UK Merchant Service Agreement
This merchant services agreement (which comprises: (i) the form overleaf (the “Form”); (ii) these terms and conditions; (iii) to the extent applicable, the terms and conditions at https://www.paymentsense.com/uk/legal/bolt-on-terms-and-conditions/; and (iv) to the extent applicable, the terms and conditions at https://www.paymentsense.com/uk/legal/ecommerce-terms/, together being the “Agreement”), is made the date it is signed and is between the entity whose name is set out on the Form (the “Merchant”) and Paymentsense Limited (“Paymentsense”). Paymentsense provides merchant accounts, point of sale and chip and pin card terminals, e-commerce gateways and related goods and services and the Merchant wishes Paymentsense to provide the services specified overleaf (the “Paymentsense Services”) in consideration of the Merchant’s payment of the fees set out on the Form and below (the “Charges”). The terms and conditions set out in sections 4 to 8 inclusive below will each apply only to the extent that the relevant service has been selected by the Merchant.
- Exclusivity. The Merchant hereby appoints Paymentsense to be the Merchant’s exclusive provider of the Paymentsense Services and all other payment processing services, and the Merchant agrees to source point of sale equipment and chip and pin terminals only through Paymentsense or as Paymentsense directs and not to process payments through any competitor of Paymentsense or its affiliates (“affiliates” being any entity that controls, is controlled by, or is under common control with, Paymentsense).
- Fees and Payment. The Merchant agrees to pay Paymentsense the Charges in consideration for the provision of the Paymentsense Services. The Merchant agrees that following the submission by Paymentsense of an invoice (which shall be rendered monthly in arrears), Paymentsense shall be entitled to deduct the full amount of such invoice by direct debit from an account of the Merchant’s election. All amounts referred to in this Agreement are exclusive of VAT, which shall (if required) be payable by the Merchant at the appropriate rate at the same time as payment is made of the sum to which VAT relates. To the extent any e-commerce/virtual terminal gateway products are being provided, and depending on the applicable gateway tariff, overage charges may apply if the Merchant exceeds the monthly allowance of turnover volume or number of transactions on the payment gateway.
- PCI. Paymentsense PCI enrolment is required of all Merchants, and the Merchant agrees to pay Paymentsense a monthly fee as set out on the Form to manage their PCI compliance. This monthly fee is subject to change based on the Merchant’s compliance and enrolment status. If selected, the PCI Phone Validation service is an English-speaking support service to assist with the Merchant’s completion of the PCI validation process by phone during working hours.
- 24-Hour Replacement. If the Merchant notifies Paymentsense that a chip and pin card terminal it has received in connection with the Paymentsense Services (a “Terminal”) is damaged or defective, Paymentsense will provide the Merchant with a terminal which shall be like for like or to an alternative specification which shall be at least equivalent to the Terminal being replaced (a “Replacement Terminal”). The Replacement Terminal will be provided free of charge provided that the damage or defects were not caused directly or indirectly by the Merchant or its personnel. Each Replacement Terminal will remain the property of Paymentsense. Where the Merchant provides notice to Paymentsense in accordance with this section by no later than midday on any working day, Paymentsense will use its reasonable endeavours to dispatch a Replacement Terminal by the end of the next working day.
- Cancellation Protection. If the Merchant is party to a contract with a card processing service provider (an “existing provider”) for the provision of card processing services (an “existing contract”), which it wishes to terminate in order to replace the provision of such services with the Paymentsense Services, Paymentsense agrees to pay the Merchant the amount of any cancellation fee that the Merchant is legally obliged to pay the existing provider as a result of such termination provided that: (a) the Merchant provides Paymentsense with a copy of the existing contract and evidence that a cancellation fee has been demanded and paid; and (b) the total amount payable by Paymentsense to any Merchant pursuant to this section shall not exceed £3,000. Paymentsense may in its absolute discretion pay or contribute towards a cancellation fee in excess of £3,000 but shall have no obligation to do so. Paymentsense accepts no liability for: (a) any failure by the Merchant to cancel an existing contract; or (b) subject to the foregoing provisions of this section 5, any liability arising from the cancellation by the Merchant of the existing contract.
