PIXXLES LTD.
E-MONEY DIGITAL WALLET AGREEMENT
This Agreement sets out the terms and
conditions on which Pixxles or its Affiliates will provide Merchant with a
current digital wallet account (“Digital
Wallet”) through which Pixxles may issue and redeem electronic money (“e‑money”) for Merchant and from
which Merchant may send payments to third parties (collectively, “Wallet Service”).
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.
1.
Definitions.
When used in this Agreement (including
the recitals), the following terms will have the meanings set forth in this
Section. Certain other capitalised terms are defined elsewhere in this
Agreement in the context of the provision in which they are used.
“Affiliate”
means a Person that, directly or indirectly, (i) owns or controls a party to
this Agreement, (ii) is owned or controlled by a party to this Agreement, or
(iii) is under common ownership or control with a party to this Agreement.
“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, or financial 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.
“Charity”
means, as defined in regulation 2(1) of the PSRs, a body whose annual income is
less than GBP 1,000,000 and who is: (a) in England and Wales, a charity as
defined by section 1(1) of the Charities Act 2011; (b) in Scotland, a charity
as defined by section 106 of the Charities and Trustee Investment (Scotland)
Act 2005; or (c) in Northern Ireland, a charity as defined by section 1(1) of
the Charities Act (Northern Ireland) 2008.
“DP
Laws” means any Applicable Law relating to the processing, privacy, and use
of personal data, that applies to Pixxles, the Merchant or the Wallet Service,
including (i) the General Data Protection Regulation (GDPR) (Regulation (EU)
2016/679) and (ii) 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 Section 15.
“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.
“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.
“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 the Card
Payment Processing Agreement.
“Micro-Enterprise”
means, as defined in regulation 2(1) of the PSRs, an enterprise that at the
time it enters into an agreement for payment services is a microenterprise,
which, as defined in the European Union’s Annex to Recommendation 2003/361/EC,
is an enterprise that employs fewer than ten (10) persons and has annual
turnover and/or annual balance sheet total that each do not exceed EUR 2,000,000.
“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.
“Portal”
means the electronic system that Pixxles provides for Merchant to access
information related to the Wallet 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.
“PSRs”
means the Payment Services Regulations 2017 as amended from time to time.
“EMRs” means the E-Money
Services Regulations 2011 as amended by Payment Services Regulations 2017.
“Software”
means the software products, including the Portal and any API, and related
documentation provided by Pixxles to Merchant in connection with the Wallet
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.
“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.
“Pixxles
Service Application[AF1] [SK2] ”
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.
2.
Subject of the Agreement.
Merchant agrees that Pixxles will
provide the Digital Wallet pursuant to Applicable Law for e-money issuers (“EMIs”) and subject to Pixxles’ internal
rules and policies.
3.
NON-APPLICATION OF CERTAIN REGULATIONS.
3.1
This
Section 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 the time of execution of this Agreement.
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 Wallet Service, and that the notification period in
regulation 74(1) of the PSRs shall be amended by this Agreement.
4.
FEES
4.1
The fees for use of the Digital
Wallet and Wallet Service (“Fees”)
are set forth in the Digital Wallet Fee Schedule [AF3] provided on the Portal, and Merchant agrees to pay Pixxles all such
Fees.
4.2
The Fees as listed in the
Digital Wallet Fee Schedule are exclusive of any value added tax (“VAT”) that is chargeable in connection
with the Digital Wallet and such Fees. If any VAT or other taxes are determined
to be applicable, Merchant agrees all such taxes shall be paid by Merchant.
4.3
Merchant understands and agrees
that the Fees and Digital Wallet Fee Schedule are confidential information
under this Agreement.
5.
Merchant’s RIGHTS and Obligations.
5.1
Merchant understands and agrees
to comply with its obligations under this Agreement. Merchant understands and
agrees that it is liable for all transactions initiated by any Duly Authorised
User.
5.2
Merchant shall provide Pixxles
with any the information and documents Pixxles requires to verify Merchant’s
business, business activities, ownership, number of employees, address,
products or services, financial condition or to complete any other verification
required by Applicable Law.
