Terms and Conditions
Secure Virtual Terminal
Paytia Master Customer Agreement
1.1. The definitions and rules of interpretation in this clause apply in these Terms.
Acknowledgement: has the meaning given in clause 2.3.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.6 or clause 10.7 or should reasonably be construed as such by the other party in the usual course of business.
Customer: the Merchant's customer.
Documentation: the document(s) made available to the Merchant by Paytia online via the Website(s) or otherwise disclosed to the Merchant in writing and which set out a description of Secure Virtual Terminal and the user instructions for Secure Virtual Terminal.
DP Legislation: means any and all applicable data protection legislation in force from time to time including but not limited to the General Data Protection Regulation (Regulation (EU) 2016/679), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction and the terms "data controller", "data processor", "data subject", "personal data", "processing" and "data protection principles" bear the respective meaning given to them in the DP Legislation.
Effective Date: the date on which this agreement comes into effect as notified by Paytia to the Merchant.
Functionality: the ability for the Customer to make secure payments to the Merchant and for the Merchant to receive secure payments from its Customer for the goods and/or services supplied.
Initial Term: as defined on the Order.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Loss: means any actions, charges, claims, costs, damages, demands, expenses, fees, liabilities, losses, penalties and proceedings.
Mandatory Policies: the Merchant's business policies and codes made available via the Website(s), as amended in line with their terms from time to time.
Merchant: the merchant to which the Proposal is issued and which requires Secure Virtual Terminal.
Merchant Data: the data inputted by the Merchant, Customers, or Paytia acting on behalf the Merchant or a Customer for the purpose of using Secure Virtual Terminal or facilitating the Merchant's use of Secure Virtual Terminal.
Normal Business Hours: 09:00 to 17:00 local UK time, each Business Day.
"Order" or "Order Form": the Paytia-approved form or online subscription process by which the Merchant agrees to subscribe to the Paytia Services.
Package: means the Secure Virtual Terminal package selected by the Merchant from the options made available to it by Paytia via the Website.
Secure Virtual Terminal: the subscription service provided by Paytia to the Merchant under this agreement via the Website(s) and the
Telephone Number, as more particularly described in the Documentation.
Paytia: Paytia Limited, a company incorporated and registered in England and Wales with company number 10258829 whose registered office is at 37th Floor, 1 Canada Square, Canary Wharf, London, E14 5AA
Proposal: shall mean any proposal issued to the Merchant by Paytia (whether via the Website or otherwise in writing) for the provision of Secure Virtual Terminal on the basis of these Terms.
Renewal Period: the period described in clause 12.1.
Setup Fee: the fee payable by the Merchant to Paytia for the initial setup of Secure Virtual Terminal as detailed in the Package or otherwise via the Website falling due on the Effective Date and each anniversary thereafter.
Software: the online software and telecommunications applications provided by Paytia as part of and which facilitate the use of Secure Virtual Terminal.
Submission: has the meaning given in clause 2.1.
Subscription Fees: the annual fee payable by the Merchant to Paytia for the use of Secure Virtual Terminal as detailed in the Package or otherwise via the Website falling due on the Effective Date and each anniversary thereafter.
Subscription Term: has the meaning given in clause 12.1 (being the Initial Term together with any subsequent Renewal Periods).
Telephone Number: the new virtual telephone number, which the Merchant can forward to its Customer to make use of the Functionality.
Terms: means these terms and conditions, which together with the Proposal comprises the agreement between the parties.
Transaction Fee: the fee payable by the Merchant to Paytia for ongoing transactions and telephone calls as detailed in the Package or otherwise via the Website.
Website(s): means www.paytia.com, www.pay729.net or such other web address notified by Paytia to the Merchant from time to time.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2. Clause headings shall not affect the interpretation of this agreement.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9. A reference to writing or written includes e-mail.
1.10. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2.1. Each available package shall be detailed on the Website and the Merchant shall select the Package and notify Paytia of its selection by following the on-screen instructions and completing the sign-up form (Submission). By making the Submission, the Merchant shall be required to acknowledge that it has read, understood and agrees to these Terms.
2.2. The advertisement and availability of the packages via the Website is not an offer capable of acceptance by the Merchant and the Submission shall be deemed to be an offer by the Merchant for Paytia to deliver Secure Virtual Terminal in accordance with the applicable Package.
2.3. Upon receipt of the Submission, Paytia shall send the Merchant an acknowledgement email (Acknowledgement) to the email address provided as part of the Submission. The Acknowledgement shall not be deemed acceptance on Paytia's part and following receipt of the Acknowledgement Paytia shall assess the viability of dealing with the Merchant.
