This Placement Agreement (“Agreement”) is made the date it is signed and is between the entity whose name and address is set forth overleaf (the “Merchant”) and Paymentsense Ireland Limited including its Affiliates (“Paymentsense”) with its principal place of business at 242 Acklam Road, W10 5JJ. Affiliates mean entities that control, are controlling, are controlled by, or under common control with, a party to this Agreement.
Paymentsense provides Merchant accounts, chip and pin terminals, e-commerce gateways and related goods and services that allow businesses to process credit card, debit and other payments (the “Paymentsense Services”) and Merchant wishes Paymentsense to provide to Merchant the Paymentsense Services. Paymentsense agrees to do so on the terms of this Agreement.
Merchant hereby appoints Paymentsense to be the exclusive provider of the Paymentsense Services and all other payment processing services to Merchant. Merchant agrees to source point of sales equipment and chip & pin devices only through Paymentsense and will not process payments through any competitor of Paymentsense or its Affiliates. Should the Merchant cancel this agreement, a cancellation fee of €144 plus vat shall apply. Cancellation fees do not apply to E-commerce/Virtual Terminal gateway products. Paymentsense shall provide customer service and related services to Merchant. Time shall not be of the essence in the performance of the Paymentsense Services and any dates or times given for performance of the Paymentsense Services are estimates only.
Paymentsense and Merchant are independent contractors. Merchant is not an agent, partner or joint venture of Paymentsense, and has no authority to bind Paymentsense to any obligation.
For card terminal products, the initial term of this Agreement shall be for a period of five years, commencing on the date set forth overleaf (hereinafter, the “Initial Term”). During the Initial Term, Paymentsense will provide one chip and pin terminal to the Merchant as a replacement for each active chip and pin terminal that the Merchant currently has from its existing provider. Each such chip and pin terminal will remain the property of Paymentsense. Paymentsense shall not charge the Merchant the Monthly Terminal Fee described in section 1 overleaf during the life of each terminal provided under this agreement but for the avoidance of doubt, all other charges described in this agreement shall apply. The end of the life of each terminal shall be determined by the expiry of its PCI compliance. If the Merchant cancels this agreement within the Initial Term, the Merchant shall immediately pay Paymentsense a cancellation fee of €275 and return all terminals provided under this agreement within 28 days. If the Merchant fails to return all terminals to Paymentsense within 28 days of cancelling this agreement, the Merchant shall pay an additional €450 to Paymentsense in respect of each terminal that the Merchant fails to return to Paymentsense. At the end of the Initial Term, the Monthly Terminal Fee shall become immediately payable by the Merchant in accordance with this agreement in respect of any replacement terminal provided to the Merchant by Paymentsense.
This Agreement shall thereafter be automatically renewed for additional terms of one year each unless either party notifies the other in writing no later than thirty days prior to the end of the current term that it does not wish to renew this Agreement. For E-Commerce/Virtual terminal gateway products, the Merchant shall be entitled to give 90 days prior written notice to terminate services at any time. Terms and conditions found at the initial login to the Paymentsense Gateway, which the Merchant will need to agree to separately, can also be found on: www.paymentsense.ie/e-commerce/terms. Paymentsense may cancel this Agreement for any reason by providing Merchant with seven days notice.
Merchant hereby authorises Paymentsense to debit any charges due by Merchant under this Agreement or any other agreement between Paymentsense and Merchant from any checking, savings, credit card or any other type of account provided by Merchant to Paymentsense. Gateway transaction count and/or turnover limits for E-Commerce/Virtual terminal gateway products are billed pro-rated monthly in arrears. Depending on the Gateway tariff, overage charges may apply if Merchant exceeds monthly allowance of turnover volume or number of transactions on the payment gateway.
Merchant agrees to indemnify and hold harmless Paymentsense, its employees, referral partners and agents from and against any loss, liability, damage, penalty or expense they may suffer or incur as a result of (i) any failure by Merchant to comply with the terms of this Agreement; (ii) any warranty or representation made by Merchant being false or misleading; (iii) any representation or warranty made by Merchant to any third person other than as specifically authorised by this Agreement, (iv) any claims related to the Paymentsense Services by a third party, (v) negligence of Merchant, (vi) any claims by Merchant against its credit card or debit card processor or (vii) any alleged or actual violations by Merchant or its subcontractors of any governmental laws, regulations or rules.
To the fullest extent permitted by law the Paymentsense Services and equipment are provided ‘as is’ without any warranty whatsoever and Paymentsense disclaims all warranties, terms or conditions, express, implied or statutory to Merchant as to any matter whatsoever, including all implied warranties of satisfactory quality, fitness for a particular purpose, reasonable skill and care and non-infringement of third party rights. The sole and entire obligation of Paymentsense in respect of any defective service shall, at its option, be to perform it again or refund the payment made for it. No oral or written information or advice given by Paymentsense or its employees or representatives shall create a warranty or in any way increase the scope of Paymentsense’s obligations.