5.3
Merchant may purchase e-money
from Pixxles by directing funds due Merchant to be settled to the Digital
Wallet.
5.4
Merchant understands and agrees
that funds held by Pixxles as e-money are not deposits, and Merchant will not
earn any interest on any e-money in the Digital Wallet.
5.5
Merchant may use the Digital
Wallet to execute e-money payments (“Payments”)
to users of other wallet services [AF4] [SK5] (“Recipients”). Payments
must be submitted and processed through the Portal in accordance with Pixxles’
requirements. Merchant is solely responsible for the accuracy of information
submitted to execute a Payment and for ensuring that the Merchant’s Digital
Wallet has sufficient funds to complete the Payment.
5.6
Merchant may receive Payments
from users of other wallet services[AF6] , and such payments will be credited to Merchant’s Digital Wallet.
5.7
The e-money in Merchant’s
Digital Wallet will be denominated in GBP, unless the Merchant elects through
the Portal to have the Digital Wallet denominated in a different currency.
Pixxles has to sole discretion to determine the currencies available for Merchant’s
Digital Wallet. Merchant may send Payments to Recipients whose Digital Wallets
are denominated in different currency, and the foreign currency exchange rate
used to complete such transaction will be the then-current exchange rate set by
Pixxles and set forth on the Portal.
5.8
Merchant may redeem the e-money
held in the Digital Wallet for par value by requesting such redemption through
the Portal.
5.9
On the Portal, Pixxles will
provide Merchant with information regarding the balance and transactions in its
Digital Wallet, including a periodic statement showing all such activity.
6.
Pixxles’ RIGHTS and Obligations.
6.1
Any funds that a Merchant
transfers to the Digital Wallet will be safeguarded in accordance with
Applicable Law.
6.2
Pixxles will issue and redeem
e-money and settle Merchant’s Payment in accordance with this Agreement and
Applicable Law.
6.3
Pixxles may refuse to complete
any Payment that exceeds Merchant’s Digital Wallet balance or that Pixxles, in
its sole discretion, determines would be a breach of this Agreement or
Applicable Law.
6.4
Merchant agrees that Pixxles
may refuse to issue e-money or suspend Merchant’s access to the Digital Wallet,
including preventing Merchant from sending or receiving Payments, if Pixxles
believes Merchant’s use (or intended use) of the Digital Account breaches this
Agreement, is for any unauthorised, fraudulent or illegal purpose, or would
expose Pixxles or its Affiliates to risks unacceptable to Pixxles. Unless
prohibited or as otherwise required by Applicable Law, Pixxles will notify Merchant
through the Portal of any such actions.
6.5
Pixxles is not responsible or
liable for:
6.5.1
The accuracy or legality of any
Payment information or Payment submitted by Merchant;
6.5.2
Any delays or errors in any
Payment caused by the action or inaction of third parties, including without
limitation the Bacs Payment Scheme and communication services providers; or
6.5.3
Any losses of Merchant caused
by any such delays or errors or by currency fluctuations or any Force Majeure
Event.
6.6
If Pixxles erroneously credits
e-money to Merchant’s Digital Wallet, including as a Payment from another
Pixxles user that is subsequently contested or found to have been unauthorised,
Pixxles shall debit the Digital Wallet for an amount not to exceed the original
amount of the erroneous credit. If
the balance in the Digital Wallet is not sufficient to cover such debit,
Pixxles may use funds otherwise due to Merchant under any other agreement
between Pixxles and Merchant to satisfy the debit and resolve the erroneous
credit.[AF7] [SK8]
7.
DISPUTED TRANSACTIONS.
7.1
If Merchant believes a Payment
or any other transaction to or from Merchant’s Digital Wallet was not
authorised or was executed incorrectly (each a “Disputed Transaction”), Merchant shall notify Pixxles within thirty
(30) days of the date such Disputed Transaction occurred using the dispute
mechanism provided in the Portal.
7.2
Merchant understands and agrees
that all Disputed Transactions not reported within thirty (30) days will be
deemed authorised and correct and that Pixxles shall have no liability for any
such unreported Disputed Transactions. Pixxles may, in its sole discretion,
decide to review a Disputed Transaction reported after thirty (30) days, but
such discretionary review does not obligate Pixxles to change the determination
that such Disputed Transaction is authorised and correct.
