1. ACCESS AND USE
Subject to and conditioned on your completion of our Order Form to access and use our Platform, and your compliance with the terms and conditions of this Agreement, during the Term:
- We will provide the Services to you in accordance with our API and other applicable hosted services documentation as provided to you from time to time (“Platform Documentation”).
- We hereby grant to you a personal, limited, revocable, non-exclusive, non-sublicensable and non-transferable right to access and use the Platform and receive the Services solely for your business operations by Authorized Users (defined below) and in accordance with this Agreement (“License”). You may not use the Platform or the Services for any other purpose without our prior written consent. The License shall immediately cease upon any expiration or termination of this Agreement for any reason.
Authorized Users: “Authorized User” means (if you are entering into this Agreement for or on behalf of a business organization), you and all employees, officers, directors, consultants, contractors and agents of such business organization and, only if and to the extent applicable and documented, those of the Affiliate(s), (i) who are authorized by you to access and use the Platform and to receive Services under the rights granted to you pursuant to this Agreement; and (ii) for whom access to the Platform and Services has been purchased by you hereunder. You shall not exceed the number of Authorized Users detailed in the Order Form at any time. Additional Authorized Users can be added via the Change Request Procedure.
Affiliate Use: Your License to access and use the Platform and Services under this Agreement is personal to you and does not include use by any Affiliate, unless expressly otherwise specified in the Order Form or subsequent Change Request and approved by us in writing. To the extent Affiliate use is expressly authorized by us on approval of your Order Form, then the designated Affiliate(s) and its or their respective end users shall be considered Authorized Users within the scope of the License. “Affiliate” means: (i) in relation to you, any other person or entity directly or indirectly controlling or controlled by, or under direct or indirect common control with such specified person or entity; and (ii) in relation to CellPoint, any subsidiaries of CellPoint Digital Holdings Limited. For the purposes of this definition, “control” when used with respect to any specified person or entity, means the power to direct the management and policies of such person or entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
You agree to take all reasonable measures to allow us to perform our obligations to deliver the Services. We are not responsible for any delay or failure to provide the Services caused by any act or omission by you or an Authorized User.
As between you and us, you are solely responsible for all acts and omissions of your end users (whether or not Authorized Users) in connection with their use of the Platform and Services through your systems.
You acknowledge that we may update or modify the Platform from time to time as determined appropriate by us (in each instance, an “Update”). Your continued use of the Platform following an Update constitutes binding acceptance of the Update.
Change Request Procedure. Either party may issue a request for new, additional or change in the scope of work as the need arises (“Change Request”). Such Change Requests shall be managed via our Change Request Procedure (which shall be communicated to you upon request). Change Requests shall be subject to a cost estimate and timetable as mutually agreed between Merchant and CellPoint. For changes having financial or timeline impact, we may not begin performing any additional service(s) until an appropriate Change Request is duly signed by authorized representative of both parties.
3. DURATION OF OUR RELATIONSHIP
This Agreement shall be effective from the signature date (the “Effective Date”). The Initial Period listed in the Order Form commences on the first “go live” date of the Services (the “Initial Period”) and, unless terminated earlier as described below, shall continue for the Initial Period as set out in the Order Form. Upon expiration of the Initial Period, this Agreement shall automatically renew for successive periods of one (1) year (each, a “Renewal Period” and the Initial Period and any Renewal Periods, the “Term”), unless:
- either party notifies the other of non-renewal, in writing, at least sixty (60) days before the end of the Initial Period or any Renewal Period; or
- otherwise terminated in accordance with the provisions of this Agreement.
We agree that we will not suspend your access to the Platform or your use of the Services under any circumstances, except in the event of Merchant’s default on payment of undisputed charges or, in the event we are required to do so by a bona fide regulatory body or, under Applicable Laws.
Either we or you may terminate this Agreement upon sixty (60) days’ written notice if the other materially breaches any of the terms or conditions of this Agreement. We may terminate this Agreement immediately on written notice if you fail to pay any amount due under this Agreement on the due date for payment and remain in default for sixty (60) days or more after being notified in writing to make the payment. In the event of termination of this Agreement for any reason, you shall pay us in full for the Services up to and including the date of termination.
On termination or expiration of this Agreement, we may destroy or otherwise dispose of any Merchant Data (as defined in Clause 8 below) in our possession unless we receive notice from you no later than one hundred and eighty (180) days after this Agreement ends. After such one hundred and eighty (180) day period, any Merchant Data may be deleted from storage and we are not obligated to retrieve such Merchant Data.
All sections of this Agreement which by their nature are intended to survive termination or expiration of this Agreement will survive termination. Termination of this Agreement will not limit any of our rights or remedies at law or in equity.
