1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement: this agreement and any attached schedules or appendices;
Acquiring Bank: the bank, or the provider of bank processing services, with which the Client has, or intends to have, a Banking Contract;
Background Materials: all Documents, information and materials which existed prior to the Commencement Date or which are developed, owned or licensed by LPS at any time independently of this Agreement;
Banking Contract: the contract between the Client and its Acquiring Bank for the provision of the Client’s bank account;
Cardholder: a person to whom a Payment Card is issued or who is authorised to use such Payment Card;
Chargeback: any charge that a Payment Card Issuer refuses to settle or in respect of which it seeks reimbursement of a previously settled card payment;
Charges: the charges for the Services, as set out in Schedule 2, Part 1;
Client’s Equipment: any equipment, systems, cabling or facilities provided by the Client and/or used directly or indirectly by the Client in relation to the Services;
Confidential Information: all technical or commercial know-how, specifications, inventions, processes, secrets or initiatives relating to the trade, business activities, operations, organisation, finances, processes, dealings, specifications, methods, designs, formulae, computer software and technology of either party, as applicable, whether the said information is marked as confidential or is by its nature confidential;
Connection: the connection between the server utilised by LPS to provide the Services and the Client’s Acquiring Bank or other authorised processor;
Deliverables: all Documents, products and materials developed by LPS or its agents, subcontractors, consultants and employees in relation to the Services in any form, including any computer programs, data, reports and specifications;
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Exclusions: the following services and/or checks, which are specifically excluded from the scope of the Services
- whether the user of the Payment Card has the permission of the Cardholder to use the Payment Card;
- whether the details keyed in by the Client’s customers are correct; and
- any activities which lie within the scope of the Banking Contract.
Information: all information, Documents and other materials provided by the Client relating to the Services, including computer programs, data, reports and specifications;
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or in relation to passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Law(s): any law, ordinance, rule, regulation, order, license, permit and other requirement, now or hereafter in effect, of any governmental authority of competent jurisdiction;
Payment Card: a credit or debit card;
Payment Card Issuer: the entity which issues the Payment Card;
http://www.lateralpaymentsolutions.com/privacy_statement.html, which describes the ways in which LPS shall collect and use Personal Data;
Services: the services to be provided by LPS as set out in Schedule 1, together with Support and any other services which LPS provides or agrees in writing to provide to the Client. For the avoidance of doubt, the Exclusions are not comprised in the Services;
Refund: a refund or reimbursement of any sum due from the Client to any Cardholder;
Support: the technical support and assistance to be provided in connection with the Services, as described in detail in Schedule 3;
Term: the period of 2 years from the Commencement Date;
Transaction: a financial transaction or enquiry conducted using or in relation to a Payment Card; and
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Words in the singular shall include the plural and vice versa.
1.4 A reference to writing or written includes faxes and e-mail, provided that evidence of receipt is required in each case
1.5 Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.6 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.7 References to clauses and schedules are to the clauses and schedules of this Agreement.
2.1 In consideration of the payment of the Charges by the Client, LPS shall provide the Services on the terms and subject to the conditions set out in this Agreement. LPS warrants that the Services will be carried out with reasonable skill and care by suitably qualified and experienced personnel.
2.2 LPS shall use reasonable endeavours to meet any performance dates or timescales specified in this Agreement or agreed in writing with LPS, including those relating to the Support, but any such dates or timescales shall be estimates only and time for performance by LPS shall not be of the essence of this Agreement.
2.3 The Client agrees and acknowledges that (i) no software, hardware or any other goods shall be supplied under this Agreement, (ii) the Client shall be responsible for establishing the suitability and compatibility of the Services, including any technical aspects of the Services, for or with the Client’s business and its related systems and/or software; and (iii) in providing the Services, LPS acts as facilitator, and not as principal, in relation to the Client’s Transactions with its customers.
2.4 LPS may from time to time without notice make changes to the systems or networks it uses or to which it connects for the purpose of providing the Services, save that where any change has a material impact on the provision of the Services, LPS shall comply with the provisions of clause 5 below.
3. CHARGES AND PAYMENT
3.1 The Client agrees to pay the Charges. The Charges exclude VAT or similar taxes, which will be charged at the rate prevailing on the date of invoice.