7.3
Merchant understands and agrees
that Merchant will be liable for any Disputed Transaction that Pixxles
determines, after investigation, was authorised by Merchant or a Duly
Authorised User, the result of fraud by the Merchant or associates of the Merchant,
or the result of unauthorised access to Merchant’s Digital Wallet due to Merchant’s
negligence.
7.4
Merchant agrees to cooperate
with Pixxles to investigate any Disputed Transaction, including by providing
Pixxles with all applicable receipts, documents, and other information
necessary to determine the validity of Merchant’s claim. Any failure to provide
such cooperation may result in Pixxles determining that the Disputed
Transaction is authorised and correct.
7.5
Pixxles may, in its sole
discretion, issue a provisional credit to Merchant’s Digital Wallet when Merchant
reports a Disputed Transaction. If Pixxles subsequently determines that the Merchant
is liable for the Disputed Transaction, Pixxles will debit the amount of any
such provisional credit from Merchant’s Digital Wallet. If the balance in the
Digital Wallet is not sufficient to cover such debit, Pixxles may use funds
otherwise due Merchant under any other agreement between Pixxles and Merchant
to satisfy the debit and reverse the provisional credit.
8.
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 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;
(c)
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;
(d)
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;
(e)
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; and
(f)
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 to
continue its business or would adversely affect Merchant’s financial condition
or business activities.
9.
Password AND PORTAL Security.
9.1
On entering into this Agreement,
Pixxles will issue to Merchant a password for use on the Portal and to access
the Wallet 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 Section, 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.
9.2
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.
9.3
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.
9.4
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
within twenty-four (24) hours of 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 Wallet Service provided under this
Agreement. Pixxles shall be entitled to act on any such notification without
further recourse to Merchant.
9.5
Pixxles shall not be responsible for
any unauthorised activity associated with Merchant’s Digital Wallet where it
arises from fraudulent activity on the part of the Merchant or from the Merchant’s
failure to comply with its obligation to keep its systems secure and its
password confidential, and Merchant shall indemnify Pixxles for any and all
losses Pixxles may incur as a result of any such unauthorised activity.
10.
Merchant e-Mail and Account Changes.
Merchant must provide a valid, working
administrative email address upon enrolment, and any changes to Merchant’s Wallet
Service 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.
11.
Confidentiality; non-DISPARAGEMENT.
11.1
The parties shall treat all information
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 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 Wallet Service. Merchant
acknowledges and agrees that the Wallet Service and the documentation provided
to Merchant under this Agreement are and contain the valuable, confidential and
trade secret information of Pixxles.
11.2
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, Merchants, or
vendors, and stating or implying anything negative about each other by words,
actions, context, or any combination of the foregoing.
12.
Intellectual Property.
12.1
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.
12.2
Merchant shall not use the Trademarks
without the prior written consent of Pixxles.
12.3
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 Section 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.
12.4
All proprietary rights in the Wallet
Service, 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 Wallet Service, equipment, Software, Trademarks or materials shall
expire or terminate upon the termination of this Agreement.
12.5
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 the
Agreement, and Pixxles and its affiliated companies 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.
13.
Limited Use License for Software and Wallet
Service.
13.1
All Software, Wallet Service 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.
13.2
In consideration for Merchant’s payment
of any applicable fees, Pixxles hereby grants Merchant a personal,
non-exclusive, non-transferable, non-sublicenseable license to (1) use the
Software, in object code form only, and (2) access and use the Portal, in each
case solely in connection with the Wallet 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.
13.3
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.
13.4
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 Wallet Service with which
the Software is intended for use; or (iii) failure of Merchant to comply with
any provisions of this Agreement.
14.
Taxes.
Merchant is solely responsible for and
agrees to pay all taxes and other charges imposed by any government authority
on the Wallet Service provided under this Agreement.
15.
Limitation of pixxles Liability.
