ClickandBuy E-Money Account Terms of Use |  |
These Terms of Use form an agreement between you and ClickandBuy International Limited. Our primary business is the issuance of electronic money and the provision of financial and non-financial services closely related to the issuance of electronic money. This Agreement describes each party`s rights and responsibilities when you use one of ClickandBuy`s services.
1. Your relationship with Us and these Terms of Use
1.1 You: In order to use the ClickandBuy service (the "Service") you ("You" / "Your" or the "Customer") must be an individual, business or organisation (through its duly authorised agent) that can enter into a legally binding contract under the laws of England and Wales. You may not use the Service and may not accept the Terms of Use if You are under the age of 18 or are not authorised to enter into such a contract. If contrary to these requirements You continue to create a ClickandBuy account or use the Service, these Terms of Use will still apply.
1.2 Us: The ClickandBuy website (the "Website"), and the Service, is operated by ClickandBuy International Ltd ("Us" / "We" / "Our"), a company registered in England with company number 5661160 and with registered and head office at Lincoln House, 137-143 Hammersmith Road, London, W14 0QL, United Kingdom which offers an electronic money service in accordance with the applicable legislation of the United Kingdom, Great Britain and Northern Ireland. The Website address is www.clickandbuy-t1.com.
1.3 Contract: When You create a ClickandBuy account (an "Account") You must accept these Terms of Use, which form a legally binding contract between You and Us governing Your Account and Your use of the Service (the "Contract"). You may not use the Service if You do not accept the Terms of Use.
1.4 Acceptance: You can accept the Terms of Use by: (a) clicking to accept the Terms of Use; or (b) for existing users actually using the Service, You understand and agree that We will treat Your use of the Service as acceptance of the Terms of Use from that point onwards for each use of the Service.
1.5 The Terms of Use will be provided to You by supplying You with a link to the Website where the Terms of Use can be viewed. At any time during the term of the Contract You may also request Us to provide You with a copy of the Terms of Use by contacting Our Customer Care Team. An email will be sent to You which contains a copy of the full Terms of Use.
1.6 Start Date: These Terms of Use begin on the day when We accept Your registration for the Service, after You have completed the Registration Process. We will notify You of Our acceptance of Your registration by email.
2. Changes to the Terms of Use
2.1 Agreement changes: These Terms of Use may be amended by Us from time to time by posting the amended Terms of Use on the Website. You will be given at least two months` notice of such changes by sending You an email containing a link to the new Terms of Use and the proposed date of entry into force. You should make sure You review the current Terms of Use each time You use the Website and each time prior to initiating any transaction.
2.2 You understand and agree that You will be deemed to have accepted the changes to the Contract unless You notify Us to the contrary before they come into force. You have the right to terminate the Contract immediately and without charge before the proposed date of their entry into force.
3. Communications and Notices
3.1 Contacting Us: Should You wish to contact Us for any reason, We recommend directing Your query to Our Customer Care ("Customer Care") department by using the contact details published on the Website at www.clickandbuy-t1.com. Contact details for customer support will vary depending upon a customer`s location.
3.2 Language: These Terms of Use and all information are originally provided to You in English. If a document is translated into another language You agree that this is done for Your own benefit and if there are any discrepancies between the translated version and the English language version the text of the English language version shall prevail.
3.3 Methods of communication: Statements, notices and other communications to You may be sent to the mail or email address provided by You or by postings on the Website or other reasonable means. Any notices by either party under these Terms of Use by email shall be deemed given on the day the email is sent, unless the sending party receives an electronic indication that the email was not delivered; and if by post, shall be deemed given three business days after the date of posting.
3.4 Saving electronic information: You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy, and information that is provided to You in an electronic format is provided under the assumption that You will be able to print or save such information.
3.5 Our Address: Any notices sent by You to Us should be sent by registered post to:
ClickandBuy International Ltd
Lincoln House
137-143 Hammersmith Road
London, W14 0QL
United Kingdom.
4. Description of the Service
4.1 General: The Service allows You to use Your Account to make purchases of Internet content and services ("Products") from retailers ("Merchants") online. The Service also allows You to deposit funds with Us in the form of electronic money ("e-money") for use online at a later date.
4.2 Electronic Money: The Service is an electronic money service that provides You with an online account that stores monetary value. Funds held in Your Account are electronic money in accordance with the Electronic Money Regulations 2011. We are not a bank and We do not act as a trustee, fiduciary or escrow holder in respect of balances in Your Account, or as Your agent or the agent of any Merchant.
4.3 Regulation: We are authorised by the Financial Services Authority ("FSA") of the United Kingdom under the Electronic Money Regulations 2011 for the issuing of electronic money. We are listed on the FSA`s register and our registration number with the FSA can be found on the `Imprint` page of the Website at www.clickandbuy-t1.com.
4.4 Non-UK regulation: Where You use Your Account or the Service in a jurisdiction outside the United Kingdom, in some respects the regulatory system applying will be different from that of the United Kingdom and this may be to Your disadvantage. You may not be entitled to benefit from the same protections or complaints arrangements under a non-UK system of regulation.
4.5 Withdrawal of balance: The balance of Your Account can be withdrawn at any time by You, subject to Our withdrawal requirements in section 11 below and as set out in the fee table, and shall be disposed of only in accordance with Your instructions.
4.6 Our Fees and Charges: We will charge You the fees set out in the fee table in connection with transactions made in relation to Your Account (including funding, purchasing, currency exchange and withdrawal transactions). We will also charge You certain Account administration fees set out in the fee table, including in relation to on-going management of inactive accounts, failed payments and debt collection. All fees will be charged in the currency of Your Account and You agree that We may debit by way of set-off from Your Account any fees, charges or other amounts owing to Us and payable by You in connection with the Service.
4.7 Changes to fees: We may change the fee table from time to time by updating it on the Website. We will notify You of any such change in line with section 2 of these Terms of Use.
4.8 No expiry date: The monetary value stored in Your Account has no expiration date, although from a point 6 years after Your Account is closed and these Terms of Use are terminated, We are not required to redeem monetary value in Your Account to You.
4.9 Authentication: We may seek to authenticate the details of any payment method provided by You by making a credit to or a reservation of a small amount of money from the particular payment method. You may incur charges from the provider of the respective payment method in these circumstances, but We will not be liable for any such charges.
4.10 No interest: The Electronic Money Regulations 2011 prohibit Us from paying You interest. Accordingly Your Account balance will not earn interest.
4.11 Maximum Execution Time: The time for a payment transaction to be executed is the next three business days after the date of the transaction. From and including 1 January 2012, the time for a payment transaction to be executed is one business day after the date of the transaction, where a "Business Day" is Monday to Friday, 09:00 - 17:00 (UK local time), excluding public holidays in the United Kingdom.
4.12 Accessing the Service: Subject to the disclaimer in section 14.3, it is possible to execute payment transactions or access the Service at any time of day. However, withdrawal requests will usually be processed during a Business Day. Withdrawal requests received after 17:00 will be treated as taking place on the following Business Day.
5. Managing Your Account
5.1 Accuracy of Information: You may open an Account by completing the online application process. In doing so You must provide accurate and up to date information and must not provide any false, inaccurate, incomplete or misleading information or any data that You are not legally authorised to use. You must notify Us of any changes to the details You provided in Your application form by contacting Us through the Website. We may ask for further information about You at any time and Your failure or refusal to provide such information may result in a limitation on usage of the Service or suspension of Your Account. Any limitation or suspension of the provision of the Service will be notified to You, unless prohibited by law.
5.2 Limited Access Account: We may make an Account and the Service available to You on the basis of limited information about You and without registering You for online access to an Account, subject to the following restrictions:
(a) There will be no log-in feature to Your Account such that You will not be able to access on the Website Your transaction history or the normal online functionality of Our Accounts;
(b) You may only use Your Account to make single payment transactions (and not to make Recurring Payment Transactions, as defined in section 9.2) which together will be subject to the overall transaction limits in accordance with section 5.3;
(c) The range of payment facilities You have to upload electronic money to Your Account may be more limited than with an Account that is fully enabled;
(d) On instructing a payment to a Merchant, You will be required to make available funds to the value of the balance required to effect the payment from the authenticated payment method that You notify to Us. Where possible any funds returned to Your Account by a Merchant for any reason will be automatically redeemed to Your payment method used for the original transaction.
5.3 Spending and Redemption Limits: The following limits apply to Your use of Your Account:
(a) The total amount that can be transacted on Your Account in a calendar year is EUR 2,500 (EUR 1,000 for Limited Access Accounts); and
(b) Your Account is subject to a EUR 1,000 limit on the total amount that can be redeemed from Your Account in the same calendar year.
5.4 These limits are applied to allow us to make Your Account and the Service available to You using a simplified due diligence process as permitted by the Money Laundering Regulations 2007. We will notify You when You reach these limits. You will not be able to effect transactions or make redemptions in excess of these limits without taking the additional steps We require of You to help Us verify Your identity. Accordingly We reserve the right to hold the funds in Your Account until necessary security checks have been undertaken.
5.5 We may apply other spending limits to Your Account from time to time at Our reasonable discretion. Should You wish to apply for an increase in spending limit, please contact Our Customer Care team using the contact details for Your country of residence as supplied on the Website.
5.6 One Account only: You may only open one Account and We may close Accounts of any Customer who We believe has opened multiple Accounts.
5.7 Use of Your Account: By opening an Account, subject to payment of any applicable fees or charges, You will be able to purchase electronic money to be credited to Your Account, to make payments to and receive money from Merchants, and withdraw money from Your Account as explained on the Website and in these Terms of Use.
5.8 Use by You only: Only You may use the Account and the Service and any use of Your details by anyone else will be considered to be used by You, and You will be responsible for it.
5.9 Prohibited uses: Neither You nor anyone else authorised by You may use the Account or the Service:
- fraudulently or in connection with any criminal offence or unlawful purpose of any nature including but not limited to money laundering;
- in any unlawful manner, or in contravention of any applicable legislation, licence or third party rights;
- to re-sell or attempt to re-sell the Service or any part of it to any third party or attempt to exploit the Service for any commercial purposes;
- in a way that does not comply with these Terms of Use or with any reasonable instructions that We give to You;
- for tampering, `hacking`, modifying or otherwise corrupting the security or functionality of the Service or of the Website or any other website;
- for lottery, betting or gambling services that do not have all necessary licences and authorisations to operate in the jurisdictions that are relevant to You; or
- in a way that does not comply with Our Acceptance Policy as published on the Website at www.clickandbuy-t1.com.
5.10 Detection and suspension: We may, at Our reasonable discretion, apply procedures to detect and prevent any breach of these Terms of Use. Also, We may suspend or restrict Your use of the Service and/or Your Account, or refuse a transaction, at Our sole reasonable discretion immediately if:
- You use the Service or Your Account in any way which is in breach of these Terms of Use, or otherwise breach these Terms of Use, or We reasonably believe that either is taking place, whether with or without Your knowledge or authority;
- We are unable to settle a shortfall in Your Account balance under the process in section 10 below;
- You suffer any kind of bankruptcy, insolvency, liquidation or similar event including any arrangement with creditors or the appointment of a receiver; or
- We are required to do so by any regulatory or governmental agency or other authority.
If We suspend or restrict the Service in accordance with this section We will, to the extent permitted under applicable law, notify You promptly.
5.11 Notification to authorities
We may notify the police or other authorities of any unlawful use of the Service by You or using Your details.
6. Your details and Account security
6.1 Privacy: We will handle Your personal details, including Your Account usage, in accordance with Our Privacy Policy.
6.2 Your details: You should never share Your user name, password or other Account details with anyone else. You are solely responsible for the security of Your user name, password and other details and therefore agree to take all reasonable steps to keep this information safe and not intentionally show it to others. We will ensure that Your security information will remain confidential and only accessible to You except where You disclose Your security information.
6.3 Leakage: You must let Us know without undue delay in accordance with section 3 if You believe that Your password or user name has become known to any other person or is being or is likely to be used in an unauthorised way. We will then stop the further use of Your Account. Also, if We have reason to believe that there is, is likely to be, or has been, a breach of security or misuse of the Service as described above, We may require a change of Your password and/or user name and possibly suspend user names and password access to the Service.
6.4 We will inform You of any intention to stop the use of Your Account, specifying the reasons for doing so, unless such provision of information would compromise reasonable security measures or is otherwise unlawful. Where it is not possible to notify You beforehand, We will do so immediately after stopping the use of Your Account. We will provide You with notice of Our intentions depending upon the information which You have previously supplied. Generally, this will be by email, a telephone call from Our Customer support team, or via a message on the Website once You have logged into the Service.
6.5 We will allow the use of Your Account, or replace it with a new one, as soon as practicable after the reason for stopping its use ceases to exist.
6.6 We may refuse to execute any Payment Order by You where We suspect that the Terms of Use have been violated, or where We are otherwise required to do so by law.
6.7 No phishing: We will only ever request Your account password details via Our secure account login pages on the Website at www.clickandbuy-t1.com. We will never ask for these details via email, telephone or otherwise.
6.8 Subject Access Requests: Under the UK Data Protection Act, You have the right to ask Us to see the personal information that We hold about You (this is known as a `subject access request`) by writing to Us. We may charge You a Subject Access Request Fee (as set out in the fee table) for each subject access request that You make. We will generally respond to a subject access request within 40 calendar days of receiving: (a) the Subject Access Request Fee; (b) information that We need in order to identify You; and (c) the information You need.
7. Unauthorised or incorrectly processed transactions
7.1 In the event of an unauthorised, non-executed or incorrectly executed payment transaction You must let Us know without undue delay in accordance with section 3. You are only entitled to redress under section 7.2 if You notify Us without undue delay, and in any case no later than 13 months after the debit date. This time limit does not apply if We have not provided or made available certain required information about the transaction to You. Contact details specific to Your country of residence can be found on the Website at www.clickandbuy-t1.com.
7.2 Where You are entitled to redress, We will refund the amount of any unauthorised, non-executed or defective payment transaction and, where applicable, restore Your Account to the state it would have been in had the unauthorised payment transaction not taken place. In practice this means that e-money to the value of the payment transaction will be credited to Your Account.
7.3 In any case We will, on Your request, make immediate efforts to trace the payment transaction and notify You of the outcome.
7.4 If You have acted fraudulently, or intentionally or through gross negligence breached these Terms of Use, You will be liable for all losses incurred in respect of any unauthorised transactions.
8. Uploading funds and transfers to Your Account
8.1 Payment options: In order to upload electronic money to Your Account, You may select one or more payment options available depending on Your country of residence, and You must also complete the information requested, including passing all identity and security validation and verification checks. You authorise Us to obtain or receive funds on Your behalf from Your chosen payment source, plus applicable fees as specified in Our fee table. On receipt of Your funds and subject to Our ability to deduct a fee, we will issue an equivalent monetary value to Your Account without delay in the currency in which Your Account is denominated.
8.2 Minimum funding: We may require that You fund a minimum amount on each occasion as set out in the Frequently Asked Questions section of the Website from time to time.
8.3 Sources of funding: If We receive a fund transfer with insufficient information to locate the beneficiary ClickandBuy Account, We will return this to the sender provided that We have sufficient details to do so. A Correction Fee (see fee table) may be deducted from the original deposit amount.
8.4 Funding Fee: Upon funding electronic money to Your Account, We may charge an Account Funding Fee as set out in the fee table. Where possible, these fees will be notified to You prior to completion of the transaction.
8.5 Unregistered Payees: If a person receives notice that a payment has been sent through Us but he/she has not registered for the Service, We will NOT issue any electronic money to him/her and will NOT in any way become his/her agent and the recipient of said notice will have no claim to those funds unless and until he/she registers for the Service and indicates his/her acceptance of the payment and these Terms of Use.
9. Consent for payment transactions
9.1 You must give consent to the execution of a payment transaction for it to be authorised. You agree that by pressing the Confirm button at the time of a transaction You are confirming that You are providing consent for the payment transaction to be processed and for the relevant fees to be charged. Subject to section 9.2, You also agree that once consent has been provided by You the authorised payment transaction can no longer be revoked. To this extent the time of receipt of the payment order is the time when the Confirm button has been pressed.
9.2 You may choose to give consent for a series of recurring payment transactions ("Recurring Payment Transactions") by clicking the Authorise button when such an offer is presented to You by a Merchant. Consent for each of the payment transactions in the series is assumed to have been given until such time as You click to revoke such consent from within Your Account area. You can revoke a Recurring Payment Transaction up until the end of the Business Day preceding the agreed day for payment. At the time You revoke Your permission for Recurring Payment Transactions, Your consent for future payment transactions will have been withdrawn and no future Recurring Payment Transactions in the series will be permitted. Where You revoke consent to a Recurring Payment Transaction this will not alter, terminate or waive any obligations You have to the Merchant and You will still be responsible for meeting whatever obligations You have agreed with the Merchant.
10. Payments from Your Account
10.1 Collection of Merchant payments: We are responsible for collecting from Your Account all sums due for Products purchased from Merchants by You using the Service.
10.2 Products: We are not responsible in any way for the Products or for any site from which they are purchased, or any other site You use, and Your use of the Internet is at Your own risk and is subject to any applicable laws. The Merchants are solely responsible for all information in relation to the Products and for the Products and their supply to You. Charges for all purchases made by You are collected from Your Account once You complete the purchase.
10.3 Insufficient funds: If You make a purchase of Product(s) but do not have sufficient electronic money in Your Account You authorise Us to obtain on Your behalf funds to the value of the balance required to effect the payment plus any applicable fee set out in the fee table from the authenticated payment method that You notified to Us during Account creation (as updated by You from time to time or as notified under section 5.2(d)). Alternatively You may select the source of funding at the time of making the purchase. We will make the necessary payment instructions on Your behalf. We reserve the right to limit Your choice of funding sources for any individual payment at Our discretion. In no circumstances shall We have any duty to provide You with any overdraft, credit or equivalent.
10.4 Payment failure: We can apply a Failed Payment Fee where a payment that We have requested from Your selected payment method has failed for any reason, such as a direct debit failure, insufficient funds in Your selected account or due to Your payment service provider failing the payment request for some other reason. We can also apply a second Failed Payment Fee where We make a second attempt to collect any outstanding balance on Your Account, as described in section 10.5, and that attempt fails for any reason. We will not be entitled to charge a Failed Payment Fee where a failure is due to Our fault.
10.5 Outstanding payment reminders: Where You have insufficient monetary value in Your Account to satisfy a payment due and We have been unable to obtain the value of the required balance in accordance with section 10.3:
(a) We will send You an outstanding payment reminder by email or post immediately after the payment failure;
(b) If You continue to have insufficient funds in Your Account one week after deemed receipt of the first notice, We may send You a second reminder. If You continue to have insufficient funds in Your Account one week after deemed receipt of the second notice, depending on the country in which Your Account is opened, We may terminate Your Account;
(c) Where we have notified You that we will do so in an outstanding payment reminder, We may within two weeks after sending You the reminder, make a second attempt to collect the outstanding balance from Your source of funding as identified under section 10.3. We have the right to apply a second Failed Payment Fee where such a second attempt fails for any reason (other than due to Our fault);
(d) We may charge You an Outstanding Payment Reminder Fee as set out in the fee table in respect of the outstanding payment reminders that We have sent You.
10.6 Currency: If You make a purchase or receive a credit from a Merchant in a currency other than the currency in which Your Account is denominated, We will specify the amount to be collected from Your Account, based on the currency exchange rate at the time of the purchase available from a reputable currency exchange rate service provider used by Us. We will charge a Currency Exchange Fee where we are required to exchange currency for You. The total amount to be collected from Your Account, the exchange rate, any applicable fee set out in the fee table (such as a Currency Exchange Fee), and the breakdown of such fees, will be displayed at the time of purchase.
10.7 Debt collection: Where We are unable to obtain sufficient funds from You to satisfy any payment due, We may transfer responsibility for collecting the outstanding debt to a debt collection agency. In this case the External Collection Agency Fee will be chargeable (see the fee table) and interest on late payments will be accrued in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002 and We will be entitled to suspend further services.
11. Withdrawal of funds from Your Account
11.1 Your right to withdraw funds: You can request withdrawal of all or part of monetary value from Your Account at any time by logging into Your Account and following instructions in the "Withdrawal" section. Amounts will be redeemed at par and in the currency in which Your Account is denominated. Once Your Account has been closed and these Terms of Use terminated under section 13, if You request a withdrawal We will only allow the redemption of the total (and not partial) value in Your Account. Withdrawn funds will be paid to You by electronic transfer to an account nominated by You at a bank or other financial undertaking, subject to verification checks carried out in accordance with section 12.4. It will be Your responsibility to ensure that We are provided with the correct information.
11.2 We will complete Your transfer request as soon as We have successfully completed the checks referred to in section 12.4. We will endeavour to ensure that the funds reach this account within five business days from the point We initiate these transfer instructions. We will not however be in breach of this provision if the failure of the funds to reach the account in time is caused by an error outside Our control on the part of any third party involved in the funds transfer.
11.3 Withdrawal Handling Fee prior to termination: We will charge You a Withdrawal Handling Fee (as set out in the fee table) where You withdraw monetary value from Your Account prior to the closure of Your Account under Section 13.
11.4 We will deduct any applicable fee under section 11.3 from Your Account as set out in the fee table. Where a Withdrawal Handling Fee applies, You will be presented with the total fees for the withdrawal after You have logged Your withdrawal request and before completion of the withdrawal, allowing You the opportunity to cancel Your request. We reserve the right to charge You a Correction Fee according to the fee table if wrong or incorrect payment details are provided or if a withdrawal fails or is impeded due to any other reason other than due to Our fault (e.g. returned or cancelled cheque, payment returned by recipient's bank).
11.5 Dormant Account Maintenance Fee after 12 months of inactivity: We reserve the right to charge You a Dormant Account Maintenance Fee as detailed in the fee table when Your Account is not actively being used for payment transactions (i.e. the Account is "Dormant"). We will apply the Dormant Account Maintenance Fee:
(a) where Your Account is open and has monetary value on it, but has been Dormant for 12 months; and
(b) where Your Account has been terminated and closed and is therefore Dormant, but still has monetary value on it 12 months after the closure of the Account.
11.6 The Dormant Account Maintenance Fee will include an amount in respect of Our costs of maintaining records for, administering and keeping safe Your monetary value and will be deducted from Your Account on a monthly basis until the monetary value is redeemed by You. Application of this fee will result in the reduction of Your monetary value, even to a nil balance. To avoid the Dormant Account Maintenance Fee it is important You request a withdrawal of any remaining monetary value before Your Account has been Dormant for 12 months or more (whether pre- or post- Account termination).
11.7 No Withdrawal Handling Fee for withdrawal on termination or 12 months afterwards: If You withdraw Your monetary value at the point Your Account is closed or within the next 12 months, You will not have to pay a Withdrawal Handling Fee for withdrawal or a Dormant Account Maintenance Fee.
11.8 No withdrawal rights after 6 years: We are not required to redeem to You monetary value in Your Account where You request a withdrawal more than (6) six years from the date on which Your Account was closed and terminated under section 13.
12. Other
12.1 Responsibility for instructions: You are solely responsible for the instructions given to Us and for this reason We may not be able to detect errors in Your payment instructions. We are responsible for processing a payment order only in accordance with the information provided by You.
12.2 Payments not reversible: You should note that all payments made are final and not reversible once consent for execution of the transaction has been provided by You. We cannot arrange for funds to be given back to You where You believe the payment was made in error unless such error was caused by Us.
12.3 Disputes with third parties: Where You dispute a transaction with another party, We will not enter into the dispute in any way other than to confirm that the payment was made in accordance with Your instructions. We do not act as agent for either the Merchant or You and do not have responsibility for resolving any disputes between the Merchant and You.
12.4 Checks: Before making any payment from or to Your Account We may carry out various checks in connection with avoiding money laundering and/or fraud or to check whether the holder of the electronic money is the person who is entitled to redeem it as required by any applicable law.
12.5 FSCS not applicable: The Financial Services Compensation Scheme (FSCS) does not apply to the Service or the funds stored on Your Account and Your Account balance is not insured by any other government agency.
12.6 Intellectual Property: All intellectual property rights in this Website and in the Service and in Our brands belong to Us and Our licensors. You have no licence to use any of these without Our prior consent.
13. Termination
13.1 These Terms of Use are concluded for an indefinite period. The Terms of Use will continue to apply until terminated by either You or Us as set out below.
13.2 By You: You may close Your Account and thereby terminate the Terms of Use (and Your right to use the Service) at any time by giving Our Customer Care team notice by using the contact form provided on the Website. In particular, You are entitled to cancel these Terms of Use and so close Your Account at any time within 14 days from the day on which these Terms of Use commenced by sending notice of Your intention to do so to the above mentioned department.
13.3 By Us: We reserve the right to close Your Account and terminate the Contract at any time:
(a) by providing You with two months` notice unless the provision of notice is legally prohibited or would compromise reasonable security measures and payment of any unrestricted funds held in custody, where:
(i) We are no longer providing the Service to users in the country in which You are resident or from which You use the Service; or
(ii) the provision of the Service to You by Us is no longer commercially viable;
(b) immediately by giving notice:
(i) should You breach these Terms of Use (or have acted in a manner which clearly shows that You do not intend to, or are unable to comply with the provisions of the Terms of Use, which shall include being unable to provide funds for payments due) including committing any contravention of any applicable law; or
(ii) where We are required to do so by law (for example, where the provision of the Service to You is, or becomes, unlawful).
13.4 Redemption of funds: Redemption of all stored funds on termination shall be made in accordance with section 11. Redemption will be made to the bank account details provided to Us by You, subject to verification checks carried out in accordance with section 12.4. If that information is not correct and We are unable to complete the transfer, the stored balance held in Your Account will be forfeited after a period of 6 years from the date Your Account is closed.
