By signing a Merchant Agreement with PayXpert, the Merchant accepts these General Terms and Conditions.
1. COMPLIANCE WITH ASSOCIATION RULES
The Merchant understands and agrees to comply with the bylaws, rules, regulations, policy statements and guidelines of the Card Associations, as communicated by PayXpert, or as published in relevant websites.
2. SALES DOCUMENTATION
2.1 Visa and MasterCard require PayXpert to obtain from the Merchant and forward to Credit Card Issuers, upon request, copies of sales or credit slips. The Merchant warrants that it shall fully comply with all local laws, rules and regulations, as amended from time to time.
2.2 Sale storage. The Merchant shall preserve a copy of the actual paper sales credit slips for at least three (3) years after the date the Merchant presents the transaction data to PayXpert. To assist in the resolution of any dispute and in addition to and without limiting the foregoing provisions of this paragraph, the Merchant agrees to retain for eighteen (18) months and make available within three (3) days of a request all pertinent records pertaining to each transaction in question, including but not limited to itemised bills, authorisation requests, and other related documents. The Merchant shall store all such material in an area limited to selected personnel and exercise best efforts to maintain these materials in a secure manner. The Merchants obligations will continue for said period after the termination of this Agreement.
2.3 Sale documentation retrieval. The Merchant understands that its failure to respond in a timely fashion to a retrieval request from Credit Card Issuers for a sales slip may result in a chargeback under Visa and MasterCard rules and regulations, and ultimately in a penalty from the card schemes.
2.4 Delivery of service. The Merchant must deliver to the Cardholder a true and complete copy of the sales slip, or suitable receipt evidencing the transaction involving use of the credit card in accordance with the Merchants underlying agreement with the Cardholder.
2.5 Advance cash to customer. Neither the Merchant nor any owner, director, officer or employee of the Merchant (“Affiliates”) shall advance cash to a Cardholder in connection with the purported credit card sale, nor shall any Merchant or its Affiliates purchase, directly or indirectly, goods or services of the Merchant in connection with such a purported credit card sale;
2.6 Customer identity. In any credit card transaction, the Merchant warrants the customer’s true identity as an authorised user of the credit card, whether or not Cardholder’s permission is obtained, unless the Merchant obtains and notes legibly on the sales slip independent evidence of the customer’s true identity.
2.7 Customer confidentiality. The Merchant warrants that it shall not, without the Cardholder’s consent, sell, purchase, provide, or exchange credit card account number information in the form of imprinted sales information, mailing lists, tapes, or any other media obtained by reason of a credit card transaction or otherwise to any third party other than to the Merchant’s agents for the purpose of assisting the Merchant in its business, to PayXpert, to MasterCard or Visa, or pursuant to a lawful government demand.
2.8 Change of business. The Merchant shall not change its usual trade or business or commence operating an unrelated trade or business on the same premises as the Merchant operates its current stated trade or business without obtaining prior written consent to the change or addition.
2.9 Compliance of local rules. The Merchant acknowledges that the codes of professional responsibility and the rules of local, state, and national bar associations, or the rules and regulations of state, or other professional associations, may apply to the transactions covered by this Agreement. PayXpert does not represent or warrant that the terms and conditions of this Agreement are in compliance with such codes and rules, and the Merchant assumes full responsibility for compliance therewith. Unless otherwise indicated in this Agreement, the Merchant warrants that it will not conduct any transactions that are not in compliance with both this Agreement and any such codes or rules and will indemnify and hold PayXpert harmless against any loss or damage PayXpert may suffer as a result of a breach of this warranty by the Merchant.
2.10 Agreement inconsistency. The Merchant may however bring any inconsistency between this Agreement and such codes and rules to the attention of PayXpert, and request a modification to this Agreement to eliminate such inconsistency. PayXpert will agree to such modification to the extent it is consistent with the bank’s policy and in conformity with the existing MasterCard or Visa rules and applicable laws and regulations.
2.11 Merchant company changes. The Merchant acknowledges that prior written notice to PayXpert shall be given in the event of any change of address or ownership of the Merchant.
3. TERM AND TERMINATION
3.1 This Agreement shall renew automatically for successive terms of one (1) year each, unless any Party provides at any time during the duration of this Agreement written notice of termination to the other Parties at least ninety (90) days prior to the effective date of termination.