2.4. Where Paytia deems dealing with the Merchant to be viable it shall prepare the Merchant's user area and active the same by sending the Merchant a confirmation email to the email address provided as part of the Submission and at which point a contract shall be formed between the parties.
3. SECURE VIRTUAL TERMINAL - SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
3.1. Paytia hereby grants to the Merchant a non-exclusive, non-transferable right, without the right to grant sub-licences, to use Secure Virtual Terminal and the Documentation during the Subscription Term solely for the Functionality. For the avoidance of doubt, for the purposes of these Terms, the Merchant's use of Secure Virtual Terminal shall include its use by its Customers in connection with the Functionality.
3.2. The Merchant shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of Secure Virtual Terminal that:
3.2.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.2.2. facilitates illegal activity;
3.2.3. depicts sexually explicit images;
3.2.4. promotes unlawful violence;
3.2.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.2.6. is otherwise illegal or causes damage or injury to any person or property.
3.3. The Merchant shall not except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
3.3.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
3.3.2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.3.3. access all or any part of Secure Virtual Terminal and Documentation in order to build a product or service which competes with Secure Virtual Terminal and/or the Documentation; or
3.3.4. use Secure Virtual Terminal and/or Documentation to provide services to third parties other than the Functionality; or
3.3.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make Secure Virtual Terminal and/or Documentation available to any third party, or
3.3.6. attempt to obtain, or assist third parties in obtaining, access to Secure Virtual Terminal
3.3.7. and/or Documentation without Paytia.
3.4. The Merchant shall use all reasonable endeavours to prevent any unauthorised access to, or use of, Secure Virtual Terminal and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Paytia.
3.5. The rights provided under this clause 3 are granted to the Merchant only, and unless otherwise agreed between the parties shall not be considered granted to any subsidiary or holding company of the Merchant.
4. PAYTIA'S OBLIGATIONS
4.1. Paytia shall, during the Subscription Term, provide Secure Virtual Terminal and make available the Documentation to the Merchant on and subject to these Terms.
4.2. Paytia shall use commercially reasonable endeavours to make Secure Virtual Terminal available in line with a Service Uptime commitment of 99.95% in a given calendar month, where:
4.2.1. "Service Uptime" means (total hours in calendar month - unscheduled maintenance which causes unavailability - Priority 1 issue durations - scheduled maintenance - Excluded) / (Total hours in calendar month - scheduled maintenance - Excluded) X 100%.
4.2.2. "Priority 1" means a critical full outage/severe issue that constitutes a catastrophic problem that causes complete inability to use the Subscription Service, excluding Free Services, across a significant portion of the production environment (e.g. crash or hang), resulting in production downtime and where there is no workaround or solution to the problem.
4.2.3. "Excluded" means the following: (i) unavailability caused by circumstances beyond our reasonable control, including, without limitation, act of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labour problems (other than those involving our employees), or any other force majeure event or factors; (ii) any problems resulting from Customer's combining or merging the Subscription Service with any hardware or software not supplied by us or not identified by us in writing as compatible with the Subscription Service; (iii) interruptions or delays in providing the service resulting from telecommunications or internet service provider failures outside of our data centre as measured by our third party website availability monitoring provider; and (iv) any interruption or unavailability resulting from the misuse, improper use, alteration, or damage of the Subscription Service.
4.3. If the Merchant pays Paytia a Subscription Fee for its products, email and on-line support is included at no additional cost.
4.3.1. Paytia accept email support questions 24 hours per day x 7 days per week. Emails can be submitted to firstname.lastname@example.org
4.3.2. Email support is provided during UK business working hours from 8.00 am Monday to 5.30 pm Friday UK time, excluding public holidays. Paytia attempts to respond to emails within one business day; in practice, its responses are generally faster.
4.4. Paytia undertakes that Secure Virtual Terminal will be performed and made available substantially in accordance with the Documentation and with reasonable skill and care.
4.5. The undertaking at clause 4.4 shall not apply to the extent of any non-conformance which is caused by use of Secure Virtual Terminal contrary to Paytia's instructions, or modification or alteration of Secure Virtual Terminal by any party other than Paytia or Paytia's duly authorised contractors or agents. If Secure Virtual Terminal does not conform with the foregoing undertaking, Paytia will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Merchant with an alternative means of accomplishing the Functionality. Notwithstanding the foregoing, Paytia:
4.5.1. does not warrant that the Merchant's use of Secure Virtual Terminal will be uninterrupted or error-free; or
4.5.2. that Secure Virtual Terminal, Documentation and/or the information obtained by the Merchant through Secure Virtual Terminal will meet the Merchant's requirements; and
4.5.3. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications, networks and facilities, including the internet, and the Merchant acknowledges that Secure Virtual Terminal and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.6. This agreement shall not prevent Paytia from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
4.7. Paytia warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
5. MERCHANT DATA
5.1. The Merchant shall own all right, title and interest in and to all of the Merchant Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Merchant Data.