15.1
Save to
the extent expressly prohibited under Applicable Law, 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 (i) the amount of Fees paid by Merchant to Pixxles during
the three (3) month 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 three (3) months at the time of such event
or series of connected events, the average monthly amount of Fees paid by Merchant
multiplied by three (3).
15.2
Save to
the extent expressly required under Applicable Law, 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. Pixxles is 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 Wallet Service contemplated by this
Agreement. Pixxles assumes no liability for disruptions or improper operation
of the Wallet Service for any reason, including but not limited to vandalism,
theft, actions or failures of any third party service
providers, or any other causes in the nature of a Force Majeure Event.
16.
PIXXLES Disclaimer of Warranties.
To the extent permitted by Applicable
Law, Pixxles:
16.1
Disclaims all other representations or
warranties made to Merchant or to any other person, except as specifically set
forth in this Agreement;
16.2
Makes no warranties, express or
implied, as to any of the Wallet Service, related products, Software or
documentation;
16.3
Specifically disclaims any and all
implied warranties, including without limitation any implied warranties of
merchantability or fitness for a particular purpose.
17.
Indemnification.
Merchant shall defend, indemnify and
hold harmless Pixxles and its Affiliates, officers, directors, agents,
employees and independent contractors (each an “Indemnitee”), 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, 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, 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 Payments that Merchant submits through Pixxles, or Merchant’s violation of
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. 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, products 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 defend, indemnify and hold harmless such Indemnitee from and in respect
of the Actions and shall pay all costs, expenses, and legal fees incurred or
paid in connection with the Action, together with any judgments rendered. Merchant
shall defend, indemnify and hold harmless an Indemnitee from and against all
losses 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.
18.1
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 Section.
18.2
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.
18.3
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.
18.4
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, 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 ceases or threatens to
cease to carry 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)
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;
(g)
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;
(h)
a receiver or administrative receiver
is appointed over all or any of either the other party’s assets or
undertakings;
(i)
the
other party is dissolved; or
(j)
the equivalent of any of the events
described in Paragraphs (e) to (i) (inclusive) above occurs in relation to the
other party under the laws of any jurisdiction.
18.5
In addition to the circumstances
expressly set forth in other provisions of this Agreement, Pixxles may
terminate this Agreement immediately upon written notice to Merchant in the
event that:
(a)
Pixxles is directed to do so by a
Supervisory Authority;
(b)
Pixxles determines in its sole
discretion that continuing to provide the Wallet Service to Merchant creates a
risk that Pixxles or its Affiliates may be in violation of any Applicable Law.
19.
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.
20.
Choice of Law; Venue; SERVICE OF
PROCESS.
20.1
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.
20.2
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 Section, 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 Section,
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.
20.3
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.
20.4
In no event shall Merchant initiate any
proceedings as a class action or in any class capacity.
20.5
The parties each agree that this
Section, including without limitation the parties’ agreement in respect of
English and Welsh law, of the courts of England and Wales having exclusive
jurisdiction, of Pixxles’ right to initiate proceedings in other jurisdictions,
and of service of process, shall remain in full force and effect
notwithstanding any future full or partial departure of the United Kingdom from
the European Union (also known as Brexit).
21.
Amendments and Modifications.
21.1
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.
21.2
In addition to the other circumstances
set forth in this Agreement, Pixxles may amend this Agreement to take into
account changes in 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. Pixxles will
provide Merchant notice of such proposed amendment(s) or modification(s) set
forth in this Section at least thirty (30) days before their implementation,
unless a change in Applicable Law requires earlier implementation, during which
Merchant may terminate the Agreement by written notice without charge, and Merchant
hereby agrees that Merchant’s continued use of the Wallet Service without
terminating the 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).
22.
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[AF9] [SK10] , 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]> or to Pixxles LTD, 78 Cannon Street,
London, United Kingdom, EC 4N 6AF.
23.
complaints.
23.1
If Merchant has any complaints
regarding Pixxles’ Wallet Service provided under this Agreement, Merchant must
first contact <[email protected]>
to seek to resolve the complaint. Pixxles will seek to resolve Merchant’s
complaint as quickly as possible.
23.2
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, telephone number: +44 (0) 300 123 9
123 or +44 (0) 800 023 4567 or to [email protected].