All existing obligations, warranties, indemnities and agreements with respect to transactions entered into before such termination shall remain in full force and effect, and the Merchant shall remain liable for all obligations to Cardholders and PayXpert incurred while this Agreement was in effect.
In the event of the termination of this Agreement and/or a notice or intention of termination hereof by either Party, PayXpert shall have the right, at its sole discretion, to freeze and withhold any amount due to the Merchant and/or any amount in the Merchant account, for a period of up to six (6) months from the end of the month of the last approved transaction.
3.2 PayXpert may, at its option, suspend the Services and/or terminate this Agreement with immediate effect on written notice to the Merchant if:
- PayXpert reasonably determines that the transaction record is fraudulent or that the transaction is not a bona fide transaction in the Merchant’s ordinary course of business, or is subject to any claim of illegality, cancellation, rescission, avoidance, or offset for any reason whatsoever, including without limitation negligence, fraud, or dishonesty on the part of the Merchant or the Merchant’s agents or employees; or
- the number of occasions that the Merchant has failed to supply goods and/or services to customers in accordance with the terms and conditions agreed with the customer, relevant legislation and any terms implied by legislation (including the Unfair Terms in Consumer Contracts Regulations, the Unfair Contract Terms Act, Distance Selling Regulations) becomes unacceptably high; or
- the Merchant has failed to pay any sum when due; or
- the Merchant commits any breach of this Agreement or any other agreement that the Merchant may have in place with PayXpert or which either the Merchant has failed to remedy within thirty (30) days after written notice requiring it to do so or which is incapable of remedy; or
- the Merchant goes into liquidation, or a petition is presented for the Merchant’s administration liquidation; or
- PayXpert has reasonable concerns about the financial position of the Merchant; or
- the Merchant ceases or threatens to cease to carry on business or in any way changes the nature of its business and/or the nature of the goods and services it sells; or
- there is a change in Control of the Merchant, or of any person who has Control of the Merchant either directly or through a chain of persons, each of whom has Control over the next person in the chain, a change of Control occurring if any person acquires Control of the Merchant or any person who previously had Control of the Merchant ceases to have such Control (whether or not another person acquires Control of the other Party), and said Control would be transferred to persons who would not pass the KYC underwriting of PayXpert; or
- the Merchant engages in any activity which, in the absolute discretion of PayXpert, directly or indirectly competes with the business of PayXpert; or
- any event occurs in relation to the Merchant which in PayXpert’s reasonable opinion could damage PayXpert’s reputation, prove detrimental to PayXpert’s business or may give rise to fraud, suspicion of fraud or any other criminal activity.
3.3 The Merchant may terminate this Agreement with immediate effect on written notice to PayXpert if:
- PayXpert commits any material breach of this Agreement and in the case of a material breach capable of remedy, fails to remedy it within 30 (thirty) days after service, and confirmation of receipt, of a written notice requiring it to do so; or
- PayXpert goes into liquidation (except for the purposes of a solvent amalgamation or reconstruction and in a way that results in its successor company being bound by this Agreement) or a petition is presented for PayXpert’s administration liquidation.
3.4 PayXpert may at any time terminate this Agreement at its convenience by giving the Merchant not less than three (3) months notice in writing, which termination shall be effective on the date specified in the notice of termination.
3.5 The rights to terminate this Agreement given by this clause shall be without prejudice to any other right or remedy of the Parties.
4. CONSEQUENCES OF TERMINATION
4.1 The termination of the present Agreement shall not result in the extinction of either Party’s obligation to pay any outstanding balance to each other.
4.2 In case this Agreement is terminated, the Merchant promises to pay PayXpert all the due fees agreed in the Merchant Agreement and in its Schedules at the effective date of termination.
4.3 Upon any termination of this Agreement, the obligations, warranties, and liabilities of the Merchant pertaining to sales data or credit memoranda presented prior to such termination (including without limitation the Merchant’s obligations as to subsequent chargebacks of such sales data, whether or not the amount of such subsequent chargebacks is liquidated as of the date of termination) shall survive such termination and shall continue in full force and effect as if such termination had not occurred.
4.4 Should any charges arise thereafter, PayXpert shall bill the Merchant and the Merchant shall promptly pay such charges.