You shall pay us the fees as specified in the Order Form, as applicable (the “Fees”).
All Fees are stated exclusive of any applicable VAT and other taxes, which additional amounts shall be added to the total Fees and payable by you to us. You agree that CellPoint Digital may use an Affiliate company to invoice you for the Services.
If you exceed any permitted usage restrictions that are communicated to you from time to time, we will invoice you at our then-current rates the uplift in Fees in respect of any such exceeded usage, pro-rated for the period that began on the date you first exceeded your permitted usage through the remainder of the Term.
We shall have the right to make reasonable price adjustments to the Services on a yearly basis.
For services that utilize third parties, increases in those costs to CellPoint Digital will result in a corresponding increase in fees for those services that are charged to you at any time.
All payments due under this Agreement shall be payable within thirty (30) days following the date upon which we issue you with an invoice. If we have not received payment by the due date, and without prejudice to any of our other rights and remedies: (a) we may, without liability to you, disable your usage of the Platform and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the sums concerned remain unpaid; and (b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to five percent (5%) over the then-current consumer price index from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
If you believe that you have been billed incorrectly, you must contact us no later than thirty (30) days after the due date of the invoice in which the alleged error or problem appears, with a reasonable request to receive an adjustment or credit. In such event, you will provide us with reasonable details of the dispute and cooperate with us in attempting to promptly resolve the dispute. All undisputed fees remain payable at all times.
If applicable, you may make any tax deduction (“Tax Deduction”) that is required by law, and any payment required in connection with that Tax Deduction, if you are required by law to make a Tax Deduction, then you shall: (i) prepare and submit any necessary filings and remit such Tax Deduction to the appropriate taxing authority; (ii) obtain and provide CellPoint Digital within a reasonable time all applicable governmental receipts evidencing your withholding and payment to the appropriate taxing authorities, and (iii) pay us any sum as will, after the Tax Deduction is made, leave us with the same amount as it would have been entitled to receive without the Tax Deduction.
You shall not be required to increase any payment in respect of which it makes such a Tax Deduction or otherwise compensate the Supplier for that Tax Deduction.
However, if any sums payable by you to CellPoint Digital under this Agreement is subject to Tax in the hands of CellPoint Digital, you shall pay any additional amount required to ensure that the net amount received by us shall be the amount that we would have received if the payment was not subject to Tax.
In the event we are required to travel in order to ensure the provision of Services under this Agreement and/or, for any other reason as determined between the parties, You shall reimburse us any and all travel expenses providing always that such travel expenses are approved, in advance, by you.
5. YOUR RESPONSIBILITIES
You shall not, directly or indirectly:
- (except as permitted by applicable law) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, or any software developed, trained or owned by or licensed to us and which forms part of, or is used in the provision the Services, documentation or data related to the Services and including, without limitation, the Platform;
- copy, modify, translate, teach, train or create derivative works based on the Services (except to the extent expressly permitted by us in writing or authorized within the Services);
- access all or any part of the Services to build a product or service which competes with the Services;
- use the Services to provide services to third parties;
- access or use the Services in any manner that is illegal or may cause damage or injury to any person or property; or
- remove or alter any proprietary markings (e.g., copyright and trademark notices) posted within the Services.
You are responsible and liable for all uses of the Platform and Services resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement and whether or not by an Authorized User. You shall use reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized Users’ use of the Platform and Services.
Additionally, you shall:
- provide us with all necessary cooperation in relation to this Agreement (and all necessary access to such information as may be required by us) in order to provide the Services, including permitted access to Merchant Data (as defined below), security access information and configuration services;
- comply with all applicable laws, rules and regulations with respect to your activities under this Agreement; and
- carry out all other responsibilities set out in this Agreement in a timely and efficient manner.
6. OUR RESPONSIBILITIES
We will use our commercially reasonable efforts to provide the Services with reasonable skill and care. This shall not apply to the extent of any non-conformance which is caused by, directly or indirectly, any use of the Services contrary to this Agreement, our Platform Documentation or instructions, or any modification or alteration of the Services by any party other than us.
If the Services are not provided in accordance with this Agreement or are not provided with reasonable skill and care following our commercially reasonable efforts to do so, we will, at our own expense, use all reasonable commercial efforts to promptly correct any such non-conformance. This constitutes your sole and exclusive remedy for any breach of the undertaking set out above in this clause.
For clarity, we do not control the content transmitted or made available through the Services and, in particular, do not control the Merchant Data and, as such, we do not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of the foregoing content or data.
