it in its sole discretion considers unnecessary to retain
pursuant to this Clause.
9.3
Authorisation; Reserve
deficiency. Pixxles may, without
notice to Merchant, apply Reserves against any outstanding amounts
Merchant owes under this Agreement. Pixxles may
exercise its rights under this Agreement to collect any amounts due to Pixxles
including, without limitation, rights of set-off and recoupment. In the event
that Pixxles cannot remedy a breach of the Reserve
Account Minimum Balance,
Merchant will remedy any
deficiency in the Reserve Account by the end of the third (3rd)
Business Day following receipt of Pixxles’
oral or written request for replenishment of Reserves. After the first such
deficiency and request for replenishment, Merchant will remedy any subsequent
deficiency in the Reserve Account within twenty-four (24) hours after receiving Pixxles’ oral or written request for
replenishment of Reserves. Without
limiting Pixxles’ remedies,
Merchant’s failure to remedy any deficiency on time will permit Pixxles, without advance notice, to suspend processing Card
transactions and Refunds and shall be a material breach and good cause for
termination of this Agreement by Pixxles and the
Merchant will bear and shall on demand indemnify Pixxles
against all costs associated with collection of such amounts, including without
limitation, reasonable and properly incurred legal fees and expenses,
collection agency fees, and any applicable interest.
9.4
Withholding of Reserves and Funds
after Termination. Pixxles will continue to require Reserves to be held in the
Reserve Account and will withhold all other funds and payments due to Merchant
but not released to Merchant, including proceeds from Card transactions, for a period from termination of this Agreement
until the later of: (i) satisfaction of all
Merchant’s reasonably anticipated obligations under this Agreement, including
but not limited to Service Fees, Chargebacks, Refunds, credits, Penalties,
damages, indemnification obligations, reasonable and properly incurred legal fees, costs, expenses and any other
charges, and (ii) three-hundred sixty-five (365) days after the last Service activityor the expiration of the applicable timeframes for Chargebacks
(“Resolution Period”). All such other funds and payments that are withheld
shall upon termination become Reserves and will
be held in the Reserve Account in accordance with this Clause. Pixxles may withhold
or require Merchant
to deposit additional funds into the Reserve Account upon termination of this Agreement, and Merchant’s
obligation to replenish Reserves upon request by Pixxles
shall survive termination of this Agreement. In the event of a conflict or inconsistency between
this Clause and any other terms in this Agreement, this Clause shall control
and govern the rights and obligations of the Parties.
10.
SECURITY INTEREST.
10.1
If any competent body or
Supervisory Authority finds for any reason that the Reserve Account or any Reserve is owned
by or is property of Merchant, Merchant hereby:
(a)
holds such Reserve Account
or Reserve on trust for Pixxles; and
(b)
shall only deal with the Reserve
Account and such Reserve as directed by Pixxles
from time to time; and
(c)
grants Pixxles
a fixed charge over all its present and future right, title and interest in and
to the Reserve Account and in any such Reserve by way of security for all amounts
due from Merchant to Pixxles from time to time under this Agreement.
10.2
This is a security financial
collateral arrangement under the Financial Collateral Arrangements (No.2)
Regulations 2003, as amended. Pixxles may exercise
its rights in respect of its security and the charged
asset referred to in this Clause 10 without
notice or demand of any kind, including by making an immediate withdrawal from
the Reserve Account and/or otherwise appropriating the sums in the Reserve
Account and applying the same upon Pixxles’
determination that Merchant has breached any obligation to Pixxles,
and such rights shall be in addition to all other rights of Pixxles
under this Agreement.
10.3
Merchant hereby acknowledges and
agrees that notice shall be given to the third party
financial institution holding the Reserve Account by Pixxles
or on request from Pixxles bank. Merchant further
agrees to execute any control agreements or other documents (including assignments, transfers, mortgages, charges, notice
and instructions) and to perform any other action as Pixxles
may specify or as otherwise required in order to create, comply with and
perfect, protect and/or maintain the charge and security interest, and other
arrangements set out in this Clause 10 and to facilitate the realisation of the assets referred to in this Clause 10.
11. REPRESENTATIONS AND WARRANTIES.
Merchant represents and warrants to Pixxles at the time of execution and throughout the term of this Agreement that:
(a)
All information contained in the Pixxles Service Application and any other documents delivered
to Pixxles
in connection with this Agreement is true and complete, properly reflects
Merchant’s business, address, financial condition and principal partners,
owners, directors or officers, and
does not omit any material information requested by the Pixxles
Service Application;
(b)
Merchant is not
an individual, sole trader, sole proprietorship, or substantively equivalent legally recognised entity;
(c)
Merchant has the power
to execute, deliver
and perform this Agreement, and this Agreement is duly authorised and does not
and will not violate any provisions of any Applicable
Law to which Merchant is subject;
(d)
Merchant has all licenses required
to conduct its business and is qualified to do business in every jurisdiction
where it is required to do so, and
does not sell any goods or services prohibited under the laws of the
jurisdiction in which Merchant is located, or any jurisdiction in which
Merchant offers goods or services to consumers;
(e)
Merchant complies fully with the
Applicable Laws and DP Laws of the jurisdictions in which Merchant is located
and every jurisdiction in which Merchant
markets its goods and services to consumers, and
covenants to implement appropriate technical and organisational measures as
necessary to ensure protection of personal data and remain in compliance with
applicable personal data protection laws at all times during the term of this
Agreement;
(f)
Merchant provides consumers with
all disclosures and other information required by consumer protection laws applicable
in the jurisdiction in which Merchant is located and in which Merchant
offers goods or services to consumers;
(g)
Merchant respects the intellectual
property rights of third parties and does not and will not infringe such rights in any way and, within twenty-four (24)
hours of becoming aware of any infringement of such rights, will terminate such infringement;
(h)
Merchant will use the Card Scheme
logos and marks in compliance with Card Scheme Rules;
(i)
To Merchant’s knowledge, there is
no pending or threatened action, suit,
investigation, or proceeding by or against or affecting Merchant that would
substantially impair Merchant’s right continue its business or would adversely
affect Merchant’s financial condition or business activities;
(j)
Each transaction presented to Pixxles for collection is genuine, the result of a bona
fide Card transaction for the purchase of goods or services by the Cardholder
in the total amount stated on the sales draft, and is not the result any
fraudulent transaction, or be deposited on behalf of any business other than
Merchant;
(k)
Merchant has performed or will perform all of its obligations to
the Cardholder in connection with the Card transaction, including but not
limited to accepting responsibility for the acceptance of a Cardholder order, its fulfilment in an agreed upon manner, and all material
warranties, guarantees and order commitments;
(l)
Merchant will, on and after the Effective Date, comply
with Pixxles’ procedures for accepting Cards, and
Card transactions will not involve any element of credit or debit for any purpose other than as set forth in
this Agreement and will not be subject to any defence, dispute, offset, or
counter claim which may be raised by any Cardholder;
(m)
Any Refund that Merchant will, on and after the EffectiveDate, issue will represent a bona fide refund or adjustment on a
Card sale by Merchant in respect of a transaction that has been accepted;
(n)
In respect of all Card transactions
that Merchant requests Pixxles to originate, Merchant will, on and after the Effective Date, ensure that:
(i)
each customer has authorised the debiting and/or crediting of its account, as
applicable;
(ii)
each entry is for an amount the
customer has agreed to; and
(iii)
each entry is in all other respects
properly authorised;
(o)
Merchant will, on and after the
Effective Date, comply with and will ensure its agents will, on and after the
Effective Date, comply with all Data Security Requirements; and
(p)
Merchant will, on and after the
Effective Date, comply with any and all AML Requirements, including but not limited
to the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer)
Regulations 2017 (as amended, supplemented or restated from time to time).