13.5 Survival of terms: Sections 4.6, 4.8, 4.10, 5.9 - 5.11, 6.1, 10.4, 10.7, 11, 12.3 - 12.5, this section 13, and sections 14, 15 and 16 shall survive any termination of Your right to use the Service and the Terms of Use.
14. Warranties, Liabilities and Disclaimers
14.1 Your warranty: You warrant and represent to Us that the opening of and use of Your Account by You does not contravene any law of any jurisdiction, and that You will not use the Service unlawfully or in connection with any unlawful activity, or in any way that breaches these Terms of Use.
14.2 Transaction times: We shall make reasonable efforts to ensure that all transactions are processed in a timely manner. However, the processing of transactions is dependent on a number of factors outside of Our control and as such We are not able to make any other warranties, representations or terms regarding the amount of time transactions will take. Provided We have used reasonable efforts to process promptly We will not be liable for any loss You or anyone else suffers as a result of transaction processing times.
14.3 Availability: Whilst We strive for continuous availability, We cannot and do not warrant or represent that the Website, the Service or Your Account will be continuously available and error-free. We may conduct reasonable maintenance (leading to downtime) as required.
14.4 Products and taxes: We are not responsible in any way for the Products or for any site from which they are purchased, or for any charges, taxes or other duties relating to the transactions. The Merchants are solely responsible for all information in relation to the Product, for the Products themselves and their supply and sale to You.
14.5 Your Liability: You may be liable to Us for losses, expenses or damages We incur as a result of Your breach of these Terms of Use. In particular You will be liable for and shall indemnify Us against any losses, expenses or damages We suffer as a result of:
(a) any use of the Service or Your Account (including any withdrawal up to a maximum of 50 GBP for transactions that do not arise from distance contracts) by any person using Your details, other than arising after You have notified Us that You believe that Your password or user name has become known to another person or is being or is likely to be used in an unauthorised way;
(b) any misuse of the Service, Your Account or the Website;
(c) any fraud in relation to the stored balance in Your Account by Yourself or a third party; and
(d) any claim made against Us by a Merchant in circumstances where You have insufficient funds or otherwise have failed to make a payment to that Merchant,
other than such circumstances that have been directly caused by Our negligence, wilful default or fraud.
14.6 Our Liability: We will provide the Service with reasonable care and skill and in accordance with these Terms of Use, but subject to section 14.7 below We exclude all warranties, representations, conditions and terms that are not expressly set out in these Terms of Use. In addition, You agree that We will not be liable to You or any other person for any of the following losses:
(a) loss of profits, revenue, opportunity, bargain or sales;
(b) losses causes by incorrect payments resulting from Your instructions;
(c) losses caused by payments made by a third party who passes all reasonable identity and verification checks;
(d) losses caused by a recipient's decision not to accept a payment made through the Service;
(e) losses caused by delays, losses, errors, or omissions in any telecommunications or other data transmission system, or any other system outside of Our control;
(f) losses arising out of the acts or omissions of other providers of telecommunication services or for faults in or failures of their networks and equipment or anything that is outside of Our control;
(g) losses arising from the Website, the Service or Your Account not being continuously available or arising from Our reasonable maintenance (which may lead to downtime) of the Website or Service; or
(h) indirect, consequential and special damages.
Also, We do not monitor the type of Products purchased or whether Products can be legally purchased by the users of the Service. As such We are not liable for any unlawful Products including any sales of age-regulated products to minors.
14.7 Liability not excluded: We do not exclude Our liability for death or personal injury caused by negligence, for fraudulent misrepresentation or for anything else that cannot be excluded under applicable law including to the extent that any exclusion or limitation is not permitted under the rules of the Financial Services Authority.
14.8 Cap on liability: Subject to sections 14.1 through 14.6 above Our liability in contract, tort or otherwise is capped at the greater of (a) the amount of fees You paid to Us under section 4.6 in the 12 months prior to the liability arising; or (b) the value of the transaction or the stored balance giving rise to the dispute or (c) 250 GBP.
14.9 Indemnity: You hereby indemnify Us and Our group companies for any loss suffered (including by way of contract, tort or otherwise and including legal fees) and arising directly or indirectly against any claim brought against Us or any group company by a third party resulting from Your misuse of the Service, the site or Your Account or any breach by You of these Terms of Use.
14.10 Separate provisions: Each provision of this section 14 operates separately in itself and survives independently of the others.
15. Governing Law and Legal Disputes
15.1 Complaints: In the event of any dispute or problem with the Service please always contact Our Customer Care team in the first instance. In the event that Your query is not satisfactorily resolved, You may lodge a complaint with Us by following the instructions on the Website, or write to Us at the address specified in section 3. Information regarding Our complaint handling procedures is also available upon request.
15.2 Ombudsman: The Financial Ombudsman Service is an independent body that helps settle complaints between customers and firms regulated by the FSA. If We are unable to resolve Your complaint satisfactorily You may qualify to escalate your complaint to the Financial Ombudsman Service by post, addressing Your complaint to the
Financial Ombudsman Service
South Quay Plaza
183 Marsh Wall
London E14 9SR
by telephone on 0845 080 1800 or by email at enquires@financial-ombudsman.org.uk. The Financial Ombudsman Service`s website is www.financial-ombudsman.org.uk. Further information regarding the Financial Ombudsman Service and whether you qualify for this service is available on the Website, or can be requested by contacting Our Customer Care team.
15.3 Governing law: These Terms of Use (and therefore Your agreement with Us) shall be governed by and construed in accordance with the laws of England and Wales. Any claim arising out of or relating to these Terms of Use or the provision of the Services or Your Account that cannot be resolved by contacting the Customer Care team shall be settled through the Financial Ombudsman Service or the courts of England.
16. Other provisions
16.1 Law: We and You shall both comply with all applicable laws, contracts and applicable licences regarding the use and provision of the Service and Your Account.
16.2 Entire agreement: These Terms of Use constitute the entire agreement between You and Us with respect to the Service and Your Account and supersede and replace any and all prior agreements.
16.3 Waiver: Our failure to exercise or enforce any right under these Terms of Use shall not be deemed to be a waiver of any such right or prevent Us from exercising or enforcing any of these Terms of Use at any time.
16.4 Assignment: You may not transfer any of Your rights or obligations under these Terms of Use without Our prior written consent. We reserve the right to transfer Our rights and/or obligations under these Terms of Use by notifying You in writing.
16.5 Other parties: You and We are the only parties who may rely on or enforce these Terms of Use.
17. Fee table
| Fee type | Description | Fee See * for Accounts in non-GBP, EUR or USD currencies |
|---|---|---|
| Account Opening Fee | This fee is payable for opening an Account. | Free |
| Payment Fee | This fee is payable for processing certain payment transactions to or from Your Account. Where you are pre-loading Your Account, the Account Funding Fee, not the Payment Fee, applies. | Direct debit: Free Giropay: Free Direct ebanking: Free Online Money Transfer: Free Credit card: Free |
| Account Funding Fee | This fee is payable where You pre-load Your Account using a Credit Card for later use. No fee is currently applied for any other methods of funding. | Direct debit: Free Giropay: Free Direct ebanking: Free Online Money Transfer: Free Credit card: 3.9% |
| Correction Fee | This fee is payable if: (a) We receive a fund transfer with insufficient information to allocate it to the correct beneficiary ClickandBuy Account; or (b) In connection with a withdrawal request We receive wrong or incorrect payment details or the withdrawal fails or is impeded due to any reason (other than due to Our fault). | UK users: 0.50 GBP EU users: 0.50 EUR US users: 0.50 USD |
| Failed Payment Fee | This fee is payable where a payment that We have requested from Your selected payment method has failed for any reason (other than due to Our fault). | UK users: 25 GBP EU users: 15.00 EUR US users: Free |
| Outstanding Payment Reminder Fee | This fee is payable where We send You an outstanding payment reminder. | UK users: 7.50 GBP EU users: 7.50 EUR US users: Free |
| External Collection Agency Fee | This fee is payable to a third party debt collection agency We instruct to recover an outstanding payment owed by You. The agency will add the fee to the amount to be recovered from You. | UK users: 20 GBP EU users: We do not charge You an External Collection Agency Fee directly. The debt collection agency will apply its tariff of collection fees to You.
US users: We do not charge You an External Collection Agency Fee directly. The debt collection agency will apply its tariff of collection fees to You.
|
| Currency Exchange Fee | Where We are required to exchange currency in order to process Your transactions, We will apply this fee to the amount of Your monetary value that is converted. | 5.9% |
| Withdrawal Handling Fee | This fee is applied each time You withdraw monetary value from Your Account up until the point it is terminated. | UK users: 1.85 GBP EU users: 1.85 EUR US users: 2.75 USD |
| Dormant Account Maintenance Fee | This monthly fee is payable if: a) Your Account is open but Dormant for 12 months and has monetary value in it; or b) Your Account is closed and terminated but still has monetary value in it 12 months after the point of Account termination. | UK users: 1.00 GBP per month EU users: 1.00 EUR per month US users: 1.50 USD per month |
| Subject Access Request Fee | Where You make a ‘subject access request’ for Personal Data under the Data Protection Act, We will charge You this fee for dealing with this request. | UK users: 10 GBP per subject access request EU users: 10 EUR per subject access request US users: 10 USD per subject access request |
* Fees in non GBP, EUR or USD currencies: Where Your Account is in a currency other than GBP, EUR or USD, You will be charged fees in the currency of Your Account that are materially equivalent in value to the fees in EUR set out in this fee table. The fees in non GBP, EUR or USD currencies will be calculated by Us to this effect on an interim basis with reference to prevailing market exchange rates. The fees as calculated will be notified and recorded in the currency of Your Account.
General Terms and Conditions of ClickandBuy International Limited: Transaction system, Subscription, Sessionmanagement, Easy Collect TMI, Event Messaging Service
1. PROVISION OF THE SERVICE
1.1 ClickandBuy will provide the Merchant with the Service on the terms of this Agreement from the Effective Date.
1.2 The following clauses of this Agreement shall only apply to Merchants that are individual consumers, charities or Micro Enterprises:
(a) Clause 9.5(b) and (c) (relating to liability); and
(b) Clause 9.6 through to and including Clause 9.9 (relating to liability)
1.3 If the Merchant is not an individual consumer, charity or Micro-Enterprise, the time-period referred to in Clause 9.5 shall be one month, not thirteen months.
1.4 ClickandBuy will provide the Service with the reasonable skill and care of a competent provider of such services.
1.5 Before the Service can be provided, the process detailed in the Technical Documentation must be followed to establish and test the system integration between ClickandBuy and the Merchant’s Website. An updated version of the Technical Documentation can be obtained at any time from the ClickandBuy portal.
1.6 ClickandBuy will use all reasonable endeavours to correct any repor-ted technical faults in the Service as soon as reasonably practicable. However, ClickandBuy does not give any guarantees as to performance of the Service or any undertakings that the Service will be free of faults.
1.7 Occasionally ClickandBuy may:
(a) for operational reasons, update the technical specification of the Service; or
(b) require the Merchant to follow instructions which it believes are necessary for reasons of security or quality, provided that an update or requirement that represents a change to the terms of this Agreement shall be communicated in accordance with Clause 14.
1.8 ClickandBuy may suspend the Service for operational reasons such as maintenance, or because of an emergency. ClickandBuy will restore the suspended Service as soon as reasonably practicable. The Merchant is responsible for taking back-ups of pricing and other data prior to any suspension or maintenance work and for restoring any such data lost as a result of such suspension or maintenance work.
1.9 The language of this Agreement is English and any notifications or information to be given in connection with the Agreement shall be provided in English. If a document is translated into another language both parties agree that this is done for their own benefit and if there are any discrepancies between the translated version and the English language version the text of the English language version shall prevail.
1.10 All End User Details are and shall remain the property of ClickandBuy and will not be disclosed to the Merchant except as necessary pursuant to Clause 2.12. However, the Merchant will be provided with anonymous data in accordance with the Data Protection Act 1998.
1.11 ClickandBuy will use reasonable endeavours to provide the Service by any date agreed with the Merchant but all dates are estimates.
1.12 At the Merchant's request during the continuation of this Agreement ClickandBuy shall provide to the Merchant a copy of this Agreement and certain supporting information about the Service that ClickandBuy is required under the Payment Services Regulations to make available to the Merchant .
2. COLLECTION OF OFFER CHARGES DUE TO MERCHANTS
2.1 ClickandBuy will issue the Merchant with a ClickandBuy Account upon the Merchant entering into this Agreement. The Merchant will be forwarded all Offer Charges collected from End Users in the currency of the Merchant’s ClickandBuy Account in accordance with the Payment Order set out in Clause 2.7 of this Agreement, as offset in accordance with Clause 2.6 against ClickandBuy’s Charges. Detailed information on every transaction made by End Users may at any time be obtained in the ClickandBuy Service Area.
2.2 Changes to existing Offers or the addition of new Offers must be managed by the Merchant in accordance with the process set out in the Technical Documentation.
2.3 The Merchant agrees to pay, without any set-off, restriction, condition, withholding or deduction, all Charges in accordance with this Agreement and as set out in Schedule 2 of this Agreement.
2.4 Once the Agreement has begun, ClickandBuy will invoice the Set-Up Fee in accordance with Schedule 2, and the Merchant will make payment within 14 days of the date of ClickandBuy’s invoice.
2.5 Offer Charges will, unless otherwise agreed, be payable in accordance with Clauses 2.6 and 2.7 below.
2.6 ClickandBuy will, in accordance with the Payment Order set out in Clause 2.7, disburse all sums due and will provide the Merchant with the following information relating to the previous Billing Period:
(a) the Offer Charges paid by the End User, as well as all sums successfully retrieved from the End User in accordance with Clause 2.12 below;
(b) the Charges payable to ClickandBuy;
(c) any applicable VAT and any other taxes or duties payable by ClickandBuy on behalf of the Merchant in relation to the Service;
(d) any irrecoverable or cancelled amounts in accordance with Clauses 2.9 and 2.11 below;
(e) the amount which ClickandBuy proposes to retain in accordance with Clauses 2.9, 2.10 and 5.4 below; and
(f) the amount which ClickandBuy will forward to the Merchant in accordance with Clause 2.7 below, namely the amount stated in accordance with Clause 2.6(a) above less those stated in accordance with Clause 2.6(b) to (e) inclusive.
2.7 The Merchant requests and consents to ClickandBuy paying on the Payment Date from the Merchant’s ClickandBuy Account to a bank account nominated by the Merchant the sums due to the Merchant as calculated in accordance with Clause 2.6 (f) above. This Payment Order will be deemed as having been received on the Payment Date. The Merchant will not otherwise have rights to make withdrawals from its ClickandBuy Account. In the event that the calculation set out above results in a balance in favour of ClickandBuy, the Merchant agrees that any such sum is due to ClickandBuy and that ClickandBuy may deduct such sum from the balance of the Merchant’s ClickandBuy Account. Where the balance of the Merchant’s ClickandBuy Account is insufficient to cover the amount due, ClickandBuy may debit the amount of the shortfall using the payment details set up in accordance with Clause 2.8 below.
2.8 The Merchant will complete a Direct Debit Instruction to allow ClickandBuy to debit Charges and other sums due under this Agreement. In case a Direct Debit Instruction can not be given the Merchant agrees to provide valid Credit Card details and hereby authorizes ClickandBuy to debit Charges and other sums due under this agreement from this alternate payment method.
2.9 ClickandBuy will be entitled to retain for up to twelve (12) Months beyond the relevant Payment Date, Offer Charges which have been attributed to the Merchant and billed to an End User, but for whatever reason were not paid by the End User or the Merchant Acquirer. ClickandBuy may subsequently recover from these retained Offer Charges any Offer Charge that ClickandBuy is unable to collect from an End User.
2.10 ClickandBuy will be entitled to retain an amount of the Offer Charges which are attributable to the Merchant in any one Billing Period, at the end of each relevant Billing Period, to cover any liability to End Users or other parties having a legitimate claim. Retentions made by ClickandBuy pursuant to this Clause 2.10 will be determined by individual risk assessment and kept for up to six (6) weeks or as otherwise defined in Schedule 2 and will be refunded to the Merchant upon expiry of the agreed period of time net of any outstanding liabilities to End Users or other parties, except where either party terminates the Agreement. In this case ClickandBuy will retain the sum calculated in accordance with Clause 13 to cover liability to End Users or other parties having a legitimate claim. The Merchant shall not be entitled to any interest on such retained amounts.
2.11 Subject to Clause 9, in the event that ClickandBuy identifies a transaction as being fraudulent or caused through unauthorised use of a ClickandBuy Account, or where the End User contacts ClickandBuy and rejects goods offered or services rendered by the Merchant for being insufficient, incorrect or defective, ClickandBuy may, following reasonable attempts to resolve any End User dispute with the Merchant, cancel the transaction and refrain from paying any connected Offer Charges to the Merchant and may refund the End User’s ClickandBuy account with the amount of the fraudulent, unauthorised or rejected transaction. In such cases, the Merchant acknowledges and accepts that no sums will be forwarded to it by ClickandBuy in respect of the disputed amount.
2.12 If ClickandBuy is not able to retrieve Offer Charges owed by an End User, despite taking reasonable steps to pursue these Offer Charges, ClickandBuy may terminate the contract with the relevant End User. The Merchant acknowledges and accepts that ClickandBuy may, at ClickandBuy's expense, instruct a third party collection entity in this regard. Alternatively, the Merchant may, upon request, collect the Offer Charges himself. In this case, ClickandBuy will provide the Merchant with details of the uncollected Offer Charges and the End Users contact details, and the Merchant will assume responsibility for pursuing the debt further. ClickandBuy will have no liability to the Merchant in respect of any such uncollected Offer Charge.
2.13 The Merchant Commission charged by ClickandBuy according to Schedule 2 of this Agreement shall be due in respect of all Offer Charges that are credited to the Merchant's ClickandBuy Account, whether or not monies can subsequently be retrieved from the End User, whether the End User disputes the amount, or whether the amount will be refunded to the End User.
2.14 Each transaction made by an End User using their ClickandBuy Account may be checked by the ClickandBuy Fraud Server. This may lead to other designated means of fraud protection or to rejection of the transaction. If the transaction is rejected, the Merchant may not receive the Offer Charges into its ClickandBuy Account, and will therefore not incur a ClickandBuy commission charge.
2.15 The Merchant shall not be entitled to interest on the balance of monies collected by ClickandBuy that is stored in the Merchant's ClickandBuy Account.
3. SECURITY
3.1 The Merchant is responsible for the security and proper use of its user names, passwords, and security check words and other details used in connection with the Service including any reasonable security precautions notified to it by ClickandBuy pursuant to Clause 1.7 (b), and must take all reasonable steps to ensure that they are implemented, kept confidential, used properly and not disclosed to unauthorised people or used in an unauthorised way. The Merchant will take all reasonable steps to keep access to, and the security features of, the Service safe and to prevent unauthorised use of the Service by any party.
3.2 The Merchant must notify ClickandBuy without any undue delay as soon as it is aware that there may have been unauthorised use of the Service or where any security feature has been breached or compromised. Such notification should be given by contacting the 24/7 Customer Care Team, who’s contact details can be found on the ClickandBuy Website at www.clickandbuy-t1.com. Furthermore, the Merchant must promptly change its passwords and security check words if there is any reason to believe that a password or security check words have or are likely to become known to someone not authorised to use them or are being or are likely to be used in an unauthorised way.
3.3 Where the Merchant has provided notification to ClickandBuy under Clause 3.2 ClickandBuy will suspend the Service.
3.4 ClickandBuy reserves the right to immediately suspend the Service at any time if ClickandBuy on reasonable grounds:
(a) considers that there is or is likely to be a breach of security in relation to the Merchant’s use of the Service;
(b) suspects unauthorised or fraudulent use of the Service; or
(c) rejects a transaction pursuant to Clause 2.14 (in which case ClickandBuy's right to suspend the Service shall only apply in respect of that transaction). Where ClickandBuy exercises its right under this Clause 3.4 to suspend the Service, ClickandBuy will inform the Merchant beforehand and give reasons for so acting. If ClickandBuy is unable to notify the Merchant beforehand, it will do so as soon as it can afterwards. In either case ClickandBuy shall not be required to provide a notification where to do so would in ClickandBuy’s opinion compromise reasonable security measures or be unlawful.
3.5 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s details which the Merchant supplied when registering for the Services.
3.6 The Merchant undertakes not to use or install any software supplied by ClickandBuy in connection with the Service on any public access computer.
3.7 The Merchant acknowledges that any unencrypted data made available to ClickandBuy, via email or other means of communication, may be obtained by unauthorized third persons, and that ClickandBuy is not able to prevent this by technical means. Therefore, ClickandBuy has no obligation to take any measures to ensure the security or protection of any unencrypted data provided by the Merchant to ClickandBuy, and it is the sole responsibility of the Merchant to take any such measures.
4. MERCHANT’S USE OF THE SERVICE
4.1 The Merchant warrants and undertakes to comply with and ensure all Offers comply with all applicable laws, rules and regulations (including Codes of Practice and such guidelines as may be issued by regulatory authorities) of whatever jurisdiction relating to its activities, Merchant Website and the Offers and all commercial activities conducted on or via the Merchant Website including (without limitation) taxation, foreign exchange, currency and customs requirements and all advertising, consumer protection, product liability, data protection and privacy laws, or any laws relating to the protection of children or young persons, and all laws relating to lotteries, gambling, betting, gaming or similar activities.
4.2 The Merchant is and shall remain responsible for the creation, maintenance, design and control of all Offers. The Merchant warrants that the Offers will be consistent with the description appearing on the Merchant Website and of satisfactory quality (and, where the Offer consists of services, supplied with reasonable skill and care and in accordance with good industry practice).
4.3 The Merchant will use all reasonable endeavours to ensure that the Offers are and remain available for use with the Service. The Merchant shall immediately notify ClickandBuy of any recognisable faults or malfunctions in relation to the Offers or the Merchant’s Website.
4.4 The Merchant shall not charge End Users any additional fee or charge for purchasing Offers using the ClickandBuy Service without first notifying ClickandBuy and providing details at least 10 Business Days in advance of implementing such a charge. The Merchant is under an obligation pursuant to the Payment Services Regulations to inform End Users if it proposes to charge an additional or differential fee where Offers are paid for using the ClickandBuy Service.
4.5 The Merchant shall ensure that neither the Offers nor the Merchant’s Website contain any viruses or other faults liable to interfere with the Service or any software provided by ClickandBuy in connection with the Service or to affect any other ClickandBuy customers or end users.
4.6 The Service must not be used:
(a) fraudulently or in connection with a criminal offence;
(b) in an unlawful manner or in contravention of any applicable legislation, licence agreements and/or the ClickandBuy Acceptance Policy clickandbuy-t1.com/UK/en/about/acceptancepolicy.html;
(c) in any way that does not comply with any instructions given under Clause 1.7 (b);
(d) to advertise, promote, sell or offer for sale, send or provide unlawful or unsolicited advertising or promotional material; or
(e) to attempt to use the Service for tampering, ‘hacking’, modifying or otherwise corrupting the security or functionality of the Service, and the Merchant must ensure that this does not happen. ClickandBuy may at any time suspend the Service immediately on notice, if the Merchant uses the Service in a way that is not permitted under this Clause 4.6.
4.7 The Merchant must ensure that its registered legal name, postal address, electronic mail address and telephone number are included in clear and legible form on all Merchant Websites for the receipt of any enquiries or complaints that may arise in relation to the Merchant or any Offer, and the Merchant shall respond to any such enquiries or complaints in a professional, prompt, and diligent manner. ClickandBuy reserves the right to disclose to any person with an enquiry or complaint about an Offer the Merchant’s contact name, telephone number, address and electronic mail address if such person cannot locate these details on the Merchant Website and the Merchant must supply such details to ClickandBuy on acceptance of this Agreement and immediately inform ClickandBuy of any changes to these details.
4.8 The Merchant will use the ClickandBuy brand, the ClickandBuy logos and the logos of any applicable service, method or instrument in the manner described in the Technical Documentation as amended from time to time. An updated version of the Technical Documentation can be obtained at any time from the ClickandBuy Service Area.
4.9 The Merchant must ensure that the Offer Charges are accurate in all respects and are not misleading, and that the prices clearly specify all applicable taxes, duties and delivery charges (of whatever nature and for whatever jurisdiction).
4.10 The Service is provided solely for the Merchant’s own use and the Merchant must not resell or attempt to resell the Service (or any part or facility of it) to any third party.
4.11 The Merchant shall make clear to End Users that an agreement for Offers purchased through ClickandBuy's provision of the Service will be an agreement between the Merchant and the End User and the Merchant will make clear to the End User that ClickandBuy shall not be liable for any loss or damage arising out of such contract.
4.12 The Merchant shall ensure that neither an Offer nor the Merchant Website shall infringe any third party rights (including, but not limited to, defamation and all and any intellectual property rights). The Merchant shall indemnify ClickandBuy on demand against any loss suffered or incurred by ClickandBuy from time to time arising out of or in connection with any breach or purported breach of any provision of Clause 3 and this Clause 4.
4.13 When requested to do so by ClickandBuy, the Merchant must provide to ClickandBuy all information available to it regarding transactions, and parties to those transactions, as needed by ClickandBuy for the prevention or deterrence of crime, and to meet its legal obligations and risk management objectives in relation to money laundering, terrorist financing, fraud or any other undisclosed unlawful activities in connection with the Service. The Merchant should keep any such requests and any further action taken by ClickandBuy in respect of those requests, confidential. ClickandBuy may, where it considers appropriate pass on any information received from the Merchant to the relevant law enforcement agency.