We shall, as far as commercially practicable, maintain in force throughout the Term of this Agreement, via reputable insurers, insurance policies which are reasonably sufficient in the industry in relation to the provision of Services under this Agreement.
7. INTELLECTUAL PROPERTY OWNERSHIP
“Intellectual Property Rights” or “IPRs” means patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks 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 or other proprietary rights of any kind, 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.
All IPRs belonging to us prior to the execution of this Agreement, and any IPRs that are created after the execution of this Agreement, are and shall remain wholly owned and vested in us. This Agreement confers no license or rights by implication, estoppel, or otherwise to any the Platform or Services or under any other Intellectual Property Rights other than the License to access and use the Platform and receive the Services in accordance with this Agreement.
8. DATA USE
In this Agreement, “Merchant Data” means all content, data, know-how, material, input and other information uploaded to any Software, transmitted through the Services or otherwise submitted to us, by you (or for you) or any Authorized User. For the avoidance of doubt, Merchant Data and its derivatives will not include our Confidential Information.
You shall own all right, title and interest in the Merchant Data, as well as any data that is based on or derived from the Merchant Data and provided to you as part of the Services for the exclusive purpose of using the Services and for the duration of this Agreement. You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Merchant Data.
We shall have the right to collect, use, analyze or otherwise process (as defined under any applicable data protection laws) Merchant Data and other information relating to the provision, use and/or performance of various aspects of the Services and related Software, systems and technologies (including information concerning Merchant Data and data derived therefrom), and we will be free (both during and after the Term):
- to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and our other product and services offerings;
- to use such data in connection with our business, including for the training of machine learning algorithms (on an aggregated and anonymized basis) and for any other data processes deployed by us; and
- to disclose such data to third parties (including, without limitation, a CellPoint Digital Affiliate) solely in aggregate form reasonably necessary for the proper performance of its business functions.
9. DATA PROTECTION
You agree that, during the course of providing the Services, we may obtain, access or otherwise process Merchant Data from or on behalf of you, including your Authorized Users or Affiliates (if applicable). Our Data Processing Addendum, forms part of this Agreement, sets out your and our respective rights and obligations.
We have implemented and shall maintain appropriate technical and organizational security measures to ensure we comply with applicable law and good industry practices.
We shall ensure that the personnel who access to our systems and who manage the Services are trustworthy and suitable for their role, comply with good industry practice, perform actions only to the extent necessary to perform their role, are subject to a duty of confidence, are subject to user authentication processes and receive reasonable security, confidentiality, data protection and privacy compliance training.
CellPoint Digital shall implement as soon as reasonably practicable any required changes to its technical and organisational security measures on becoming aware of any change in applicable laws or good industry practices.
11. THIRD PARTY SERVICE PROVIDERS
For clarity, we are not a merchant account provider and we do not assume any direct or indirect liability or responsibility for your agreements with merchant account providers that are supported on our Platform.
You acknowledge that the Services may require, enable or assist you to access the content of, correspond with, and purchase products and services from, third parties via a third-party website or facilitate payment transactions by use of or through the processing and/or operation of third-party services. We are not responsible for, and you are solely responsible to contract directly with such third-party providers for, any transactions you complete with third-parties involving third-party services. Third-party services do not necessarily reflect the opinion of CellPoint Digital.
You acknowledge that you may be subject to approval by Third Party Service Providers as part of your ability to receive the Services, and you may be required to sign a direct agreement with such Third Party Service Providers. These Third Party Service Providers are not deemed our subcontractors.
By contracting with the Third Party Service Providers, you are choosing how they provide their services to you and we cannot guarantee on their behalf that their services will be uninterrupted. Please also note that the services provided by the Third Party Service Providers can suspended or be brought to an abrupt end in any event by them for any reason whatsoever.
In this clause, “Confidential Information” means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this agreement), including all information relating to that other's business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, Merchants, partners or suppliers (together with any copies made) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which:
- is available to the public other than because of any breach of this Agreement;
- is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
- is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others.
The party receiving Confidential Information (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information to the other. Our Confidential Information includes, but is not limited to, all non-public information regarding features, functionality and performance of the Services and our other products and services. Your Confidential Information includes non-public data provided by you to us to enable the provision of the Services.
The Receiving Party agrees:
- to take reasonable precautions to protect such Confidential Information; and
- not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third person any such Confidential Information.
Subject to Clause 14, we agree to indemnify you, your officers, directors and employees against any claim that your use of the Services in accordance with the terms of this Agreement infringes any U.S. or European patent right of a third party that is effective as of the Effective Date, or any third party copyright, trademark, database right or right of confidentiality, and shall indemnify you for amounts awarded against you in final judgment or settlement of such claims, provided that:
- we are given prompt notice of any such claim;
- you provide reasonable co-operation to us in the defense and settlement of such claim, at our expense; and
- we are given sole authority to defend or settle the claim.