12.
MERCHANT TRANSACTION LIMITS.
Pixxles shall have
the right to set overall transaction and sales limits for all transactions processed pursuant to
this Agreement, which may be amended from time to time by Pixxles
in its sole discretion upon at least twenty-four (24) hours’ notice to
Merchant.
13.
CARDHOLDER TRANSACTION LIMITS.
13.1
To
prevent the occurrence of fraudulent transactions, Pixxles may impose limits on the
amount or number of purchases that may be charged
to an individual Cardholder account
during any time period,
or refuse to accept orders from Cardholders with a history of Chargebacks,
fraudulent transactions or other activity that is prohibited by the Card
Schemes or Acquirer, or other questionable Cardholder Charges or Card
transactions as determined in Pixxles’ sole
discretion. Merchant accepts and understands that Pixxles
shall impose these limits within its sole discretion, and such limits may be
amended from time to time by Pixxles upon notice to
Merchant.
13.2
If the Merchant submits or attempts
to submit any Card transaction which Pixxles believes
is in violation of the Card Scheme Rules, Applicable Law, and/or this Agreement
and/or will expose the Card Schemes or Pixxles to
harm (including without limitation fraud, brand or reputational damage or
criminal acts), Pixxles reserves the right not to
authorise, to suspend or to reverse the Card transaction, to close or suspend
the Merchant’s account, to report the transaction to the relevant
law enforcement agency, to
claim damages from the Merchant and/or charge an administration fee in case Pixxles applies any of the foregoing.
14.
REFUND POLICY.
14.1
Pixxles
shall use commercially reasonable efforts to direct Cardholders to utilise the Cardholder support
services offered by Merchant
to resolve all disputes and complaints; provided,
however, that Pixxles reserves
the right in its sole discretion
to issue a Refund on behalf of Merchant without
Merchant’s prior knowledge or consent. To avoid Chargebacks, Pixxles will in its sole discretion cancel
and Refund on behalf of Merchant
any suspicious transaction that cannot be verified to Pixxles’
satisfaction as valid or that is reported to Pixxles
by the Card Schemes or Acquirer. Merchant acknowledges and agrees that such determinations by Pixxles shall be fully and
finally binding on Merchant.
14.2
If Pixxles
determines in its sole reasonable discretion that the Merchant processes an excessive value and/or volume of Refunds, Pixxles may disable the refund option.
15.
REQUEST FOR DOCUMENTS.
15.1
Pixxles
may request delivery documents for tangible goods and/ or proof of services provided by Merchant in order to
investigate processing activity, Chargebacks, and the Merchant’s obligations
pursuant to this Agreement. Merchant shall provide such documentation to Pixxles by the end of the third (3rd) Business Day
following any such request. Merchant’s failure to provide such documents within that timeframe shall
be a material breach and good cause for termination of this Agreement by Pixxles.
15.2
The Merchant
shall assist Pixxles when requested, at the
Merchant’s expense, to investigate any of the Card transactions
processed through the Services. The Merchant further acknowledges that failure
to assist Pixxles in a timely manner, including
providing necessary documentation not later than ten (10) Business Days from Pixxles’ request, may result in an irreversible Chargeback.
Pixxles reserves the right to charge a consultancy
fee at the rate set out in the overview of Service Fees for investigating
and/or mediating any Chargebacks, with any such fees to be disclosed from time
to time in the Portal.
16.
PASSWORD AND PORTAL SECURITY.
16.1
On
entering into this Agreement, Pixxles will issue to Merchant
a password for use on the Portal and to access the Service. This password is
used by Merchant to verify its identity to Pixxles. Merchant shall exercise all possible care to ensure
password safety and confidentiality and, subject to this Clause, shall
not share it with anyone. Merchant shall not permit or allow any person to
access the Portal other than as authorised in this Agreement.
16.2
Merchant shall grant access to the Portal to Duly
Authorised Users only on a need-to-know basis. Where Merchant establishes
subaccounts for Duly Authorised Users to access the Portal, Merchant shall, and
shall require that Duly Authorised Users, exercise all possible care to ensure
password safety and confidentiality and to prevent passwords becoming known to
or used by other persons. Merchant shall remain liable for all actions and
omissions of all Duly Authorised Users.
16.3
Users of the Portal shall cease to be Duly Authorised Users in the event that their employment with Merchant terminates or they no longer require
access to the Portal. Merchant shall withdraw access from such users as soon as
they cease to be duly authorised, including by deleting
the users’ subaccounts, if applicable, or changing
the Portal password
of such users.Merchant shall remain liable for all actions and omissions of any
formerly authorised user until Merchant takes the steps necessary
to withdraw access from such users.
16.4
Merchant acknowledges that the
security of Merchant’s activities pursuant to this Agreement depends upon
Merchant securing and maintaining the confidentiality of Merchant’s password
and account information.
Merchant shall be wholly responsible for maintaining the confidentiality of Merchant’s password and account information, and
for all activities that occur pursuant to this
Agreement. Merchant must notify Pixxles
immediately on becoming aware of any actual or suspected loss, theft, or
misappropriation of any password or account information relevant to this
Agreement, or of any actual or
suspected fraudulent or unauthorised activity in respect of the Service
provided under this Agreement. Pixxles
shall be entitled to act on any such
notification without further recourse to Merchant.
16.5
This Clause 16.5 shall apply where
the Merchant is not a Micro- Enterprise or Charity. Pixxles
shall not be responsible for any unauthorised
activity associated with Merchant’s processing where:
(a)
it arises from
fraudulent activity on the part of the
Merchant; or
(b)
it arises from the Merchant’s
failure to comply with its obligation to keep its systems secure and its
password confidential; or
(c)
the Merchant fails to notify Pixxles within thirty (30) days of receipt of the relevant
statement setting out details of the unauthorised transaction,
and where any of the conditions above is met, Merchant
shall indemnify Pixxles in full and on demand for any
and all losses Pixxles
may incur as a result of any such activity.
16.6
This Clause 16.6 shall apply where Merchant is a Micro-Enterprise or
Charity. Pixxles shall not be responsible for any unauthorised
activity associated with Merchant’s processing where:
(a)
it
arises as a result of the Merchant, with intent or with gross negligence, failing to comply with
its obligation to keep its systems secure and its password
confidential, provided that Pixxles shall be responsible for any losses arising from
unauthorised activity which occurs after Merchant has notified Pixxles of such activity; or
(b)
it
arises from fraudulent activity on the part of the Merchant, and regardless of whether the
Merchant notifies this to Pixxles or not; or
(c)
the Merchant fails to notify Pixxles within thirteen (13) months of the date of the
unauthorised transaction, and where any of the conditions above are met,
Merchant shall indemnify Pixxles in full and on
demand for any and all losses Pixxles may incur as a result of any such activity.