3.2 The Client shall be entitled in good faith to dispute any amount invoiced within fourteen (14) days of receipt, provided that it serves written notice on LPS setting out the reasons for the dispute and pays without delay any amount not in dispute. All invoices not so disputed shall be deemed accepted and any right of dispute waived.
3.3 Subject to the aforementioned rights of dispute, the Client shall pay all invoices in full and in cleared funds within 30 days of receipt; payment to be made by direct debit in accordance with the details set out in Schedule 2, part 2.
3.4 Without prejudice to any other right or remedy that it may have, if the Client fails to pay LPS on the due date, LPS may:
(a) charge interest on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and LPS may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Client shall pay the interest immediately on demand; and
(b) suspend all Services until payment has been made in full.
3.5 The parties agree that LPS may review and increase the Charges, provided that the Charges cannot be increased more than once in any 12month period. LPS shall give the Client written notice of any such increase 3 months before the proposed date of that increase. If such increase is not acceptable to the Client, it may, within 1 month of such notice being received or deemed to have been received in accordance with clause 19, terminate the Agreement by giving 3months written notice to LPS. In the event the Client does not terminate the Agreement as aforesaid, the increase shall take effect on the expiry of the said 3month notice.
3.6 All sums payable to LPS under this Agreement shall become due immediately on its termination, despite any other provision. This clause 3.6 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
3.7 LPS may, without prejudice to any other rights it may have, set off any liability of the Client to LPS against any liability of LPS to the Client.
3.8 If you have applied for a merchant account with LPS and paid a setup fee, then decide to not proceed within 30 days of your registration, providing you give us immediate notification in writing to the email address specified on our website, you will not be liable for any further fees. Please note that we will only refund your set up fee, if we have not already started to process your application. You are not entitled to any refund of setup fee if your application has already been processed.
3.9 There can be cases when LPS is unable to provide our services to all businesses, for example, operational, location, legal, regulatory, reputational, or risk reasons. If, (other than as a consequence of your own acts or omission) after our initial assessment of your application, we decline to offer you an account we shall refund any monthly charges paid by you in advance to the date of notification of decline.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
(a) co-operate with LPS in all matters relating to the Services, including the prompt provision of all information reasonably required by LPS and shall ensure the said information is complete and accurate;
(b) comply with all Laws applicable to the Client’s obligations hereunder, including all relevant data protection and privacy Laws, and obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the use and disclosure of Information and the use of Client Equipment;
(c) be responsible for Chargebacks and Refunds unless otherwise agreed in writing.
4.2 If LPS’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, LPS shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
4.3 The Client shall be liable to pay to LPS, on demand, all reasonable costs, charges or losses sustained or incurred by LPS (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud or negligence, subject to LPS confirming such costs, charges and losses to the Client in writing.
4.4 The Client hereby represents and warrants that entering into this Agreement and/or providing the Services shall not give rise to any proceedings claims or demands (or circumstances likely to give rise to the same) by any employee (of the Client, its affiliates or any supplier) pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Client agrees to indemnify LPS fully and keep it indemnified in respect of any cost, loss, damage or expense suffered or incurred by reason of any breach of the aforementioned warranty.
4.5 The Client shall not, without the prior written consent of LPS, (a) at any time during the currency of this Agreement or within 12 months of its termination or expiry, solicit or entice away from LPS or employ or attempt to employ any person who is, or has been, engaged as an employee of LPS in the provision of the Services, and (b) at any time during the currency of this Agreement or within 6 months of its termination or expiry, solicit or entice away from LPS any person who is, or has been, engaged as a consultant or subcontractor of LPS in the provision of the Services.
5. CHANGE CONTROL
5.1 If either party requests a change to the scope or execution of the Services, LPS shall, within a reasonable time, provide a written estimate to the Client of:
(a) the likely time required to implement the change;
(b) any necessary variations to LPS’s Charges arising from the change; and
(c) any other impact of the change on this Agreement.
LPS shall not charge for the time it spends assessing a request for change from the Client or providing any estimate unless the time involved exceeds 24 man hours, in which event LPS shall be entitled to apply reasonable charges for the time incurred.
5.2 If the Client wishes LPS to proceed with the change, LPS has no obligation to do so unless and until the parties have agreed the necessary variations to the Charges, the Services and any other relevant terms of this Agreement to take account of the change and this Agreement has been varied in accordance with clause 12.