4.5. PayXpert reserves the right to hold all funds due to the Merchant for a maximum period of a year from the termination of the Agreement to face the future Visa and/or MasterCard’s chargebacks or penalties.
5.1 The Merchant shall properly complete a credit slip, delivering one completed copy to Cardholder at the time of each return or cancellation of sale. The regular transaction fee will be applicable to all credit transactions.
5.2 The Merchant shall not, under any circumstance, issue:
- cash or a check for returns of merchandise or cancellation of service where goods or services were originally purchased in a credit card transaction; or
- a credit slip to a Cardholder without having completed a previous purchase transaction with the same Cardholder; or
- a credit slip to a Cardholder for any prior sale or service made or provided at a location other than the location where the credit slip is issued.
5.3 With proper disclosure of where the purchased goods or services are delivered to Cardholder at the time the transaction takes place, then the Merchant may refuse to accept merchandise in return and refuse to issue a refund to a Cardholder. Or if so inclined the Merchant may accept returned merchandise in exchange for the Merchants promise to deliver goods or services of equal value available from the Merchant at no additional cost to Cardholder.
6.1 The Merchant expressly acknowledges and agrees to any charge or debit made by PayXpert against the Merchants reserve or settlement account as a result of the chargeback rights by a Cardholder or issuing bank or other intermediary pursuant to applicable operating regulations of VISA/MasterCard or other Card Associations.
6.2 Without prior notice, PayXpert shall have the right to reduce the Merchant’s credit card sales proceeds received from issuing banks or debit the Merchant’s reserve account for any credit card transaction which is disputed or returned to PayXpert by the financial institution or company which has issued the credit card utilised by the Cardholder, and to chargeback such sale to the Merchant.
6.3 The Merchant, whether consented to or not by Cardholder, shall not present to PayXpert for processing any sales slip representing a transaction which has been previously charged back to PayXpert and returned to the Merchant. The Merchant’s obligations and PayXpert’s rights under this paragraph shall survive the termination of this Agreement.
7. FRAUDULENT SALES
7.1 The Merchant shall not present PayXpert, directly or indirectly, any sales slip or transaction:
- that the Merchant knows to be fraudulent; or
- that results from a transaction outside the Merchant’s normal course of business as described in the Merchant Application, or specifically for products or services which to PayXpert has not authorised.
7.2 Should the Merchant do so, this Agreement with the Merchant may be immediately terminated by PayXpert without notice, all funds otherwise due to the Merchant will be placed on hold for not less than 180 days. Any subsequent investigation by PayXpert may be charged to the reserve or settlement account.
7.3 If PayXpert proves the Merchant’s fraud, the Merchant will be placed on the Combined Terminated Merchant File. Said action may result in the Merchant never being allowed to accept Visa and/or MasterCard again.
7.4 The Merchant hereby indemnifies and holds PayXpert harmless to the fullest extent permitted by applicable law for any loss or damage that may incur as a consequence of the Merchant being placed by PayXpert or its agents on the Combined Terminated Merchant File.
8. MERCHANT OBLIGATIONS AND WARRANTIES
8.1 The Merchant will promptly supply PayXpert with all information and documentation which PayXpert may ask for at any time to enable PayXpert to comply with any legal requirements relating to its Services, including as required by the Money Laundering Regulations 2007, and the Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.
The Merchant will be solely responsible for performing and delivering, in a manner consistent with good industry practice, all its services and products to customers.
8.2 The Merchant will indemnify and hold PayXpert harmless from any claim or demand by any third party in respect of liability, loss, damage or costs resulting arising out of or in connection with the goods or services offered by the Merchant.
8.3 The Merchant will use its best efforts to avoid or minimise chargebacks. The Merchant shall have the obligation to daily monitor its chargeback performance and will immediately report to PayXpert in case it wishes to dispute a chargeback.