4.14 In the event that the nature of the Merchant’s business activity changes significantly, then the Merchant will inform ClickandBuy promptly of the change.
5. PAYMENT TRANSACTIONS
5.1 The Merchant may only use their ClickandBuy Account to:
(a) receive Offer Charges from End Users;
(b) pay refunds, reimbursements or any other entitlements or sums due to End Users and relating to purchases made by them using the ClickandBuy Service; and
(c) initiate payment of sums due from the Merchant’s ClickandBuy account to the Merchant in accordance with Clause 2.7.
5.2 In order to enable ClickandBuy to process a payment on the Merchant’s order, the Merchant must give consent to the execution of a payment transaction for it to be authorised. The Merchant agrees that by submitting an electronic web services instruction from its own servers to ClickandBuy’s servers, or by uploading a bulk transaction CSV file and clicking the Send button, or by their clicking of the Credit, Charge or Cancel buttons at the time of the transaction when using the Transaction Manager web interface, it confirms that it consents for the payment transaction to be processed and for the relevant fees to be charged.
5.3 In requesting a Payment Order the Merchant must provide to ClickandBuy the Unique Identifier and any other details ClickandBuy asks the Merchant for such as the intended recipient’s name, so ClickandBuy can make the payment. ClickandBuy may rely on and act in accordance with a Unique Identifier provided to it by the Merchant and a Payment Order executed in accordance with a Unique Identifier is deemed to have been correctly executed in terms of making the payment to the payment account specified by the Unique Identifier. Notwithstanding that the Merchant may provide ClickandBuy with information additional to the Unique Identifier, ClickandBuy shall only be liable to execute Payment Orders in accordance with the Unique Identifier provided by the Merchant.
5.4 Should a Payment Order supplied by the Merchant relate to an End User who has not yet registered for a ClickandBuy account, the value of the Payment Order will be allocated within the Merchant’s ClickandBuy account for a period of time not exceeding 30 days. In this case, the Unique Identifier in respect of that End User will be the email address for that End User provided by the Merchant and the End User will receive an email from ClickandBuy inviting them to open a ClickandBuy account and providing instructions explaining how to proceed. If the End User does not follow the instructions and accept the transfer of funds from the Merchant within the time limit above, the allocation will be automatically cancelled, such funds will cease to be allocated to the End User and will be available again to the Merchant on their ClickandBuy account. In these circumstances the Payment Order from the Merchant in respect of that End User will not be treated as having been consented to or received until sufficient information is available to allow the funds to be transferred out of the Merchant’s ClickandBuy Account to the End User's ClickandBuy Account.
5.5 Deleted
5.6 For the purposes of this Agreement the point of receipt by ClickandBuy of a Payment Order from the Merchant is the time at which consent is provided as per Clause 2.7 or 5.2.
5.7 Subject to Clause 5.8, ClickandBuy will credit a Payment Order initiated by the Merchant as payer to the payee's payment services provider (which in respect of an End User will be ClickandBuy) within the next three Business Days following the day on which ClickandBuy receives the Payment Order from the Merchant. Where a Payment Order is initiated by or through the Merchant as payee, ClickandBuy will transmit the Payment Order to the payer's payment services provider within three Business Days. ClickandBuy shall in practice within the ClickandBuy system endeavour to credit the Offer Charges paid by End Users to the Merchant’s ClickandBuy Account and payments to be made from Merchant’s ClickandBuy Account to End User's ClickandBuy Accounts immediately following receipt of the relevant Payment Order from the Merchant or End User.
5.8 Where a Payment Order does not relate to a payment in relation to which the payment service provider of both the payer and payee are located within the EEA and the payment transaction is to be carried out in Euro or where an EEA State has not yet adopted the Euro the currency of that EEA State, ClickandBuy shall endeavour to transfer the relevant funds to the relevant payment service provider within the next three (3) Business Days of receiving the Payment Order, but can not guarantee that it will do so. In these same circumstances ClickandBuy will however, in respect of such a payment being transferred to ClickandBuy: (i) credit the funds to the Merchant's ClickandBuy Account on the same Business Day on which the funds are received by ClickandBuy; and (ii) ensure that the funds so credited are then available for use by the Merchant for the purposes set out in Clause 5.1.
5.9 The Merchant will not be able to revoke Payment Orders once received by ClickandBuy. Should a Merchant need to revoke a Payment Order that ClickandBuy has received, it can contact ClickandBuy and ClickandBuy will use reasonable efforts to stop the order, but cannot guarantee it will be able to do so and ClickandBuy will not be able to revoke an order which has been acted on. If a Merchant revokes the regular Payment Order set out in Clause 2.7 (which under the Payment Services Regulations it is entitled to do up until the end of the Business Day before the Payment Date) ClickandBuy shall be entitled to suspend or terminate the Service.
5.10 ClickandBuy may on request make available a currency conversion service to the Merchant enabling it to make Offers in different currencies. For each such converted Offer the multicurrency conversion fee set out in Schedule 2 shall apply. Where a Merchant requests a payment to be made to an End User that requires currency conversion, ClickandBuy will specify the amount to be collected from the Merchant's ClickandBuy Account, based on the currency exchange rate at the time of the transaction available from a reputable currency exchange rate service provider used by ClickandBuy. The total amount to be collected from the Merchant's ClickandBuy Account including the exchange rate and the multicurrency conversion fee will be displayed at the time of the transaction if the Merchant is online, otherwise details of the transaction will be made available immediately to the Merchant through their Clickandbuy Service Area.
5.11 ClickandBuy may refuse to execute an order from a Merchant to make a payment where the terms and conditions set out in this Agreement or the Technical Documentation governing the use of the Service have not been complied with, where it would be unlawful to execute the order, or where the Merchant has insufficient funds in their ClickandBuy account. Where ClickandBuy refuses to execute an order it will at the earliest opportunity notify the Merchant of that fact and where possible provide the reasons for the refusal and the procedure for rectifying any factual errors that led to the refusal. ClickandBuy may in accordance with Schedule 2 charge the Merchant for such notification where the refusal is reasonably justified. ClickandBuy shall not be required to provide such a notification where to do so would be unlawful.
5.12 Where the Merchant initiates a payment ClickandBuy will on request inform the Merchant of the maximum execution time, the Charges payable by the Merchant in respect of the payment and where applicable, a breakdown of the amount of such Charges.
5.13 ClickandBuy shall make available to the Merchant in the Merchant’s ClickandBuy Service Area on the ClickandBuy Website, information relating to the transactions (both credits and debits) occurring on the Merchant’s ClickandBuy Account immediately as they occur and shall in any event within three (3) Business Days of the end of each Billing Period make the following information available in the Merchant’s ClickandBuy Service Area:
(a) a reference enabling the Merchant to identify each payment transaction and, where appropriate, information relating to the End User;
(b) the amount of the payment transaction in the currency in which the Merchant’s ClickandBuy Account was debited or credited or in the currency used for the Payment Order;
(c) the amount of any Charges for the transactions and, where applicable, a breakdown of the amounts of such Charges;
(d) where applicable, the exchange rate used in a payment transaction and the amount of the payment transaction after that currency conversion; and
(e) the credit or debit value date (as appropriate) or the date of receipt of the Payment Order.
6. TRANSACTION ACCURACY AND TAXATION
6.1 The Merchant is solely responsible for the filing of appropriate returns and the payment of any and all taxes and duties of whatever nature levied or imposed by whatever jurisdiction in connection with the promotion, sale, licensing, supply or other exploitation of an Offer and shall indemnify ClickandBuy against liability for any such taxes and duties.
6.2 Neither ClickandBuy nor its licensees provides any advisory services to the Merchant regarding taxation and any customs or other import/export duties.
6.3 Any information that ClickandBuy provides to the Merchants or End Users in respect of tax or VAT shall merely represent the data that the Merchant has initially provided to ClickandBuy and does not remove the obligation from the Merchant to account correctly to Customs & Excise or other relevant bodies for the VAT or other applicable tax on the services the Merchant has supplied.
6.4 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s tax or VAT registration number or if the Merchant ceases to be registered for tax or VAT.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 ClickandBuy authorises the Merchant and the Merchant agrees only to use the ClickandBuy Marks in accordance with the conditions set out in this Agreement for the sole purpose of using the Service.
7.2 Intellectual property rights in (1) any software or documentation supplied by ClickandBuy to the Merchant for or in connection with the Service, and (2) any custom graphic interfaces, design elements, graphics or other applications or content which ClickandBuy may provide and which are placed on or incorporated into the Merchant Website, remain the property of ClickandBuy or its licensors.
7.3 Where any software, documentation or other materials are provided to enable the Merchant to use the Service, ClickandBuy grants the Merchant a nonexclusive, non-transferable licence to use the software, documentation or other materials for that purpose only and in accordance with this Agreement.
7.4 The Merchant will not, without ClickandBuy's prior written consent, copy or (except as permitted by law) decompile or modify the software, nor copy the manuals or documentation.
7.5 The right to use the ClickandBuy Marks and any software, documentation or other materials supplied under this Agreement shall last only for the duration of this Agreement and may not be assigned or sub-licensed in full or in part.
7.6 The Merchant may make one copy of the software, documentation and other materials supplied under this Agreement for backup purposes.
7.7 The Merchant shall grant to ClickandBuy a non-exclusive, non-transferable (other than in accordance with Clause 15) licence, for the duration of the Agreement, to use the Merchant's trade mark and trade names (collectively, the ”Merchant Marks”) in the course of providing the Service with respect to Offers but only to the limited extent necessary to allow ClickandBuy to provide the Service in connection with such Offers.
8. CONFIDENTIALITY
8.1 The parties will keep in confidence the terms of this Agreement and any information (whether written or oral) of a confidential nature (including without limitation documents, software, drawings and manuals) obtained under this Agreement and will not disclose that information to any person (other than their employees or professional advisers, or in the case of ClickandBuy the employees of a ClickandBuy Group Company or their suppliers, who need to know the information) without the written consent of the other party. The parties shall make the necessary contractual arrangements that their employees, professional advisors and suppliers are also bound by this confidentiality agreement.
8.2 This Clause 8 will not apply to:
(a) any information which has been published other than through a breach of this Agreement;
(b) information lawfully in the possession of the recipient before the disclosure under this Agreement took place;
(c) information obtained from a third party who is free to disclose it; and
(d) information which a party is requested to disclose and, if it did not, could be required by law to do so.
8.3 The restrictions in this Clause 8 will survive the termination or expiry of this Agreement for as long a period as permitted by applicable law.
9. LIABILITY
9.1 Each party accepts unlimited liability for death or personal injury resulting from its negligence and for fraud and the remainder of this Clause 9 does not restrict such liability.
9.2 Neither party is liable to the other either in contract, tort (including negligence) or otherwise for loss (whether direct or indirect) of profits or business, destruction of data loss of or anticipated savings, or for any indirect or consequential loss or damage.
9.3 Other than in the case of gross negligence, fraud or wilful default by ClickandBuy, or its employees, directors, officers, and agents, ClickandBuy shall not be liable for any loss suffered by the Merchant as a result of:
(a) fraud; or
(b) malfunction or damage to ClickandBuy’s system’s which causes the Service to be suspended.
9.4 Where the Unique Identifier provided by the Merchant is incorrect, ClickandBuy is not liable for the incorrect execution or non-execution of a resulting payment transaction, but ClickandBuy will take reasonable efforts to recover the funds involved in such a payment transaction. ClickandBuy may in accordance with Schedule 2 charge the Merchant for any such recovery.
9.5 Subject to Clauses 3.2, 5.2, 9.2, 9.4, and 9.6 through to 9.10 and provided the Merchant has notified ClickandBuy without undue delay, and in any event and subject to Clause 1.3 no later than 13 months after the relevant payment date, on becoming aware of any unauthorised or incorrectly executed payment transaction, ClickandBuy shall, in respect of any:
(a) unauthorised payments (being for the purposes of this Clause 9, payments from the Merchant's ClickandBuy that have been executed but not authorised by the Merchant), without undue delay refund to the Merchant the amount of the unauthorised payment and where applicable, restore the Merchant’s ClickandBuy Account to the state in which it would have been had the relevant payment transaction not taken place;
(b) incorrectly executed Payment Orders initiated by the Merchant as payer, without undue delay refund to the Merchant the amount of the incorrectly executed payment and, where applicable, restore the Merchant’s ClickandBuy Account to the state in which it would have been had the relevant payment transaction not taken place; and
(c) incorrectly executed Payment Orders initiated by the Merchant as payee, ClickandBuy shall be liable to the Merchant for the correct transmission of the order in accordance with these terms and will retransmit the Payment Order in question.
9.6 In the case of either Clause 9.5(b) or (c), ClickandBuy will at the Merchant’s request make immediate efforts to trace the payment and notify the Merchant of the outcome and will also be liable to the Merchant for any charges or interest that the Merchant has had to pay as a consequence of the incorrectly executed Payment Order. ClickandBuy shall not be liable pursuant to Clause 9.5(b) or (c) where it can prove (if the Merchant initiated the transaction as payer) that the End User or its payment service provider received the amount of the payment transaction or (if the Merchant initiated the transaction as payee) that it was not liable for the incorrect transmission.
9.7 Subject to Clauses 9.8 and 9.9, the Merchant where it is the payer is liable for up to a maximum of £50 (or Euro equivalent) for any losses incurred in respect of an unauthorised payment arising due to the use of lost or stolen password or security check words or due to the Merchant failing to keep the personalised security features of the Service safe.
9.8 Subject to Clause 9.9, the Merchant shall be liable for all losses incurred in respect of an unauthorised payment where the Merchant has acted fraudulently or has with intent or gross negligence failed to use the Service in accordance with the terms and conditions set out in this Agreement governing its use or failed to give a notification to ClickandBuy in accordance with Clause 3.2.
9.9 Except where the Merchant has acted fraudulently, where it is the payer under a Payment Order the Merchant is not liable for any losses incurred in respect of an unauthorised payment made by the Merchant: (a) arising after the Merchant has provided a notice in accordance with clause 9.5 (or ClickandBuy has failed to make available to the Merchant the means to give such a notice); or (b) where the payment has been made by the Merchant in connection with a distance contract other than an excepted contract (with ”distance contract” and ”excepted contract” have the meanings given in the Consumer Protection (Distance Selling) Regulations 2000)
9.10 Either party's liability to the other either in contract, tort (including negligence) or otherwise in relation to this Agreement is limited to 125% of the Commission, Support Charges and Other Charges payable by the Merchant in any Month in which the incident occurred for any one incident or series of related incidents, provided that this Clause 9.10 shall not in any way limit the Merchant's obligations under Clause 2 or ClickandBuy's obligations under Clause 9.5 or 9.6.
9.11 ClickandBuy shall not be liable for Offer related instructions received by ClickandBuy from the Merchant and made using valid and current User ID and Password data.
9.12 Each provision of this Agreement, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
10. MATTERS BEYOND THE PARTIES’ REASONABLE CONTROL
10.1 If either party is unable to perform any obligation under this Agreement, or its performance is detrimentally affected, because of an abnormal and unforeseeable circumstance beyond that party’s control the consequences of which would have been unavoidable despite all efforts to the contrary, that party will have no liability to the other party for that failure to perform. Such a circumstances could include lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving its employees), or acts of local or central Government or other competent authorities, or the quality or speed of the Internet connection. The delaying party shall promptly notify the other of the delay and the reasons for and likely duration of the delay.
10.2 In the event that ClickandBuy’s contract with a Merchant Acquirer is terminated or service under ClickandBuy’s contract with a Merchant Acquirer is suspended for any reason then ClickandBuy will have no liability to the Merchant for failure or limited supply of the Service to the extent interrupted by that terminated or suspended service.
10.3 ClickandBuy shall not be liable to the Merchant for any contravention of a requirement imposed on it under Part 6 of the Payment Services Regulations where the contravention is due to the obligations of ClickandBuy under other provisions of Community or national law.
11. TERMINATION BY NOTICE
11.1 The Merchant may terminate this Agreement on giving 1 months' written notice to ClickandBuy.
11.2 ClickandBuy may terminate this Agreement on giving at least 2 months' written notice to the Merchant.
11.3 ClickandBuy may terminate this Agreement immediately upon giving notice to the Merchant at any time if:
(a) ClickandBuy reasonably considers the Merchant is:
(i) acting fraudulently or illegally (in any jurisdiction); or
(ii) subject to, or it appears to ClickandBuy is likely to be subject to, an investigation by a regulator or authority into the activities of the Merchant in relation to any gambling, gaming, betting, lottery or other similar law in any jurisdiction; or
(b) ClickandBuy reasonably considers that it will be in breach of Community or national law, Court order if it continues this Agreement.
11.4 The Merchant shall endeavour where practicable to notify ClickandBuy of any proposed Change of Control at least 2 months in advance of the Change of Control being effective. Where the Merchant is not able to so notify ClickandBuy in accordance with this timing requirement, it shall nonetheless notify ClickandBuy as soon as it becomes aware of a Change of Control being proposed or effected. The notification obligations imposed on the Merchant in this Clause 11.4 shall be subject to any unavoidable obligations of confidentiality.
11.5 Where an investigation is commenced or appears to ClickandBuy to be likely to be commenced by a regulator or authority into the activities of the Merchant, ClickandBuy shall be entitled to provide any assistance and information it deems appropriate to any investigatory or official body in relation to such investigation or activities.
11.6 If notice is given to terminate this Agreement or the Service for any reason the Merchant must immediately pay all Charges due for the Service up to the expiry of the notice. Where any regular Charges have been paid in advance and the period or service in respect of which they have been paid will not, due to the termination of this Agreement, be completed, such Charges shall to that extent be reimbursed to the Merchant proportionately.
11.7 Termination does not avoid ClickandBuy's liability for Services already provided.
12. BREACHES OF THE AGREEMENT
12.1 Either party may at any time terminate this Agreement or the Service immediately on notice, if the other:
(a) commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or
(b) commits a material breach of this Agreement which cannot be remedied; or
(c) is repeatedly in breach of this Agreement.
12.2 ClickandBuy may at any time terminate this Agreement or the Service immediately on notice if the Merchant is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or enters compulsory liquidation, or a receiver or administrator is appointed over their assets, or if the equivalent of any such events occurs under the laws of the jurisdiction in which the Merchant is located.
12.3 ClickandBuy shall have the right to serve notice to suspend this Agreement in the event that Chargeback levels exceed five per cent (5%) of overall Offer Charges in any Month. ClickandBuy can refuse to restore the Service until ClickandBuy receives what it considers to be an acceptable assurance or remedial action plan from the Merchant to the effect that Chargeback levels will be improved such that they do not exceed this level.
12.4 If the Merchant commits any breach of this Agreement, whether remediable or not, or if any of the events set out in Clause 12.2 shall occur in respect of the Merchant, ClickandBuy may suspend the Service without prejudice to its right to terminate this Agreement. ClickandBuy can refuse to restore the Service until ClickandBuy receives what it considers to be an acceptable assurance from the Merchant that there will be no further breach of this Agreement or (as the case may be) no further prohibited use.
12.5 On termination under this Clause 12.5 the Merchant shall pay to ClickandBuy all Charges that are due for the Service under this Agreement. Any outstanding sums due to the Merchant under this Agreement will be forwarded in accordance with the terms of this Agreement. Where any regular Charges have been paid in advance and the period or service in respect of which they have been paid will not, due to the termination of this Agreement, be completed, such Charges shall to that extent be reimbursed to the Merchant proportionately.
12.6 The Merchant will remain liable to pay all Charges that are due for the Service during any period in which the Merchant does not comply with this Agreement.
12.7 If either party delays in acting upon a breach of this Agreement that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Agreement by the other party, that waiver is limited to that particular breach.
13. CONSEQUENCES OF TERMINATION
13.1 Upon termination or expiry of this Agreement for any reason:
(a) any hardware, software, documentation, information or other materials provided to the Merchant under this Agreement must be returned immediately to ClickandBuy, and the Merchant must stop using the Service and the ClickandBuy identity which includes ceasing to use the ClickandBuy Marks;
(b) those provisions relating to confidentiality and those provisions which by their content or nature are intended to survive, shall survive the expiry or termination of this Agreement; and
(c) to cover any potential liability to End Users or other parties having legitimate claims, ClickandBuy shall be entitled to retain an amount equivalent to fifty per cent (50%) of all sums due to the Merchant under Clause 2.7 of this Agreement for a period of six (6) Months following termination.
13.2 Following the end of the relevant retention period specified in Clause 13.1 (c) and in any case within five (5) working days of that period, ClickandBuy shall return to the Merchant any retained amounts which have not been used to cover liability to End Users or other parties having legitimate claims.
14. VARIATION OF TERMS AND CONDITIONS
14.1 ClickandBuy may amend this Agreement by providing the Merchant with at least 2 months notice of the proposed changes. The Merchant shall be deemed to have accepted the changes unless it notifies ClickandBuy to the contrary prior to the proposed effective date of the changes. The Merchant may before any notified changes become effective terminate this Agreement immediately and without charge by giving notice to ClickandBuy.
14.2 Any amendments to this Agreement proposed by the Merchant must be agreed to by the parties in writing.
15. TRANSFER OF RIGHTS AND OBLIGATIONS
15.1 Subject to Clauses 15.2 and 15.3, neither party may assign or transfer any of its rights or obligations under this Agreement without written consent of the other.
15.2 ClickandBuy may assign or transfer its rights or obligations (or both) to a ClickandBuy Group Company without consent.
15.3 ClickandBuy may engage a subcontractor to perform any part of the Service provided that ClickandBuy shall remain responsible to the Merchant for the performance of the Service.
16. NO AGENCY
16.1 ClickandBuy and the Merchant accept that they are independent contractors and that neither is acting as the agent of the other (and that ClickandBuy is not acting as agent for any End User). Neither party has any authority to bind or contract or negotiate on behalf of the other or to incur any debt or other obligation on behalf of the other or to create any liability against the other in any way or for any purpose.
16.2 The Merchant acknowledges and accepts that any contracts for the purchase or other acquisition of Offers appearing on the Merchant Website are strictly and solely between the Merchant and the End User.
17. NOTICES
17.1 Notices given under this Agreement must be in writing and delivered by hand, email, prepaid post or by fax as follows:
(a) to ClickandBuy: by utilising the address and contact details as specified on the imprint pages of the ClickandBuy Website at www.clickandbuy-t1.com or any alternative address or contact details which ClickandBuy notifies to the Merchant at any time;
(b) to the Merchant: to the email and contact details which the Merchant has previously supplied to ClickandBuy for the sending of invoices or other communications or, if the Merchant is a limited company, its registered office.
18. PUBLICITY
Neither party will issue any promotional or advertising material or press release relating to the other, without first obtaining the other’s prior consent (in writing).
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts by the parties each of which shall when executed and delivered constitute an original but all of which together constitute one and the same document.
20. ENTIRE AGREEMENT
20.1 This Agreement contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
20.2 The parties acknowledge and agree that:
(a) they have not been induced to enter into this Agreement by any representation, warranty or other assurances not expressly incorporated into it; and
(b) in connection with this Agreement, and except in the case of fraud, their only rights and remedies in relation to any representation, warranty or other assurance shall be for breach of the terms of this Agreement and that all other rights and remedies are excluded.
20.3 In the event that any provision of this Agreement is determined to be unlawful or otherwise unenforceable, such provision shall be deemed severed from this Agreement, but every other provision of this Agreement will remain in full force and effect.
20.4 In the circumstances of Clause 20.3 if any such provision is determined to be unlawful, there will be substituted a provision reflecting the original intent of the parties as closely as possible and to the extent permissible under applicable law. The parties shall negotiate promptly and in good faith to achieve this objective.
20.5 A person who is not a party to this contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
21. LAW AND LEGAL DISPUTES
21.1 This Agreement is governed by the laws of England and Wales, and both parties irrevocably submit to the exclusive jurisdiction of the English courts.
21.2 If the Merchant is not satisfied with any aspect of the Service it may contact its nominated contact person at ClickandBuy or the support department at the telephone number or email address stated on the ClickandBuy Website at www.clickandbuy-t1.com. A copy of ClickandBuy's complaints handling policy is available on request or can be found under the Company Information section of the ClickandBuy Website.
21.3 The Financial Ombudsman Service may apply to this Service for out of court dispute settlement where the Merchant is an eligible complainant under DISP 2.7R of the rules of the Financial Services Authority. Any claim or dispute arising out of, or in relation to, this contract or the provision of the service by ClickandBuy that cannot be resolved by contacting your contact person as stated in this agreement or notified to you from time to time, or the support department at the telephone number or email address stated on the ClickandBuy Website at www.clickandbuy-t1.com, could be referred to the Financial Ombudsman Service or the Courts of England and Wales, Scotland or Northern Ireland, depending on where you are resident. Information regarding the Financial Ombudsman Service is available at http://www.financialombudsman.org.uk.
21.4 Electronic Money or Payment Services are not covered by the Financial Services Compensation Scheme or any other government compensation or insurance scheme and accordingly Merchants will have no rights to claim under such a scheme.
22. DEFINITIONS
22.1 In this Agreement, unless the context otherwise requires:
"Agreement" means these General Terms and Conditions and the Schedules.
"Billing Period" means the period of time agreed between the parties over which ClickandBuy will periodically calculate and distribute the Merchant’s Offer Charges in accordance with Clauses 2.6 & 2.7.
"Business Day" means Monday to Friday, 09:00 – 17:00 (UK local time), excluding public or bank holidays in the United Kingdom.