5.2. In the event of any loss or damage to Merchant Data, Paytia shall use reasonable commercial endeavours to restore the lost or damaged Merchant Data from the latest back-up of such Merchant Data maintained by Paytia in accordance with the archiving procedure described in its Back-Up Policy. Paytia shall not be responsible for any loss, destruction, alteration or disclosure of Merchant Data caused by any third party (except those third parties sub-contracted by Paytia to perform services related to Merchant Data maintenance and back-up).
5.3. Paytia shall, in providing Secure Virtual Terminal, comply with its Privacy and Cookies Policy relating to the privacy and security of the Merchant Data available via the Website, as such document may be amended from time to time by Paytia in its sole discretion.
5.4. Each party shall, in performing its obligations under this agreement, comply with DP Legislation.
5.5. If Paytia processes any personal data on the Merchant's behalf when performing its obligations under this agreement, the parties record their intention that the Merchant shall be the data controller and Paytia shall be a data processor and in any such case:
5.5.1. the Merchant warrants that it has a legal basis under the DP Legislation to enable the lawful transfer of the Merchant Data to Paytia for the duration and the purposes of the agreement and, where required under the DP Legislation, it has obtained the prior and express consent of each data subject to transfer the Merchant Data to Paytia in accordance with DP Legislation and that the Merchant is accordingly entitled to transfer the Merchant Data to Paytia so that it may lawfully use, process and transfer the Merchant Data in accordance with this agreement;
5.5.2. the Merchant shall ensure that the Merchant is entitled to transfer the relevant personal data to Paytia so that Paytia may lawfully use, process and transfer the personal data in accordance with this agreement on the Merchant's behalf;
5.5.3. the Merchant shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable DP Legislation; and
5.5.4. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5.6. Paytia shall:
5.6.1. only carry out processing of any of the Merchant Data on the Merchant's and any other lawful instructions given from time to time;
5.6.2. only transfer the Merchant Data to countries outside EEA that ensure an adequate level of protection for the rights of the data subject; and
5.6.3. promptly and fully notify the Merchant in writing of any notices in connection with the processing of any Merchant Data, including subject access requests, and provide such information and assistance as the Merchant may reasonably require.
5.7. Except as expressly provided otherwise, this agreement does not transfer ownership of, or create any licences (implied or otherwise), in any Intellectual Property Rights in any (non-personal) data.
7. MERCHANT'S OBLIGATIONS, SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
7.1. The Merchant shall:
7.1.1. provide Paytia with all necessary co-operation in relation to this agreement; and all necessary access to such information as may be required by Paytia in order to provide Secure Virtual Terminal, including but not limited to Merchant Data, security access information and configuration services;
7.1.2. comply with all applicable laws and regulations with respect to its activities under this agreement;
7.1.3. carry out all other Merchant responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Merchant's provision of such assistance as agreed by the parties, Paytia may adjust any agreed timetable or delivery schedule as reasonably necessary;
7.1.4. obtain and shall maintain all necessary licences, consents, and permissions necessary for Paytia, its contractors and agents to perform their obligations under this agreement, including without limitation Secure Virtual Terminal; and
7.1.5. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Paytia's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Merchant's network connections or telecommunications service / links or caused by the internet; and
7.1.6. comply with Paytia’s Fair-Use Policy that can be found at https://www.paytia.com/fairusepolicy
8. FEES AND PAYMENT
8.1. The Merchant shall pay the Setup Fee, the Subscription Fees and the Transaction Fee to Paytia for the use of Secure Virtual Terminal in accordance with and at the times and dates set out in the Package or otherwise via the Website.
8.2. All amounts and fees stated or referred to in this agreement:
8.2.1. shall be payable in pounds sterling unless agreed otherwise by Paytia;
8.2.2. are non-cancellable and non-refundable; and
8.2.3. are exclusive of value added tax, which shall be added to Paytia's invoice(s) at the appropriate rate.