8.4 The Merchant shall refrain from making unauthorised use of the Services and shall act and behave in a manner which PayXpert is reasonably entitled to expect from a professional Merchant. In particular the Merchant shall:
- inform PayXpert and keep PayXpert informed of every information that may be relevant for the provisions of Services, including a change in the goods or services offered to customers (also for change of the Merchant’s terms and conditions);
- inform customers of the security measures that have been implemented to protect the credit card against any unauthorised use;
- refrain from offering goods or services that are prohibited by either PayXpert or the Card Issuer;
- refrain from offering goods or services that infringe any third party intellectual property right;
- refrain from offering any goods or services that PayXpert considers otherwise inappropriate, harmful or contrary to good faith. PayXpert hereby acknowledges that the provided list of URLs comply with this clause as of the date of submission;
- implement security measures to protect the credit card against any unauthorised use;
- refrain from sending unsolicited e-mail (‘spam’);
- obey all instructions, rules and regulations given by the Acquirer, the Card Issuer and/or PayXpert regarding the use of the Services.
8.5 The Merchant hereby authorises and grants an irrevocable power of attorney to PayXpert, with full power of substitution, to act on behalf of the Merchant during the term of this Agreement to the extent necessary to render the Services and to carry out this Agreement, including but not limited to seeking authorisations, receiving proceeds of transactions and providing access codes to customers. The Merchant hereby covenants and agrees to indemnify and to hold harmless PayXpert from and against any liability PayXpert might incur for any steps taken by it in connection with this power of attorney.
8.6 The Merchant acknowledges PayXpert may provide financial transaction processing to the Merchant hereunder through contracts and/or subcontracts with third parties engaged in a part of all of the business of financial transaction processing and authorisation.
8.7 The Merchant agrees to allow PayXpert to honour without discrimination all valid credit cards when properly presented for payment by customers in connection with bona fide, legitimate business transactions.
8.8 The Merchant shall only accept transactions for goods or services that have been notified to and authorised by PayXpert. In relation to e-commerce accounts, the Merchant shall notify PayXpert in advance of each uniform resource locator (URL) from which it intends to process any transactions.
8.9 The Merchant shall promptly provide all bank information that may be requested by PayXpert for the purposes of activating the Services. The Merchant acknowledges that any delay or failure to provide such information to comply with its obligations may result in PayXpert being unable to provide the Services. PayXpert accepts no responsibility for any losses, costs, damages or other liabilities arising from its inability to provide the Services in such circumstances.
8.10 The Merchant warrants that all information provided to PayXpert in connection with its application for Services and any other information it provides under this Agreement is correct and that no information has been withheld which could reasonably be expected to have adversely affected PayXpert’s decision to enter into this Agreement.
8.11 For the purposes of this Agreement, the Merchant’s and its group companies, subsidiaries, affiliates, successors and permitted assigns, shareholder and shareholder’s subsidiaries are all jointly and severally liable.
8.12 The Merchant acknowledges PayXpert will not be obliged to transfer the funds to the Merchant until the funds are received by PayXpert.
9.1 When the Merchant does not bring sufficient explanation to the requests made by PayXpert in relation with variances, within three (3) weeks, the Merchant acknowledges and agrees that PayXpert may hold funds, temporarily suspend processing under this Agreement or terminate this Agreement if there exist material variances in the nature of the Merchants business, type of or composition of credit card processing, actual average ticket size or actual monthly volume amounts from such amounts represented or disclosures made by the Merchant on the Merchant Application.
9.2 If such variances exist, or the Merchant does not receive authorisation for transactions, or PayXpert receives excessive retrieval requests against the Merchant’s prior activity, or excessive chargebacks are debited against the Merchant’s prior activity, then PayXpert may delay or withhold settlement of funds for a period not less than 180 days or until PayXpert is reasonably certain that fraud or other activity detrimental to PayXpert has not occurred.
9.3 The Merchant should immediately contact PayXpert if material variances from the average ticket size or monthly volume occur. For the purposes hereof, PayXpert determination of materiality shall be binding upon the Merchant.
10. TRADEMARKS AND INTELLECTUAL PROPERTY
10.1 All intellectual or industrial property rights to the Software, the PayXpert Platform, (results of) the Services and other materials developed or provided under this Agreement, such as analyses, designs, documentation, reports, offers and any preparatory materials belonging thereto, shall solely be held by PayXpert or its licensors.
10.2 In the event that a collection of works, data or any other independent elements of information provided by the Merchant under this Agreement are systematically or methodically structured due to PayXpert’s substantial investment, as a result of which a (changed) database comes into existence, the copyrights, database rights and comparable rights therein shall solely be held by PayXpert.
The Parties undertake to regard as confidential throughout the duration of this Agreement, and after its expiry, the terms of this Agreement, as well as all information, whether commercial, technical or otherwise, obtained in the context of its performance or during the discussions prior to its conclusion.