"Change of Control" means an event which has the effect that an undertaking which is not (a) the Ultimate Parent Undertaking of that party at the date that the Agreement has been signed, or (b) an undertaking which was immediately before such event a wholly owned subsidiary undertaking of that Ultimate Parent Undertaking, becomes the Ultimate Parent Undertaking of that party and, for this purpose, where the Ultimate Parent Undertaking consists of a partnership or group of individuals, the Ultimate Parent Undertaking shall not be treated as having changed unless a majority of the partners or a majority of the members of the group of individuals have changed.
"Chargeback" means where ClickandBuy is legally obliged to refund funds back to or does not receive funds from a card issuer, bank or any other payment service provider where the receipt of such funds had previously been authorised or expected, due to insufficient available funds, incorrect account details, End User disputes, fraud or for any other reason.
"Charges" means Commission, Set-up Fee, Support Charges and any Other Charges.
"ClickandBuy" means ClickandBuy International Limited, a company registered in England and Wales under number 5661160, whose registered and head office is located at Lincoln House, 137–143 Hammersmith Road, London W14 0QL, United Kingdom. ClickandBuy International Limited is authorised and regulated as an Electronic Money Institution by the Financial Services Authority (FSA) and is entered into the FSA register under register number 454127. The FSA register can be found at http://www.fsa.gov.uk/Pages/register/
"ClickandBuy Acceptance Policy" means a document describing ClickandBuy’s corporate policy and setting out for which offers and services the ClickandBuy Service may not be used. A current version may be obtained from www.clickandbuy-t1.com/UK/en/about/acceptancepolicy.html
"ClickandBuy Account" means an Electronic Money account held by an End User or a Merchant which is required as part of the Service.
"ClickandBuy Group Company" means a ClickandBuy subsidiary or holding company, or subsidiary of that holding company, as defined by Section 736 of the Companies Act 1985, as amended by the Companies Act 1989.
"ClickandBuy Marks" means the "ClickandBuy" logo, the Firstgate trade marks and the ”ClickandBuy” identity as more particularly set out in the ClickandBuy Brand Guidelines.
"ClickandBuy Service Area" means a personalised area on the ClickandBuy Internet Platform accessible for the Merchant at any time. The ClickandBuy Service Area contains, inter alia, updated information on transactions and the ClickandBuy system.
"ClickandBuy Website" means the ClickandBuy website at the URL notified by ClickandBuy from time to time.
"Commission" means the amount of Offer Charges which ClickandBuy retains as set out in Schedule 2.
"Effective Date" means the date on which the Merchant accepts these terms electronically by indicating its acceptance as required on the ClickandBuy website, or if manually the date recorded upon the order form.
"Electronic Money" means the investment, specified in article 74A of the Regulated Activities Order (Electronic money), which is monetary value, as represented by a claim on the issuer, which is:
a) Stored on an electronic device;
b) Issued on receipt of funds;
c) Accepted as consideration or a means of satisfying a debt by persons other than the issuer; and
d) The virtual currency which is stored in the ClickandBuy Account. For the Merchant, Electronic Money refers to Offer Charges collected by ClickandBuy and stored in the ClickandBuy Account. For an End User, Electronic Money refers to electronic value loaded to the ClickandBuy Account with a view to purchasing goods or services from Merchants.
"End User" means a person or entity who holds a ClickandBuy account or who is invited to open a ClickandBuy account for the purpose of purchasing Offers using the Service.
"End User Details" means the information about End Users which ClickandBuy collects and processes in connection with the Service.
"including" means including without limitation and does not limit any matter to which it refers.
"Merchant" means the person so named on this Agreement and anyone reasonably appearing to ClickandBuy to be acting with the Merchant’s authority or permission. "Merchant Acquirer" means that party that stands between ClickandBuy and a credit/debit card issuer.
"Merchant Website" means the World Wide Web site(s) on which the Offers are hosted.
"Micro-Enterprise" means any enterprise engaged in an economic activity, irrespective of its legal form, including self-employed persons and family businesses engaged in craft or other activities, and partnerships or associations regularly engaged in an economic activity, where, as at the Effective Date, that enterprise:
(a) employs fewer than 10 persons; and
(b) has an annual turnover and/or annual balance sheet total of less than 2 million Euros (or GBP Sterling equivalent), and for the purposes of these calculations the Merchant should take account of any 'linked' or 'partner' enterprises on the basis set out in the European Commission's SME Recommendation (2003)/361/EC).
"Month" means 00:00:00 (coordinated universal time) on the first day of a calendar month until 23:59:59 (coordinated universal time) on the last day of that calendar month.
"Offer" means all products, services and information including text, words, names, graphics, (including logos), software (including all software applications), video, audio or other offers appearing on the Merchant Website.
"Offer Charges" means the sums payable by the End User for the Offers, including VAT.
"Other Charges" means any other fees due to ClickandBuy in respect of the Service which are either set out in Schedule 2 or as may be agreed between the parties.
"Payment Date" means the Business Day agreed between ClickandBuy and the Merchant following the end of each Billing Period on which payment of the Offer Charges to the Merchant’s bank account will be initiated.
"Payment Order" means an instruction supplied to ClickandBuy by an End User or the Merchant for the placing, transferring or withdrawing of funds to or from a ClickandBuy Account.
"Payment Services Regulations" means the Financial Services and Markets Act 2000 (Payment Services Regulations) 2009, as amended from time to time. "Service" means the service known as "ClickandBuy", as more particularly set out in Schedule 1.
"Set-up Fee" means the amount set out in Schedule 2.
"Support Charges" means the support charges, if applicable, as set out in Schedule 2.
"Technical Documentation" means the documents provided by ClickandBuy to the Merchant. For the latest version of these documents please contact your commercial or technical contact at ClickandBuy. Alternatively an updated version of all Technical Documentation can be obtained from the ClickandBuy portal at any time.
"Ultimate Parent Undertaking" means, in relation to an undertaking, its parent undertaking or, if it has more than one parent undertaking, that one of its parent undertakings which does not itself have a parent undertaking.
"Unique Identifier" means the combination of numbers, letters or symbols used to identify an End User account on the ClickandBuy system or to identify an account with another bank or other financial institution (and includes an End User's email address in accordance with clause 5.4). An existing End User account on the ClickandBuy system will be commonly referred to by the unique Customer Reference Number issued by ClickandBuy.
SCHEDULE 1 SERVICES
General Overview
ClickandBuy has developed an electronic facility which enables End Users to make purchases of Offers from participating Merchants online or with a mobile device without disclosing their financial details. Each End User and participating Merchant will be provided with a ClickandBuy Account. When an End User visits the website of a participating Merchant, the End User will have the option of purchasing the Offer using their ClickandBuy Account. If the End User chooses to do so, they will log in to their ClickandBuy Account via the Merchant Website to make the purchase. If a person who is not registered with the Service visits the Merchant Website of a participating Merchant, that person will be able to use a link from the Merchant Website to register as an End User.
The complete and current scope of functions constituting the Service provided by ClickandBuy can be viewed at any time on the ClickandBuy Website.
ClickandBuy will make available a core service which includes particular account features and account funding/withdrawal methods. However, ClickandBuy reserves the right to add or remove account features at any time in order to improve the quality of the overall service. Certain Value Added features may also be made available to Merchants. Where such features are identified, the Merchant may make use of the feature upon acceptance of revised terms of use.
Support Service and Reporting Malfunctions: ClickandBuy shall make available to the Merchant a hotline based on telephone, e-mail or fax. The opening times shall be posted on the ClickandBuy Website. Malfunctions can be reported around the clock to the contact email address for Merchants as published on the ClickandBuy website at www.clickandbuy-t1.com.
Statistics: ClickandBuy shall make available to the Merchant statistical data in digital form, for instance the turnover effected by ClickandBuy. This data can be accessed on the Internet by means of a password.
Security: All server and system components of the ClickandBuy system are operated in a redundant computer network. The data configured by Merchants shall be securely stored using up-to-date technology. ClickandBuy shall generally perform scheduled maintenance at regular intervals on the ClickandBuy system at night. In the unlikely event of data loss the Merchant shall be responsible for setting up and pricing its offers afresh.
Conduct towards End Users: The Merchant shall make available its priced offers to End Users via the ClickandBuy system. Defects in the offers made available can be reported by the End User to the ClickandBuy call centre on the telephone number, fax number or email address posted on the ClickandBuy Website. ClickandBuy shall inform the Merchant of this and shall pass on the data necessary to follow up a complaint to the Merchant for the purpose of clarification. ClickandBuy may exclude the End User from using the service until the issue has been resolved.
Schedule 2
SET-UP FEE
Set-up Fee: € 19.95 excl. VAT
The Fee includes:
- Supply of the System
- Set-up of a ClickandBuy Merchant’s Account which enables the Merchant to set-up the billing module of their choice for processing transactions chosen, e.g. Shopping Cart, (automatically renewing) subscription.
COMMISSION FEE
The calculation of the Commission Fee is based on the total amount of Offer Charges and payments made by the Merchant (the Total Payment Volume) in a specific Billing Period. The commission fee applicable to the Merchant for payments made by End Users using ClickandBuy is:
2.9% of Total Payment Volume + € 0.35 per transaction
Commission accrues from each transaction made by End Users or Merchants of ClickandBuy. The Commission shall not be affected by any potential non-payment of bills by the End User or possible reimbursements by ClickandBuy to the End User for complaints, objections or exceptions by the End User directed towards the Merchant.
This commission fee does not apply to merchants from donation, dating, adult and online games industries.
Multicurrency enables the Merchant to make its Offer in different currencies.
‘End User Currency’ is the operational currency of the End User ClickandBuy Account.
‘Merchant Currency’ is the operational currency of the Merchant’s ClickandBuy Account, being the account from which ClickandBuy settles all Offer Charges in accordance with Clause 2.7.
‘Purchase Currency’ is the currency used to display the Merchant’s Offer Charges, which may be different from Merchant Currency. A Merchant may display its Offer Charges in multiple Purchase Currencies.
If the End User Currency differs from the Purchase Currency used, ClickandBuy automatically calculates the conversion and includes a currency conversion fee and will display to the End User the relevant payment amounts both in the Purchase Currency and the End User Currency and including any relevant conversion fee.
If the Purchase Currency used differs from the Merchant Currency, ClickandBuy automatically calculates the conversion and includes a currency conversion fee of 3% per conversion, and will display to the Merchant the relevant payment amounts both in the Purchase Currency and the Merchant Currency. This currency conversion will be processed in accordance with Clause 5.10.
BILLING PERIOD
The Billing Period over which ClickandBuy will calculate the Merchant’s Offer Charges in accordance with Clauses 2.6 & 2.7 shall be Monthly.
PAYMENT DATE
ClickandBuy will initiate payment of all due Offer Charges calculated during the Billing Period in accordance with Clauses 2.6 & 2.7 on the 29th calendar day following the Billing Period (21st calendar day for accounts denominated in GBP).
STANDING FEE
The Merchant will pay ClickandBuy a standing fee of € 19.95 per Billing Period, which will be deducted from the Merchant’s ClickandBuy account.
SECURITY DEPOSIT
A rolling security deposit will be held in the Merchant’s Clickandbuy Account and will be retained within the Merchant’s ClickandBuy Account for one (1) Billing Period.
OTHER EXPENSE-ORIENTED FEES
ClickandBuy shall charge a fixed € 6 processing fee for each End User Offer Charge that is (for whatever reason) cancelled or reversed. Where ClickandBuy has taken such reasonable measures as ClickandBuy regard as appropriate to retrieve Offer Charges from an End User and ClickandBuy have been unable to retrieve the Offer Charges, this will result in the deregistration of the End User for which the Merchant will be charged a fee of € 6 to cover in part the administrative costs incurred by ClickandBuy in performing its debt collection process.
In order to cover its service, support, registration and call centre costs, ClickandBuy shall charge the Merchant € 0.10 per annum for each of their purchasing End Users. This charge will be applied annually per transacting End User at the end of the next Billing Period following an End User’s first transaction with the Merchant.
ClickandBuy has the right to, but does not currently intend to charge for notifying the Merchant where ClickandBuy reasonably refuses a Payment Order under Clause 5.11 or recovers funds under Clause 9.4. Where ClickandBuy elects to apply these charges it will notify the Merchant of them in accordance with Clause 14.1.
All prices stated are net prices plus VAT at the current rate.
Version 2.0 EN EURO (16/11/09)
General Terms and Conditions of ClickandBuy International Limited:Universal Payment API (the "Agreement") | |
1. Introduction
1.1 This Agreement is made between the Merchant and ClickandBuy on the Effective Date and applies to the Merchant's use of the Service. In registering for the Service, it is important that the Merchant reads these terms and conditions carefully.
This Agreement only applies to Merchant ClickandBuy Accounts under Universal Payment API
1.2 This Agreement only applies to the Merchant’s ClickandBuy Account that is an account operated under the ClickandBuy Universal Payment API. The Merchant should refer to the ‘General Terms and Conditions of ClickandBuy International Limited for the modules Transaction system, Subscription, Sessionmanagement, Easy Collect TMI and Event Messaging Service’, available on the ClickandBuy Website, for the terms applying to any other account of this type the Merchant has with ClickandBuy. There are important differences as to how these different accounts operate and the terms that govern them.
Copy of the Agreement and supporting information
1.3 At any time while this Agreement is in force, at the Merchant's request, ClickandBuy shall provide to the Merchant a copy of this Agreement and certain supporting information about the Service that ClickandBuy is required under the Payment Services Regulations to provide or make available to the Merchant.
English language
1.4 The language of this Agreement is English and any notifications or information to be given in connection with the Agreement shall be provided in English. If a document is translated into another language both parties agree that this is done for their own benefit and if there are any discrepancies between the translated version and the English language version the text of the English language version shall prevail.
Applicability of these terms to individuals, charities and Micro Enterprises
1.5 The following Clauses of this Agreement shall only apply to Merchants that are individual consumers, charities or Micro Enterprises:
(a) Clause 13.5(b) and (c) (relating to liability); and
(b) Clause 13.6 through to and including Clause 13.9 (relating to liability).
1.6 If the Merchant is not an individual consumer, charity or Micro-Enterprise, the time-period referred to in Clause 13.5 shall be one (1) month, not thirteen (13) months.
2. Merchant eligibility
2.1 The Merchant shall not be entitled to use the Service pursuant to this Agreement until it has satisfied certain ClickandBuy merchant verification and due diligence requirements. ClickandBuy will notify the Merchant when this process is complete and, subject to Clause 2.2, the Services Commencement Date shall not occur until such notice has been given. The Merchant consents to ClickandBuy using due diligence data provided by the Merchant to verify the Merchant and their operations and consents to ClickandBuy passing the data to selected third parties (including but not limited to Merchant Acquirers) for this purpose both initially and on an ongoing basis.
Temporary access
2.2 Subject to Clause 2.3, prior to satisfying ClickandBuy's merchant verification and due diligence requirements, at ClickandBuy's discretion the Merchant may be entitled to use the Service during a 7 day temporary period on the following basis:
(a) the Merchant's ClickandBuy Account may only be used to execute Payment Orders that in aggregate total EUR 2,500 or less;
(b) the aggregate total value of the e-money that (but for sub-paragraph (d)) could stand to be redeemed from the Merchant's ClickandBuy Account during the period is EUR 800 or less;
(c) the Merchant’s use of the Service is limited to low-risk business categories as defined in the ClickandBuy Acceptance Policy; and
(d) the Merchant cannot make payments from its ClickandBuy Account, whether to an End User or to other ClickandBuy Accounts or bank accounts belonging to the Merchant or any other third party.
2.3 If the Merchant seeks to execute a Payment Order that would result in these restrictions being exceeded or breached, ClickandBuy may refuse the Payment Order. If the Merchant fails to satisfy ClickandBuy's merchant verification and due diligence requirements within seven days of the temporary Account status being activated, the Merchant’s right to temporarily use the Service on the terms set out in Clause 2.2 shall automatically terminate.
Restrictions on extent and type of business covered
2.4 ClickandBuy is subject to certain rules or codes of credit or debit card providers, Merchant Acquirers, banks or other payment service providers and these terms and codes may limit the extent and type of business that such providers are prepared to process. As ClickandBuy may need to act in conjunction with such providers, ClickandBuy may therefore from time to time notify (which it will do in writing if not already covered by the ClickandBuy Acceptance Policy or the Technical Documentation) the Merchant of restrictions on the extent and type of business that can be covered by the Service, including, but not limited to, with reference to payment type, geography, business line, amounts, currency and other such variables.
System integration
2.5 Before the Service can be provided, the process detailed in the Technical Documentation must be followed to establish and test the system integration.
Notification of change in details
2.6 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s details which the Merchant supplied to ClickandBuy when registering for the Services, including (but not limited to) changes to the matters set out in Clause 12.17.
3. Provision of the Service
3.1 ClickandBuy will provide the Merchant with the Service on the terms of this Agreement from the Service Commencement Date. ClickandBuy will issue the Merchant with a single ClickandBuy Account upon the Merchant entering into this Agreement.
3.2 ClickandBuy will provide the Service with the reasonable skill and care of a competent provider of such services. Except as expressly set out in this Agreement, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to Service or the ClickandBuy Website or to anything supplied or provided by ClickandBuy under or in connection with this Agreement.
3.3 ClickandBuy will use all reasonable endeavours to correct any reported technical faults in the Service as soon as reasonably practicable. However, ClickandBuy does not give any guarantees as to performance of the Service or any undertakings that the Service will be continuously available or free of faults.
3.4 Occasionally ClickandBuy may:
(a) for operational reasons, update the technical specification of the Service; or
(b) require the Merchant to follow instructions which it believes are necessary for reasons of security or quality,
provided that an update or requirement that represents a change to the terms of this Agreement shall be communicated in accordance with Clause 18.
Service suspension for operational reasons
3.5 ClickandBuy may suspend the Service for operational reasons such as maintenance, or because of an emergency. ClickandBuy will restore the suspended Service as soon as reasonably practicable. The Merchant is responsible for taking back-ups of its Offers, pricing and other data prior to any suspension or maintenance work and for restoring any such data lost as a result of such suspension or maintenance work.
4. Charges
Charges
4.1 The Merchant agrees to pay, without any set-off, restriction, condition, withholding or deduction, all Charges in accordance with this Agreement and as set out in Schedule 2 of this Agreement.
Set-Up Fee
4.2 The Set-up Fee according to Schedule 2 shall become due from the Merchant to ClickandBuy once the Merchant is incepted and integrated as a user of the Service and shall be paid pursuant to Clause 5.3 at the end of the first Billing Period.
Commission due for all Payment Amounts
4.3 The Commission charged by ClickandBuy according to Schedule 2 of this Agreement shall be due in respect of all Payment Amounts that are credited to the Merchant's ClickandBuy Account, whether or not monies can subsequently be retrieved from the End User, whether the End User disputes the amount, or whether the amount will be refunded to the End User or is reversed due to a Claim, Chargeback or Direct Debit Reversal.
5. Settlement and Interest
Settlement at end of Billing Period
5.1 The Merchant will be forwarded Payment Amounts collected from End Users in the currency of the Merchant’s ClickandBuy Account in accordance with the Payment Order mechanism set out in Clause 5.3 of this Agreement, as offset against the amounts identified in Clause 5.2. Detailed information on every transaction made by End Users may at any time be obtained in the Merchant’s ClickandBuy Service Area.
Settlement calculation
5.2 ClickandBuy will, in accordance with the Payment Order set out in Clause 5.3, at the end of each Billing Period pay to the Merchant:
(a) the Payment Amounts paid by End Users and credited to the Merchant during the Billing Period, as well as all sums successfully retrieved from End Users and credited to the Merchant in accordance with Clause 10.5 below;
less
(b) any refunds, reimbursements or any other entitlements or sums paid to End Users by the Merchant during the Billing Period;
(c) the Charges and/or sums due to ClickandBuy in respect of Payment Scheme Penalties;
(d) any applicable VAT and any other taxes or duties payable by ClickandBuy on behalf of the Merchant in relation to the Service;
(e) any Payment Orders reversed or reimbursed in accordance with Clauses 7.2 or 8;
(f) any Payment Orders then subject to a Claim or a Chargeback or Direct Debit Reversal in accordance with Clause 9 (including any sum owed by the Merchant to ClickandBuy pursuant to the application of the Buyer Protection Rights) or otherwise marked as Payment Pending; and
(g) any sum that the Merchant determines should be retained in its Account and not subject to the Payment Order set out in Clause 5.3, calculated as at the end of the Billing Period with reference to the parameters set by the Merchant in its ClickandBuy Service Area.
ClickandBuy will provide the Merchant with a statement setting out the calculation of the sums identified in this Clause 5.2.
Payment to Merchant at end of Billing Period
5.3 The Merchant requests and consents to ClickandBuy paying on the Payment Date from the Merchant’s ClickandBuy Account to a bank account nominated by the Merchant the sums due to the Merchant as calculated in accordance with Clause 5.2. This Payment Order will be deemed as having been received on the Payment Date. The Merchant agrees that this Payment Order supersedes and is in satisfaction of any other rights it may have to redeem from its ClickandBuy Account.
Billing Period balance in favour of ClickandBuy
5.4 In the event that the calculation set out in Clause 5.2 results in a balance in favour of ClickandBuy, the Merchant agrees that any such sum is due to ClickandBuy and that ClickandBuy may deduct such sum from the balance of the Merchant’s ClickandBuy Account (including against any sum that has been Reserved).
No credit
5.5 Nothing in this Agreement shall require ClickandBuy to provide any credit or overdraft facility to the Merchant and it is not intended that any such credit or overdraft will be granted.
Insufficient funding
5.6 Notwithstanding Clause 5.5, if for any reason the balance of the Merchant’s ClickandBuy Account (including any Reserve Percentage) is insufficient to cover amounts due to or to be refunded or reimbursed to ClickandBuy, an End User (or their credit or debit card provider), a Merchant Acquirer or, in accordance with this Agreement, any other third party (whether assessed at the end of the Billing Period pursuant to Clause 5.2 or at any other time), the Merchant agrees that ClickandBuy may debit the amount of the shortfall from the Merchant using the funding method set up in accordance with Clause 5.7. The Merchant agrees that ClickandBuy may then use that sum to pay the outstanding balance.
Merchant's funding method
5.7 The Merchant will complete a Direct Debit instruction to allow ClickandBuy to debit Charges and other sums due to be paid under this Agreement. In case a Direct Debit instruction cannot be given the Merchant agrees to provide valid credit card details. The Merchant authorises ClickandBuy to debit Charges and other sums due to be paid under this Agreement from this alternate payment method.
No interest
5.8 The Merchant shall not be entitled to interest on the balance of monies collected by ClickandBuy that is stored in the Merchant's ClickandBuy Account.
6. Payment transactions
Restrictions on use
6.1 The Merchant may only use its ClickandBuy Account:
(a) to receive Payment Amounts from End Users;
(b) to pay refunds, reimbursements or any other entitlements or sums due to End Users and relating to purchases made by them using the ClickandBuy Service; and
(c) for payment of sums due from the Merchant’s ClickandBuy account to the Merchant in accordance with Clause 5.3.
Consenting to a Payment Order
6.2 In order to enable ClickandBuy to process a payment on the Merchant’s order, the Merchant must give consent to the execution of a payment transaction for it to be authorised. The Merchant agrees that by submitting an electronic web services instruction from its own servers to ClickandBuy’s servers, or by uploading a bulk transaction CSV file and clicking the "Send" button, or by its clicking of the "Credit", "Charge" or "Cancel" buttons at the time of the transaction when using the web interface payment processing options in the ClickandBuy Service Area, it confirms that it consents for the payment transaction to be processed and for the relevant fees to be charged. The Merchant’s consent to the Payment Order contemplated by Clause 5.3 is given pursuant to Clause 5.3.
Reliance on Unique Identifier
6.3 In requesting a Payment Order the Merchant must provide to ClickandBuy the Unique Identifier and any other details ClickandBuy asks the Merchant for such as the intended recipient’s name, so ClickandBuy can make the payment. ClickandBuy may rely on and act in accordance with a Unique Identifier provided to it by the Merchant and a Payment Order executed in accordance with a Unique Identifier is deemed to have been correctly executed in terms of making the payment to the payment account specified by the Unique Identifier. Notwithstanding that the Merchant may provide ClickandBuy with information additional to the Unique Identifier, ClickandBuy shall only be liable to execute Payment Orders in accordance with the Unique Identifier provided by the Merchant.
End User without a ClickandBuy Account
6.4 ClickandBuy shall not be required to accept a Payment Order from the Merchant where the relevant End User does not yet have a ClickandBuy Account. In these circumstances the Merchant may contact ClickandBuy to discuss arrangements with a view to the End User opening a ClickandBuy Account.
Timing of Payment Order receipt
6.5 For the purposes of this Agreement the point of receipt by ClickandBuy of a Payment Order from the Merchant is the time at which consent is provided as per Clause 5.3 or 6.2.
Timing for crediting Payment Orders
6.6 Subject to Clause 8.1, ClickandBuy will credit a Payment Order initiated by the Merchant as payer to the payee's payment services provider (which in respect of an End User will be ClickandBuy) by the end of the third Business Day following the time of receipt of the Payment Order provided that from 1 January 2012, this credit will occur by the end of the Business Day following the time of receipt of the Payment Order.
6.7 Where the Merchant is the payee to a Payment Order, ClickandBuy will only value date and credit the amount to the Merchant's ClickandBuy Account once the funds have been received. Such a credit will be without prejudice to ClickandBuy's rights under Clauses 8.2 and 9.