5.3 Notwithstanding clause 5.2, LPS may, from time to time and without notice, change the Services, including making changes to the Services for technical reasons, in order to improve the Services, or in order to comply with any applicable Laws. Where the said change does not materially affect the nature, scope of, or Charges for the Services, the Client agrees and acknowledges that LPS shall be entitled to make the changes without the need for Client consent and on the basis that LPS bears the costs associated with the said change.
5.4 If LPS requests a change to the scope of the Services which will have a material effect on the Services, then such change shall be agreed in accordance with the terms of this clause 5. The Client shall not unreasonably withhold or delay consent to any change requested by LPS. LPS shall give notice, in advance, save for in exceptional circumstances, to the Client of any material change or variation to the Services. In the event that LPS makes any material change to the Services other than in accordance with the provisions of this clause 5, the Client shall be entitled to terminate the Services with immediate effect.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Save as set out in this Agreement, neither party will acquire any ownership interest in or licence of any Intellectual Property Rights owned by the other party. All Intellectual Property Rights and all other rights in the Deliverables and the Background Materials shall be owned by LPS.
6.2 In consideration of the Client’s payment of the Charges and compliance with the terms of this Agreement, LPS hereby grants to the Client a royalty-free, non-exclusive, revocable licence to use LPS’s Intellectual Property Rights to the extent to which they are reasonably required for the Client’s use of the Services in accordance with the terms of this Agreement. The aforementioned licence shall terminate automatically in the event of the termination or expiry of this Agreement.
7. CONFIDENTIAL INFORMATION
7.1 Each party shall, during the term of this Agreement and for five years thereafter, keep confidential, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any Confidential Information which may become known to such party (the ‘Recipient’) from the other party (the ‘Disclosing Party’), unless such information is public knowledge or already known to the Recipient at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of the Recipient party from a third party.
7.2 The Recipient may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Recipient’s obligations under this Agreement; and
(b) as may be required by law, court order or any governmental or regulatory authority.
7.3 The Recipient shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 7.
7.4 The Recipient shall not use any such information for any purpose other than to perform its obligations under this Agreement.
7.5 The provisions of clause 7 shall remain in full force and effect notwithstanding termination of this Agreement for any reason.
8. LIMITATION OF LIABILITY
8.1 This clause 8 sets out the entire financial liability of LPS (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:
(a) any breach of this Agreement;
(b) any use made by the Client of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement. For the avoidance of doubt, LPS does not warrant that the operation of any of the Services will be uninterrupted or error free. The Client acknowledges and agrees that LPS has no control over or responsibility for quality of the Service obtainable through any networks or services which are not owned and controlled by LPS and any liability of LPS in respect of the same is hereby excluded.
8.3 Nothing in this Agreement limits or excludes the liability of LPS:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by LPS; or
(c) for any other liability which may not be excluded or limited under applicable law.
8.4 Subject to clause 8.3:
(a) LPS shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, and
(b) LPS’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 either (i) the sum of £250,000 (two hundred and fifty thousand pounds sterling) or (ii) the sum of all Charges paid by the Client in the 12 months immediately prior to the event giving rise to the claim; whichever is the lower.
9. DATA PROTECTION
9.1 Each party warrants to the other that it shall comply with its obligations under the Data Protection Act 1998.
9.4 LPS shall be entitled to store all Personal Data provided by the Client for the duration of this Agreement or any subsequent arrangement or relationship with the Client, or as may be otherwise required by law or for taxation purposes
10. TERM & TERMINATION
10.1 This Agreement shall commence on the Commencement Date and shall continue thereafter for the Term. Unless terminated in accordance with its terms, the Agreement shall automatically continue thereafter until or unless terminated by either party on service of written notice of not less than 3 months.
10.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving notice to the other if:
(a) the other party commits a material breach of the terms of this Agreement which is not capable of remedy or, if capable of remedy, is not remedied within 30 days of that party being notified in writing of the breach; or
(b) the other party becomes insolvent or unable to pay its debts as they fall due, or if an application is made or resolution is passed for its winding up other than for the purposes of reconstruction, or if a receiver, liquidator, administrator or similar officer is appointed to handle its affairs, or if any other event of a substantially similar nature takes place, or if the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
10.3 LPS may terminate this Agreement immediately on notice in the event that (i) an Acquiring Bank gives written notice to either party to terminate the Connection, or (ii) any Acquiring Bank and/or other provider declines to offer or continue to provide the Client with the services under a Banking Contract.