- Till Rolls. Till roll refills will automatically be ordered for the Merchant (with the amount and frequency being based on the Merchant’s approximate transaction numbers from card processing using any Terminals and Replacement Terminals provided pursuant to this Agreement).
- Pay at Table. The Pay at Table charge set out on the Form is payable in respect of each Terminal or Replacement Terminal which is configured to provide such service.
- Performance Reports. Paymentsense will send performance reports to the email address provided by the Merchant (provided that the volume and value of transactions processed by the Merchant are not deemed by Paymentsense, acting reasonably, to be de minimis).
- Software. The parties acknowledge that the that the computer software incorporated into a Terminal or Replacement Terminal (the “Software”) is not the property of the Merchant, and the Merchant agrees: (i) not to reverse engineer, decipher, decompile, alter, modify, copy, translate, develop, add to, or analyse the Software, or sub-licence or assign its right to use the Software to any third party; (ii) not to use the Software other than for the Merchant’s own use and as an integral part of the Terminal or Replacement Terminal; and (iii) not to transfer the licence of the Software to any third party.
- Terminals. The Merchant agrees to: (i) ensure that any Terminals and Replacement Terminals supplied to it in connection with this Agreement are kept in good and proper working condition (fair wear and tear excepted); (ii) not make any alterations or improvements to the Terminals or Replacement Terminals; and (iii) operate and maintain the Terminals and Replacement Terminals in accordance with any supporting user manuals and documentation and manufacturer’s instructions provided to it from time to time. The end of the life of each Terminal or Replacement Terminal shall be determined by the expiry of its PCI compliance. If the Merchant terminates this Agreement during the life of any Terminal or Replacement Terminal, the Merchant shall return each Terminal and/or Replacement Terminal to Paymentsense within 28 days of termination. If the Merchant fails to return all Terminals and Replacement Terminals accordingly, the Merchant shall pay £450 to Paymentsense in respect of each such unreturned Terminal and/or Replacement Terminal.
- Term and Termination. Where the Merchant is a Connect Free customer or an Enterprise customer (as specified on the Form) or is only receiving e-commerce/virtual terminal gateway products under this Agreement (an “E-com customer”), the Agreement shall commence on the date set out on the Form (the “Commencement Date”) and shall continue in full force and effect unless terminated by: (i) the Merchant on no less than: (a) 30 days’ prior written notice in the case of a Connect Free customer or an Enterprise customer; or (b) 90 days’ prior written notice in the case of an E-com customer; or (ii) by Paymentsense on no less than 7 days’ notice. Where the Merchant is otherwise receiving card terminal products under this Agreement, the term of this Agreement shall commence on the Commencement Date and continue in full force and effect until termination or expiry of the Merchant’s terminal hire agreement (and this Agreement shall terminate automatically upon termination of the same). Save as provided in section 10, no cancellation fees will apply to Connect Free customers, Enterprise customers or E-com customers. A cancellation fee of £120 plus VAT will be charged to all other customers who terminate this Agreement, in addition to the cancellation fees payable pursuant to section 10. The Merchant may terminate individual “Bolt-Ons” on notice to Paymentsense (which must be no less than 30 days’ notice in the case of Connect Free customers and Enterprise customers and no less than 90 days’ notice otherwise), and termination of one or more “Bolt-Ons” shall not constitute termination of this Agreement as a whole. Paymentsense may terminate this Agreement for convenience at any time by providing the Merchant with no less than 7 days’ notice.
- Consequence of Termination. The expiry or termination of this Agreement, howsoever caused, shall be without prejudice to any other rights which either party may have under this Agreement, and any liabilities accrued prior to the date on which the expiry or termination takes effect. Upon termination, all Charges owing to Paymentsense for the period up to and including the date of termination shall become immediately due and payable.