6.8 Where a Payment Order is initiated by or through the Merchant as payee, ClickandBuy will transmit the Payment Order to the payer's payment services provider by the end of the third Business Day following the time of receipt of the Payment Order and, from 1 January 2012, by the end of the Business Day following the time or receipt of the Payment Order, provided that any direct debit initiated by the Merchant as payee will be transmitted by ClickandBuy in sufficient time to allow the payer's payment service provider to settle the Payment Order on any agreed due date.
Payment status
6.9 When a Payment Order in respect of which the Merchant is payee is credited to the Merchant’s ClickandBuy Account, it shall be marked as a Success in the ClickandBuy Service Area. Until such time the Payment Order will be marked as Payment Pending. A Payment Order marked as a Success remains subject to ClickandBuy’s rights to reimburse any such credited amount to the End User’s ClickandBuy Account pursuant to Clause 8.2 or Clause 9.
Non-EEA Payment Orders
6.10 Where a Payment Order does not relate to a payment in relation to which the payment service provider of both the payer and payee are located within the EEA and the payment transaction is to be carried out in Euro or where an EEA State has not yet adopted the Euro the currency of that EEA State, ClickandBuy shall endeavour to transfer the relevant funds to the relevant payment service provider within the next three (3) Business Days of receiving the Payment Order, but cannot guarantee that it will do so. In these same circumstances ClickandBuy will however, in respect of such a payment being transferred to ClickandBuy: (i) credit the funds to the Merchant's ClickandBuy Account on the same Business Day on which the funds are received by ClickandBuy; and (ii) ensure that the funds so credited are then available for use by the Merchant for the purposes set out in Clause 6.1.
Revocation of Payment Orders
6.11 The Merchant will not be able to revoke Payment Orders once received by ClickandBuy. Should a Merchant need to revoke a Payment Order that ClickandBuy has received, it can contact ClickandBuy and ClickandBuy will use reasonable efforts to stop the order, but cannot guarantee it will be able to do so and ClickandBuy will not be able to revoke an order which has been acted on. If a Merchant revokes the regular Payment Order set out in Clause 5.3 (which under the Payment Services Regulations it is entitled to do up until the end of the Business Day before the Payment Date) ClickandBuy shall be entitled to suspend or terminate the Service.
Non-recovery from an End User
6.12 If ClickandBuy is not able to retrieve Payment Amounts owed by an End User, despite taking reasonable steps to pursue these Payment Amounts, ClickandBuy may terminate the contract with the relevant End User. The Merchant acknowledges and accepts that ClickandBuy may instruct a third party collection entity with a view to recovering unpaid Payment Amounts. If a Payment Amount has been unpaid by an End User for 12 months from the due date or if, prior to 12 months from the due date, ClickandBuy has a reasonable belief that unpaid Payment Amount will not be paid (for example in the case where the End User has filed for bankruptcy or insolvency and it is not realistic that funds will be recovered), ClickandBuy may treat the Payment Order as lapsed and non-recoverable and cease any attempts to recover the amount. Notwithstanding any attempts that may be made by ClickandBuy to recover an unpaid Payment Amount, subject to the application of the Seller Protection Rights, ClickandBuy shall have no liability or responsibility to a Merchant in respect of unpaid or lapsed Payment Amounts.
Currency conversion service
6.13 ClickandBuy may on request make available a currency conversion service to the Merchant enabling it to make Offers in different currencies. For each such converted Offer the multicurrency conversion fee set out in Schedule 2 shall apply. Where a Merchant requests a payment to be made to an End User that requires currency conversion, ClickandBuy will specify the amount to be collected from the Merchant's ClickandBuy Account, based on the currency exchange rate at the time of the transaction available from a reputable currency exchange rate service provider used by ClickandBuy. The total amount to be collected from the Merchant's ClickandBuy Account including the exchange rate and the multicurrency conversion fee will be displayed at the time of the transaction if the Merchant is online, otherwise details of the transaction will be made available immediately to the Merchant through their Clickandbuy Service Area.
Merchant's access to information
6.14 Where the Merchant initiates a payment ClickandBuy will on request inform the Merchant of the maximum execution time, the Charges payable by the Merchant in respect of the payment and where applicable, a breakdown of the amount of such Charges.
6.15 ClickandBuy shall make available to the Merchant in the ClickandBuy Service Area, information relating to the transactions (both credits and debits) occurring on the Merchant’s ClickandBuy Account immediately as they occur and shall in any event within three (3) Business Days of the end of each Billing Period make the following information available in the ClickandBuy Service Area:
(a) a reference enabling the Merchant to identify each payment transaction and its status and, where appropriate, information relating to the End User;
(b) the amount of the payment transaction in the currency in which the Merchant’s ClickandBuy Account was debited or credited or in the currency used for the Payment Order;
(c) the amount of any Charges for the transactions and, where applicable, a breakdown of the amounts of such Charges;
(d) where applicable, the exchange rate used in a payment transaction and the amount of the payment transaction after that currency conversion; and
(e) the credit or debit value date (as appropriate) or the date of receipt of the Payment Order.
7. Seller Protection Rights and Buyer Protection Rights
7.1 Where in the ClickandBuy Service Area a Payment Order is marked as 'Payment Guaranteed', the Merchant may benefit from the Seller Protection Rights the terms of which are more fully set out in Part 1 of Schedule 3.
7.2 ClickandBuy may make available to End Users the Buyer Protection Rights the terms of which are set out in part 2 of Schedule 3. The Merchant agrees to provide all reasonable assistance to ClickandBuy and to cooperate as required in resolving any claims by End User's under the Buyer Protection Rights. Where ClickandBuy determines that an End User is entitled to be covered under the Buyer Protection Rights and reimburses the End User, ClickandBuy shall be entitled to recover such sums from the Merchant and the Merchant acknowledges that End Users will assign to ClickandBuy any rights and claims they have against the Merchant in respect of a payment that is the subject of the Buyer Protection Rights.
8. Refusing and reversing payments
Payment Orders refused by ClickandBuy
8.1 ClickandBuy may refuse a Payment Order if prior to the Payment Order being credited it has reason to believe that the Payment Order would not satisfy the terms of this Agreement (including but not limited to a potential breach of the restrictions set out in Clause 12.1 or due to unauthorised use or as a result of the application of Clause 11.3) or the Technical Documentation governing the use of the Service or would otherwise be unlawful or where, if the Merchant is payee, it has insufficient funds in its ClickandBuy account.
Payment Orders reversed by ClickandBuy
8.2 ClickandBuy may reverse the effect of a Payment Order and reimburse the funds to the payer if, following the credit of a Payment Order to a ClickandBuy account, it has reason to believe that the Payment Order has not satisfied the terms of this Agreement (including, but not limited to a breach of the restrictions set out in Clause 12.1 or due to unauthorized use or as a result of the application of Clause 11.3) or the Technical Documentation governing the use of the Service or is otherwise unlawful. The Merchant consents to ClickandBuy effecting such reimbursements as a payment transaction from its ClickandBuy Account.
Provisions applicable to refusals and reversals
8.3 Where possible and if permitted by law, ClickandBuy shall notify the relevant payment service user of a refusal under Clause 8.1 or a reimbursement under Clause 8.2 and provide reasons and, if available, the procedure for rectifying any factual errors that led to the refusal or reimbursement. ClickandBuy may in accordance with Schedule 2 charge the Merchant for such notification where the refusal or reimbursement is reasonably justified. ClickandBuy shall not be required to provide such a notification where to do so would be unlawful.
8.4 ClickandBuy will provide the notices to be given to the Merchant in accordance with the form of notification selected by the Merchant in the ClickandBuy Service Area. In addition ClickandBuy will appropriately mark the relevant Payment Order in the ClickandBuy Service Area. It is the Merchant’s responsibility to take notice of such notifications and act accordingly and ClickandBuy shall have no liability for any loss or expense incurred by the Merchant as a result of a refusal under Clause 8.1 or a reimbursement under Clause 8.2.
9. Claims, Chargebacks and Direct Debit Reversals
Claims
9.1 Subject to the application of Clause 7.1, in the event of a Claim notified by an End User or its payment service provider to ClickandBuy, ClickandBuy will follow the Disputes Process, or, if appropriate, the determinative process under the Buyer Protection Rights. Until the matter is resolved in accordance with the Disputes Process or the Buyer Protection Rights, the relevant Payment Order will be marked as Payment Pending (even if this requires a re-categorisation of a Payment Order previously marked as a Success) in the ClickandBuy Service Area. In accordance with Clause 5.2(f), such a Payment Order will not be available for settlement at the end of a Billing Period.
9.2 If the Claim is resolved in favour of the End User, ClickandBuy will reimburse the funds to the End User or their payment service provider or other appropriate third party, from the Merchant's ClickandBuy Account. The Merchant consents to ClickandBuy effecting such reimbursements as a payment transaction from its ClickandBuy Account and in such a case the Merchant acknowledges and accepts that no sums will be forwarded to it by ClickandBuy in respect of the amount that is the subject of the Claim.
9.3 If the Claim is resolved in favour of the Merchant, the Payment Order will be marked as a Success (or if appropriate, Payment Guaranteed).
Chargebacks or Direct Debit Reversals
9.4 Where ClickandBuy is the subject of a Chargeback or Direct Debit Reversal,ClickandBuy will reimburse the funds to the End User or their payment service provider or other appropriate third party, from the Merchant's ClickandBuy Account. The Merchant consents to ClickandBuy effecting such reimbursements as a payment transaction from its ClickandBuy Account and in such a case the Merchant acknowledges and accepts that no sums will be forwarded to it by ClickandBuy in respect of the amount that is the subject of the Chargeback or Direct Debit Reversal.
9.5 The Merchant acknowledges that the validity of a Chargeback or Direct Debit Reversal will be determined by the relevant End User's card issuer or other third party payment service provider and not ClickandBuy and ClickandBuy will have no discretion on the matter.
Provisions relevant to Claims, Chargebacks and Direct Debit Reversals
9.6 Subject to Payment Orders marked as 'Payment Guaranteed', the Merchant acknowledges and accepts that ClickandBuy will have no liability to the Merchant in respect of any reimbursement to an End User or their payment service provider or other appropriate third party as a result of a Claim, Chargeback or Direct Debit Reversal.
9.7 ClickandBuy may restrict at its reasonable discretion the payment methods accepted as a payment source for the Merchant's Offers (for example a type of credit card) in the event that the levels of Claims, Chargebacks or Direct Debits Reversals occurring through that payment method in connection with the Merchant are, in ClickandBuy's sole opinion, excessive.
Merchant's response to Claims
9.8 Where an End User notifies a Claim to the Merchant, the Merchant shall respond promptly and fully and in accordance with its legal and contractual obligations. Where an End User complains to ClickandBuy that the Merchant has not so responded, ClickandBuy may notify this to the Merchant and request that the Merchant responds appropriately within 48 hours of such notice. If the Merchant does not so respond within that timetable, ClickandBuy may in its discretion suspend the Service until the Merchant has so responded.
9.9 In the event of a Chargeback or a Direct Debit Reversal the Merchant shall be liable to ClickandBuy for the Bookout Fee (as set out in Schedule 2), unless the Chargeback or Direct Debit Reversal is a transaction in relation to which the Merchant is protected pursuant to the Seller Protection Rights.
Other remedies
9.10 A payment that has been marked as Payment Pending but subsequently marked as a Success is still subject to any other right ClickandBuy has under this Agreement to hold or reverse the payment.
No representation by ClickandBuy
9.11 The fact ClickandBuy does not reserve or reimburse a payment pursuant to Clauses 8 or 9 does not constitute any representation or undertaking that the payment does not breach any of the restrictions in Clause 12.1 or is otherwise unlawful and should not be relied upon by the Merchant to that effect. Furthermore the fact of a payment being treated as Payment Pending is not to be treated as a representation or indication as to the character, dealings or reputation of the payee.
10. Reserve
The Reserve Percentage
10.1 ClickandBuy shall be entitled to reserve in the Merchant's ClickandBuy Account a sum equal to the Reserve Percentage calculated in respect of each Billing Period. Such sum may be reserved for up to 120 days (or such shorter time as recorded in Schedule 2) following the end of the relevant Billing Period, after which it will be settled in accordance with Clause 5.2 at the end of the next following Billing Period. All such reserved sums will be recorded in the ClickandBuy Service Area as Reserved.
10.2 The acknowledged purpose of the retention of the Reserve Percentage is to ensure that ClickandBuy is protected against Claims, Reversals, Chargebacks and Direct Debit Reversal and other occasions where the Merchant becomes liable to ClickandBuy under this Agreement.
What the Reserve Percentage can be used for
10.3 ClickandBuy shall be entitled to:
(a) reimburse from funds recorded as Reserved any sums due to an End User or their payment service provider or other appropriate third party as a result of a Claim, Reversal, Chargeback or Direct Debit Reversal; and
(b) set off against the funds recorded as Reserved any liabilities incurred by ClickandBuy as a result of the Merchant’s acts or omissions or breach of this Agreement, including (and as further addressed in Clause 13.13) any Payment Scheme Penalties incurred by ClickandBuy and attributable to the Merchant.
Reserve Percentage Review
10.4 ClickandBuy shall regularly review the amount retained under the Reserve Percentage. If in ClickandBuy’s reasonable discretion the amount of the retention exceeds a reasonable amount given foreseeable security or assurance needs, then ClickandBuy shall release the excess amount and cease to record it as Reserved.
Retention of Reserve post termination
10.5 After termination of this Agreement the amount recorded as Reserved as at the date of termination can be retained by ClickandBuy for up to six (6) months (or for such period as may have otherwise been agreed as reflected in Schedule 2) in order to be available to satisfy valid Claims, Chargebacks and Direct Debit Reversals and other outstanding payments due, following which the remaining credit balance shall be transferred to the Merchant‘s bank account as designated to ClickandBuy.
11. Keeping accounts safe
Duty to keep secure
11.1 The Merchant is responsible for the security and proper use of its user names, passwords, and security check words and other details used in connection with the Service and its ClickandBuy Account, including any reasonable security precautions notified to it by ClickandBuy pursuant to Clause 3.4(b), and must take all reasonable steps to ensure that they are implemented, kept confidential, used properly and not disclosed to unauthorised people or used in an unauthorised way. The Merchant will take all reasonable steps to keep access to, and the security features of, the Service and its ClickandBuy Account safe and to prevent unauthorised use of the Service or ClickandBuy Account by any party.
Notification of security breaches
11.2 The Merchant must notify ClickandBuy without any undue delay as soon as it is aware that there may have been unauthorised use of the Service or where any security feature has been breached or compromised. Such notification should be given by contacting the 24/7 Customer Care Team, whose contact details can be found on the ClickandBuy Website. Furthermore, the Merchant must promptly change its passwords and security check words if there is any reason to believe that a password or security check words have or are likely to become known to someone not authorised to use them or are being or are likely to be used in an unauthorised way.
Fraud Server detection
11.3 Each transaction made by an End User using their ClickandBuy Account may be checked by the ClickandBuy Fraud Server. This may lead to other designated means of fraud protection or to rejection of the transaction. If the transaction is rejected, the Merchant may not receive the Payment Amounts into its ClickandBuy Account, and will therefore not incur a ClickandBuy commission charge.
Suspension of the Service
11.4 Where the Merchant has provided notification to ClickandBuy under Clause 11.2 ClickandBuy will suspend the Merchant’s access to the Service. In addition ClickandBuy reserves the right to immediately suspend the Service (in whole or in part) at any time if ClickandBuy on reasonable grounds:
(a) considers that there is or is likely to be a breach of security in relation to the Merchant’s use of the Service;
(b) suspects unauthorised or fraudulent use of the Service; or
(c) rejects a transaction pursuant to Clause 11.3 (in which case ClickandBuy's right to suspend the Service shall only apply in respect of that transaction).
11.5 Where ClickandBuy exercises its right under Clause 11.4 to suspend the Service, ClickandBuy will inform the Merchant beforehand and give reasons for so acting. If ClickandBuy is unable to notify the Merchant beforehand, it will do so as soon as it can afterwards. In either case ClickandBuy shall not be required to provide a notification where to do so would in ClickandBuy’s opinion compromise reasonable security measures or be unlawful.
11.6 Where ClickandBuy exercises its rights under Clause 3.5 or 11.4 to suspend the Service and the suspension of the Service is caused directly or indirectly by the Merchant's actions or omissions, the Merchant shall be liable for any loss or damage arising out of the suspension of the Service suffered by ClickandBuy. ClickandBuy shall not be liable for any direct or indirect loss or damage suffered by the Merchant or any other third party arising from the suspension of the Service.
Confidentiality of ClickandBuy software
11.7 The Merchant undertakes not to use or install any software supplied by ClickandBuy in connection with the Service on any public access computer.
Unencrypted data
11.8 The Merchant acknowledges that any unencrypted data made available to ClickandBuy, via email or other means of communication, may be obtained by unauthorized third persons, and that ClickandBuy is not able to prevent this by technical means. Therefore, ClickandBuy has no obligation to take any measures to ensure the security or protection of any unencrypted data provided by the Merchant to ClickandBuy, and it is the sole responsibility of the Merchant to take any such measures.
12. Merchant’s use of the Account
Manner of use
12.1 The Service must not be used:
(a) fraudulently or in connection with a criminal offence;
(b) in an unlawful manner or in contravention of any applicable legislation, licence agreements and/or the ClickandBuy Acceptance Policy;
(c) in any way that does not comply with any restrictions notified by ClickandBuy under Clause 2.4;
(d) in any way that does not comply with any instructions given under Clause 3.4 (b);
(e) to advertise, promote, sell or offer for sale, send or provide unlawful or unsolicited advertising or promotional material; or
(f) for tampering, ‘hacking’, modifying or otherwise corrupting the security or functionality of the Service, and the Merchant must ensure that this does not happen.
12.2 ClickandBuy may at any time suspend the Service immediately on notice, if the Merchant uses the Service in a way that is not permitted under Clause 12.1.
12.3 The Service is provided solely for the Merchant’s own use and the Merchant must not resell or attempt to resell the Service (or any part or facility of it) to any third party.
Merchant's duties regarding Offers
12.4 The Merchant warrants that it shall comply with and ensure all Offers comply with all applicable laws, rules and regulations (including codes of practice and such guidelines as may be issued by regulatory authorities) of whatever jurisdiction relating to its activities, the Merchant Website and the Offers and all commercial activities conducted on or via the Merchant Website including (without limitation) taxation, foreign exchange, currency and customs requirements and all advertising, consumer protection, product liability, data protection and privacy laws, or any laws relating to the protection of children or young persons, and all laws relating to lotteries, gambling, betting, gaming or similar activities. On ClickandBuy's reasonable request the Merchant shall be obliged to make appropriate modifications to the Merchant Website and/or the Offers to fulfil the requirements of this Clause 12.4.
12.5 The Merchant must ensure that the Offers are accurate in all respects and are not misleading, and that the prices clearly specify all applicable taxes, duties and delivery charges (of whatever nature and for whatever jurisdiction).
12.6 The Merchant is and shall remain responsible for the creation, maintenance, design and control of all Offers. The Merchant warrants that the Offers will be consistent with the description appearing on the Merchant Website and of satisfactory quality and fit for purpose (and, where the Offer consists of services, supplied with reasonable skill and care and in accordance with good industry practice).
12.7 The Merchant will use all reasonable endeavours to ensure that the Offers, whilst they remain current Offers of the Merchant are and remain available for use with the Service. The Merchant shall immediately notify ClickandBuy of any recognisable faults or malfunctions in relation to the Offers or the Merchant’s Website.
12.8 The Merchant shall only transact bona fide Offers through the Service where the counterparties are the Merchant and an End User. The Merchant shall not submit transactions that derive from other sellers of goods or providers of services.
12.9 The Merchant shall only transact Offers that represent the whole Offer price and shall not for any reason or purpose split Offers into two or more transactions (unless the arrangement involves legitimate Recurring Payments).
12.10 The Merchant shall make clear to End Users that an agreement for Offers purchased through ClickandBuy's provision of the Service will be an agreement between the Merchant and the End User and the Merchant will make clear to the End User that ClickandBuy shall not be liable for any loss or damage arising out of such contract.
Recurring Payments
12.11 A Merchant shall require approval from ClickandBuy before offering Recurring Payments in connection with Offers. If the Merchant has not received ClickandBuy's prior approval ClickandBuy may reject the Payment Order. If in ClickandBuy's reasonable opinion the Merchant misuses Recurring Payments, ClickandBuy may suspend the Merchant's ability to offer Recurring Payments.
12.12 It shall be the Merchant's responsibility to communicate the basis and terms of the Recurring Payment to the End User in a fair, clear and transparent manner.
12.13 The Merchant must provide the End User with and acknowledges that ClickandBuy must permit End Users with the ability to cancel a Recurring Payment at any time up to the end of the Business Day preceding the scheduled date of the Recurring Payment.
12.14 Where the Merchant agrees with the End User to receive Recurring Payments, ClickandBuy shall facilitate the transaction between the Merchant and the End User, but ClickandBuy shall be under no obligation to enforce any contractual obligations for payment by the End User to the Merchant or for delivery of the Merchant’s goods or services to the End User. ClickandBuy makes no representation and gives no undertaking or warranty that Recurring Payments will be made by the End User. ClickandBuy will seek to process a Recurring Payment with an End User but shall not be required to credit any payment to the Merchant if there are insufficient funds in the End User's account. ClickandBuy shall otherwise be under no responsibility to enforce the Recurring Payment arrangement against the End User.
12.15 An End User may cancel a Recurring Payment using the ClickandBuy service in circumstances where the End User's obligations under the Recurring Payment arrangement it has with the Merchant are not satisfied. ClickandBuy shall have no liability to the Merchant in these circumstances.
Merchant to give advance notice of recurring payments
12.16 The Merchant must provide the End User with advance notice of each instance of a Recurring Payment at least 5 days before it is due or if for any reason this is not practicable, must provide the End User with as much advance notice as possible.
New business models and sales channels and ongoing due diligence
12.17 The Merchant shall not:
(a) submit transactions that derive from business models or sales channels of the Merchant that have not previously been notified to and approved by ClickandBuy as part of ClickandBuy’s due diligence on the Merchant; or
(b) make any addition to or change to Uniform Resource Locators (URLs) representing a Merchant Website utilising the ClickandBuy Service, or that redirect to the ClickandBuy Website,
without first notifying the change to ClickandBuy (and provide such supporting material as Clickandbuy requires) and obtaining ClickandBuy's written approval. Failure of the Merchant to obtain ClickandBuy’s written approval in these circumstances entitles ClickandBuy to suspend the Merchant’s access to part or all of the Service until ClickandBuy is in its discretion satisfied with the changes.
12.18 ClickandBuy may from time to time request additional or updated due diligence information from the Merchant regarding its business and operations in order to enable ClickandBuy to satisfy itself that it should continue to accept the Merchant as a merchant user of the Service and for the purposes of satisfying ClickandBuy’s ongoing obligations under relevant anti-money laundering legislation. The frequency of such requests will depend upon the Merchant’s risk and transaction profile. Failure of the Merchant to supply requested information in a timely manner constitutes entitles ClickandBuy to suspend the Merchant’s access to part or all of the Service until ClickandBuy is in its discretion satisfied with the due diligence information provided.
Merchant's return and refund policy
12.19 The Merchant shall provide to its customers and operate a clear and fair return and refund policy. The Merchant will provide ClickandBuy with a copy of this policy as part of ClickandBuy's initial due diligence and shall thereafter provide ClickandBuy with a copy of any material changes to this policy.
No restrictions or charges to be imposed on End users
12.20 The Merchant shall not charge End Users any additional fee or charge for purchasing Offers using the ClickandBuy service.
12.21 The Merchant agrees that it shall not set minimum or maximum transaction amounts as a condition for End Users paying through the ClickandBuy Service.
Merchant's identity
12.22 The Merchant agrees to prominently and unequivocally inform the End User of the identity of the Merchant at all points of interaction.
12.23 The Merchant must ensure that its registered legal name, postal address, electronic mail address and telephone number are included in clear and legible form on all the Merchant Websites for the receipt of any enquiries or complaints that may arise in relation to the Merchant or any Offer, and the Merchant shall respond to any such enquiries or complaints in a professional, prompt, and diligent manner. ClickandBuy reserves the right to disclose to any person with an enquiry or complaint about an Offer the Merchant’s contact name, telephone number, address and electronic mail address if such person cannot locate these details on the Merchant Website and the Merchant must supply such details to ClickandBuy on acceptance of this Agreement and immediately inform ClickandBuy of any changes to these details.
Merchant's Website
12.24 The Merchant shall ensure that neither the Offers nor the Merchant’s Website contain any viruses or other faults liable to interfere with the Service or any software provided by ClickandBuy in connection with the Service or to affect any other ClickandBuy customers or End Users.
Use of ClickandBuy logo
12.25 The Merchant will use the ClickandBuy brand, the ClickandBuy logos and the logos of any applicable service, method or instrument in the manner described on the ClickandBuy Website or ClickandBuy Integration Network as amended from time to time.
12.26 The Merchant shall ensure that neither any Offer nor the Merchant Website shall infringe any third party rights (including, but not limited to, defamation and all and any intellectual property rights). The Merchant shall indemnify ClickandBuy on demand against any loss suffered or incurred by ClickandBuy from time to time arising out of or in connection with any breach or alleged breach of any provision of this Clause 12.27 and/or any infringement by the Merchant of any intellectual property rights owned or licensed to ClickandBuy.
Provision of information to ClickandBuy
12.27 When requested to do so by ClickandBuy, the Merchant must provide to ClickandBuy all information available to it regarding transactions, and parties to those transactions, as needed by ClickandBuy for the prevention or deterrence of crime, and to meet its legal obligations and risk management objectives in relation to money laundering, terrorist financing, fraud or any other undisclosed unlawful activities in connection with the Service. The Merchant should keep any such requests and any further action taken by ClickandBuy in respect of those requests, confidential. ClickandBuy may, where it considers appropriate pass on any information received from the Merchant to the relevant law enforcement agency.