16.7
Pixxles
has the right to suspend the use of the Services on reasonable grounds relating
to its security or its suspected unauthorised or fraudulent use. Except where
the notification would compromise reasonable security measures or is otherwise
unlawful, Pixxles shall notify Merchant of any such
suspension and the reasons for the
suspension in advance or, if unable to do so, as soon as practically possible
after. Pixxles shall resume the Services to the
Merchant as soon as practicable after the reasons for the suspension cease to
exist.
16.8
Where Pixxles
suspects or has become aware of actual fraud or security threats relating to
the Portal and/or the Services, Pixxles shall notify
the Merchant by email of this (and by other methods designated by Pixxles from time to time, such as a portal notification), unless this would
compromise reasonable security measures or would otherwise be unlawful.
17.
MERCHANT E-MAIL AND ACCOUNT CHANGES.
Merchant
must provide a valid, working administrative email address upon enrolment, and any changes to
Merchant’s processing pursuant to this Agreement via email may only be made using that email address. The security
of Merchant’s activities depends in part upon Merchant maintaining the security
of the administrative email address
provided to Pixxles by
Merchant, and Pixxles shall not be responsible for
any unauthorised changes made to Merchant’s processing using such email
address.
18.
CONFIDENTIALITY; NON-DISPARAGEMENT.
18.1
The Parties shall treat
all information of the other
that comes to their knowledge
or is processed in connection with this Agreement as confidential and shall not
disclose such information unless required for the purposes of carrying out
their obligations or exercising their rights under this Agreement or as required by Applicable Law. The Parties
may also become aware of the other Party’s trade secrets and shall treat such
information as confidential. Notwithstanding anything
in this Agreement to the contrary, either Party may disclose to
third parties the fact that Merchant
is using the Services. Merchant
acknowledges and agrees that the Services
and the documentation provided to Merchant under this Agreement are and contain the
valuable, confidential and trade secret information of Pixxles.
18.2
The Parties shall refrain from
making or causing to be made any publication, oral or written, of any actual,
alleged, or implied defamatory, disparaging, or otherwise derogatory matter
pertaining to each other, including their owners, employees, agents, and Affiliates. This prohibition is specifically meant to
be broader than defamation and includes making postings on websites, contacting
employees, customers, clients, or vendors, and stating or implying anything
negative about each other by words, actions, context, or any combination of the
foregoing.
19.
INTELLECTUAL PROPERTY.
19.1
Merchant hereby grants Pixxles and its Affiliates an irrevocable, royalty-free and
non- exclusive right for the term of this Agreement to use Merchant’s
trademarks and logos on Pixxles’ websites and in
off-line publications for promotional purposes.
19.2
Merchant shall not use the
Trademarks without the prior written consent of Pixxles.
19.3
Without prejudice to the forgoing,
if Pixxles provides prior written consent to use any Trademarks:
(a)
Merchant shall use such Trademarks in accordance with Pixxles’
directions for the use of such Trademarks;
(b)
Merchant shall not have a right of sub-license;
(c)
Pixxles
may apply limitations to the rights granted to Merchant under this Clause at
any time in Pixxles’ sole discretion;
(d)
Merchant will refrain from using
the Trademarks in any manner that might create a composite mark with its own
trademarks or logos and will not use any mark or name confusingly similar to
the Trademarks;
(e)
Merchant will not apply to register
the Trademarks as trademarks, domain names or otherwise;
(f)
Merchant shall notify Pixxles in writing immediately upon becoming aware of any
infringement or misuse of the Trademarks by any person; and
(g)
Merchant acknowledges and agrees
that its use of the Trademarks does not create for itself any rights in the
Trademarks other than those explicitly granted in this Agreement and that any
use of the Trademarks by the Merchant (and any goodwill arising in relation to
them) will be for the benefit of and accrue to Pixxles.
19.4
All proprietary rights in the
Services, equipment, Software (including, without limitation, interfaces),
Trademarks, and other materials used or made available by Pixxles
in the performance of this Agreement, whether
or not supplied to Merchant, shall remain with Pixxles or its licensors, and Merchant’s rights of use in respect of such Services, equipment,
Software, Trademarks or materials shall expire or terminate upon the
termination of this Agreement.
19.5
Upon termination of this Agreement, Merchant
will within twenty-four (24) hours withdraw
any reference to Pixxles from its
websites and promotional materials and cease all use of the Trademarks and all other proprietary rights formerly licensed to Merchant in connection with this Agreement, and Pixxles and its Affiliates will within twenty-four (24) hours withdraw any reference to Merchant from
its websites and promotional materials and cease all use of Merchant’s
trademarks and logos.
19.6
The Merchant shall not make any
announcement or statement about this Agreement or the subject matter of, or any
matter referred to in, this Agreement without the prior written approval of Pixxles. If the Merchant submits any ideas, suggestions or
other feedback to Pixxles about the Services
or Software, the Merchant hereby grants Pixxles the
right to use and disclose such feedback without any further obligation to the
Merchant.
20.
LIMITED USE LICENSE FOR SOFTWARE AND SERVICES.
20.1
All Software, Services and related
products provided to Merchant under this Agreement are provided on an “as-is”
basis. Merchant understands, acknowledges and agrees that processing outages
are normal and may occur from time to time due to service interruption by banks, failed servers or the storage
facility. Save to the extent
expressly prohibited under Applicable Law, Merchant agrees that Pixxles shall not be liable for any loss of business or
other damages caused by such outages.
20.2
In consideration for Merchant’s
payment of any applicable fees, Pixxles hereby grants
Merchant a personal, non-exclusive, non- transferable, non-sublicensable
license to (i) use the Software, in object code form
only, and (ii) access and use the Portal, in eachcase solely in connection with the Service.
Merchant shall not:
(a)
attempt to reverse engineer,
decompile, disassemble or otherwise translate or modify the Software in any
manner (save to the extent expressly permitted under Applicable Law); or
(b)
sell, assign, license, sublicense
or otherwise transfer, transmit or convey Software, or any copies or
modifications thereof, or any interest therein, to any third party.
20.3
All rights in
the Software, including without limitation any patents, copyrights
and any other intellectual property rights therein, shall remain the exclusive
property of Pixxles and/or its licensors. Merchant
agrees that the Software is and contains the proprietary and confidential
information of Pixxles and/or its licensors. Merchant
shall notify Pixxles immediately upon becoming aware of any unauthorised use of the whole or
any part of the Software by any person.
20.4
Any rights of
use licensed by Pixxles to Merchant shall immediately
terminate upon the earlier of (i) termination or expiration of this Agreement, (ii) termination of the
Services with which the Software is intended for use; or (iii)
failure of Merchant to comply with any provisions of this Agreement.
21.
DATA PROTECTION.
21.1
For the purposes of this Clause,
terms and expressions not defined in
this Agreement shall have the meaning,
if any, assigned to them by DP
Laws.
21.2
The Parties agree that, for
Protected Data, the Merchant shall be the
Controller and Pixxles shall be the Processor. As the
Controller, Merchant shall ensure its processing instructions comply
with the DP Laws.
21.3
The Merchant shall have sole
responsibility for accuracy, quality, and legality of Protected Data and for
the means by which Merchant has established the legal basis for processing
under the DP Laws, including providing all notices and obtaining all consents as
may be required.