Therefore, the Parties more specifically undertake not to communicate any of the confidential information, as previously defined, to third parties other than their staff.
12. DATA PROTECTION
12.1. MERCHANT’S PERSONAL DATA
PayXpert hereby informs the Merchant that PayXpert will process the Merchant’s (and its personnel, agents and contractors) personal data collected through this Agreement and during the commercial relationship between the Parties. The data controller is PayXpert, and the purposes of such processing are management of the provision of the Services and of the business relationship between the Parties as well as provision by PayXpert by any means of commercial communications that PayXpert considers to be of interest to the Merchant. PayXpert engages third parties to perform activities in connection with the Services (e.g.: financial institutions), and the Merchant accepts that the data may be provided to such third parties (within or outside the European Union) in accordance with PayXpert’s instructions. PayXpert informs the Merchant it can exercise the rights to access, rectification, cancellation and opposition (“ARCO rights”) its personal data by sending its request to the registered address of PayXpert stated in this Agreement. By signing this Agreement the Merchant expressly consents on its own behalf and on behalf of its personnel and contractors engaged in the performance of this Agreement, to the processing of the personal data in accordance with the provisions of this clause.
12.2. MERCHANT’S CUSTOMERS PERSONAL DATA
In respect of the Merchant’s customers data, the Merchant and PayXpert hereby undertake to comply with all applicable data protection regulations to the processing of such data. Specifically, the Merchant guaranties that the customers’ personal data have been provided or obtained by the data holders themselves with their consent.
The Merchant is the data controller of its customers personal data. PayXpert will be the data processor of the Merchant’s customers data for the purposes related to the services provided to the Merchant by virtue of this Agreement.
PayXpert will process the data according to the following:
- a) PayXpert agrees to use the personal data to which it has access solely and exclusively to fulfil its contractual obligations with the Merchant. In this sense, PayXpert agrees to process the data in accordance with the instructions given by the Merchant and not to apply or use the personal for a different purpose, and not to disclose or transfer them, not even for preservation, to others.
- b) As required by the European legislation PayXpert agrees to adopt the technical and organizational measures necessary that guarantee the security of the Merchant’s customers personal and avoid its alteration, loss, processing or unauthorized access.
- c) PayXpert guarantees that the personal data will be handled only by those employees whose intervention is required for the contractual purposes and shall advise such employees of their obligations
- d) In the event that data owners exercise their rights of access, rectification, cancellation and opposition directly to PayXpert, in its capacity as processor, it should transfer the request to the Merchant as soon as possible in order that the latter can resolve what it considers appropriate and lawful.
- e) In the event that PayXpert had to outsource some or all of the services contracted by the Merchant involving the processing of personal data, outsourcing will require express authorization by the Merchant (in its capacity as data controller) in which authorized for assignment or subcontracting services, including where the company responsible for its implementation.
13. NON SOLICITATION OF STAFF
The Merchant expressly undertakes not to approach, make offers of employment to or hire any of PayXpert’s members of staff, employees, or sub-contractors, whether directly or indirectly, throughout the duration of this Agreement, as well as for two (2) years, following the end of its performance.
In the event of a breach of the provisions of this clause, the Merchant shall be bound to pay PayXpert, by way of a penalty clause, lump sum compensation equal to twelve (12) months of the last gross monthly salary of the person approached or hired, plus the costs of recruiting a replacement.
14. AMENDMENT TO AGREEMENT
14.1 Parties can agree to amend the present Agreement. This Agreement may be amended only by a written Amendment signed by the Parties.
14.2 PayXpert is entitled to make changes to the Merchant Agreement, General Terms and Conditions, Specific Conditions or individually at any time. PayXpert shall notify the Merchant of upcoming changes by e-mail. Changes shall take effect after thirty (30) days of the notice or on such other date as is specified in the notice. Merchant continued use of the Services after PayXpert notification of any changes, shall be deemed to constitute Merchant’s agreement to the changes.