12.28 Where ClickandBuy reasonably suspects that the Merchant has a substantial percentage of fraudulent transactions, the Merchant shall respond to any fraud related questions submitted by phone or email within 24 hours and propose reasonable measures to reduce the fraud.
13. Liability
13.1 Nothing in this Agreement limits or excludes either party’s liability for death or personal injury resulting from its negligence or for fraud or fraudulent misrepresentation and the remainder of this Clause 13 does not restrict such liability.
13.2 Subject to Clause 13.1, neither party is liable to the other either in contract, tort (including negligence) or otherwise for loss (whether direct or indirect) of profits or business, destruction of data loss of or anticipated savings, or for any indirect or consequential loss or damage.
13.3 Other than in the case of gross negligence, fraud or wilful default by ClickandBuy, or its employees, directors, officers, and agents, ClickandBuy shall not be liable for any loss suffered by the Merchant as a result of:
(a) fraud; or
(b) malfunction or damage to ClickandBuy’s system’s which causes the Service to be suspended.
13.4 Where the Unique Identifier provided by the Merchant is incorrect, ClickandBuy is not liable for the incorrect execution or non-execution of a resulting payment transaction, but ClickandBuy will take reasonable efforts to recover the funds involved in such a payment transaction. ClickandBuy may in accordance with Schedule 2 charge the Merchant for any such recovery.
13.5 Subject to Clauses 6.1 and 6.2, 11.1, 11.2, 12.1, 13.2, 13.4, and 13.6 through to 13.10 and provided the Merchant has notified ClickandBuy without undue delay, and in any event and subject to Clause 1.6 no later than 13 months after the relevant payment date, on becoming aware of any unauthorised or incorrectly executed payment transaction, ClickandBuy shall, in respect of any:
(a) unauthorised payments (being for the purposes of this Clause 13, payments from the Merchant's ClickandBuy Account that have been executed but not authorised by the Merchant), without undue delay refund to the Merchant the amount of the unauthorised payment and where applicable, restore the Merchant’s ClickandBuy Account to the state in which it would have been had the relevant payment transaction not taken place;
(b) incorrectly executed Payment Orders initiated by the Merchant as payer, without undue delay refund to the Merchant the amount of the incorrectly executed payment and, where applicable, restore the Merchant’s ClickandBuy Account to the state in which it would have been had the relevant payment transaction not taken place; and
(c) incorrectly executed Payment Orders initiated by the Merchant as payee, ClickandBuy shall be liable to the Merchant for the correct transmission of the order in accordance with the terms of this Agreement and will re-transmit the Payment Order in question.
13.6 In the case of either Clause 13.5(b) or (c), ClickandBuy will at the Merchant’s request make immediate efforts to trace the payment and notify the Merchant of the outcome and will also be liable to the Merchant for any charges or interest that the Merchant has had to pay as a consequence of the incorrectly executed Payment Order. ClickandBuy shall not be liable pursuant to Clause 13.5(b) or (c) where it can prove (if the Merchant initiated the transaction as payer) that the End User or its payment service provider received the amount of the payment transaction or (if the Merchant initiated the transaction as payee) that it was not liable for the incorrect transmission.
13.7 Subject to Clauses 13.8 and 13.9, the Merchant where it is the payer is liable for up to a maximum of £50 (or Euro equivalent) for any losses incurred in respect of an unauthorised payment arising due to the use of lost or stolen password or security check words or due to the Merchant failing to keep the personalised security features of the Service safe.
13.8 Subject to Clause 13.9, the Merchant shall be liable for all losses incurred in respect of an unauthorised payment where the Merchant has acted fraudulently or has with intent or gross negligence failed to use the Service in accordance with the terms and conditions set out in this Agreement governing its use or failed to give a notification to ClickandBuy in accordance with Clause 11.2.
13.9 Except where the Merchant has acted fraudulently, where it is the payer under a Payment Order the Merchant is not liable for any losses incurred in respect of an unauthorised payment made by the Merchant: (a) arising after the Merchant has provided a notice in accordance with Clause 11.2 (or ClickandBuy has failed to make available to the Merchant the means to give such a notice); or (b) where the payment has been made by the Merchant in connection with a distance contract other than an excepted contract (with “distance contract” and “excepted contract” have the meanings given in the Consumer Protection (Distance Selling) Regulations 2000).
13.10 Subject to Clause 13.1, either party's liability to the other either in contract, tort (including negligence) or otherwise in relation to this Agreement is limited to 125% of the Commission, Support Charges and Other Charges payable by the Merchant in any Month in which the incident occurred for any one incident or series of related incidents, provided that this Clause 13.10 shall not in any way limit the Merchant's obligations in respect of satisfying Chargebacks, Direct Debit Reversals, Claims, Payment Scheme Penalties attributable to the Merchant or any duty to fund its ClickandBuy Account pursuant to Clause 5.6 or ClickandBuy's obligations under Clauses 13.5 or 13.6.
13.11 Where the Merchant is not an individual consumer, charity or Micro-Enterprise, ClickandBuy shall not be liable under Clause 13.5(a) unless the unauthorised payment was directly caused by ClickandBuy’s negligence or breach of this Agreement.
13.12 ClickandBuy shall not be responsible or liable for any instructions received by ClickandBuy from the Merchant that relate to the Merchant’s Offers to End User that are communicated using valid and current User ID and Password data.
13.13 Each provision of this Agreement, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
Merchant's liability for Payment Scheme Penalties
13.14 If ClickandBuy incurs a Payment Scheme Penalty that can in whole or in part, in ClickandBuy’s reasonable discretion, be attributed to the activities of the Merchant, the Merchant shall, upon first demand, fully indemnify ClickandBuy in the amount of the Payment Scheme Penalty that can be attributed to the activities of the Merchant.
13.15 ClickandBuy shall, at any time upon request, provide the Merchant with a statement of the current Payment Scheme Penalties that can in ClickandBuy’s reasonable discretion be attributed to the activities of the Merchant. The Merchant shall not have any right to negotiate or deal with the relevant credit card scheme about payment or grounds for the penalty charges.
14. Matters outside either party’s reasonable control
14.1 If either party is unable to perform any obligation under this Agreement, or its performance is detrimentally affected, because of an abnormal and unforeseeable circumstance beyond that party’s control the consequences of which would have been unavoidable despite all efforts to the contrary, that party will have no liability to the other party for that failure to perform. Such a circumstances could include lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving its employees), or acts of local or central Government or other competent authorities, or the quality or speed of the Internet connection. The delaying party shall promptly notify the other of the delay and the reasons for and likely duration of the delay.
14.2 In the event that ClickandBuy’s contract with a Merchant Acquirer is terminated or service under ClickandBuy’s contract with a Merchant Acquirer is suspended for any reason then ClickandBuy will have no liability to the Merchant for failure or limited supply of the Service to the extent interrupted by that terminated or suspended service.
14.3 ClickandBuy shall not be liable to the Merchant for any contravention of a requirement imposed on it under Part 6 of the Payment Services Regulations where the contravention is due to the obligations of ClickandBuy under other provisions of Community or national law.
15. Termination rights
15.1 The Merchant may terminate this Agreement on giving 1 months' written notice to ClickandBuy.
15.2 ClickandBuy may terminate this Agreement on giving at least 2 months' written notice to the Merchant.
15.3 ClickandBuy may terminate this Agreement immediately upon giving notice to the Merchant at any time if:
(a) ClickandBuy reasonably considers the Merchant is:
(I) acting fraudulently or illegally (in any jurisdiction); or
(II) subject to, or it appears to ClickandBuy is likely to be subject to, an investigation by a regulator or authority into the activities of the Merchant in relation to any gambling, gaming, betting, lottery or other similar law in any jurisdiction; or
(b) ClickandBuy reasonably consider that it will be in breach of European Union or national law, regulation or Court order if it continues this Agreement.
15.4 The Merchant shall endeavour where practicable to notify ClickandBuy of any proposed Change of Control at least 2 months in advance of the Change of Control being effective. Where the Merchant is not able to so notify ClickandBuy in accordance with this timing requirement, it shall nonetheless notify ClickandBuy as soon as it becomes aware of a Change of Control being proposed or effected. The notification obligations imposed on the Merchant in this Clause 15.4 shall be subject to any unavoidable obligations of confidentiality.
15.5 ClickandBuy may terminate the Agreement and close the Merchant’s ClickandBuy Account where it has not received any Payment Orders (whether with the Merchant as payer or payee) for twelve (12) months, provided that Clause 10.6 shall apply. Funds standing in credit on the Merchant’s ClickandBuy Account will be paid to the Merchant's nominated bank account.
15.6 Where an investigation is commenced or appears to ClickandBuy to be likely to be commenced by a regulator or authority into the activities of the Merchant, ClickandBuy shall be entitled to provide any assistance and information it deems appropriate to any investigatory or official body in relation to such investigation or activities.
15.7 If notice is given to terminate this Agreement or the Service for any reason the Merchant must immediately pay all Charges due for the Service up to the expiry of the notice. Where any regular Charges have been paid in advance and the period or service in respect of which they have been paid will not, due to the termination of this Agreement, be completed, such Charges shall to that extent be reimbursed to the Merchant proportionately.
15.8 Termination does not avoid ClickandBuy's liability for the Services already provided.
16. Consequences of termination
16.1 Upon termination or expiry of this Agreement for any reason:
(a) any hardware, software, documentation, information or other materials provided to the Merchant under this Agreement must be returned immediately to ClickandBuy, and the Merchant must stop using the Service and the ClickandBuy identity which includes ceasing to use the ClickandBuy Marks;
(b) those provisions relating to confidentiality and those provisions which by their content or nature are intended to survive, shall survive the expiry or termination of this Agreement; and
(c) to cover any potential liability to End Users or other parties having legitimate claims, Chargebacks, Claims and Direct Debit Reversals, ClickandBuy shall, in addition to the amount of the Reserve retained pursuant to Clause 10.6, be entitled to retain for a period of six (6) Months following termination an additional amount equivalent to fifty per cent (50%) of all sums due to the Merchant at the point of termination in accordance with Clause 5.2 of this Agreement.
16.2 Following the end of the relevant retention period specified in Clause 16.1 (c) and in any case within five (5) Business Days of that period, ClickandBuy shall return to the Merchant any retained amounts which have not been used to cover liability to End Users or other parties having legitimate claims.
17. Breaches of the Agreement
17.1 Either party may at any time terminate this Agreement or the Service immediately on notice, if the other:
(a) commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or
(b) commits a material breach of this Agreement which cannot be remedied; or
(c) is repeatedly in breach of this Agreement (whether the breach is of the same obligation(s) or not).
17.2 ClickandBuy may at any time terminate this Agreement or the Service immediately on notice if the Merchant is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or enters compulsory liquidation, or a receiver or administrator is appointed over their assets, or if the equivalent of any such events occurs under the laws of the jurisdiction in which the Merchant is located.
17.3 ClickandBuy shall have the right to serve notice to suspend this Agreement in the event that Chargeback and Direct Debit Reversal levels exceed five per cent (5%) of overall Payment Amounts attributable to the Merchant in any Month or three per cent (3%) of Payment Amounts attributable to the Merchant that are funded to ClickandBuy by an End-User using a credit card account. ClickandBuy can refuse to restore the Service until ClickandBuy receives what it considers to be an acceptable assurance or remedial action plan from the Merchant to the effect that Chargeback and Direct Debit Reversal levels will be improved such that they do not exceed these levels. ClickandBuy will use all commercially reasonable efforts to limit suspensions under this clause 17.3 to specific payment methods and/or Merchant’s Clickandbuy Accounts only, so that the Service can be continued to the greatest possible extent.
17.4 If the Merchant commits any breach of this Agreement, whether remediable or not, or if any of the events set out in Clause 17.2 shall occur in respect of the Merchant, ClickandBuy may suspend the Service without prejudice to its right to terminate this Agreement. ClickandBuy can refuse to restore the Service until ClickandBuy receives what it considers to be an acceptable assurance from the Merchant that there will be no further breach of this Agreement or (as the case may be) no further prohibited use.
17.5 On termination under this Clause 17 the Merchant shall pay to ClickandBuy all Charges that are due for the Service under this Agreement. Any outstanding sums due to the Merchant under this Agreement will be forwarded in accordance with the terms of this Agreement, but subject to any rights ClickandBuy has to retain or reserve funds. Where any regular Charges have been paid in advance and the period or service in respect of which they have been paid will not, due to the termination of this Agreement, be completed, such Charges shall to that extent be reimbursed to the Merchant proportionately.
17.6 The Merchant will remain liable to pay all Charges that are due for the Service during any period in which the Merchant does not comply with this Agreement.
17.7 If either party delays in acting upon a breach of this Agreement that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Agreement by the other party, that waiver is limited to that particular breach.
18. Variation of terms and conditions
18.1 ClickandBuy may amend this Agreement by providing the Merchant with at least 2 months notice of the proposed changes. The Merchant shall be deemed to have accepted the changes unless it notifies ClickandBuy to the contrary prior to the proposed effective date of the changes. The Merchant may before any notified changes become effective terminate this Agreement immediately and without charge by giving notice to ClickandBuy.
18.2 Any amendments to this Agreement proposed by the Merchant must be agreed to by the parties in writing.
19. Transfer of rights and obligations
19.1 Subject to Clauses 19.2 and 19.3, neither party may assign or transfer any of its rights or obligations under this Agreement without written consent of the other.
19.2 ClickandBuy may assign or transfer its rights or obligations (or both) to a ClickandBuy Group Company without consent.
19.3 ClickandBuy may engage a subcontractor to perform any part of the Service provided that ClickandBuy shall remain responsible to the Merchant for the performance of the Service.
20. No agency
20.1 ClickandBuy and the Merchant accept that they are independent contractors and that neither is acting as the agent of the other (and that ClickandBuy is not acting as agent for any End User). Neither party has any authority to bind or contract or negotiate on behalf of the other or to incur any debt or other obligation on behalf of the other or to create any liability against the other in any way or for any purpose.
20.2 The Merchant acknowledges and accepts that any contracts for the purchase or other acquisition of Offers appearing on the Merchant Website are strictly and solely between the Merchant and the End User.
21. Notices
21.1 Notices given under this Agreement must be in writing and delivered by hand, email, prepaid post or by fax as follows:
(a) to ClickandBuy: by utilising the address and contact details as specified on the imprint pages of the ClickandBuy Website at or any alternative address or contact details which ClickandBuy notifies to the Merchant at any time;
(b) to the Merchant: to the email and contact details which the Merchant has previously supplied to ClickandBuy for the sending of invoices or other communications or, if the Merchant is a limited company, its registered office.
22. Intellectual property rights and publicity
22.1 All End User Details are and shall remain the property of ClickandBuy. However, the Merchant may be provided with anonymous data provided to do so is in accordance with the Data Protection Act 1998.
22.2 ClickandBuy authorises the Merchant and the Merchant agrees only to use the ClickandBuy Marks in accordance with the conditions set out in this Agreement for the sole purpose of using the Service.
22.3 Intellectual property rights in (1) any software or documentation supplied by ClickandBuy to the Merchant for or in connection with the Service, and (2) any custom graphic interfaces, design elements, graphics or other applications or content which ClickandBuy may provide and which are placed on or incorporated into the Merchant Website, remain the property of ClickandBuy or its licensors.
22.4 Where any software, documentation or other materials are provided to enable the Merchant to use the Service, ClickandBuy grants the Merchant a non-exclusive, non-transferable licence to use the software, documentation or other materials for that purpose only and in accordance with this Agreement.
22.5 The Merchant will not, without ClickandBuy's prior written consent, copy or (except as permitted by law) decompile or modify the software, nor copy the manuals or documentation.
22.6 The right to use the ClickandBuy Marks and any software, documentation or other materials supplied under this Agreement shall last only for the duration of this Agreement and may not be assigned or sub-licensed in full or in part.
22.7 The Merchant may make one copy of the software, documentation and other materials supplied under this Agreement for backup purposes.
22.8 The Merchant shall grant to ClickandBuy a non-exclusive, non-transferable (other than in accordance with Clause 18) licence, for the duration of the Agreement, to use the Merchant's trade mark and trade names (collectively, the “Merchant Marks”) in the course of providing the Service with respect to Offers and to feature the Merchant Marks on the ClickandBuy Website for promotional, reference or operational purposes and may include links to the Merchant’s website on the ClickandBuy Website.
22.9 Neither party will issue any promotional or advertising material or press release relating to the other, without first obtaining the other's prior consent (in writing).
22.10 The Merchant is authorised to use the ClickandBuy logos or marks only on the Merchant's promotional materials and website to indicate that the Service is accepted as payment for the business goods and services. The Merchant agrees that it shall not use the logos and marks either directly or indirectly, to imply that ClickandBuy endorses the Merchant's goods or services; nor may the Merchant refer to ClickandBuy when stating eligibility requirements for purchasing its products, services, or memberships.
22.11 The Merchant agrees that it shall not engage in any acceptance practice that discriminates against or discourages the use of ClickandBuy in favour of any other acceptance brand.
23. Confidentiality
23.1 The parties will keep in confidence the terms of this Agreement and any information (whether written or oral) of a confidential nature (including without limitation documents, software, drawings and manuals) obtained under this Agreement and will not disclose that information to any person (other than their respective employees or in the case of ClickandBuy the employees of a ClickandBuy Group Company or their professional advisers or suppliers, who need to each know the information) without the written consent of the other party. The parties shall make the necessary contractual arrangements that their employees, professional advisors and suppliers are also bound by confidentiality agreement obligations that are equivalent to those set out in this Clause 23.
23.2 This Clause 23 will not apply to:
(a) any information which has been published other than through a breach of this Agreement;
(b) information lawfully in the possession of the recipient before the disclosure under this Agreement took place;
(c) information obtained from a third party who is free to disclose it; and
(d) information which a party is requested to disclose and, if it did not, could be required by law to do so.
23.3 The restrictions in this Clause 23 will survive the termination or expiry of this Agreement for as long a period as permitted by applicable law.
24. Counterparties
This Agreement may be executed in any number of counterparts by the parties each of which shall when executed and delivered constitute an original but all of which together constitute one and the same document.
25. Entire agreement
25.1 This Agreement contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
25.2 The parties acknowledge and agree that, subject to Clause 13.1:
(a) they have not been induced to enter into this Agreement by any representation, warranty or other assurances not expressly incorporated into it; and
(b) in connection with this Agreement, and except in the case of fraud, their only rights and remedies in relation to any representation, warranty or other assurance shall be for breach of the terms of this Agreement and that all other rights and remedies are excluded.
25.3 In the event that any provision of this Agreement is determined to be unlawful or otherwise unenforceable, such provision shall be deemed severed from this Agreement, but every other provision of this Agreement will remain in full force and effect.
25.4 In the circumstances of Clause 25.3 if any such provision is determined to be unlawful, there will be substituted a provision reflecting the original intent of the parties as closely as possible and to the extent permissible under applicable law. The parties shall negotiate promptly and in good faith to achieve this objective.
25.5 A person who is not a party to this contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
26. Transaction accuracy and taxation
26.1 The Merchant is solely responsible for the filing of appropriate returns and the payment of any and all taxes and duties of whatever nature levied or imposed by whatever jurisdiction in connection with the promotion, sale, licensing, supply or other exploitation of an Offer and shall indemnify ClickandBuy against liability for any such taxes and duties.
26.2 Neither ClickandBuy nor its licensees provides any advisory services to the Merchant regarding taxation and any customs or other import/export duties.
26.3 Any information that ClickandBuy provides to the Merchants or End Users in respect of tax or VAT shall merely represent the data that the Merchant has initially provided to ClickandBuy and does not remove the obligation from the Merchant to account correctly to HM Revenue Customs or other relevant bodies for the VAT or other applicable tax on the services the Merchant has supplied.
26.4 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s tax or VAT registration number or if the Merchant ceases to be registered for tax or VAT.
26.5 It is the Merchant's responsibility to determine what, if any, taxes apply to the payments it makes or receives, and it is the Merchant's responsibility to collect, report and remit the correct tax to the appropriate tax authority. ClickandBuy is not responsible for determining whether taxes apply to the Merchant's transaction, or for collecting, reporting or remitting any taxes arising from any transaction. ClickandBuy shall have no responsibility for and shall not provide End-Users with any invoices on behalf of the Merchant.
27. Governing law and disputes with ClickandBuy
27.1 This Agreement is governed by the laws of England and Wales , and both parties irrevocably submit to the exclusive jurisdiction of the English courts.
27.2 If the Merchant is not satisfied with any aspect of the Service it may contact its nominated contact person at ClickandBuy or the support department at the telephone number or email address stated on the ClickandBuy Website. A copy of ClickandBuy's complaints handling policy is available on request or can be found under the Company Information section of the ClickandBuy Website.
27.3 The Financial Ombudsman Service may apply to this Service for out of court dispute settlement where the Merchant is an eligible complainant under DISP 2.7 of the rules of the Financial Services Authority. Any claim or dispute arising out of, or in relation to, this Agreement or the provision of the service by ClickandBuy that cannot be resolved by contacting the Merchant’s contact point at ClickandBuy or as notified to the Merchant from time to time, or the support department at the telephone number or email address stated on the ClickandBuy Website, could be referred to the Financial Ombudsman Service or the Courts of England and Wales, Scotland or Northern Ireland, depending on where the Merchant is resident. Information regarding the Financial Ombudsman Service is available at www.financial-ombudsman.org.uk.
27.4 Electronic Money or Payment Services are not covered by the Financial Services Compensation Scheme or any other government compensation or insurance scheme and accordingly Merchants will have no rights to claim under such a scheme.
28. Definitions
28.1 In this Agreement, unless the context otherwise requires:
"Agreement" means these General Terms and Conditions and the Schedules.
"Billing Period" means the period of time as agreed between the Merchant and ClickandBuy over which ClickandBuy will periodically calculate and distribute the Merchant’s Payment Amounts in accordance with Clauses 5.5 & 5.6, as set out in Schedule 2.
"Bookout Fee" means the fee payable in respect of Chargebacks and Direct Debit Reversals as set out in Schedule 2.
"Business Day" means Monday to Friday, 09:00 – 17:00 ( UK local time), excluding public or bank holidays in the United Kingdom .
"Buyer Protection Rights" means the facility of that name offered to End Users as detailed on the ClickandBuy Website.
"Change of Control" means an event which has the effect that an undertaking which is not (a) the Ultimate Parent Undertaking of that party at the date that the Agreement has been signed, or (b) an undertaking which was immediately before such event a wholly owned subsidiary undertaking of that Ultimate Parent Undertaking, becomes the Ultimate Parent Undertaking of that party and, for this purpose, where the Ultimate Parent Undertaking consists of a partnership or group of individuals, the Ultimate Parent Undertaking shall not be treated as having changed unless a majority of the partners or a majority of the members of the group of individuals have changed.
"Chargeback" means where (other than due to a Direct Debit Reversal) ClickandBuy is legally obliged under law or pursuant to card issuer, bank or other payment service provider terms or codes, to refund funds back to or does not receive funds from a card issuer, bank or any other payment service provider where the receipt of such funds had previously been authorised or expected, due to insufficient available funds, incorrect account details, End User disputes, fraud or for any other reason.
"Charges" means Commission, Set-up Fee, Support Charges and any Other Charges.
"Claim" means where an End User:
(a) makes a complaint in relation to goods offered or services rendered by the Merchant for being insufficient, incorrect or defective or where they have not been delivered, including complaint or claim under the Buyer Protection Rights; or
(b) claims to have a legal entitlement to cancel and/or reverse any goods offered or services rendered by the Merchant.
"ClickandBuy" means ClickandBuy International Limited, a company registered in England and Wales under number 5661160, whose registered and head office is located at Lincoln House, 137–143 Hammersmith Road , London W14 0QL , United Kingdom . ClickandBuy International Limited is authorised and regulated as an Electronic Money Institution by the Financial Services Authority (FSA) and is entered into the FSA register under register number 454127. The FSA register can be found at www.fsa.gov.uk/register
"ClickandBuy Acceptance Policy" means a document describing ClickandBuy’s corporate policy and setting out for which offers and services the ClickandBuy Service may not be used. The current version may be obtained from www.clickandbuy-t1.com/GB_en/terms-and-conditions.html
"ClickandBuy Account" means an Electronic Money account held by an End User or a Merchant which is required as part of the Service.
"ClickandBuy Cooperation Agreement" means the agreement entered into between ClickandBuy and the Merchant regarding the Merchant's acceptance of this Agreement.
"ClickandBuy Group Company" means a ClickandBuy subsidiary or holding company, or subsidiary of that holding company, as defined by Section 736 of the Companies Act 1985, as amended by the Companies Act 1989.
"ClickandBuy Marks" means the "ClickandBuy" logo, the Firstgate trade marks and the “ClickandBuy” identity as more particularly set out in the ClickandBuy Brand Guidelines.
"ClickandBuy Service Area" means a personalised area on the ClickandBuy Internet Platform accessible for the Merchant at any time. The ClickandBuy Service Area contains, inter alia, updated information on transactions and the ClickandBuy system.
"ClickandBuy Website" means the ClickandBuy website at the URL www.clickandbuy-t1.com notified by ClickandBuy from time to time.
"ClickandBuy Integration Network" means the ClickandBuy website at the URL integration.clickandbuy-t1.community.com.
"Commission" means the amount of Payment Amounts which ClickandBuy retains as a commission set out in Schedule 2.
"Day" means a calendar day.