10.4 On termination of this Agreement for any reason:
(a) the Client shall immediately pay to LPS all of LPS’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, LPS may submit an invoice, which shall be payable immediately on receipt;
(b) the Client shall return to LPS any Background Materials and/or Deliverables. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
10.5 On termination of this Agreement (however arising) the following clauses shall, without limitation, survive and continue in full force and effect: clauses 4.4, 4.5, 6, 7, 8, and 9.
11. FORCE MAJEURE
11.1 A party shall not be in breach of this Agreement, nor liable for any failure or delay in performance of any obligations under this Agreement arising from or attributable to a Force Majeure Event.
11.2 For the purposes of this clause 11, ‘Force Majeure Event’ means any events, omissions or accidents beyond that party’s reasonable control, including but not limited to any of the following: acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster; war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, civil war, civil commotion or riots; nuclear, chemical or biological contamination or sonic boom; mandatory compliance with any law; fire, explosion or accidental damage; loss at sea; adverse weather conditions; collapse of building structures, failure of plant machinery, machinery, computers or vehicles; non-performance by suppliers or subcontractors; and interruption or failure of utility service, including but not limited to electric power, gas or water.
11.3 The party subject to a Force Majeure Event shall promptly notify the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance and shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this Agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
11.4 If the Force Majeure Event prevails for a continuous period of more than 30 days, either party may terminate this Agreement by giving 14 days’ written notice to all the other party. On the expiry of this notice period, this Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring prior to such termination.
Subject to clause 5, no variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.1 Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.
13.2 No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
13.3 A waiver (which may be given subject to conditions) of any right or remedy provided under this Agreement or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
13.4 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
14.1 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
14.2 If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15. ENTIRE AGREEMENT
15.1 This Agreement constitutes the whole Agreement between the parties and supersedes any previous arrangement, understanding or Agreement between them relating to the subject matter of this Agreement.
15.2 Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (‘Representation’) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract as provided in this Agreement.
15.3 Nothing in this clause shall limit or exclude any liability for fraud.
16.1 Neither party may, without the prior written consent of the other, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.2 Each party that has rights under this Agreement is acting on its own behalf and not for the benefit of another person.
17. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18. RIGHTS OF THIRD PARTIES
A person who is not a party to this Agreement shall not have any rights under or in connection with it.
19.1 Any notice given to a party under this Agreement shall be in writing, signed by or on behalf of the party giving it and shall be sent for the attention of the person, at the address or fax number specified in this clause (or to such other address, fax number or person as that party may notify to the other in writing).
19.2 Notices may be delivered personally or by courier, sent by fax or by pre-paid first-class post or recorded delivery.
19.3 The details for service of notice are as follows:
(a) LPS: [The Old Church, Quicks Road, London, SW19 1EX] [Ian Vidamour]
(b) Client: [3 Warren Yard, Milton Keynes, MK12 5NW] [Keith Goddard]
19.4 If a notice has been properly sent or delivered in accordance with this clause, it will be deemed to have been received; if delivered personally or by courier, at the time of delivery or signature receipt; if sent by fax, at the time of successful transmission; and if sent by pre-paid first-class post or recorded delivery, on the second business day after posting.
20. DISPUTE RESOLUTION
20.1 If any dispute arises in connection with this Agreement, the aggrieved party shall notify the other party in writing, setting out details of the dispute. Authorised officers of LPS and the Client shall, within 14 days of the written notice, meet in a good faith effort to resolve the dispute.
20.2 In the event that the said officers are unable to resolve the dispute at the aforementioned meeting, they shall, within 7 days of the aforementioned meeting, notify their respective managing directors and provide them with a report summarising the issues in dispute. The managing directors shall meet within 14 days of receipt of notification and shall use all reasonable endeavours to resolve the dispute. If no agreement is reached, parties will attempt to settle it by mediation in accordance with the CEDR model mediation procedure.
20.3 No party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has in good faith attempted to resolve the dispute in accordance with the procedures set out in this clause.
21. GOVERNING LAW AND JURISDICTION
21.1 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 law of England and Wales.
21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.