8.3. If Paytia has not received payment of any sums due under this agreement within 10 Business Days after the due date, and without prejudice to any other rights and remedies of Paytia:
8.3.1. Paytia may, without liability to the Merchant, disable Secure Virtual Terminal; and
8.3.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4. Paytia shall be entitled to increase the Subscription Fees and the Transaction Fees at the beginning of each Renewal Period upon 90 days' prior written notice to the Merchant.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. The Merchant acknowledges and agrees that Paytia and/or its licensors own all Intellectual Property Rights in Secure Virtual Terminal. Except as expressly stated herein, this agreement does not grant the Merchant any rights to, under or in any Intellectual Property Rights, or any other rights or licences in respect of Secure Virtual Terminal or the Documentation.
9.2. Paytia confirms that it has all the rights in relation to Secure Virtual Terminal and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with these Terms.
9.3. The Merchant shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing that Paytia may consider necessary or desirable to perfect the right, title and interest of Paytia in and to the Intellectual Property Rights in Secure Virtual Terminal.
9.4. The Merchant shall use reasonable endeavours to prevent any infringement of Paytia's Intellectual Property Rights in Secure Virtual Terminal and shall promptly report to Paytia any such infringement that comes to its attention. In particular, the Merchant shall not permit third parties to have access to Secure Virtual Terminal without the prior written consent of Paytia.
9.5. The Merchant expressly agrees that Paytia may use any of the Merchant's Intellectual Property Rights in any marketing or publicity materials.
10. CONFIDENTIALITY AND COMPLIANCE WITH POLICIES
10.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
10.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2. was in the other party's lawful possession before the disclosure;
10.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2. Subject to clause 10.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
10.3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
10.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.6. The Merchant acknowledges that details of Secure Virtual Terminal, and the results of any performance tests of Secure Virtual Terminal, constitute Paytia's Confidential Information.
10.7. Paytia acknowledges that the Merchant Data is the Confidential Information of the Merchant.
10.8. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.9. The above provisions of this clause 10 shall survive termination of this agreement, however arising.
10.10. In performing its obligations under this Agreement the parties shall comply with the Mandatory Policies.
11. INDEMNITY AND LIMITATION OF LIABILITY , SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
11.1. The Merchant shall indemnify Paytia, keep Paytia indemnified and hold Paytia harmless against all Loss (including any direct, indirect, special or consequential Loss, loss of profit, loss of business, contract, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Paytia arising out of or in connection with:
11.1.1. the Merchant's breach of this agreement howsoever arising;
11.1.2. any wilful or negligent act or omission of the Merchant, its officers, employees, contractors or agents or any of its Customers; and
11.1.3. the Merchant's use of Secure Virtual Terminal.
11.2. Except as expressly and specifically provided in this agreement:
11.2.1. the Merchant assumes sole responsibility for outcomes obtained from the use of Secure Virtual Terminal by the Merchant and for conclusions drawn from such use. Paytia shall have no liability for any damage caused by errors or omissions in any information provided to Paytia by the Merchant in connection with Secure Virtual Terminal, or any actions taken by Paytia at the Merchant's direction; and
11.2.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
11.3. Nothing in this agreement excludes the liability of Paytia:
11.3.1. for death or personal injury caused by Paytia's negligence; or
11.3.2. for fraud or fraudulent misrepresentation.
11.4. Save where otherwise provided for by these Terms:
11.4.1. neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any Loss of an indirect, special or consequential nature howsoever arising under this agreement including any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss;
11.4.2. each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total of all Subscription Fees and Transaction Fees paid to Paytia by the Merchant in cleared funds during the 12 months immediately preceding the date on which the claim arose; and
11.4.3. in no event shall Paytia, its employees, agents and sub-contractors be liable to the Merchant to the extent that the alleged infringement is based on:
188.8.131.52. a modification of Secure Virtual Terminal or Documentation by anyone other than Paytia; or
184.108.40.206. the Merchant's use of Secure Virtual Terminal or Documentation in a manner contrary to the instructions given to the Merchant by Paytia; or
220.127.116.11. the Merchant's use of Secure Virtual Terminal or Documentation after notice of the alleged or actual infringement from Paytia or any appropriate authority.
11.5. In the defence or settlement of any claim that Secure Virtual Terminal breaches the Intellectual Property Rights of any third party, Paytia may procure the right for the Merchant to continue using Secure Virtual Terminal, replace or modify Secure Virtual Terminal so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Merchant without any additional liability or obligation to pay liquidated damages or other additional costs to the Merchant.
11.6. The foregoing states the Merchant's sole and exclusive rights and remedies, and Paytia's (including Paytia's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any Intellectual Property Rights and confidentiality.