24.
Survival of Obligations.
All
terms and agreements that by their context are intended to survive the
termination of this Agreement shall survive the termination of this Agreement
for any reason.
25.
Successors and Assigns.
This Agreement shall be binding upon
and inure to the benefit of the parties hereto 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.
26.
Independent Contractors.
Pixxles and 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.
27.
Force Majeure.
Pixxles shall be
excused from performing any of its obligations under this Agreement that it is
prevented or delayed from performing by any circumstances beyond Pixxles’
control, the consequences of which would have been unavoidable despite
reasonable efforts to the contrary (each a “Force Majeure Event”). Force Majeure Events include, but
are not limited to, strikes or other labour matters, destruction of or damage
to any building, natural disasters, accidents, war, pandemics, riots, emergency
conditions, interruption of transmission or communications facilities, and
infrastructure failure.
28.
Interpretation.
28.1
Headings in this Agreement are for
convenience only and shall not affect the Agreement’s construction. Headings
shall not be used in interpreting, construing, performing or enforcing this
Agreement.
28.2
Any obligations given or entered into
by more than one party are given to or entered into jointly and severally by
Pixxles and Merchant unless otherwise specified.
28.3
Any reference in this Agreement to an
article, section, paragraph, schedule, or appendix, is a reference to a portion
of, or an exhibit or appendix to, this Agreement.
28.4
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.
28.5
Unless the context otherwise requires,
words in the singular shall include the plural and in the
plural shall include the singular.
28.6
A reference to a statute or statutory
provision is a reference to it as amended, extended or re-enacted from time to
time.
29.
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.
30.
Authorisation; Counterparts.
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. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, and all such counterparts together shall constitute
one and the same instrument. The signatures to this Agreement may be evidenced
by facsimile copies, PDF copies or other electronic copies reflecting the
party’s signature, and any such facsimile copy, PDF copy or other electronic
copy shall be sufficient to evidence the signature of such party as if it were
an original signature.
31.
Language
The Agreement is in English and Pixxles will write and
communicate with Merchant in English only.
32.
copies of agreement
Merchant may request a copy of this Agreement from Pixxles
in writing.
33.
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.
34.
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.
35.
Payment Processing
Payments due to Merchant under the Pixxles
Card Payment Processing Agreement will be deposited into the Merchant’s Digital Wallet account. The Digital Wallet
account is the primary Merchant Operating Account, as defined within the
Pixxles Card Payment Processing Agreement
36.
Acceptance.
By signing this Agreement, the signing
party manifests his/her 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.
PIXXLES LTD.
MICRO-ENTERPRISE AND CHARITY ADDENDUM
This Micro-Enterprise and Charity Addendum (“MEC Addendum”) to the E-Money Digital Wallet Agreement (“Agreement”) is made between Pixxles and
Merchant, each as defined in the Agreement, and is effective on the same date
as the Agreement.
When used in this MEC Addendum, capitalised terms will have the meanings
set forth in the Agreement.
This MEC Addendum sets out the additional or modified terms and
conditions that apply only to a Merchant that is a Micro-Enterprise or Charity.
The MEC Addendum terms shall amend or supplement the Agreement, as the case may
be, and in the event of any conflict between the terms set out in this MEC
Addendum and any other terms of the Agreement, these MEC Addendum terms shall
prevail.
1.
Status as a Micro-enterprise
or charity.
1.1
This MEC Addendum applies
only to a Merchant that is a Micro-Enterprise or Charity.
1.2
Merchant represents and
warrants to Pixxles that it is a Micro-Enterprise or Charity at the time of
execution and throughout the term of the Agreement. Merchant agrees to notify
Pixxles by the end of the second (2nd) Business Day following the date Merchant
becomes aware of any changes in Merchant’s status as a Micro-Enterprise or
Charity.
1.3
If, at any time during
the term of the Agreement, Merchant is no longer a Micro-Enterprise or Charity,
this MEC Addendum shall immediately be null and void, save for the requirement
that Merchant notify Pixxles of such change in status. Without regard to any
subsequent changes in Merchant’s status as a Micro-Enterprise or Charity, the
terms of the MEC Addendum shall not again become effective unless Merchant
executes a new payment services agreement that replaces the Agreement.