21.4
Where Pixxles
processes Protected Data on behalf of the Merchant
unless otherwise required by law, Pixxles shall
process the Protected Data only in accordance with this Agreement, as is necessary to perform the Services or as otherwise agreed
in writing between the Parties from time to time. Pixxles
shall notify the Merchant in the event it reasonably believes any instruction
given by the Merchant is unlawful.
21.5
Pixxles
shall take appropriate technical and organisational measures to ensure security
of processing and to protect Protected
Data against accidental or unlawful destruction or accidental loss, alteration,
unauthorised disclosure or access and against all other unlawful forms of
processing.
21.6
The Merchant
agrees that Pixxles may engage another Processor to perform
specific processing activities in respect of the Protected Data on behalf
of the Merchant provided
that Pixxles appoint such sub-processor under a binding
written contract which imposes data protection obligations on the sub-processor
no less stringent than those contained in this Clause. For the avoidance of doubt, Pixxles
shall be liable to Merchant for a sub-processor’s compliance with its data
protection obligations in respect of this Agreement. Where a sub-processor is
engaged by Pixxles underthis general authorisation, Pixxles shall
notify the Merchant of any intended sub-processor changes and
the Merchant shall have the right to raise its reasonable objections to any such changes within five (5) Business Days of such change notification.
21.7
Pixxles
shall take reasonable steps to ensure the reliability of all its employees and subcontractors who have
access to Protected Data and ensure that they
are bound by appropriate confidentiality obligations.
21.8
Pixxles
shall implement and maintain, at its cost and expense, appropriate technical
and organisational measures
to assist the Merchant in the fulfilment of the Merchant’s obligations to respond
to requests from individuals to exercise their rights under the DP Laws,
including subject access requests, requests for the rectification or erasure of personal data, and objections to processing relating to Protected Data, including to ensure
that all Data Subject Requests it receives are recorded and then referred to
the Merchant by the end of the fifth (5th) Business Day following receipt of the request.
21.9
Pixxles
shall provide reasonable assistance, information and cooperation to assist the
Merchant in complying with the Merchant’s obligations under DP Laws in respect
of: (i) security of processing; (ii) notification
by the Merchant of breaches to the Supervisory Authority or Data Subjects; and
(iii) data protection impact assessments and prior consultation with a
Supervisory Authority regarding high risk processing.
21.10
Merchant agrees that Pixxles may transfer any Protected Data to any country
outside the United Kingdom or to any international organisation, provided that Pixxles ensures that
such transfer (and any onward transfer): (i)
is pursuant to a written contract including provisions relating to
security and confidentiality of the Protected Data;
(ii) is effected by way of a legally enforceable mechanism for transfers
of Personal Data as may be permitted under DP Laws from time to time and (iii)
otherwise complies with DP Laws.
21.11
Pixxles
shall maintain, in accordance with DP Laws binding on Pixxles,
written records of all categories of processing activities carried out on behalf
of the Merchant and shall make available to the Merchant on request such
information as is reasonably required by the Merchant to demonstrate compliance
by Pixxles with its obligations under DP Laws and
this Agreement. Not more than once in each twelve (12) month period of this
Agreement, Pixxles shall, upon reasonable notice,
allow for, and contribute to,
reasonable and necessary audits and inspections carried out by Merchant, or by
an auditor appointed by Merchant, at Merchant’s expense in connection with
Merchant’s obligations under the DP Laws.
21.12
In respect of any personal data
breach related to the Protected Data, Pixxles shall,
upon becoming aware of the breach, notify the
Merchant of the breach without undue delay and provide the Merchant without
undue delay with such details relating to the breach as the Merchant reasonably
requires.
21.13
Pixxles
shall, at the Merchant’s written request, either securely delete or return all the Protected
Data to the Merchant after the end of the provision of the
relevant Services related to processing or, if earlier, as soon as processing
by Pixxles of any Protected Data is no longer
required for Pixxles’ performance of its obligations under this Agreement, and
securely delete existing copies (unless storage of any data is required by
Applicable Law, and if so Pixxles shall notify the
Merchant of this).
21.14
The Merchant acknowledges that Pixxles may be
obliged to report the Merchant’s business name, the name of Merchant’s
beneficial owners and principals, and other
information to the Card Schemes when the Agreement is terminated due to
any reasons listed in the Card Scheme
Rules. The Merchant shall have no
claim against Pixxles in respect of such reporting.
21.15
The processing of Protected Data in
connection with this Agreement shall be in respect of the categories of Data
Subjects and the types of Personal Data and for the purpose and nature and the
duration, set forth below.
21.15.1
Categories of Data Subjects:
Cardholders, potential Cardholders, and payment beneficiaries.
21.15.2
Types of Personal Data: name,
contact details, transaction information, and purchase history.
21.15.3
Purpose and Nature of Processing:
to provide Card payment processing to clear and settle payments for purchases
of Merchant’s goods and services by way of Cards and to otherwise provide the
Services.
21.15.4 Duration of Processing: for the term of this Agreement.
22.
TAXES.
Merchant
is solely responsible for and agrees to pay all taxes and other charges imposed
by any government authority on the Services provided under this Agreement and on any transactions processed pursuant to this
Agreement.
23.
LIABILITY OF MERCHANT AND PIXXLES.
23.1
Neither Party
shall be liable for
any delay or failure to carry out
any of
its obligations under this Agreement if and to the extent that such failure is
due to complying with any relevant requirement under the Card Scheme Rules or
any Applicable Laws.
23.2
Neither Party excludes or limits
liability in respect of injury to or death of any person caused
by their negligence nor in respect of their fraud nor for any matter
for which it is not permitted by Applicable Law to exclude or limit, or to
attempt to exclude or limit, its liability.
24.
LIMITATION OF PIXXLES LIABILITY.
24.1
Pixxles
will only be liable for its own acts or omissions and not for acts or omissions
of third parties. This expressly excludes liability for acts or omissions of the Card Schemes, Acquirers, and issuers, or for events or activities originating
outside Pixxles system (such as infrastructure
failure, internet disturbances or malfunctioning in third party
systems), except in case such events were caused by Pixxles’
wilful misconduct or gross negligence.
24.2
Save to the extent expressly
prohibited under Applicable Law and
subject to clause 23.2, Pixxles liability to Merchant or to any party claiming
by, through or under Merchant, for any claim related to a
liability event or series of
connected liability events shall be limited in the aggregate to the lower of (a)
ten thousand GBP (£ 10,000) or (b)(i) the amount of Service Fees (exclusive of interchange
fees,assessments, PCI DSS charges and any other fees or costs that are imposed by a Card Scheme or a third party in connection
with Merchant’s payment processing), as set out in the Merchant Terms
Acknowledgement, paid by Merchant to Pixxles during
the six (6) months period immediately preceding the event or series of connected events giving rise to the
claim for liability, or (ii) if this Agreement has not been in effect for six
(6) months at the time of such event or series of connected events, the average
monthly amount of Service Fees (exclusive of interchange fees, assessments, PCI
DSS charges and any other fees or costs that
are imposed by a Card Scheme
or a third party in connection with Merchant’s payment processing) paid by Merchant multiplied
by six (6).