- Warranty. Each party warrants that it has full capacity and authority to enter into and perform its obligations under this Agreement, and that this Agreement is executed by a duly authorised representative of that party. The Merchant further warrants that it shall co-operate and liaise with Paymentsense as necessary for the performance of the Paymentsense Services. Both parties agree that the warranties set out in this section are in lieu of and exclude all other terms, conditions or warranties implied by statue, law or otherwise, (including without limitation as to the merchantability, satisfactory quality or fitness for any particular purpose of the Paymentsense Services) to the fullest extent permitted by law. The sole and entire obligation of Paymentsense (and the Merchant’s sole and exclusive remedy) in respect of any defective element of the Paymentsense Services shall be to either perform that service again or refund the Charges paid in respect of that service, at Paymentsense’s option. For the avoidance of doubt, no oral or written information or advice given by Paymentsense, its employees or representatives, shall constitute a warranty or, subject to section 18.9, in any way increase the scope of Paymentsense’s obligations under this Agreement.
- Indemnity. The Merchant hereby agrees to indemnify and hold harmless Paymentsense and its affiliates from and against all losses, liabilities, damages, costs and expenses they may incur as a result of: (i) the Merchant’s failure to comply with the terms of this Agreement; (ii) the breach of any warranty given by the Merchant; (iii) any claims by the Merchant’s credit card or debit card processor in connection with this Agreement; or (iv) the Merchant’s failure to comply with PCI DSS (including without limitation any fines or associated fees imposed by a merchant acquirer or partners as a result of a security breach, incident handling or enrolment in additional services).
- Liability. Neither party shall be liable to the other for any loss of profit, loss of business, loss of or damage to data, loss of anticipated savings, damage to reputation or goodwill, or any indirect, special or consequential damages, loss, costs or expenses of any kind, howsoever arising. The aggregate liability of Paymentsense to the Merchant for any damages, loss, costs or expenses arising out of, or in connection with, this Agreement, shall not exceed the total Charges paid by the Merchant to Paymentsense. Nothing in this section shall exclude or limit either party’s liability for fraud and/or fraudulent misrepresentation, or death or personal injury caused by negligence.
- Force Majeure. Paymentsense shall not be liable for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay was caused by or contributed to by any event or circumstance beyond its reasonable control (including, without limitation, delay or non-performance by its suppliers, an act or omission of the Merchant, failure or shortage of power supplies, war, industrial or civil action, riots or civil commotion, acts of government or public authorities, acts of God, fire, flood, or other extreme conditions).
- General. 18.1 No Partnership. Paymentsense and Merchant acknowledge that their contractual relationship shall be considered at all times as that of independent contractors, and neither party shall have the authority to enter into any contract on behalf of the other or to otherwise bind the other party to any legal obligations. 18.2. Third Parties. Save as otherwise expressly provided in this Agreement, no provisions which confer rights upon any third party shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any such third party. 18.3. Assignment. The Merchant may not assign, transfer or sub-contract any of its rights or obligations under this Agreement without the prior written consent of Paymentsense. 18.4. Waiver. Any delay or failure by either party to enforce any of its rights shall not be construed as a waiver thereof. 18.5. Severance. If any provision of this Agreement is declared by any court to be illegal or invalid, the validity of the remaining provisions shall not be affected. 18.6. Counterparts. This Agreement may be executed as two counterparts and execution by each party of any one such counterpart shall constitute due execution of this Agreement. 18.7. Confidentiality. The Merchant shall treat the terms of this Agreement as confidential and shall not disclose the same to any person who is not a party to this Agreement. 18.8. Survival. Sections 12-18 shall survive termination of this Agreement. 18.9. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties in respect of its subject matter and supersedes all prior agreements, understandings or arrangements, both oral and written, relating to the same. No amendment or modification to this Agreement shall be effective unless made in writing and signed by or on behalf of both parties. 18.10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.