"Direct Debit Reversal" means where ClickandBuy is legally obliged under law or pursuant to bank or other payment service provider terms or codes, to refund a direct debit or does not receive funds under a direct debit where the receipt of such funds had previously been authorised or expected, due to insufficient available funds, incorrect account details, End User disputes, fraud or for any other reason.
"Disputes Process" means the Disputes Process identified as such and accessible from the ClickandBuy Service Area or ClickandBuy Website.
"EEA" means the European Economic Area.
"Effective Date" means the date on which the Merchant accepts these General Terms and Conditions by either:
(a) where ClickandBuy requests it to do so, executing a Cooperation Agreement; or
(b) otherwise, indicating its agreement on the ClickandBuy Website.
"Electronic Money" means the investment, specified in article 74A of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (Electronic money), which is monetary value, as represented by a claim on the issuer, which is:
(a) Stored on an electronic device;
(b) Issued on receipt of funds;
(c) Accepted as consideration or a means of satisfying a debt by persons other than the issuer; and
(d) The virtual currency which is stored in the ClickandBuy Account.
For the Merchant, Electronic Money refers to Payment Amounts collected by ClickandBuy and stored in the ClickandBuy Account. For an End User, Electronic Money refers to electronic value loaded to the ClickandBuy Account with a view to purchasing goods or services from Merchants.
"End User" means a person or entity who holds a ClickandBuy account or who is invited to open a ClickandBuy account for the purpose of purchasing Offers using the Service.
"End User Details" means the information about End Users which ClickandBuy collects and processes in connection with the Service.
"including" means including without limitation and does not limit any matter to which it refers.
"Merchant" means the person so named on this Agreement and anyone reasonably appearing to ClickandBuy to be acting with the Merchant’s authority or permission.
"Merchant Acquirer" means that party that stands between ClickandBuy and a credit/debit card issuer.
"Merchant Website" means the World Wide Web site(s) on which the Offers are hosted.
"Micro-Enterprise" means any enterprise engaged in an economic activity, irrespective of its legal form, including self-employed persons and family businesses engaged in craft or other activities, and partnerships or associations regularly engaged in an economic activity, where, as at the Effective Date, that enterprise:
(a) employs fewer than 10 persons; and
(b) has an annual turnover and/or annual balance sheet total of less than 2 million Euros (or GBP Sterling equivalent),
and for the purposes of these calculations the Merchant should take account of any 'linked' or 'partner' enterprises on the basis set out in the European Commission's SME Recommendation (2003)/361/EC).
"Month" means 00:00:00 (coordinated universal time) on the first day of a calendar month until 23:59:59 (coordinated universal time) on the last day of that calendar month.
"Offer" means all products, services and information including text, words, names, graphics, (including logos), software (including all software applications), video, audio or other offers appearing on the Merchant Website.
"Payment Amounts" means the sums payable by an End User for Offers, including VAT.
"Payment Date" means the Business Day agreed between ClickandBuy and the Merchant following the end of each Billing Period on which payment of the Payment Amounts to the Merchant’s bank account will be initiated pursuant to Clause 5.3.
"Payment Guaranteed" means where a Payment Order credited to the Merchant ClickandBuy Account is capable of being subject to the Seller Protection Rights.
"Payment Order" means an instruction supplied to ClickandBuy by an End User or the Merchant for the placing, transferring or withdrawing of funds to or from a ClickandBuy Account.
"Payment Pending" means where a Payment Order is marked in the ClickandBuy Service Area as 'Payment Pending', meaning ClickandBuy has received notice of the Payment Order, but not yet credited it to the Merchant's ClickandBuy Account.
"Payment Scheme Penalty" means a charge or penalty (however described) that may be incurred by ClickandBuy and owed to a credit or debit card provider, merchant acquirer or bank or other payment services provider under the relationship rules or codes imposed on ClickandBuy by that provider for reasons specified in those rules or codes, such as:
(a) for excessive volumes of Chargebacks or Direct Debit Reversals;
(b) breaches of acceptable use policies; or
(c) for processing payments in respect of fraudulent activities or for goods or services the provision of which is in breach of law.
"Payment Services Regulations" means the Financial Services and Markets Act 2000 (Payment Services Regulations) 2009, as amended from time to time.
"Recurring Payment" means a payment under an arrangement where the End User provides authorisation to ClickandBuy for the Merchant to collect a series of payments from the End User.
"Reserved" means the sum from time to time reserved pursuant to Clause 10.1 as indicated from time to time in the ClickandBuy Service Area.
"Reserve Percentage" means a percentage of the total funds received into the Merchant’s ClickandBuy Account during a Billing Period as set out in schedule 2.
"Seller Protection Rights" means the policy set out in Schedule 3.
"Service" means the service known as "ClickandBuy", including all Electronic Money and the payment services and related services provided by ClickandBuy via the ClickandBuy electronic facility as more particularly set out in Schedule 1.
"Services Commencement Date" means the day on which the Merchant is first able to use the Service, being the later of:
(a) the Effective Date;
(b) the date on which the process detailed in the Technical Documentation is completed to establish and test the system integration between ClickandBuy and the Merchant’s website; and
(c) subject to clause 2.2, the date ClickandBuy notifies the Merchant that ClickandBuy has carried out satisfactory due diligence on the Merchant's business operation, business model and ownership, to be determined at ClickandBuy's sole discretion.
"Set-up Fee" means the amount set out in Schedule 2.
"Success" means where a Payment Order is marked as a "success" in the ClickandBuy Service Area, meaning ClickandBuy has credited it to the Merchant's ClickandBuy Account.
"Support Charges" means the support charges, if applicable, as set out in Schedule 2.
"Technical Documentation" means the documents provided by ClickandBuy to the Merchant. The latest version of these documents can be obtained at any time from the ClickandBuy Integration Network.
"Ultimate Parent Undertaking" means, in relation to an undertaking, its parent undertaking or, if it has more than one parent undertaking, that one of its parent undertakings which does not itself have a parent undertaking.
"Unique Identifier" means the combination of numbers, letters or symbols used to identify an End User account on the ClickandBuy system or to identify an account with another bank or other financial institution. An existing End User account on the ClickandBuy system will be commonly referred to by the unique Customer Reference Number issued by ClickandBuy.
VERSION 1.1 UPA EN (13.01.2011)
Schedule 1
Services
ClickandBuy has developed an electronic facility which enables End Users to make purchases of Offers from participating Merchants online or with a mobile device without disclosing their financial details. Each End User and participating Merchant will be provided with a ClickandBuy Account. When an End User visits the website of a participating Merchant, the End User will have the option of purchasing the Offer using their ClickandBuy Account. If the End User chooses to do so, they will log in to their ClickandBuy Account via the Merchant Website to make the purchase. If a person who is not registered with the Service visits the Merchant Website of a participating Merchant, that person will be able to use a link from the Merchant Website to register as an End User.
The complete and current scope of functions constituting the Service provided by ClickandBuy can be viewed at any time on the ClickandBuy Website and/or the ClickandBuy Integration Network.
ClickandBuy will make available a core service which includes particular account features and account funding/withdrawal methods. However, ClickandBuy reserves the right to add or remove account features as well as account funding/withdrawal methods at any time in order to improve the quality of the overall service. Certain value added features may also be made available to Merchants. Where such features are identified, the Merchant may make use of the feature upon acceptance of revised terms of use.
Reporting Malfunctions: Malfunctions can be reported around the clock using the contact form as published on the ClickandBuy website.
Statistics: ClickandBuy shall make available to the Merchant statistical data in digital form, for instance the turnover effected by ClickandBuy. This data can be accessed in the ClickandBuy Service Area.
Security: All server and system components of the ClickandBuy system are operated in a redundant computer network. The data configured by Merchants shall be securely stored using up-to-date technology. ClickandBuy shall generally perform scheduled maintenance at regular intervals on the ClickandBuy system at night. In the unlikely event of data loss the Merchant shall be responsible for setting up and pricing its Offers afresh.
SCHEDULE 1, VERSION 1.1 UPA EN (13.01.2011)
Schedule 2: Fees
ClickandBuy charges the following fees for processing payments.
1. Commission and Transaction Fee
ClickandBuy and the Merchant will agree a rate card (“Rate Card”) at the point that the Merchant first registers with ClickandBuy. Changes to the Rate Card will require the consent of the Merchant in accordance with the terms of this Agreement. The Rate Card will set out the specific fees to apply to the Merchant’s ClickandBuy Account in accordance with this Schedule 2 and will set out information that is supplemental to this Schedule, such as the specific Commission Fee and Transaction Fee that will apply across the volume bands.
The Commission Fee and Transaction Fee for the Merchant’s ClickandBuy Account shall apply on the basis of
- the average value of the payments received into the Merchant’s ClickandBuy Account from End Users (the “Payments Received”), as stated by the Merchant at the point that the Merchant first registers with ClickandBuy or when a change is agreed upon. If this amount reduces by more than 10% for more than one month, then ClickandBuy may re-calculate the commission and transaction fee Rate Card on the basis of the average value of actual payments received into the Merchant’s ClickandBuy Account in the last 30 days.
- the Billing Period as stated by the Merchant at the point that the Merchant first registers or when a change is agreed upon
- the settlement delay as stated by the Merchant at the point that the Merchant first registers or when a change is agreed upon
- the volume defined as total amount of payments received in the Merchant’s ClickandBuy account in the last 30 days.
The Commission Fee and Transaction Fee applicable to each volume band will be set out in the agreed Rate Card.
As the Rate Card will be specific to each Merchant and may be varied in accordance with this Schedule, it is not set out in this Agreement. However, current and historical iterations of the Rate Card may be agreed, viewed and downloaded by the Merchant from within the ClickandBuy Service Area.
The calculations in this section do not include any settlement redemptions made from the Merchant’s ClickandBuy Account to its own bank account or other similar payment.
2. Other Fees
| Set-up Fee
| 0.00 €
| |||||||||||||||||||||||||||||||||
| Basic Fee
| 0.00 €
| |||||||||||||||||||||||||||||||||
| Credit Fee
|
| |||||||||||||||||||||||||||||||||
| Currency Conversion Fee
| 3 % of the amount of the payment to be converted
| |||||||||||||||||||||||||||||||||
| Consumer Fee
| EUR 0.00 DKK 0.00, CHF 0.00, NOK 0.00, PLN 0.00, SEK 0.00, HKD 0.00, USD 0.00, MXN 0.00, BRL 0.00, GBP 0.00
| |||||||||||||||||||||||||||||||||
| Bookout Fee
|
| |||||||||||||||||||||||||||||||||
| Cancellation and Refund Fee
| EUR 6.00
| |||||||||||||||||||||||||||||||||
| Settlement Fee
| EUR 0.50 DKK 4.00, CHF 0.80, NOK 4.00, PLN 2.00, SEK 4.70, HKD 3.40, USD 0.45, MXN 5.80, BRL 0.60, GBP 0.00
| |||||||||||||||||||||||||||||||||
| Settlement Conversion Fee
| 1 % of the amount converted
| |||||||||||||||||||||||||||||||||
| Foreign Settlement
| EUR 3.00 DKK 22.50, CHF 4.80, NOK 24.00, PLN 12.00, SEK 28.00, HKD 21.00, USD 2.60, MXN 35.00, BRL 3.50
| |||||||||||||||||||||||||||||||||
| Failed Settlement
| EUR 3.00 DKK 22.50, CHF 4.80, NOK 24.00, PLN 12,00, SEK 28.00, HKD 21.00, USD 2.60, MXN 35.00, BRL 3.50
| |||||||||||||||||||||||||||||||||
| Failed Debit on bank account
| EUR 5.00 DKK 37.50, CHF 8.00, NOK 40.00, PLN 20.00, SEK47.00, HKD 34.00, USD 4.50, MXN 57.50, BRL 6.00
|
We may make a charge for any additional services we provide outside this Agreement. You will be informed of those charges when requesting any additional services.
All prices stated are net prices plus VAT at the current rate.
Reserve
The Reserve Percentage is set as
| Segment | Reserve Percentage and number of days it can be retained from the relevant Billing Period |
| E-Commerce | 5% for 90 days |
| Digital Content | 5 % for 120 days |
| Adult Content | 10 % for 120 days |
| Gambling & Betting | 10 % for 120 days |
SCHEDULE 2, VERSION 1.1 UPA EN (13.01.2011)
Schedule 3
ClickandBuy Seller Protection Rights
1. What is covered?
ClickandBuy will ensure the Merchant is protected from End Users not paying or reversing a payment (a “Failed Payment”) if all the following conditions are met:
1.1 Payment Guaranteed: The Payment Order is one that has been marked Payment Guaranteed in the ClickandBuy Service Area.
1.2 Merchant’s Refund Policy: The Merchant must operate a public, clear and fair return and refund policy and have made this clearly available to the End User.
1.3 Type of goods: The Payment Order related only to tangible goods (the “Goods”) (and not services or digital content or other non-physical goods) that did not breach the ClickandBuy Acceptance Policy.
1.4 Goods Shipped: The Goods must have been shipped to the End User’s address as provided to the Merchant though the ClickandBuy Service. The conditions specified in paragraph 2 regarding the shipping of the Good must be satisfied.
1.5 Reason for Failed Payment: The reason for the Failed Payment was either the Payment Order was not authorised by the End User or the Goods were not received by the End User. No other reasons for a Failed Payment are covered.
1.6 Single payment owed: There was to be single payment for the Good by the End User made through the ClickandBuy Service. If the Good was to be paid for by more than one payment, whether in instalments through the ClickandBuy Service or using an additional alternative means of payment, then the Failed Payment will not be covered.
1.7 Merchant’s cooperation: The Merchant cooperates with ClickandBuy as set out in paragraph 3.
If these conditions are met, ClickandBuy will not seek reimbursement from the Merchant regarding the Payment Order.
2. What are the Shipping requirements?
2.1 Shipped to correct address: The Merchant must have shipped the Good to the End User’s address as provided to ClickandBuy through the ClickandBuy Service. Goods will not be covered if they have been shipped to an alternative address (even if authorised by the End User) or arrangements have been made for the End User to collect the Goods.
2.2 Shipped on time: The Merchant has shipped the Good to the End User:
- within 7 days of the Payment Amount being marked as a Payment Guaranteed in the ClickandBuy Service Area; or
- within such later period as the Merchant can prove to ClickandBuy’s reasonable satisfaction was clearly communicated in writing to the End User as the delivery window prior to their purchase of the Good (whether as part of the description of the Goods or in the Merchant’s conditions of delivery).
2.3 Shipping receipt: The Merchant must prove to ClickandBuy that the Goods have been shipped to the End User at the correct address by providing ClickandBuy with a valid shipping receipt provided by an independent third party shipping firm that shows:
- the name of shipping firm;
- the correct name and address of the End User (which must be the same End User as the Payment Order counterparty);
- the correct name and address of the Merchant;
- the shipping date.
2.4 The following are a non-exhaustive list of independent third party shipping firms that issue shipping receipts that should meet the above criteria:
- GLS, DPD, Hermes, UPS, FedEx, TNT.
- Deutsche Post AG and DHL (except parcels without receipt and letters, incl. Warensendung, book deliveries and Maxibrief). Deutsche Post AG certified mail delivery should comply, provided the shipping receipt shows the date customer’s signature and the correct name of the End User.
2.5 Online shipping tracking Ids: At is discretion ClickandBuy may accept an online shipping tracking ID it can access and review as proof of shipping, but is entitled to ask for a copy of the full shipping receipt.
3. How must Merchants cooperate with ClickandBuy?
3.1 The Merchant must respond to all ClickandBuy's queries and requests for further information regarding a Failed Payment in relation to which it is claiming Seller Protection Rights within 7 days of the query being made. Unless ClickandBuy requires otherwise, responses should be communicated to ClickandBuy online using the ClickandBuy Service Area or via email to sellerprotection@clickandbuy-t1.com.
3.2 ClickandBuy reserves the right to request receipts from the Merchant and if applicable limit the use of the interface and access to the Merchant’s ClickandBuy Account in the event that ClickandBuy has reason to suspect that the Merchant has acted fraudulently.
3.3 ClickandBuy may (and the Merchant gives ClickandBuy authority to) access the independent third party shipping firm in the Merchants name in order to check the delivery status of a Good.
SCHEDULE 3, VERSION 1.1 UPA EN (13.01.2011)
General Terms and Conditions Service Provisioning Payment Services |  |
1. Purpose of the Agreement
The present General Terms and Conditions Service Provisioning Payment Services set out the services provided by ClickandBuy directly or through qualified third parties to its contract partners as network operator for cashless payment services via fixed or virtual terminals or respective modules (hereinafter referred to as “terminals”). These General Terms and Conditions shall prevail over any conflicting general terms and conditions of the contract partner. ClickandBuy also cooperates with credit card companies and issuers of debit cards. Their cards as well as those of other systems (provided that they are authorized in the country of use of the terminal and are implemented by ClickandBuy) can be used by the contract partner upon order. The proper processing of the cards and systems stipulated in the General Terms and Conditions of the German banking industry (clause 2.6) must not be affected thereby. ClickandBuy shall perform a compatibility check with respect to the cards and systems listed in the order form and shall accept or reject them accordingly. The extension of ClickandBuy's scope of services so as to include additional cards or services may involve extra costs which will be notified to the contract partner in advance. If changes in the requirements of the banking industry and/or the legislation of public law impose a mandatory change of the payment system in the course of the operating life of a terminal, ClickandBuy shall offer solutions to maintain the existing payment system. Any costs incurred in this respect may be charged to the contract partner.
2. Scope of services
2.1 ClickandBuy Services
ClickandBuy shall provide the goods/services agreed in accordance with the order form. The prerequisites required for the provision of the goods/services pursuant to clause 3 shall be provided by the contract partner in accordance with the specifications of ClickandBuy. Any additional services that may be desired (e.g. changes in or adjustments to technical requirements) shall be provided at extra cost. Apart from that, the other terms and conditions set out in the price sheets for the goods/services ordered shall apply.
2.2 Transmission of data
To the extent that this is included in the scope of services, ClickandBuy shall transmit data needed for card authorisation or blocking inquiries to the computer of the corresponding operator or card issuer for the card concerned and shall re-transmit the response. Credit card inquiries shall be transmitted by ClickandBuy to the credit card company specified by the contract partner. Response times depend inter alia on the selected line connection, on transmission speed, data communication network availability and the response time of the operator's computer and the corresponding authorization processing system. ClickandBuy takes no responsibility for the accuracy of the data transmitted to it.
2.3 Intermediate Storage
With due regard to data protection regulations and in accordance with the requirements of the banking business, ClickandBuy shall store the data captured at the operator's computer for the purpose of
- processing complaints,
- preparing payment transaction files in accordance with the rules for uniform data exchange for processing payments,
- settling transaction fees in accordance with the terms and conditions of the German banking industry (clause 2.5).
2.4 Storage of payment transaction files and cash-up
ClickandBuy shall store the payment transaction files for 120 days from the last cash-up of the terminal. During this period, any questions concerning the processing of payments shall be answered free of charge. For questions beyond this period, ClickandBuy shall charge a research fee. In order to ensure the safety of the payment transaction files, ClickandBuy reserves the right to initiate a chargeable cash-up on the terminal after expiry of a reasonable period, however, no later than two months after the last transaction
2.5 Provision and transmission of payment transaction files
ClickandBuy shall create one or more payment transactions files every day according to the contract partner’s specifications pursuant to clause 3 and shall transmit them to the account specified by the contract partner for credit entries by remote data transmission on the next working day. ClickandBuy assumes no responsibility for the content of the data collected or for any errors in payment transactions carried out using such data.
2.6 General Terms and Conditions of the German Banking Industry [Händlerbedingungen] (regarding payments processed in Germany)
As a prerequisite for its participation in the cashless funds transfer system [bargeldloser Zahlungsverkehr], the contract partner/participant expressly acknowledges the provisions of the following documents handed over to it upon placement of the order by signing the order form: the Merchant Terms and Conditions – General Terms and Conditions for Participation in the Electronic Cash System [Händlerbedingungen – Bedingungen für die Teilnahme am electronic-cash-System] and the Money Card System Terms and Conditions for Merchants [Händlerbedingungen für die Teilnahme am System “GeldKarte”]. If ClickandBuy's contract partner is not identical with the participant, the contract partner shall bind the participant by contract to the obligation to comply with the above mentioned Terms and Conditions of the German banking industry. The contract partner undertakes in relation to its credit institution to obtain the keys necessary for participation in the electronic cash system from the data centre of its credit institution. The keys are transmitted automatically to the terminal (OPT procedure).
3. Obligations of the contract partner
The contract partner shall provide ClickandBuy with all necessary information for implementing the agreed cashless payment solution on its premises or on those of the participant. Moreover, the contract partner shall
- operate all equipment provided in accordance with the accompanying instructions;
- allow the equipment to be installed by the agreed date;
- notify ClickandBuy in writing without undue delay if the equipment is moved to another location;
- notify ClickandBuy in writing without undue delay of any change in its own address and/or dial-up numbers or those of the participant;
- notify the ClickandBuy hotline without undue delay of any failures, deficiencies or defects of the equipment;
- notify ClickandBuy without undue delay of any alleged rights of third parties;
- in the event of attempts of attachment by third parties affecting ClickandBuy’s ownership of the equipment supplied, point out the actual ownership situation to the third parties and the authority entrusted with the attachment;
- if the installation is undertaken by ClickandBuy, provide the necessary line termination units and outlets in accordance with ClickandBuy specifications at the desired terminal location and notify ClickandBuy of their availability without undue delay;
- if the installation is undertaken by the contract partner/participant or third parties, notify ClickandBuy without undue delay when the installation is ready for operation;
- make up the cash as a rule every day, but at least once per week and at the close of each month;
- notify ClickandBuy in writing without undue delay of any changes in the account details it specified for credit entries and direct debits;
- verify receipt in its bank account of the transaction entries processed over the terminals and check transaction entries processed over the terminals and notify ClickandBuy of any objections without undue delay after they become known. Objections must be lodged no later than three months after the facts on which the objection is based could first be taken knowledge of;
- return any equipment surrendered at its own risk and expense without undue delay after termination of the contract, or have it dismantled and collected by ClickandBuy for an extra charge;
- ensure that only ClickandBuy or third parties retained by ClickandBuy use the terminals for purposes other than payments (e.g. configuration or repairs of the terminal or its accessories);
- bind the participant to the above mentioned obligations if the contract partner of ClickandBuy is not identical with the participant;
- make all documents relevant for the contract available to the participant if/when the participant becomes a contract partner at a later point in time.
4. Commencement and term of the agreement
4.1 Conclusion of the contract
The agreement shall come into effect upon confirmation of the order by ClickandBuy, however, no later than when the equipment is put into operation by the contract partner/participant. The same applies mutatis mutandis to any further orders of the contract partner, even if these are not made through the order form.
4.2 Termination of the agreement
4.2.1 Unless otherwise agreed, the minimum term of the agreement is 48 months from coming into operation.
4.2.2 This Agreement shall continue for another 12 months beyond the minimum term unless terminated on three months’ notice to expire on one of the scheduled expiry dates. Notice must be given in writing.
4.2.3 The right of the parties to terminate the agreement without notice for good cause remains unaffected.
4.2.4 If the contract partner does not meet its obligations anymore, ClickandBuy shall be entitled to rescind this agreement and/or claim damage compensation for non-performance. This applies as a rule, for instance, if the contact partner is in default with its obligations or if composition or insolvency proceedings have been instituted against its assets. In this case ClickandBuy shall be entitled to claim, for the remaining minimum contract term,
- 80 % of the agreed monthly lump sum rent and 80 % of the monthly base rate agreed for network services (cost of know-how transfer), after deducting a 4% discount, for rented terminals
- 80 % of the monthly base rate agreed for network services (cost of know-how transfer), after deducting a 4% discount, for purchased terminals
and to charge such amounts to the contract partner – in the former case together with any costs incurred for dismantling and collection of the terminal.
4.2.5 The contract partner and ClickandBuy are also be entitled to terminate the agreement without notice for good cause if the requirements of the German banking industry change or other requirements and/or the legislation of public law impose a mandatory change of the payment system in the course of the operating life of the terminal (clause 1 para. 4) and a solution to maintain the existing payment system is not available or is not offered.
4.2.6 If the German banking industry terminates the existing agreement for admission to its electronic cash system, ClickandBuy shall be entitled to extraordinary termination of the agreement with respect to the contract partners concerned.
4.2.7 The damages provision set out in clause 4.2.4 shall not apply in the cases specified in clauses 4.2.5 and 4.2.6.
5. Prices and payment terms
5.1 Prices
The remuneration for the goods/services to be provided by ClickandBuy shall be based on the prices applicable upon conclusion of the agreement as set out in the Master Agreements, price sheets or individual quotations and on the Merchant Terms and Conditions – General Terms and Conditions for Participation in the Electronic Cash System of the German Banking Industry. The remuneration shall be charged to the contract partner on the basis of the direct debit authorisation to be granted by the latter. Usage-based fees such as transactions and authorization fees shall be charged for the month just ended by the 10th day of the following month, all other fees shall be charged by the 10th day of the current month and explained in the narrative on the direct debit entry. Unless otherwise agreed, ClickandBuy shall not issue additional invoices. If the contract partner requests an additional invoice, this shall be provided for a charge and the invoice shall be payable within ten days without discount. If a fee payment collected by direct debit is reversed without justification, ClickandBuy will be entitled to charge a failed direct debit fee of EUR 5.00 to the contract partner. In addition the terminal may be blocked and the further damage suffered may be charged to the contract partner after a deadline fixed for payment has expired fruitlessly. In the event that the contract partner is in default with payments, ClickandBuy shall be entitled to charge a flat reminder fee of EUR 5.00 for each formal reminder.