15. FORCE MAJEURE
Neither Party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform any of its obligations, if the delay or failure was due to any cause beyond the Party’s reasonable control including (without limitation) flood, fire, acts of terrorism, civil disturbance, acts of any government or authority, revocation of any licence or consent, default of any supplier or sub-contractor, failure of any power supply, theft, malicious damage, strike lock-out or industrial action, or the failure of any machine computer data processing system or communication link or by any other circumstance whatever beyond its reasonable control. However PayXpert will use reasonable efforts, under the circumstances, to notify the Merchant and to resume performance as soon as possible.
16. LEGAL COSTS AND FEES
The Merchant shall be liable for and shall indemnify and reimburse PayXpert for all expenses (attorneys’ fees and other costs and expenses paid or incurred by PayXpert) resulting from any management by PayXpert to solve pendencies against financial institutions or any third parties, and will be charged to the Merchant.
17. FEES, RATES AND ADJUSTMENTS
17.1 Processing fees. They include two types of fees: the Commission fee, a percentage of the total credit card sales volume processed by the Merchant; and the several Transaction fees, fixed amounts charged on each sales slip and each credit slip, regardless of the total amount stated.
17.2 Rate adjustment. PayXpert shall have the right to adjust charges as necessary to offset any direct or indirect increase to PayXpert in the costs of providing the Services hereunder including, but not limited to, increases in the cost of living index, or due to changes in rules, regulations, or operating procedures of Visa or MasterCard, or other applicable credit card organisation, or any additional requirement imposed by any governmental agency or regulatory authority, or due to any increase in communication costs charged to PayXpert by communications common carriers. Such increases shall, without prior notice become effective as of the date of change unless otherwise notified to PayXpert, in this case PayXpert shall transmit this information to the Merchant without delay.
17.3 Other credit cards. The Merchant agrees that should the Merchant elect to accept other credit cards under this Agreement in addition to Visa and MasterCard, that all duties and obligations herein shall apply to such other credit cards unless contrary to rules and regulations applicable to the issuers or acquirers of said credit cards.
17.4 Variable charges. Without limiting the foregoing, PayXpert shall have the absolute and unconditional right to increase Commission fee and/or transaction fees if the Merchant, or the Merchants transactions, do not satisfy eligibility requirements of Visa and/or MasterCard for minimum interchange fees. The Merchant acknowledges that fees and rates charged may vary as a consequence of variable charges incurred under Visa Payment Services 2001 and similar MasterCard programs as each may change from time to time upon acceptance of the Merchant who will decide to accept them or not.
17.5 Penalties. In the event of non-payment of any invoice 45 days after the due date, PayXpert reserves the right to interrupt the Services until the sums due are paid in full. After prior formal notice has been given and remained without effect, any sum remaining unpaid at its due date shall be automatically increased by a sum corresponding to the administration cost for unpaid sums and shall lead to all the debts not yet due becoming payable. In addition, any sum remaining unpaid at its due date shall be automatically increased by a moratory interest at 7%.
Interruption of the Services for a period of more than thirty (30) days shall lead to automatic termination of the Contract in the event of non-payment within fifteen (15) days, running from receipt of the formal notice, or the first presentation of the letter in the case of a recorded delivery of letter.
17.6 PayXpert reserves the right to take legal and/or disciplinary actions directly against the Merchant in case of infringement of the present Agreement including but not limited to the following cases: (i) damage of PayXpert’s brand image, (ii) carrying out internal investigations that cause a cost to PayXpert, (iii) termination of the business relation with the bank or dealer bank due of the malpractice of the Merchant.
The Merchant makes himself as only responsible for any tax liabilities on its activities and declares paying duly VAT and other taxes on consumption.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the United Kingdom law.
19.2 The Parties irrevocably agree that the courts of the United Kingdom shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter. In addition, the parties agree to be subjected to the bylaws and operating rules and regulations of Visa, MasterCard and another cards company used (Amex, JCB, Diners,…) as amended from time to time.
20. SEVERABILITY OF CLAUSES
The nullity, invalidity, absence of binding force or un-enforceability of any of the stipulations of this Agreement does not entail the nullity, invalidity, absence of binding force or un-enforceability of the other stipulations, which shall retain their full effect.
However, by joint agreement the Parties may agree to delete or vary certain clauses.
21.1 The applicability of general or specific conditions of the Merchant or any third party is expressly rejected by PayXpert. Stipulations which differ from this Agreement shall apply only as far as they have been agreed upon by the Parties in writing.