24.3
Save to the extent expressly
required under Applicable Law and subject to clause 23.2, Pixxles shall in no event be liable for any incidental, exemplary, punitive,
indirect or consequential damages whatsoever, regardless of whether such
damages were foreseeable or whether any party or entity has been advised of the possibility of such damages. Save to
the extent expressly required under Applicable Law, Pixxles
is not liable to Merchant for account number verification service errors. Pixxles
shall not be liable to Merchant or any third party for any loss and/or damage
caused or suffered by the Merchant and/or such third party in connection with any unavailability of the Services
contemplated by this Agreement. Pixxles
assumes no liability for disruptions or improper operation of the Service for any reason,
including but not limited to
vandalism, theft, actions of third-party
service providers, or any other causes in the nature
of a Force Majeure Event.
24.4
Pixxles shall be responsible for the correct
execution of Refunds or Cardholder Charges
within the timescales set out in the PSR. Merchant shall be responsible for
reconciling entries on the Merchant Operating Account(s) and to notify Pixxles of any
differences/errors (such as unauthorised, non- executed or incorrectly executed
Cardholder Charge or Refunds, representments
or retro-charges), without any undue delay and in any event no later than two (2) months (or if Merchant
is a Micro- Enterprise or Charity thirteen (13) months), after the date of the
transaction. The Merchant waives any right to payment for any transaction if it
fails to provide notice as required by this Clause.
24.5
Pixxles
shall immediately retransmit the Cardholder Charge or Refund, where legally
required and provided that Merchant provided all required card details to
process the Card transaction correctly, has not acted fraudulently and notified
Pixxles within the
time periods stated in Clause 24.4.
24.6
If Pixxles
can prove that it correctly transmitted the Cardholder Charge or Refund to the Card Issuer within
the relevant timescale, Merchant will not be entitled
to the retransmission of the Cardholder Charge or Refund.
24.7
In no event shall Pixxles be liable for any failure to make a Cardholder
Charge which is not reported in writing to Pixxles
within time periods stated herein. Merchant expressly waives any such claim that
is not brought within the time periods stated in Clause 24.4.
24.8
Pixxles
shall not be liable under the provisions of this Clause for losses caused by a
Force Majeure Event.
25.
LIABILITY OF MERCHANT.
If
the Merchant consists of more than one legal person (for example, a
partnership), each legal person has joint and several liability under this Agreement. If Merchant is a partnership and the
partnership ends, Pixxles may terminate this
Agreement, and if Pixxles has reason to believe that
there is any dispute as to who is entitled to any funds Pixxles
holds, Merchant authorises Pixxles to pay such funds
into the account which Pixxles maintains in its books
and records until Pixxles is satisfied that the dispute has been resolved or receives
a court order to pay out such funds, at which point Pixxles
will pay such funds to the partners who are entitled to such funds as confirmed
by Merchant or in accordance with such court order.
26.
PIXXLES DISCLAIMER OF WARRANTIES.
To the extent permitted
by Applicable Law, Pixxles:
26.1
Disclaims all other representations
or warranties made to Merchant or to any
other person, except as specifically
set forth in this Agreement;
26.2
Makes no warranties, express or
implied, as to any of the Pixxles Services, related
products, Software or documentation; and
26.3
Specifically disclaims any and all
implied warranties, including without limitation any implied warranties of
merchantability or fitness for a particular purpose.
27.
INDEMNIFICATION.
Merchant
shall defend, indemnify and hold harmless Pixxles,
Acquirer, and each of their
Affiliates, officers, directors, agents, employees and independent contractors
(each an “Indemnitee”), on demand from and against
any and all claims, demands, actions, losses, liabilities, damages, recoveries,
settlements, costs or expenses (including but not limited to those arising from
fraud or similar activities, whether or not Merchant participated in any way),
including but not limited to investigation expenses, research time,
reasonable and properly incurred legal fees, accountant and expert witness fees
and costs, and other costs of defence, whether
or not provided by Indemnitees’ personnel or others,
known or unknown, present or future
contingent or otherwise, arising
directly or indirectly out of or in connection with this Agreement, the
duties to be performed by Merchant pursuant to this Agreement, any transactions that Merchant submits to Pixxles, or Merchant’s violation of the Card Scheme Rules
or any Applicable Law, except to the
extent that any such losses are
directly caused by the gross negligence,
wilful deceit or fraud of an Indemnitee or, where Merchant is the
Indemnitee, any other provision in this Agreement states that Pixxles shall be liable.
If an Indemnitee is made a party to any litigation, proceeding, arbitration,
bankruptcy proceeding, or other legal process (collectively “Actions”)
commenced by any third party arising out of or resulting from or in connection
with Merchant’s business activities, goods or services, contractual
relationships, promotions, or advertising, or
any alleged act of libel, slander, infringement or other violation of any third party’s copyright, trademark or other intellectual property
rights by Merchant or any subcontractor or agent of Merchant, Merchant
shall (on demand) defend,
indemnify and hold harmless
such Indemnitee from and in respect
of the Actions and shall
pay all costs,
expenses, and reasonable and properly legal fees incurred or paid in
connection with the Action, together
with any judgments rendered. Merchant shall (on demand) defend, indemnify and
hold harmless an Indemnitee from and against all losses (present
or future, actual
or contingent) arising
out
of or in connection with any hacking, infiltration, or compromise of Merchant’s
systems or the systems of Merchant’s servicers, designated representatives, or
other agents. Merchant will pay any and all Penalties assessed against an
Indemnitee by the Card Schemes in connection with Merchant or Merchant’s
activities.
28.
PERSONAL AND CROSS-CORPORATE GUARANTEE.
As
an express condition precedent to this Agreement, and prior to furnishing any
service or benefit to Merchant hereunder, Pixxles
shall require an independent personal guarantee of Merchant’s performance and obligations under this Agreement to be provided
by one of Merchant’s owners or principals, or another individual
acceptable to Pixxles in its sole discretion (“Personal Guarantee”). Pixxles
may also require a Cross- Corporate Guarantee from an Affiliate of Merchant. If
so required, Merchant must provide Pixxles with the
fully executed Cross-Corporate Guarantee (including any addendums) either prior
to this Agreement taking effect or at any time during the term of this
Agreement.
29.
TERM AND TERMINATION.
29.1
The initial term of this Agreement
shall be for twelve (12) months beginning upon the Effective
Date, and the term shall automatically renew at the end of each consecutive
twelve (12) month period unless terminated in accordance with this Clause.
29.2
Merchant may terminate this
Agreement at any time on at least sixty (60) days’ written notice unless
otherwise expressly allowed pursuant to other provisions of this Agreement.
If the Merchant is a Micro-Enterprise or Charity, Merchant may
terminate this Agreement by giving one (1) month’s written notice. If this
Agreement has been in effect
for a period of less than twelve
(12) calendar months
(or six (6) calendar months
if Merchant is a
Micro-Enterprise or Charity) (in each case the “Minimum Period”), Merchant shall pay Pixxles a charge
for such termination, which shall be reasonable and correspond to the
actual and/or anticipated: (1) costs of termination incurred by Pixxles; and
(2) loss of fees which Pixxles would have
received under this Agreement had it remained in place for the relevant Minimum
Period (such amount to be calculated pro-rata based on the last full month’s
Service Fees which were due to Pixxles prior to the
relevant notice of termination being given).