5.2 Commencement of the obligation to pay
The contract partner's obligation to pay begins to apply as soon as the systems supplied are ready to operate or the agreed services have been provided. If terminal devices are installed and put into operation by the contract partner or a third party, the obligation to pay begins to apply upon initialization of the terminal (first call to ClickandBuy's data centre), but no later than 10 calendar days after provable delivery. A terminal is ready to operate if and when at least one type of card can be processed.
5.3 Set-off
The contract partner may set off claims of its own against claims of ClickandBuy only if its claims are undisputed or have been established to be final and non-appealable.
5.4 Price changes
Price increases come into effect ten weeks after written notification of the contract partner, unless the latter terminates the agreement, making specific reference to the announced price increase within a period of eight weeks (from receipt of the written notification) to expire when the new prices take effect. The contract partner shall only be notified of price reductions if these take effect in the course of the agreed term of the agreement and do not only apply for new agreements.
6. Reservation of title
If equipment or other furniture and fixtures are purchased, they remain the property of ClickandBuy until all claims are met, including any balance claims ClickandBuy may be entitled to under this business relationship.
7. Warranty and liability
7.1 Warranty for equipment
ClickandBuy warrants the equipment supplied in accordance with the order form free from defects for a period of two years from delivery in accordance with the statutory provisions. Moreover, as part of the services under the full or depositary maintenance agreements (cf. clause 8.1), ClickandBuy warrants the continuing functionality of this equipment on site. This warranty shall not apply to damage caused to equipment by any of the circumstances specified under clause 7.3. ClickandBuy shall not be responsible for combining the equipment with other equipment and programs as part of their installation to the point of readiness for operation, unless specifically agreed otherwise between the Parties in writing. The contract partner/participant shall inspect the delivered items without undue delay for any transport damage or other visible defects, secure the relevant evidence and assign any rights of recourse to ClickandBuy, surrendering the supporting documents. For equipment installed by ClickandBuy, the risk shall pass to the contract partner/participant as soon as the installation is completed. The contract partner may not derive any rights from defects that do not impair the value of the goods and/or the works or their suitability for the agreed, assumed or customary purpose or impair them only to a minor extent. If the goods have a defect upon transfer of risk, ClickandBuy shall initially only have the right and the obligation to render subsequent performance. Subsequent performance shall be, at ClickandBuy’s option, either by remedying the defects or delivering a replacement. The contract partner can rescind the agreement or demand that the purchase price and/or the remuneration be reduced only if at least two attempts by ClickandBuy at subsequent performance within a reasonable period have proved unsuccessful. Any parts that may have been replaced shall become the property of ClickandBuy.
7.2 Liability of ClickandBuy
ClickandBuy shall be liable for damage arising from injury to life, limb or health in accordance with the statutory provisions if ClickandBuy is responsible for the breach. Any further claims of the contract partner for warranty and damages, on whatever legal ground, beyond those expressly mentioned in these General Terms and Conditions, in particular claims based on interruption of business, lost profit, unrealised cost savings, loss of information and data or consequential damage shall be excluded, unless mandatory liability applies, e.g. under product liability law or in cases of intent, gross negligence, absence of guaranteed qualities or breach of cardinal obligations. However, to the extent permitted by law and unless intent or gross negligence exists, damages for breach of cardinal obligations shall be limited to the typical and foreseeable damage, in any event to an amount of EUR 100,000 per damage event. The foregoing provisions do, however, not shift the burden of proof to the contract partner. In particular, ClickandBuy shall not be liable for:
- damage attributable to improper, inadequate or otherwise contractually non-conforming use, incorrect operation, wrong or negligent treatment, chemical, electro-chemical or electronic influences, alteration or maintenance work undertaken by the contract partner or by third parties without prior consent;
- non-compliance with deadlines, unless these were acknowledged by ClickandBuy as binding;
- loss of interest incurred to the contract partner/participant due to later value dates;
- network bottlenecks, breakdowns or malfunctions caused by Deutsche Telekom or other network providers and their private automatic branch exchanges;
- failures or hindrances caused by authorisation systems;
- recovery of data, unless ClickandBuy caused their destruction by gross negligence or wilful intent and the participant has ensured that such data can be reconstructed at reasonable cost from other data (e.g. by retaining vouchers, supporting documents etc. or by restoring a backup).
7.3 Liability of the participant/contract partner
The contract partner shall be liable to ClickandBuy for
- damage to property, mere pecuniary loss and personal injury caused by gross negligence or wilful intent on the part of the contract partner or of the persons whose services it uses in order to perform its contractual obligations;
- Damage caused by improper or negligent/inappropriate treatment, in particular by connecting third-party products without ClickandBuy’s consent, or by effects of third-party equipment, such as, for instance, electronic anti-theft alarm systems, and any consequences resulting therefrom, also with a view to complaints from cardholders and operators of authorisation systems;
- damage to or loss or other destruction of surrendered equipment and the consequences thereof, for which the contract partner shall take out adequate insurance.
8. Maintenance and repair
8.1 Full or depository maintenance for fixed terminals
In order to maintain the equipment and related fixtures and furniture in proper operating condition in conformity with the agreed or ordered scope of functions, or to restore them to such condition, ClickandBuy offers the contract partner full or depository maintenance at its choice. The conclusion of a maintenance agreement is mandatory in the case of a rental agreement. Maintenance only comprises rectification of errors at the request of the participant or contract partner. Regardless of the form of maintenance chosen (full or depository) and after a time and date has been agreed for this purpose, the contract partner shall grant access to the terminal via remote maintenance software or for on-site preventive maintenance with a view to ensuring the agreed scope of services of the terminal. The contract partner/participant shall be under an obligation to state all recognizable details and reasonably follow the technicians' instructions for analysing the problem and identifying the fault when reporting a failure in order to ensure that the failure is effectively remedied. For on-site servicing, the contract partner shall accept duly trained and certified ClickandBuy service partners. At the contract partner's request, employees of these service partners shall prove their identity by producing their ClickandBuy sales-partner identity card or equivalent documents. Depositary or full maintenance does not include the rectification of defects caused by external factors such as third parties or other circumstances regulated under point 7.3. It can be agreed that such rectification of defects shall be charged on a time and materials basis.
8.2 Hotline service
If Hotline service is agreed, ClickandBuy shall make available to the contract partners/participants a 24-hour telephone service for fault reports and inquiries attended by authorized staff.
8.3 Right of access for dismantling equipment
After termination of the agreement, ClickandBuy and third parties retained by the latter shall be granted access to the terminal for the purpose of dismantling the terminal as well as any other equipment made available by ClickandBuy.
8.4 Availability for dial-up access
As a prerequisite for service, the contract partner/participant shall ensure that the terminal can be dialled up to directly from outside.
8.5 Depositary maintenance
In the case of depositary maintenance, the contracting partner has an obligation to cooperate in undertaking the terminal diagnosis and locating the fault. The contract partner shall promptly dismantle faulty equipment and send it to a depositary appointed by ClickandBuy at its own cost. Unless otherwise agreed, ClickandBuy shall undertake the free repair, or replacement by equivalents to the defective devices, and shall return these to at the contract partner's expense. The contract partner undertakes to install the equipment and duly put it into operation.
8.6 Full maintenance
In the case of full maintenance, ClickandBuy shall undertake the maintenance of the equipment by repairing or replacing it at the agreed location of the terminal. For mobile terminals, this shall be the address of the contract partner, unless otherwise agreed. In order to perform the maintenance works, the contract partner shall grant full access to the equipment during ClickandBuy's normal business hours or as per special agreement at an extra fee. The call-out fee due to inoperable non-functioning line termination units, the contracting partner's own POS and telecommunications systems, appointments not kept and the provision of on-site service where depositary maintenance was agreed shall be charged separately. Where necessary, ClickandBuy shall try to exchange equipment within 24 hours of proper notification of the fault during normal business hours (from 8 am to 8 pm Monday through Friday).
9. Confidentiality and data protection
9.1 Confidentiality The contract parties mutually undertake to treat all information as confidential which the respective other contract partner has expressly marked as confidential or which is recognisable as confidential, and not to make such information available to third parties. This obligation applies in particular for all business and trade secrets of a contract party which become known in the performance of the agreement. ClickandBuy shall ensure that the persons it employs for data processing observe data privacy in accordance with data protection laws.
9.2 Access security ClickandBuy shall provide all data in intermediate storage with access protection. Access to ClickandBuy's data processing facility shall be secured by multiple safeguards.
9.3 Registration ClickandBuy is registered with the competent supervisory authority in accordance with the provisions of applicable data protection laws.
10. Place of jurisdiction; applicable law This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of London. The provisions of the UN Sales Convention (CISG) are excluded. A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
11. Changes to these General Terms ClickandBuy shall have the right, in particular with a view to changing market conditions, changes in the statutory provisions, the case law of the highest court instances or if a provision was established by judgement to be invalid. ClickandBuy shall notify the contract partner of the change concerned in writing. If the contract partner should not object to the changes within two weeks of receipt of the change notification, the changes shall be deemed agreed. ClickandBuy shall point this legal consequence out to the contract partner in its change notice.
12. Final provisions Depending on the goods and services to be delivered under the confirmation of order, the present General Terms and Conditions may be supplemented by separate general terms and conditions for specific areas of activity. Amendments or additions to these General Terms and Conditions require the written form. This also applies to this same written form rule. The invalidity of any individual provision of these General Terms and Conditions does not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision coming as close as possible to the economic purpose of that provision.
General Terms and Conditions Service Provisioning Payment Services (2011-06)
General Terms and Conditions ClickandBuy FirstGate |  |
1. FirstGate General Terms and FirstGate Agreement
1.1 These FirstGate General Terms set out the rights and obligations of the contracting partner (hereinafter referred to as the “Partner”) and ClickandBuy International Limited (hereinafter referred to as “ClickandBuy”) regarding the Partner’s use of the Internet Payment Gateway and its optional extensions (hereinafter collectively referred to as “FirstGate”). They form the basis for the contractual relationship between ClickandBuy and the Partner about FirstGate (hereinafter referred to as the "FirstGate Agreement"). No contractual relationship is established between ClickandBuy and the Partner’s customer (hereinafter referred to as “End Customer”).
1.2 The following contract documents about FirstGate form integral parts of the FirstGate Agreement in the order listed below:
- FirstGate General Terms,
- General Terms and Conditions Service Provisioning Payment Services,
- ClickandBuy order confirmation,
- ClickandBuy order form completed and signed by the Partner,
- If applicable, a contract proposal from ClickandBuy accepted by the Partner,
- Product documentation,
- Price sheets.
Documents the Partner has not already received can be obtained from ClickandBuy.
2. Services to be provided by ClickandBuy
2.1 ClickandBuy shall provide the services agreed in the other FirstGate contract documents, in particular the product documentation (see clause 1.2 above), for the Partner. The processing of credit card payments is subject to the completion of the 3D Secure implementation check.
2.2 The data shall be transmitted to and from ClickandBuy via Internet, using third-party telecommunications networks and services. Connections are also set up using third-party transmission systems existing on the Internet.
2.3 The services to be provided by ClickandBuy shall not include, without limitation,
- the connection and data transmission between the Partner and the End Customer, which is beyond ClickandBuy’s sphere of influence,
- data transmission on third-party telecommunications networks which are, just like the data traffic on the Internet, beyond ClickandBuy’s sphere of influence and for whose availability and reliability ClickandBuy does not accept responsibility,
- the correctness of the result of the authorisation request or blocking inquiry for the payment instrument used. Even if the transaction is authorised, ClickandBuy accepts no liability for the Partner’s claim being settled by the End Customer or the authorising bank.
2.4 ClickandBuy may shut down access to FirstGate or suspend any functionalities of it if and as long as necessary works are undertaken on its systems which cannot be performed without shutting down access to FirstGate or suspending certain functionalities of it. Unless this is unreasonable for ClickandBuy, ClickandBuy shall shut down access to or suspend functionalities of FirstGate not during normal day-time peak business hours and shall notify the Partner in advance.
3. Software
3.1 The Partner may use software as part of FirstGate. Unless otherwise agreed in writing, the properties of the software shall be laid down in conclusive form in the product documentation and the FirstGate General Terms. Descriptions of properties do not constitute guarantees within the legal sense.
3.2 The Partner shall be granted the simple, non-exclusive, non-transferrable right limited to the term of the FirstGate Agreement and to the territory of the Federal Republic of Germany and the United Kingdom to use the software for its internal purposes within the scope necessary under the FirstGate Agreement. If the right of use is to be expanded so as to include more countries, this shall be subject to express written agreement.
3.3 The Partner may reproduce the software only if and to the extent necessary for using it in accordance with the FirstGate Agreement, including, without limitation, for installing it on the server, loading it into the working memory and running the program(s).
3.4 The Partner may make one (1) backup copy of the software. If a backup of the entire data including the software is required for reasons of data security, the Partner may also make the strictly necessary number of backup copies. Data carriers with backup or archival copies shall be duly marked.
3.5 Unless otherwise stipulated in the FirstGate Agreement, the Partner shall not be entitled to translate, adapt, decompile, reverse engineer, alter or otherwise modify the software beyond the scope permitted by statute. The Partner may undertake a rectification of errors pursuant to stipulations of copyright law only if ClickandBuy has not undertaken the same within a reasonable period and against reasonable remuneration. Before decompiling the software pursuant to stipulations of copyright law, the Partner shall give ClickandBuy the opportunity, in writing and setting a reasonable deadline, to disclose the interface information to the Partner against reasonable remuneration. The Partner shall inform ClickandBuy in writing upon request to what extent it has used interface information and prove its use with reasonable effort. The Partner may have all of the acts mentioned in clause 3.5 above performed by third parties only if ClickandBuy was not prepared to perform them against reasonable remuneration.
3.6 The Partner shall not be entitled to surrender the software to third parties for use without ClickandBuy’s prior written consent.
3.7 Upon receipt of software updates and/or upgrades, the Partner shall destroy or delete any previous versions and any reproductions of the same as applicable and install the updates and/or upgrades. The obligation to install and delete software as aforesaid shall not apply if it is a proven fact that the Partner cannot be reasonably expected to install the updates and/or upgrades (e.g. if updates and/or upgrades are not sufficiently safe in operation or defective).
3.8 Any copyright, trademark and other notices of proprietary rights that may be present on or in the software must not be removed. The Partner shall apply such notices also to backup and/or archival copies it created.
3.9 ClickandBuy may have compliance by the Partner with the provisions of this clause 3 verified once per calendar year by an audit to be undertaken by ClickandBuy itself or an independent auditor during normal business hours upon reasonable advance notice in writing. If this reveals that the Partner culpably breached the provisions of clause 3, the costs of the audit shall be borne by the Partner. ClickandBuy reserves the right to assert further losses.
3.10 Upon termination of contract, the Partner shall permanently delete the software and any archival or backup copies or other reproductions of it which may exist. Fulfilment of these obligations shall be confirmed by the Partner to ClickandBuy in writing upon request.
4. Availability of FirstGate
4.1 Within the scope of technical and operational possibilities, the FirstGate services provided by ClickandBuy shall be available at least 98% on average over the year. The point of access to ClickandBuy's network is agreed to be the point of transfer, i.e. the availability stated refers only to processes within the ClickandBuy network. The availability of services, networks and other components outside the ClickandBuy network shall not be included in availability measurements.
4.2 The following times shall not be included in availability calculations: Shutdowns pursuant to clause 2.4 above, downtimes agreed with the Partner and downtimes which are attributable to the Partner or third parties other than vicarious agents of ClickandBuy or which are outside ClickandBuy’s sphere of influence.
5. Provision of FirstGate services by third parties ClickandBuy may instruct companies affiliated with it and, if necessary, further third parties to provide services forming part of FirstGate. Such third parties shall also be entitled to retain subcontractors. ClickandBuy shall remain responsible to the Partner for the performance of the FirstGate services provided by third parties.
6. Partner’s responsibilities
6.1 The Partner shall be under an obligation to disclose to ClickandBuy all information about it that is relevant to the performance of the contract.
6.2 For use of FirstGate, the Partner shall keep web-enabled software and hardware, an Internet connection and an interface enabling the Partner to use FirstGate readily available and operable at all times in accordance with the specifications in the product documentation (see clause 1.2 above). In addition, the Partner shall comply with all other duties to cooperate which may be specified in the FirstGate contract documents (see clause 1.2 above).
6.3 Moreover, the Partner shall
- enter into a contract with the parties responsible for the payment instrument used (e.g. credit institution, credit card acquiring company) to the extent necessary to process payments,
- take all necessary precautions (including, without limitation, password protection, firewalls, anti-virus software) to ensure the safety of its systems,
- report any problems to ClickandBuy without undue delay – in the event of reports made by telephone followed by fax or emailed confirmation –, specifying the exact circumstances in which the problem occurred and potential causes, make all information and documents required for diagnosing and remedying the problem, including a detailed description of the circumstances in which the problem occurred and potential causes available to ClickandBuy and assist ClickandBuy within reasonable limits in diagnosing and remedying the problem,
- notify ClickandBuy without undue delay if intellectual property or proprietary rights are asserted by third parties with respect to FirstGate and assist ClickandBuy in defending against such claims and settling any disputes arising from this. The Partner shall enter into agreements with third parties for judicial or extrajudicial settlement of such disputes only with the prior written consent of ClickandBuy.
7. Remuneration
7.1 The remuneration for the FirstGate services shall be based on the price lists of ClickandBuy currently in force upon conclusion and extension of the FirstGate Agreement, unless the remuneration is specifically agreed upon with the Partner. The Partner’s payment obligation shall begin to apply when ClickandBuy makes FirstGate available for operation. FirstGate shall be deemed available for operation if and when at least one payment system can be processed.
7.2 The terms of payment and the implementation of price changes are set out in ClickandBuy's General Terms and Conditions Service Provisioning Payment Services.
8. Warranty rights
8.1 ClickandBuy warrants that FirstGate shall be available for use within the scope of availability agreed by contract.
8.2 If the services provided by ClickandBuy have any material defect, ClickandBuy shall initially have the right and the obligation to render subsequent performance. The Partner can terminate the FirstGate Agreement or demand that the remuneration be reduced only if at least two attempts by ClickandBuy at subsequent performance within a reasonable period have proved unsuccessful.
8.3 Any claims for damages shall be governed by clause 9 below.
9. Liability
9.1 ClickandBuy shall be liable – on whatever ground – only in cases of intent, gross negligence, culpable breach of an obligation the very discharge of which is a prerequisite for the proper performance of the FirstGate Agreement and on the discharge of which the Partner can and does rely (hereinafter referred to as “Material Contractual Obligation”), if a guarantee has been given and in cases of malice or culpable injury to life, limb or health. Strict liability and other liability for negligence shall be excluded.
9.2 In the event of negligent breach of Material Contractual Obligations, ClickandBuy shall be liable only for typical and foreseeable damage.
9.3 In the cases specified in clause 9.2 above, ClickandBuy’s overall liability shall be limited to EUR 100,000.00 per damaging event and EUR 150,000.00 per calendar year. ClickandBuy shall not be liable for any indirect or consequential damage (e.g. loss of profit or sales).
9.4 The above mentioned limits of liability shall also apply for damage caused by legal representatives, executive employees or vicarious agents of ClickandBuy.
9.5 The above mentioned limits of liability shall not apply in cases where liability applies under mandatory statutory provisions, e.g. on the basis of product liability law.
9.6 The Partner shall be under an obligation to take reasonable measures to avert and/or mitigate any damage, including, without limitation, to secure data and protect against computer viruses.
10. Confidentiality
10.1 The Parties shall treat any information from the sphere of the respective other Party and/or companies affiliated with it that is marked as or is manifestly confidential, including, without limitation, company or trade secrets, as strictly confidential, use such information strictly for the purposes of cooperating under the FirstGate Agreement and not to disclose such information to third parties unless otherwise stipulated in the FirstGate Agreement or subject to the prior written agreement of the respective other party. This confidentiality obligation shall also apply with respect to the content and integral parts of the FirstGate Agreement. Companies affiliated with ClickandBuy and employees of the Parties shall not be deemed to be third parties.
10.2 Employees, subcontractors and other vicarious agents shall also be required to comply with the confidentiality obligation.
10.3 This confidentiality obligation shall survive any termination of the FirstGate Agreement for a period of two years.
10.4 The confidentiality obligation shall not include information that (a) is or becomes publicly known without breach of the confidentiality obligation, (b) was lawfully acquired by the receiving Party from third parties without any breach of confidentiality by such third parties in relation to the disclosing Party, (c) was developed independently of the disclosing Party, (d) is required to be disclosed pursuant to a judicial or administrative proceeding or for other compelling legal reasons or (e) was in the possession of the receiving Party already before receipt from the disclosing Party.
11. Data protection The Partner shall be responsible for ensuring compliance with all applicable data protection laws and regulations if it collects, processes (e.g. by transmitting them to ClickandBuy) or uses personal data of data subjects, e.g. End Customers or its employees, in using FirstGate. This applies, for instance, for obtaining any consent of data subjects which may be required. In particular the Partner is obliged to obtain in a legally valid way the End Customers’ consent to transmit their data to ClickandBuy for the provision of the payment services. The Partner will amend its online-shop and/or the general terms and conditions for End Customers accordingly.
12 Partner’s General Terms and Conditions General Terms and Conditions or any other terms and conditions of the Partner shall not apply. This shall also apply if ClickandBuy does not expressly object to them where the Partner refers to them being included.
13. Amendments to the FirstGate General Terms and the FirstGate services
13.1 These FirstGate General Terms are subject to amendment by ClickandBuy. ClickandBuy shall notify the Partner in writing of any amendments to the FirstGate General Terms. Unless the Partner objects to the amendments in writing to ClickandBuy within four weeks of receipt of such notification, the amended FirstGate General Terms shall apply from the effective date of the amendments as specified in the notification. In the notification, ClickandBuy shall expressly point out this consequence of refraining from any statement to the Partner. In the event of an objection, ClickandBuy shall be entitled to terminate the FirstGate Agreement to expire on the intended effective date of the amendment or up to three weeks thereafter by extraordinary termination with immediate effect.
13.2 ClickandBuy shall be entitled to make the following amendments to the FirstGate services:
13.2.1 Technical improvements and innovations and any other changes, provided that these are reasonably acceptable for the Partner and the services are not materially changed.
13.2.2 Changes made to comply with requirements of public authorities or courts and/or legal requirements.
14. Term and termination
14.1 The FirstGate Agreement shall come into effect upon confirmation of the order by ClickandBuy or upon acceptance by the Partner of a contract proposal from ClickandBuy, however, no later than when the Partner begins to use FirstGate. The same shall apply mutatis mutandis for any subsequent orders placed by the Partner.
14.2 Unless otherwise agreed, the minimum term of this Agreement shall be 12 months.
14.3 The FirstGate Agreement shall renew for a further 12 months beyond the minimum term in each case unless terminated by ordinary termination on three months’ notice to expire at the end of the (minimum) term.
14.4 The FirstGate Agreement can be terminated by extraordinary termination as follows:
14.4.1 By ClickandBuy on three months’ notice to expire at the end of a calendar month if ClickandBuy wishes to discontinue the operation of FirstGate.
14.4.2 By either Party on three months’ notice to expire at the end of a calendar month if, due to the rescission and/or termination of any part(s) of the FirstGate Agreement, the terminating Party, from an objective standpoint, no longer has an interest in continuing the FirstGate Agreement.
14.4.3 The statutory right of the Parties to extraordinary termination for good cause shall not be affected thereby. ClickandBuy shall be deemed to have good cause for termination in particular if (a) the Partner, despite a reasonable deadline having been set by ClickandBuy, materially fails to comply with a material duty to cooperate or breaches any provisions of data protection laws, (b) the Partner keeps available or offers illegal content as part of its Internet offering, (c) due to statutory provisions or requirements imposed by public authorities or courts, it is no longer possible for ClickandBuy to provide FirstGate or adjustments are necessary which would involve unreasonable efforts for ClickandBuy or (d) the Partner is insolvent or execution measures against the Partner have remained unsuccessful.
14.4.4 The Partner and ClickandBuy shall also be entitled to terminate the FirstGate Agreement by extraordinary termination without notice if the requirements of the banking industry and/or of credit card organisations change or other requirements and/or the legislation of public law impose a mandatory change of the payment system during the term of the Agreement and it is therefore impossible to maintain FirstGate or ClickandBuy does not offer to do so.
14.4.5 If the FirstGate Agreement is terminated by extraordinary termination pursuant to clause 14.4.3 above before the expiry of its term, ClickandBuy shall be entitled to claim damages for non-performance in an amount equal to 80% of the agreed monthly flat fee, multiplied by the number of the months remaining until the end of the term, taking into account a 4% discount previously deducted, unless the Partner is not responsible for the termination. Any further-reaching claims for damages shall remain unaffected.
14.5 Notice of termination must be given in writing. If notice of termination was transmitted by fax, the original shall be submitted without undue delay.
15. Reference list
ClickandBuy shall be entitled to name the Partner in a reference list it keeps.
16. Final provisions
16.1 Any changes and amendments to these FirstGate General Terms require written form. This also applies to any waiver of the requirement for written form.
16.2 This FirstGate Agreement shall be governed by and construed in accordance with the laws of England and Wales to the exclusion of the international law of conflicts and the UN Sales Convention (CISG). To the extent permitted by law, the registered office of ClickandBuy shall be the place of jurisdiction. A person who is not a party to this FirstGate Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
16.3 The registered office of ClickandBuy shall be the place of performance for ClickandBuy and the Partner.
FIRSTGATE GENERAL TERMS (2011-06)
