1: TERMS & APPLICATION
The definitions & rules of interpretation in this condition apply in these terms & conditions:
1.1.1. Availability: The total duration, expressed as a percentage of the total Duration of the calendar month concerned, of the availability of Breathe Payments Core Service.
1.1.2. Business Day: Monday, Tuesday, Wednesday, Thursday & Friday except for UK Bank Holidays.
1.1.3 Breathe Payments: Breathe Payments 3 West St, Leighton Buzzard LU7 1DA being a company registered in United Kingdom.
1.1.4. Breathe Payments Equipment: Any equipment, including tools, systems, cabling or facilities, provided by Breathe Payments or its subcontractors & used directly or indirectly in the supply of the services that are not subject to a separate agreement between the parties under which title passes to the Merchant.
1.1.5. Charges: Collectively, the Fixed Charge, Throughput Charge (as more particularly described on the application form summary) & any other additional amounts payable to Breathe Payments by the Merchant pursuant to these conditions as amended from time to time in accordance with these conditions.
1.1.6. Commencement Date: The effective start date of the Contract as set out on the Application Form Summary.
1.1.7. Contract: The Application Form Summary, all applicable Special Conditions (if any) & these conditions.
1.1.8. Core Service: Transaction authorisation & payment settlement.
1.1.9. Customer: The person or entity that is transacting with the Merchant in an e-commerce context.
1.1.10. Data Protection Legislation: All privacy laws applicable to the data which is processed under or in connection with this Agreement, including EU Directive 94/96/EC & 2002/58/EC, as interpreted by the DPA (or equivalent local laws), all regulations made pursuant to & in relation to such legislation & including the Privacy & Electronic Communications (EC Directive) Regulations 2003 (or equivalent local regulations). It also includes all codes of practice & other guidance on the foregoing issued by any relevant Data Protection Authority, as amended from time to time & including the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”) from 25 May 2018.
1.1.11. Document: Includes, without limitation, 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.
1.1.12.DPA: Data Protection Act 2018 (as amended or replaced from time to time).
1.1.13. Duration: The total time comprising any calendar month.
1.1.14.Fixed Charge: An annual or monthly fixed charge, payable in advance either per annum or per calendar month of the Contract in respect of the Merchant being given access to the Services (including, without limitation, the issuing of a user name & password to the Merchant by Breathe Payments for this purpose).
1.1.15. Indemnifier: Is the Party providing the indemnity to the other Party
1.1.16. Indemnified Party: Is the Party receiving indemnity from the Indemnifier
1.1.17. Initial Term: The period specified as Initial Term on the Application Form Summary, from & including the Commencement Date of the Contract, following which the Contract will continue on a yearly term rolling basis, unless otherwise specified in the Application Form Summary or otherwise in writing by Breathe Payments.
1.1.18.Intellectual Property Rights (“IPR”): All patents, rights to inventions, utility models, copyright & related rights, trade marks, service marks, trade, business & domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, knowhow, topography rights, moral rights, rights in confidential information (including know-how & trade secrets) & any other intellectual property rights, in each case whether registered or unregistered & including all applications for & renewals or extensions of such rights, & all similar or equivalent rights or forms of protection in any part of the world.
1.1.19. Merchant: The company, organisation or person, including its officers, employees & agents, who purchases or uses the Services provided by the Merchant as set out on the Application Form Summary.
1.1.20. Merchant Contract: An agreement wherein any Merchant of the Merchant agrees to use Breathe Payments white labelled services provided by the Merchant to the Merchant on terms that are no less onerous than the terms herein.
1.1.21. Merchant Device: Any device that is provided to the Merchant that is essential to the successful completion of an e-commerce transaction between the Merchant & their customer – wherein Breathe Payments is the authorisation gateway.
1.1.22. Merchant Equipment: Any equipment, hardware, computer, systems, cabling or facilities provided by the Merchant & used directly or indirectly in the supply of the Services.
1.1.23. Merchant Information: Data & any other materials (in whatever form) published or otherwise made available (directly or indirectly) by the Merchant or on behalf of the Merchant by using the Services or relating to the Services. Merchant Information may include information about the Merchant itself (including individual employees or representatives) or permitted users or clients of the Merchant (or prospective clients) that may include personal data subject to laws or regulations.
1.1.24. Minimum Throughput Charge: The minimum charge applicable when the Throughput Charge is less than the Minimum Throughput Charge as set out in the Application Form Summary.
1.1.25. MPTV: Maximum permitted transaction volume set at 10 concurrent transactions per second as standard & may be increased with advance notice.
1.1.26. Non-Availability: The total duration, expressed as a percentage of the total Duration of the calendar month concerned, of the non-availability of Breathe Payments Core Service except where such non-availability arises because of any Excluded Incident or as a result of anything additionally specified below.