Neither party shall be liable to the other party or to any third party for loss of business, revenue or profit, or damage to goodwill or for loss of or corruption of data, any consequential, indirect, or special damages arising out of or relating to this agreement, the Paymentsense Services or the equipment, whether due to breach of contract, misrepresentation, negligence, or otherwise howsoever arising. Under no circumstances shall Paymentsense’s total aggregate liability to Merchant or any third party for all claims arising out of or related to this agreement exceed the amount Merchant has paid for the Paymentsense Services. Nothing in this clause excludes or limits liability for death or personal injury caused by negligence.
This Agreement will bind and endure to the benefit of each party’s permitted successors and assigns. Merchant may not assign this Agreement without the written consent of Paymentsense. Paymentsense may assign this Agreement. This Agreement sets forth the entire agreement and understanding of the parties in respect of its subject matter and supersedes all prior agreements, representations or warranties. No amendment or modification to this Agreement shall be effective unless assented to in writing by both parties.
This Agreement shall be governed by and construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the English courts.
Any delay or failure by either party to enforce any of its rights shall not be construed as a waiver thereof on that or any other occasion. If any provision of this Agreement (or part) is declared by any court to be illegal or invalid, the validity of the remaining provisions shall not be effected. This Agreement may be executed in two or more counter-parts, by fax, or by e-signature, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. Clauses 2, 4, 5, 6, 7, 8, 9, 10 and 11 shall survive termination of this Agreement.
Paymentsense shall not be liable for any delay or failure to provide services due to any reason beyond its reasonable control including, without limitation, delay or non-performance by its suppliers, interruption in communications, war, civil unrest, fire, flood or other extreme conditions.
If Paymentsense were to supply to Merchant a terminal type, model, and quantity at no charge at its discretion (hereinafter, “Replacement Terminal”), each such Replacement Terminal will remain the property of Paymentsense. The end of the life of each Replacement Terminal shall be determined by the expiry of its PCI compliance. If Merchant cancels this agreement during the life of the Replacement Terminal, Merchant shall immediately pay Paymentsense a cancellation fee of €280 for each Replacement Terminal and return all Replacement Terminals provided to it under this agreement within 28 days. If Merchant fails to return all Replacement Terminals to Paymentsense within 28 days of cancelling this agreement, Merchant shall pay an additional €500 to Paymentsense in respect of each Replacement Terminal that Merchant fails to return to Paymentsense.
Paymentsense PCI enrollment is required of all Merchants and is charged €4.95 per month upfront quarterly. PCI fees are subject to change based on Merchant’s compliance and enrolment status. PCI Phone Validation is an English-speaking support service for completing the PCI validation process by phone during working hours. Paymentsense may pass on to the customer any fines or associated fees imposed by the acquirer or partners relating to card data security breach, incident handling, or enrolment in additional services.
Paymentsense will pay the Merchant the amount of any cancellation fee excluding VAT that the Merchant is legally obliged to pay to the Merchant’s existing card processing service provider in respect of any contract for services that Paymentsense Services will replace provided that: (i) Merchant provides a copy of the contract to Paymentsense and evidence that any cancellation fee payable under the contract has been demanded and paid; (ii) Merchant provides Paymentsense with a copy of a service provider statement showing the merchant identification number within 30 days of the date of this agreement; (iii) Merchant requests reimbursement of the cancellation fee for the provided merchant identification number within 12 months of the date of this agreement; and (iv) the total amount payable to any Merchant in respect of cancellation fees shall not exceed €3,200. Paymentsense may in its absolute discretion pay or contribute towards a cancellation fee in excess of €3,200 but shall have no obligation to do so. Merchant needs to be aware of any existing service provider terms and conditions already agreed. Paymentsense accepts no liability for: (i) any failure by the Merchant to cancel with the Merchant’s existing card processing service provider; or (ii) subject the foregoing provisions of this clause, any liability on the part of the Merchant arising from the cancellation by the Merchant of the contract between the Merchant and the Merchant’s existing card processing service provider.
48-Hour Replacement ensures a terminal swap out will be shipped out by end of next working day if a Merchant’s terminal needs servicing. Discounted Till Roll Service automatically orders till roll refills based on Merchant’s approximate transaction numbers from card processing on terminals included with this contract. Pay at Table service is charged per month for enabled terminals included with this contract. Performance Reports includes automated reporting, which is are sent to the email address if card payments are in excess of €100 card volume or 10 transactions per week. Performance Reports also includes access to on-demand reporting tools provided by Paymentsense. Plus by Paymentsense is an online service (https://paymentsenseplus.rewardgateway.ie) featuring discounted offers. The discounted offers for Plus may change from time to time. The service is provided free of charge for the first six months. After six months, the service is charged annually in advance at the discounted rate of €39.95 per annum.
If the Merchant has engaged Paymentsense for the provision of additional services (“Bolt-Ons”) as indicated in this Agreement, the provision of such services will be governed by Paymentsense’s standard Bolt-On agreement (“BOA”) as available at http://www.paymentsense.ie/legal/termsandconditions. By executing this form, Merchant expressly agrees to the terms and conditions of the BOA as relates to any additional services.