29.3
Pixxles
may terminate this Agreement at any time on at least thirty (30) days’ written notice unless otherwise expressly allowed pursuant to other provisions of
this Agreement. (provided that, if Merchant is a
Micro-Enterprise or Charity then Pixxles shall give
Merchant at least two (2) months’ notice of termination).
29.4
Notwithstanding the notice periods
above, either Party may terminate immediately upon written notice if:
(a)
the other Party fails to pay any
amount due under this Agreement on the due date for payment, and such amount
remains in default not less than five (5) Business Days after the other Party
is notified in writing to make such payment;
(b)
the other Party commits a material
breach of any of the terms of this Agreement and (where such breach is capable
of remedy) fails to remedy
the breach within
thirty (30) days of being notified of the breach and
requiring the breach to be remedied;
(c)
the other Party suspends or ceases, or threatens to suspend or cease, carrying on the whole or a
substantial part of its business which is
material for the purposes of this Agreement;
(d)
the imposition of any law or
regulation that means that this Agreement as a whole is unable to operate in
the manner contemplated by the Parties;
(e)
the other Party makes any voluntary
arrangement with its creditors;
(f)
the other Party applies
to court for, or obtains,
a moratorium under Part A1 of
the Insolvency Act 1986;
(g)
the other Party suspends, or
threatens to suspend, payment of its debts or is unable to pay its debts as
they fall due or admits inability to pay its debts;
(h)
a resolution is passed (otherwise
than for the purpose of solvent amalgamation or reconstruction) or an order is made for the winding up of the other
Party;
(i)
the other Party
is the subject of a notice of intention to appoint an
administrator, is the subject of a notice of appointment of an administrator, is the subject of an administration
application, becomes subject to an administration order or has an administrator
appointed over it;
(j)
a receiver or administrative
receiver is appointed over all or any of either the other Party’s assets or
undertakings;
(k)
the other Party is dissolved; or
(l)
any event occurs, or proceeding is taken, with respect to the
other Party in any jurisdiction to which it is subject that has an effect
equivalent or similar
to any of the events
mentioned in Paragraphs (e) to (l). (inclusive).
29.5
In addition to the circumstances
expressly set forth in other provisions of
this Agreement, Pixxles may terminate this Agreement immediately upon written notice
to the Merchant in the event that:
(a)
the Merchant engages
in any Prohibited Conduct;
(b)
Pixxles
is directed to do so by a Supervisory Authority,
Card Scheme, Card Issuer, or Acquirer;
(c)
the Merchant exceeds the Monthly CB
Threshold or has any form of excessive activity in excess of the thresholds set
by the Card Schemes;
(d)
Pixxles
determines in its sole discretion that there are excessive Cardholder
complaints, inquiries, Refunds or Chargebacks;
(e)
the Merchant does not submit any
Card transactions to Pixxles for processing for three
(3) consecutive Business Days (Refunds are not Card transactions for purposes of this
paragraph);
(f)
Pixxles determines in its sole discretion that continuing to provide the Service to the Merchant
creates a risk that Pixxles or its Affiliates may be
in violation of any Applicable Law or the Card Scheme Rules;
(g)
the Merchant repeatedly breaches
any of the terms of this Agreement in such a manner as to
reasonably justify the opinion
that its conduct
is inconsistent with it having the intention or ability to give
effect to the terms of this Agreement;
(h)
the Merchant takes any step with a
view to proposing a compromise or making an arrangement with its creditors or
members or any class of its creditors and/or members;
(i)
Pixxles reasonably believes that:
(i)
the Merchant will or may become
subject to any of the events referred to at clauses
29.4(e) to 29.4(l)
above; or
(ii)
Any of the
events referred to at clauses 29.4(e) to 29.4(l) (inclusive)
above is about to occur;
(j)
Any step is taken by the Merchant,
or in relation to the Merchant, with a view to any of the events referred to at
clauses 29.4(e) to 29.4(l) (inclusive) above; or
(k)
The Merchant’s financial position
deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this
Agreement is in jeopardy.
29.6
The Merchant agrees and acknowledges that should any event
of default mentioned in this Agreement occur, Pixxles
may, upon at least twenty-four (24) hours’ advance written notice, change
processing or payment terms to suspend such processing or payments of any and
all funds, money and amounts now due or hereafter to become due to the Merchant from Pixxles, until Pixxles has had
reasonable opportunity to investigate and discuss such event with the Merchant
and assess the anticipated risk of loss to Pixxles.
In addition, upon the occurrence of any default
by way of excessive activity by the Merchant as set forth in Clause
29.5 or elsewhere in this Agreement, Pixxles reserves
the right to either grant the Merchant a three (3) months’ window to eliminate
such excessive activity or immediately terminate this Agreement.
29.7
Merchant understands, acknowledges
and agrees that, during the Resolution Period following termination of this Agreement, Pixxles
will incur ongoing administrative, maintenance and collection costs in connection with managing and
maintaining the Reserves pursuant to Clause 9 and that Pixxles
is entitled to compensation from Merchant to recover such costs related to data
and risk management, systems support and safeguarding the Merchant’s funds in a
third-party bank account.
29.7.1
Maintenance Fee. During the Resolution Period,
the Reserve Account will be subject to a monthly Maintenance Fee in the amount of the remaining
balance in the Reserve
Account at each billing cycle multiplied by the
greater of (i) three percent (3%) or (ii) the
percentage set out in the overview of Service Fees. Pixxles
reserves the right to proportionally adjust the percentage with immediate
effect if the Merchant’s risk profile changes and differs materially from the
information provided by Merchant upon entering into this Agreement.
29.7.2
Collection Fee. If the Reserve
Account balance becomes negative at any time during the Resolution Period, the
Reserve Account will be subject
to a Collection Fee in an amount equal to twenty percent (20%)
of the total amount of the negative balance in the Reserve Account at each
billing cycle.
29.7.3
Closing Fee. At the conclusion of
the Resolution Period and before the final Release Payment, as defined below,
the Reserve Account will be subject to a Closing
Fee in an amount equal to the lesser
of (i) fifty Pounds (GBP 50) or
(ii) the then remaining balance in the Reserve Account.
29.8
Following termination of this Agreement, the Reserves will be
released to Merchant in accordance with this Clause.
29.8.1
The Reserves will be released and
paid to Merchant in ten (10) payments (each a “Release Payment”), starting
three (3) months after the date of termination and continuing each month
thereafter, such that the final Release Payment will be made twelve (12) months
after the date of termination.
29.8.2
At the beginning of the Resolution
Period, Pixxles will calculate the amount equal to
one-tenth (1/10th) of the total Reserves
(“Reserves Share”), including all funds and amounts that become Reserves
at termination under Clause 9.4.
29.8.3
The amount of each Release Payment
(“Release Amount”) will be the Reserves Share minus the sum of:
(a)
the Maintenance Fee;
(b)
all Chargebacks processed since the
previous Release Payment;
(c)
all Refunds processed since the
previous Release Payment;
(d)
any applicable Service Fees;
(e)
the Closing Fee, if applicable; and
(f)
all other fees,
fines, Penalties, taxes and other items reimbursable
or chargeable in this Agreement or otherwise occurring since the previous
Release Payment.