12. TERM AND TERMINATION
12.1. This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Term and thereafter, this agreement shall end and the merchant will be required to select a new subscription package to continue the service. Merchants will be notified of their subscription term ending 1 calendar month before their subscription end date unless either party notifies the other party of termination, in writing, at least one month before the end of the Initial Term or any Renewal Period (as the case may be) in which case this agreement shall terminate upon the expiry of the applicable Initial Period or Renewal Period.
12.2. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
12.2.1. the other party commits a breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so;
12.2.2. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
12.2.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
12.2.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
12.2.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
12.2.6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
12.2.7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
12.2.8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
12.2.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 10 Business Days;
12.2.10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.3 to clause 12.2.9 (inclusive);
12.2.11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3. In any event where Paytia is permitted to terminate the agreement, it shall without prejudice to any of its other rights or remedies, be permitted to suspend the provision of Secure Virtual Terminal;
12.4. On termination of this agreement for any reason:
12.4.1. the Merchant shall immediately pay any outstanding unpaid charges and interest due to Paytia up to the date of termination;
12.4.2. all licences granted under this agreement shall immediately terminate and the Merchant shall immediately cease all use of Secure Virtual Terminal;
12.4.3. each party shall (as applicable) return and make no further use of any equipment, property, Secure Virtual Terminal, Documentation and other items (and all copies of them) belonging to the other party;
12.4.4. Paytia may destroy or otherwise dispose of any of the Merchant Data in its possession unless Paytia receives, no later than 5 Business Days after the date of termination of this agreement, a written request for the delivery to the Merchant of the then most recent back-up of the Merchant Data. Paytia shall use reasonable commercial endeavours to deliver the back-up to the Merchant within 30 Business Days of its receipt of such a written request, provided that the Merchant has, at that time, paid all charges outstanding at and resulting from termination (whether or not due at the date of termination). The Merchant shall pay all reasonable expenses incurred by Paytia in returning or disposing of Merchant Data; and
12.4.5. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
12.5. Other than as set out in this agreement, neither party shall have any further obligation to the other under this agreement after its termination.
12.6. Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
12.7. Notwithstanding its obligations in this clause, if a party is required by law, regulation, or government or regulatory body to retain any documents or materials containing the other party's Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.
13. FORCE MAJEURE -- Paytia shall have no liability to the Merchant under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Paytia or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Merchant is notified of such an event and its expected duration.
14. CONFLICT -- If there is an inconsistency between any of the provisions in the main body of these Terms or any Proposal, the provisions in the Proposal shall, save in the case of manifest error, prevail.
15. VARIATION -- No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. WAIVER -- No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17. RIGHTS AND REMEDIES -- Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19. ENTIRE AGREEMENT
19.1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
20. ASSIGNMENT AND SUBCONTRACTING
20.1. Save to the extent provided for elsewhere in this agreement, this agreement is personal to the Merchant and it shall not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of Paytia (such consent not to be unreasonably withheld or delayed).
20.2. Paytia may assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the Merchant. Paytia shall notify the Merchant in writing prior to any such dealings.
20.3. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21. NO PARTNERSHIP OR AGENCY -- Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. THIRD PARTY RIGHTS -- This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
23.1. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be delivered by:
23.1.1. hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
23.1.2. by email to: the addresses expressly provided to Paytia by the Merchant; and email@example.com in the case of Paytia.
23.2. Any notice or communication shall be deemed to have been received:
23.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
23.2.2. if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
23.2.3. if sent by email at 9:00 am on the second Business Day after transmission.
23.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include fax or e-mail.
24. DISPUTE RESOLUTION
24.1. It is the intention of the parties to settle amicably by negotiation all disagreements and differences of opinion on matters of performance, procedure and management arising out of this agreement. Accordingly, it is agreed that the procedure set out in this clause 28 shall be followed before the serving of written notice terminating this agreement, or in relation to any matter of dispute between the parties concerning performance, procedure or management.
24.2. If any disagreement or difference of opinion arises out of this agreement, directors for each party shall meet to attempt resolution. If, within 20 Business Days of the matter first having been referred to the directors, no agreement has been reached as to the matter in dispute, the dispute resolution process set out in this clause 24 shall be deemed to have been exhausted in respect of the matter in dispute, and each party shall be free to pursue the rights granted to it by this agreement in respect of such matter without further reference to the dispute resolution process.
24.3. For the avoidance of doubt, this clause 24 shall not prevent either party from seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or any infringement by the other of the first-named party's Intellectual Property Rights.
25. GOVERNING LAW AND JURISDICTION
25.1. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
25.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).