1.1.27. Application Form Summary: The Application Form Summary appearing as a front sheet to these conditions.
1.1.28.pa: Per annum
1.1.29. Party(ies): Breathe Payments & the Merchant as named in the Application Form Summary.
1.1.30.PCI: Payment Card Industry.
1.1.31.PCI: DSS: Payment Card Industry Data Security Standard.
1.1.32.pm: Per month
1.1.33. Rolling Term: Successive periods of one year following the end of the Initial Term.
1.1.34. Services: The services to be provided by Breathe Payments under the Contract for the authorisation & payment of credit, debit, purchase, fuel, charge & like card transactions (“Core Services”) together with the provision of the necessary interface through which authorisation & payment of credit/debit/charge card transactions takes place (as more particularly described in the Application Form Summary) (“Ancillary Services”).
1.1.35. Special Conditions: Special conditions relating to aspects of the Service required as set out in the Contract or as specified in the Application Form Summary.
1.1.36.Support: The first line support services relating to diagnosis of errors, restoration of functionality & mandatory system upgrade by way of correction, re configuration, patch provision, driver update, software re-load, interface guideline update or user guidance to remedy a fault & the implementation of mandatory updates, adjustments, additions or modifications to the Services as Breathe Payments may prescribe from time to time or as otherwise set out in the Application Form Summary. On rare & critical occasions Breathe Payments can call out & provide assistance.
1.1.37. Term: The period for which the Parties are contracted as defined in the Initial & Rolling Terms.
1.1.38. Third Party Provider: A service or goods provider that is unconnected with Breathe Payments & provides solutions different from & complementary to Breathe Payments.
1.1.39.Throughput Charge: A monthly charge payable in arrears for each month of any Term based upon either (a) the actual number of transactions processed by the Services in that calendar month at the rate set out in the Application Form Summary; or (b) a Minimum Throughput Charge at the rate set out in the Application Form Summary, whichever is the higher.
1.1.40.Tiered Pricing: Refers to the various agreed fees per transaction payable by the Merchant to Breathe Payments for each specified transaction volume range such that the overall invoice for a specified period is the sum of each volume range multiplied by the transaction fee applicable to that volume range as set out in the Fees Terms Sheet.
1.1.41. Transaction: A transaction is defined as a successful or declined pre-authorisation, full authorisation or refund; this includes 3D Secure authentication requirements.
1.1.42.VAT: Value Added Tax chargeable under English law & any similar additional tax.
Headings in these conditions will not affect their interpretation.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). References to gender include all genders.
Terms defined in the Data Protection Legislation, such as “personal data” “processed” “data subject” “data processor” & “data controller” will bear the same meanings where used in this Contract, as those definitions apply from time to time.
The Schedules form part of the Contract. A reference to writing or written includes writing whether in human or machine-readable form.
All notices or other communications may be sent by delivery of the communication either in person; or by pre-paid first class post; or by recorded delivery; or by commercial courier; or by e-mail & will be deemed to have been received as set out in condition 20 below.
Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
References to conditions, Schedules & appendices are to the conditions, Schedules & appendices of the Contract.
These conditions will:
1.2.1. Apply to & be incorporated into the Contract;
1.2.2. Prevail over any inconsistent terms or conditions (whether express or implied) contained, or referred to, in any Merchant purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Merchant, or that have been or may be entered into between the Parties implied by law, trade custom, practice or course of dealing;
1.2.3. In the event of any conflict between a) the Application Form Summary; b) any Special Conditions; c) these general terms & conditions; d) any Schedules; & e) any appendices the conflict will be resolved in that order of priority, with the Application Form Summary taking precedence. Where the Merchant has elected to purchase the Omnichannel service, & has entered into the Omnichannel Schedule, the terms of the Omnichannel Schedule will take effect as Special Conditions, but only in respect of the Omnichannel & not in respect of any other Services;
1.2.4. A Contract for the supply & purchase of the Services on & subject to these conditions will be established at such time as both Parties have signed the Application Form Summary. The Merchant’s standard terms & conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document will not govern the Contract;
1.2.5. Quotations are given by Breathe Payments on the basis that no Contract will come into existence except in accordance with these conditions. Any quotation can be withdrawn or amended by Breathe Payments at any time prior to a Contract being formed;
1.2.6. Merchant has the right to resell the Services to Third Parties pursuant to Third Party Terms.
2: COMMENCEMENT & DURATION
The Contract will commence on the Commencement Date & continue for one year or the term specified on the Application Form Summary, whichever is the longer, & will roll on for further full years unless terminated at least 90 days before the end of any one year.