2.
Mandatory additional
information for Micro-Enterprises and Charities.
2.1
Pixxles Ltd. is authorised and regulated by the Financial Conduct
Authority (with firm reference number [TBC]). To find out more about Pixxles,
see the Financial Services Register: https://register.fca.org.uk/ or call the
FCA on 0800 111 6768.
2.2
The Financial Services Compensation Scheme does not cover
electronic money products. No other compensation scheme exists to cover losses
from your electronic money account. Your funds will be held in one or more
segregated bank accounts with a regulated third party
credit institution, in accordance with the provisions of the Electronic Money
Regulations 2011.
2.3
Pixxles will communicate
with Merchant by email, SMS and/or other electronic means.
2.4
While the Agreement is in
force, Pixxles will provide a copy of the Agreement to Merchant on request.
2.5
Merchant can contact
Pixxles in writing by using any of the following details ● Post: 78
Cannon Street, London, United Kingdom EC4N 6AF ● Email: <[email protected]>.
3.
DISPUTED TRANSACTIONS.
3.1
In Section 7.1 of the Agreement, replace “within thirty (30) days of the date such Disputed Transaction occurred” with
“within thirteen (13) months of the date such Disputed Transaction occurred”.
3.2
In section 7.2. of the Agreement,
replace “within thirty (30) days will be deemed authorised” with “within
thirteen (13) months of the date such Disputed
Transaction occurred”.
4.
Termination.
4.1
In Section 18.2. of the Agreement, replace “on at least sixty (60) days’
written notice” with “on at least one (1) months’
written notice”.
4.2
In Section 18.3. of the Agreement, replace “on at least thirty (30) days’
written notice” with “on at least two (2) months’ written notice”.
5.
AMENDMENTS AND MODIFICATIONS.
5.1
In Section 29.2 of the Agreement,
replace “notice of such proposed amendment(s) or modification(s) set forth in
this Section at least thirty (30) days before their implementation” with
“notice of such proposed amendment(s) or modification(s) set forth in this
Section at least two (2) months before their implementation”.
6.
Force Majeure.
6.1
In Section 27 of the Agreement,
replace “by any circumstances” with “by any abnormal and unforeseeable
circumstances”.
6.2
In Section 27 of the Agreement,
replace “unavoidable despite reasonable efforts to the contrary” with
“unavoidable despite all efforts to the contrary”.
7.
Liability.
7.1
Section 16 of the Agreement (Limitation of Pixxles
Liability) is modified to the extent that Pixxles is liable to a
Micro-Enterprise or Charity under the PSRs.
7.1.1
If Pixxles incorrectly
executes a payment transaction, Pixxles will, without undue delay, refund the
amount of the non-executed or defective payment and, where applicable, restore
Merchant’s account to the state it would have been had the defective payment transaction
not taken place. Merchant is entitled to claim from Pixxles any charges for
which Merchant is responsible and any interest that Merchant must pay as a
consequence of the non-, defective, or late execution of a payment transaction
for which Pixxles is liable. Pixxles will not be liable to the Merchant under
this section for:
(a)
the correct execution of a
payment transaction if the payment service provider of the intended recipient
(the payee) received the payment;
(b)
non- or defective
execution of a payment transaction if Merchant provided Pixxles the wrong
payment details or otherwise caused the incorrect execution. Pixxles will use
reasonable efforts to try to recover the funds involved in any such payment
transaction and may charge Merchant reasonable costs for doing so.
7.1.2
If Pixxles executes a
payment transaction that Merchant has not authorised, Pixxles will refund
Merchant the amount of the unauthorised payment and, where applicable, restore
Merchant’s account to the state it would have been had the unauthorised payment
transaction not taken place, except where the Merchant has acted fraudulently.
7.2
Pixxles
shall not be liable under the provisions of this Section for losses caused by a
Force Majeure Event.
8.
COMPLAINTS
In section 23.1. of the Agreement, replace “as
quickly as possible’ with “by the end of 3 business days after the complaint is
received”.