21.2 Merchant shall not have the right to transfer or assign its rights and obligations, in part or in whole, as laid down in this Agreement made between PayXpert and the Merchant, unless the Merchant has obtained prior written approval from PayXpert.
21.3 If any provision of this Agreement shall be held to be void, illegal, unenforceable, or in conflict with any applicable law, the validity of the remaining portions or provisions shall not be affected thereby. Notwithstanding the provisions of the foregoing sentence, the rights or obligations of either Party hereunder shall be subject to good faith re-negotiation between the Parties within the limits set by law.
21.4 Each Party will be entitled to use the other Party’s name and trademarks, subject to the prior written approval of that material by the other Party, which approval shall not be unreasonably withheld.
21.5 Any claim, for whatever reason, that the Merchant may have against PayXpert, shall be notified to PayXpert within the best delay.
21.6 Termination of this Agreement explicitly does not release PayXpert and the Merchant from those obligations which, by their nature, are intended to remain in effect, including the provisions with respect to intellectual property, confidentiality, liability, applicable law and dispute resolution.
21.7 These CTG constitutes the entire understanding between the Parties with respect to the subject matter of this Agreement and replaces and supersedes any prior verbal understandings, written communications or representations.
22. CONFIDENTIALITY AND NON-DISCLOSURE, NON-COMPETITION AND NON-CIRCUMVENTION AGREEMENT
The Parties agree to exchange confidential information under the terms and conditions of this Agreement.
Any information disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether provided orally or in writing, and on any medium, concerning the Disclosing Party’s business and/or operations, and including without limitation merchant details, website URLs, financial details provided by the Merchant with regards to its activities, financial institutions details, financial conditions offered, etc. under any circumstance, shall not be passed to any other Party, unless agreed otherwise or in the interest of the normal activity of both Parties relationship.
The Parties hereby and irrevocably bind themselves into guarantee to each other that they shall not directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass or obviate each other’s interest , or relationship between the Parties, merchants, financial institutions, acquirers, banks, brokers, dealers, consultants and advisors, agents and sales representatives, involved in the transaction or project, including technology owners; to change, increase or avoid directly or indirectly payments of established or to be established fees, commissions, or continuance of pre-established relationship, or intervene in un-contracted relationships with merchants, technology owners, financial institutions, banks, payment providers; or initiate buy/sell relationship or transactional relationship, that by-passes one of the Parties to one another in connection with any ongoing or future project or transaction.
The Parties irrevocably agree that they shall not disclose or otherwise reveal directly or indirectly to a third party any confidential information provided by one Party to the other(s) or otherwise disclosed by the concerned sellers, buyers, and their respective legal, tax and financial advisors and banks, such as but not limited to: contract terms, product information, prices, fees, financial agreement, schedules and information concerning the identity of merchants, financial institutions, acquirers, banks and other providers of means of payment, agents, sales representatives, technology owners, or their representative and specially individuals names, addresses, telex/fax/e-mails or any other means of communication by any systems such as Skype personal data/telephone numbers, reference product or technology information and/or other information.
The terms and conditions of this Agreement are also confidential and the Parties, nor its authorised representatives, will not disclose them to third parties other than to their respective legal and tax or financial advisors and as otherwise required by applicable law or regulation.
Neither Party nor its authorised representatives, without the prior written consent of the other Party, will disclose to any person:
- the fact that any discussions or negotiations are taking place or have taken place between the Parties concerning a possible business transaction or business relationship between the Parties; or
- the fact that confidential information has been made available to the Receiving Party; or
- the terms, conditions or other facts with respect to any potential or actual business relationship or transaction, including the status of any discussions.
This confidentially clause will last two (2) years after the end of the commercial relationship between the Parties.
All information disclosed under this Agreement is deemed confidential information whether or not it is so marked.
Where any notice is required by PayXpert terms to be given in writing, it must be written in the English language and:
- where it is to be given by Merchant, it must be sent by email or by post to PayXpert Ltd, Milton Hall, Ely Road, Milton, Cambridge CB24 6WZ, UK;
- where it is to be given by PayXpert, it must be sent by email to the last email address which PayXpert holds for the Merchant or by post to the last postal address PayXpert holds for the Merchant, or to such other email or postal address which Merchant tells PayXpert to use by notifying in advance in writing in accordance with the provisions of this clause.