29.8.4
If the Release Amount for any
Release Payment is zero Pounds (GBP 0) or less, no payment will be made to
Merchant for such Release Payment, and any negative Release Amount will be
deducted from the following Release Payment.
29.8.5
If the Release Amount for any
Release Payment other than the final Release Payment is less than twenty-five
Pounds (GBP 25) or, when the Release Payment is to be made by
wire transfer, if such amount is less than fifty Pounds (GBP 50), no payment will be made to Merchant for such Release Payment, and any
unpaid Release Amount will be added
to the following Release Payment.
29.8.6
If the Release Amount for any
Release Payment is greater than the Reserve Account balance, the Release Amount
for such Release Payment will be the amount of the Reserve Account
balance.
29.8.7
Pixxles
may, in its sole discretion, accelerate or increase the amount of any or all Release Payments,
but any such acceleration or increase
does not waive Pixxles’ right
to retain Reserves in the full amount and for the full duration permitted under
this Agreement.
29.8.8
If Merchant
files any dispute or claim with any competent body,
Supervisory Authority or Pixxles in respect of the
Reserve, Reserve Account, Reserve Share, any Release Payment or Release Amount,
or any Chargebacks or Refunds, Pixxles may suspend
payment of the Release Payments until such dispute or claim is resolved.
29.8.9
The payment of any Release Payment
does not waive Pixxles’ right to request
replenishment of the Reserves under Clause 9. During the Resolution Period, if
the balance of the Reserve Account is ever zero Pounds (GBP 0) or less, the schedule of Release Payments will be cancelled immediately, and Pixxles shall have no obligation to release any Reserves
that may be replenished until completion of the Resolution Period. A negative balance in the Reserve Account during the
Resolution Period is an amount owed by Merchant to Pixxles, and Pixxles shall have all rights under this Agreement in
respect of collecting such amount.
30.
SEVERABILITY.
Should any provision of this Agreement violate any Applicable Law relevant to either
Party, or should any provision of this Agreement otherwise be held invalid or
unenforceable by a court of law, then each such provision shall be automatically
removed and any associated performance by the Parties waived, and all other
provisions of this Agreement shall
remain in full force and effect.
31.
CHOICE OF LAW; VENUE; SERVICE OF PROCESS.
31.1
This Agreement and any dispute or
claim arising out of, under, or in connection with it or its subject matter or
formation (including non-contractual disputes or claims) shall be governed by
and construed in accordance with the laws of England
and Wales. The Parties
irrevocably agree, except as provided below, that the courts of England and
Wales shall have exclusive jurisdiction to settle any dispute which may arise
out of, under, or in connection with this Agreement or its subject matter or
formation (including non-contractual disputes
or claims). The Parties irrevocably waive any objection which they have, or may at any time have, to the
courts of England and Wales on the grounds
that those courts are an inconvenient or
inappropriate venue or forum to settle any dispute. The Parties further agree
that they shall not object to, contest, or appeal in any jurisdiction the
choice in this Agreement of English
and Welsh governing law, the exclusive jurisdiction of the English
and Welsh courts,
or the enforcement of any judgment
made by the English and Welsh courts thereunder.
31.2
Notwithstanding the foregoing, Pixxles may in its sole discretion initiate proceedings against Merchant in any competent
court in any jurisdiction in which Merchant or Merchant’s parent company
is organised or incorporated or in which Merchant or Merchant’s parent company
conducts business. Pixxles’ initiation of proceedings in any one or more
jurisdictions does not preclude the initiation of proceedings by Pixxles in any other jurisdiction, whether concurrently or
not, to the extent permitted
by the law of such other
jurisdiction. In respect of any proceedings initiated by Pixxles
in such other courts pursuant to this Clause, Merchant hereby irrevocably waives any objection which it has, or may at any time
have, to such other courts on the grounds that those courts are an inconvenient
or inappropriate venue or forum to settle any dispute. Further in respect of
any proceedings initiated by Pixxles in such other
courts pursuant to this Clause,
Merchant agrees that it shall not object to, contest, or appeal in any jurisdiction
the choice in this Agreement of
English and Welsh governing law, the jurisdiction of such other courts, or the
enforcement of any judgment made by such other courts.
31.3
To
the extent Merchant
is incorporated in England and Wales,
it irrevocably and unconditionally consents to service of process through personal service at its corporate
headquarters, registered address, or primary address. Nothing in this
Agreement shall affect the right of Pixxles to serve process in any other manner permitted by
law.
31.4
In no event shall Merchant initiate
any proceedings as a class action or in any class capacity.
32.
AMENDMENTS AND MODIFICATIONS.
32.1
Except as otherwise expressly set
forth in this Agreement, no amendment or modification of this
Agreement shall be valid unless it
is either communicated to and acknowledged by Merchant via the Portal, or made
in writing and signed by all Parties hereto.
32.2
In
addition to the other circumstances set forth in this Agreement, Pixxles
may amend this Agreement to take into account changes in Card Scheme Rules, Applicable Law, or industry mandates, to
accommodate changes imposed on Pixxles, and to make
other changes deemed necessary by Pixxles. Pixxles may make such amendment(s) or modification(s) by notice
via the Portal, sending Merchant an amendment to this Agreement, or making the
amendment to this Agreement available
on a webpage located on the Internet (provided that, if the Merchant is a
Micro-Enterprise or a Charity it shall also provide email confirmation of the
amendment or modification). Pixxles will provide
Merchant notice of such proposed amendment(s)
or modification(s) set forth in this Clause at least thirty (30) days, (or two (2) months if Merchant is a Micro-Enterprise or
Charity), before their implementation, unless a change in Applicable Law or Card Scheme Rules
requires earlier implementation, during which Merchant
may terminate this Agreement
by written notice without charge, and Merchant hereby agrees that Merchant’s
continued use of the Services without terminating this Agreement prior to the
effective date of the proposed amendment(s) or modification(s) shall be deemed acceptance
by Merchant of such amendment(s) or modification(s).
33.
NOTICES.
All
notices or other communications shall be in writing, by email, or via the
Portal, and shall be effective when hand delivered, when sent by postage prepaid
first class mail, when sent by email with verification of receipt, or when sent via
the Portal with verification of receipt, and shall be deemed to have been
delivered at that time. Notices via the Portal
shall satisfy any applicable requirement in this Agreement
that a notice be provided in writing. Notices to Merchant shall be made
by Portal notification or message or shall be addressed to the administrative
email Merchant provided on the Pixxles Service
Application, to the postal address listed on the Pixxles
Service Application, or to any updated or subsequent administrative email or
postal address provided by Merchant
following enrolment with Pixxles. Notices to Pixxles shall be made by Portal message, if available, or shall be
addressed to <[email protected] pixxles.com> or to Pixxles
Ltd, 78 Cannon Street, London EC 4N 6AF, United Kingdom.
34.
COMPLAINTS.
34.1
If Merchant has
any complaints regarding Pixxles’ Service provided under
this Agreement, Merchant must first contact <[email protected] pixxles.com> to
seek to resolve the complaint. Pixxles will seek to resolve Merchant’s complaint
as quickly as possible and as per the FCA Handbook – DISP Dispute
Resolution: Complaints.