The indemnity immediately above states your sole and exclusive rights and remedies, and our (including our employees’, agents’ Affiliates’, and sub-contractors’) entire obligations and liability for infringement of any patent, copyright, trademark, database right or right of confidentiality.
You agree to indemnify our officers, directors, employees, agents, Affiliates, successors, assigns, and any other person or entity directly or indirectly controlling or controlled by, or under direct or indirect common control with us, harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (a) your use or misuse of the Platform or Services, (b) your breach of this Agreement, and (c) your systems that interact with the Platform and/or any of our other software, including any end user’s use (whether or not an Authorized User) thereof. In the event we seek indemnification from you under this provision, we will promptly notify you in writing of the claim(s) brought against us for which we seek indemnification or defense. We reserve the right, at our option and in our sole discretion, to assume full control of the defense of claims with legal counsel of our choice. You may not enter into any third-party agreement that would, in any manner whatsoever, constitute an admission of fault by us or bind us in any manner, without our prior written consent. In the event we assume control of the defense of such claim, we will not settle any such claim requiring payment from you without your prior written approval.
14. LIMITING OUR LIABILITY
The Services and the Platform are provided to you on an “as is” and “as available” basis. You expressly agree that your use of the Services and any reliance on them will be at your own risk.
TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW (INCLUDING BUT LIMITED TO (I) LIABILITY FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE; (II) LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW), IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY LOST PROFITS, LOST OR CORRUPTED DATA OR INFORMATION (INCLUDING MERCHANT DATA), COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, DEPLETION OF GOODWILL, PURE ECONOMIC LOSS, IN EACH CASE HOWSOEVER OCCURING, ARISING OUT OF THE USE OR INABILITY TO USE THE PLATFORM; (B) ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE PLATFORM; OR (C) ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF ONE HUNDRED PERCENT (100%) OF THE TOTAL FEES PAID BY YOU TO US IN RESPECT OF THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
15. OTHER IMPORTANT TERMS
We and you shall both comply with applicable bribery laws (“Applicable Bribery Law”). Neither we nor you shall place the other in breach of Applicable Bribery Law. We shall both maintain in place throughout the Term our own respective policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with Applicable Bribery Law, and will enforce them where appropriate. Where requested, we and you shall promptly answer reasonable enquiries relating to those policies and procedures.
This Agreement sets forth the entire agreement and understanding between you and us in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings, whether written or oral, regarding such subject matter.
By entering into this Agreement, we both agree and acknowledge that it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or any other applicable law or regulation to enforce any provision of this Agreement.
For the purpose of this Agreement, “Force Majeure” shall be defined as “any unforeseeable circumstances beyond the control of either party, which results in that party being unable to observe or perform its obligations on time.
In the event of a Force Majeure event which hinders us or you from discharging our respective obligations under this Agreement, the party claiming to be affected thereby shall promptly notify the other party by giving full particulars thereof and shall use its commercially reasonable endeavours to remedy the situation and the parties shall consult each other on the appropriate measures to be taken.
The performance of any obligation shall be suspended while Force Majeure is operative shall be resumed as soon as such Force Majeure event ceases. The Force Majeure event shall not constitute default hereunder or give rise to any claims for damages or loss of anticipated profits, if and to the extent that such loss, damage, delay or failure is caused by Force Majeure.
Other than modifications we may make to the Platform Documentation in our sole and absolute discretion from time to time, this Agreement may not be modified or amended except by a written document signed by or on behalf of each of you and us.
No failure or delay by you or us 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. If any part of this Agreement is, or is found to be, unenforceable under a relevant law, that will not affect the enforceability of the rest of this Agreement.
You shall not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under this Agreement; such consent will not be unreasonably withheld. We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights or obligations under this Agreement.
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. You irrevocably agree 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, its subject matter or formation (including non-contractual disputes or claims).
You consent to receive communications from us electronically, and agree that all notices, agreements, disclosures and other communications that we send to you electronically will satisfy any legal requirement that such communications be in writing.
Notice shall be deemed to be served if sent by letter and posted to the company’s registered address (as evidenced by proof of posting) and by email (as evidenced by a ‘sent’ email) and when copied to firstname.lastname@example.org.
The headings in this Agreement are included for ease of reading and shall not affect the interpretation of this Agreement.
If there is an inconsistency between any of the provisions in the main body of this Terms of Service and the Order Form, the provisions in the main body of this Agreement shall prevail.
Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.