34.2
If
Merchant is not satisfied
with Pixxles’ response, or if Pixxles has not
finished investigating the complaint and given its final response after fifteen
(15) Business Days (or in exceptional cases within a maximum of thirty five
(35) Business Days), Merchant may, subject to fulfilling eligibility criteria, refer its complaint
to The Financial Ombudsman Service, Exchange Tower, London E14 9SR, United Kingdom,
telephone number: +44 (0) 300 123
9 123 or +44 (0) 800 023 4567 or to [email protected]–
ombudsman.org.uk.
34.3
Before resorting to the courts the Parties agree to use their best efforts to
negotiate in good faith and settle amicably any dispute that may arise out of
or relate to this Agreement or a breach of this Agreement. Only if negotiations
fail to result in an amicable settlement, the matter may be submitted for
resolution to a court of competent jurisdiction (provided that nothing in this
clause shall prevent either party
from seeking urgent or injunctive relief in
the courts).
35.
SURVIVAL OF OBLIGATIONS.
All
terms and agreements that by their context are intended to survive shall
survive the expiry or termination of this Agreement for any reason,
specifically including but not limited
to Clauses 5.4, 5.7, 5.8, 5.9, 6, 7,8, 9, 14, 15, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 33, 34.3, 35and 39.
36.
SUCCESSORS AND ASSIGNS.
This
Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns; provided
that Merchant may not
sell, assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of Pixxles, and any unauthorised assignment, sale or
transfer shall be null and
void. Pixxles shall be free to sell, assign, or transfer any of
its rights and obligations under this Agreement in its sole discretion, without
any prior notice to Merchant.
37.
INDEPENDENT CONTRACTORS.
37.1
Pixxles
and the Merchant acknowledge and agree that their relationship is one of
independent contractors and independent organisations, and this Agreement does
not represent a partnership of any kind.
Neither Party shall owe fiduciary duties to the other Party.
37.2
Except as provided herein, each
Party shall pay its own costs in relation to the negotiation, preparation,
execution and carrying into effect of the Agreement and in carrying out any
related due diligence.
38.
FORCE MAJEURE.
38.1
Neither Party will be in breach of this Agreement or liable for any default or delay in the
performance of its obligations under this Agreement and shall be excused from
performing any of its obligations under this Agreement that it is, directly or
indirectly, prevented or delayed from performing by any circumstances beyond
such Party’s control, the consequences of which would have been unavoidable
despite reasonable efforts to the contrary (each a “Force Majeure Event”), and
if Merchant is a Micro- Enterprise or Charity “by any abnormal and
unforeseeable circumstance” and “unavoidable despite all efforts to the contrary”
in respect of Pixxles’ Force Majeure Event.
Force Majeure Events include, but are not limited to, non-performance of
vendors or suppliers, terrorism or vandalism (including computer virus and
hacking), sanctions, currency
exchange restrictions, any law
or any action taken by a government or public authority, card scheme or acquirer, strikes or other
labour matters, destruction
of or damage to any building, severe or adverse weather conditions, natural
disasters, accidents, war, riots, emergency conditions, interruption of
transmission or communications facilities, and/or infrastructure failure.
38.2
In
any such Force Majeure Event, the Party so affected
shall be excused from any further
performance and observance of the obligations so affected only for the duration of such
Force Majeure Event and provided that it continues to use commercially
reasonable efforts to mitigate the effects of such Force Majeure Event and recommence performance or observance as soon as practicable, provided that if such
period of delay or non- performance by Pixxles
continues for more than thirty (30) days, the
Merchant may terminate this Agreement by giving fourteen(14) days’ written
notice to Pixxles.
38.3
This Clause does not have geographical limitations.
38.4
Nothing in this Clause will affect
or excuse the Merchant’s liabilities
or obligation to pay
Service Fees, Penalties, Chargebacks
or Refunds under this Agreement.
39.
INTERPRETATION.
39.1
Headings in this Agreement
are for convenience only and shall
not affect this Agreement’s
construction. Headings shall not be used in interpreting, construing,
performing or enforcing this Agreement.
39.2
Any obligations given or entered
into by more than one party are given to or entered into jointly and severally
unless otherwise specified.
39.3
Any reference in this Agreement to
an article, Clause, paragraph, schedule, or appendix,
is a reference to a portion of, or an
exhibit or appendix to, this Agreement.
39.4
Any words following the terms including, include, in particular, for
example or any similar expression shall be
construed as illustrative and shall not limit the sense of the words,
description, definition, phrase or term preceding those terms.
39.5
Unless the context otherwise
requires, words in the singular shall include the plural and
in the plural shall include the singular.
39.6
A reference to a statute or
statutory provision is a reference to it as amended, extended or re-enacted
from time to time.
39.7
If there is a conflict between this
Card Payment Processing Agreement and the Pixxles
Service Application or Merchant Terms Acknowledgement, this Card Payment
Processing Agreement will take precedence.
40.
ENTIRE AGREEMENT.
This
Agreement and any documents incorporated by reference into this Agreement, is
an integrated document that represents the complete terms of the Parties’ agreement in their entirety, and
supersedes any other agreements, written or oral, instruments or writings
related to its subject matter.
41.
AUTHORISATION.
41.1
The Merchant can accept the Agreement by:
41.1.1
clicking to “Accept” or “Agree” to this Agreement, where
this option is made available
by Pixxles in the Portal or a mobile application for the
Service represents an advanced digital signature made by the Merchant and
therefore the electronic document of this Agreement is deemed as duly signed by
the Merchant;
41.1.2
signing this Agreement on a hard
copy, if requested by Pixxles; or
41.1.3
actually
using the Services. In this case, the Merchant agrees that Pixxles
will treat the use of the Services by the Merchant as acceptance of this
Agreement from the moment of first use of Service.
41.2
The persons signing or otherwise
accepting this Agreement on behalf of Merchant represent and warrant
that they have the authority to enter into this Agreement on behalf of
Merchant.
42.
LANGUAGE.
This Agreement is in English and Pixxles will write and communicate with Merchant in English only.
43.
COPIES OF AGREEMENT.
Merchant
may request a copy of this Agreement from Pixxles in
writing. If Merchant is a
Micro-Enterprise or Charity such copy shall be provided free of charge.
44.
WAIVER.
Unless
otherwise stated in this Agreement no failure, delay or omission by either Party in exercising any right,
power or remedy provided by law or under this
Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any
other right or remedy. No single or partial exercise of any right, power or remedy provided by law or under
this Agreement shall prevent
any future exercise of it or the
exercise of any other right, power or remedy.
45.
THIRD PARTY RIGHTS.
Except as expressly
provided for in this Agreement, a Person who
is not a party to this Agreement
shall not have any rights under the Contracts (Rights of Third Parties)
Act 1999 to enforce any of the provisions of this Agreement. Each of the Indemnitees
shall be entitled to enforce the terms of this Agreement that are necessary to
enforce their rights under this Agreement.
46.
ACCEPTANCE.
By
signing this Agreement or otherwise authorising this Agreement as per Clause 41, the Merchant manifests its
consent and agreement to these terms and conditions. Merchant
hereby affirms that Merchant
has read, understands, and agrees to abide by this Agreement, and any documents
incorporated by reference into this Agreement. Merchant agrees that Merchant
intends to form a legally binding contract and that this Agreement constitutes
“a writing signed by Merchant” under any Applicable Law. Any rights
not expressly granted
herein are reserved by Pixxles.