3: BREATHE PAYMENTS OBLIGATIONS, RIGHTS & SERVICE LEVEL AGREEMENT (SLA)
Breathe Payments will aim to provide Availability for ≥ 99.9% minus any Excluded Incident Suspension under clause 3.6 below under the following conditions:
3.1.1. If Breathe Payments Availability of ≥ 99.9% is not met in a Calendar Month as recorded by the Breathe Payments servers, Merchant will receive a service credit of 4% of their Fixed Charge for that Calendar Month for each full hour of non-availability beyond the 99.9% target availability but if availability falls below 99% in any month, Merchant will receive a refund of 90% of the Fixed Charge for that month, subject to the following limitations:
- this will be the sole remedy of the Merchant;
- service credit(s) will be deducted from the charges payable by Merchant in a subsequent month; &
- loss of Availability caused by Scheduled or emergency Maintenance or issues beyond Breathe Payments reasonable control will be excluded from availability calculations;
3.1.2 Breathe Payments rights:
- Breathe Payments may terminate the Contract under condition 10.2;
- Breathe Payments may suspend the Services or any part thereof (“Excluded Incident Suspension”) at any time with immediate effect for operational reasons;
- Breathe Payments may not be held responsible for internet infrastructure issues beyond its own system.
4: MERCHANT’S OBLIGATIONS
The Merchant will:
4.1.1. Allow Breathe Payments to use & copy the Merchant Information to enable Breathe Payments to carry out its obligations under the Contract including providing PCI compliant fraud screening services, as provided for in Section 29 of the Data Protection Act 2018.
Security
4.1.2. Be responsible for the security & proper use of all user identities (“User IDs”) & passwords in connection with the Services & inform Breathe Payments immediately if there has been (or is likely to be) a breach of security or misuse of the Service;
4.1.3. Promptly change any or all of the passwords used in connection with the Service when requested to do so by Breathe Payments where Breathe Payments reasonably believes that there is or is likely to be a breach of security or misuse of the Services;
4.1.4. Promptly inform Breathe Payments if any of the information supplied on or in relation to the Application Form Summary changes;
4.1.5. Not store card details on their systems whether in plain text or encrypted form;
4.1.6. Immediately notify Breathe Payments if it becomes aware of any unauthorised use of all or any part of the Services.
Use of the Service
4.1.7. Only access the Services as permitted by the Contract & not make any attempt to circumvent the system security of the Services or those of Breathe Payments at any time;
4.1.8. Acknowledge & accept that Breathe Payments will have no responsibility for nor any liability (whether to the Merchant or any Merchant) in respect of any Authorisation &/or Settlement process provided by any Third-Party Provider.
Regulations
4.1.9. Comply with all legislation, instructions or guidelines issued by any regulatory authority, relevant licensors & any other codes of practice that apply to the Merchant;
4.1.10. Not hold Breathe Payments liable in respect of any misuse of Breathe Payments Services by Merchant;
Identification of the PCI compliant gateway entity
4.1.11. Identify Breathe Payments as appropriate for purposes of integration with acquirers.
5: CHARGES & PAYMENT
Breathe Payments will invoice the Merchant on the last Business Day of each calendar month in respect of the monthly amount due for the Fixed Charge & Throughput Charges arising from the use of the Services by the Merchant in that calendar month.
The Merchant agrees for all Charges payable pursuant to the Contract to be paid to Breathe Payments by Direct Debit, credit or debit card, or by direct bank transfer as determined by Breathe Payments. The Merchant will provide Breathe Payments with a signed Mandate to effect such payment. The Charges will be paid no later than 28 days from the date of Breathe Payments invoice & payment will be made without any set-off, withholding or counterclaim.
The Charges will be invoiced & paid in pounds sterling. Breathe Payments will (where applicable) add VAT (or any other applicable tax or charge in any country where the Services are provided) to the Breathe Payments invoices.
Breathe Payments may charge interest on overdue sums or suspend the provision of its Services until payment has been made in full.
6: INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in the Services will be owned by Breathe Payments.
7: NON-DISCLOSURE, CONFIDENTIALITY & BREATHE PAYMENTS PROPERTY
The Merchant & Breathe Payments both agree that all commercial arrangements including the names of Third Parties, their customers, Fixed Charges, Services Charges, Throughput Charges, Special Conditions & Services within this agreement will not be disclosed to any third party & will remain strictly confidential.
Both the Merchant & Breathe Payments will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives that are of a confidential nature & have been disclosed to their employees, agents, consultants or subcontractors.
Either Party may disclose such information:
7.1.1. If it is publicly available or already known by the receiving party;
7.1.2. To its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out its obligations under the Contract;
7.1.3. As may be required by law, court order or any governmental or regulatory authority.
Each Party will ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 7.
Each Party will not use any such information for any purpose other than for the purposes of the Contract.
All materials will, at all times remain the exclusive property of the originating Party (or any relevant Third Party).
The Merchant agrees that once the Contract has been entered into, Breathe Payments may issue a press release (or any other form of public communication) relating to the entry into the Contract. The Merchant will have the opportunity to approve such a release & approval will not be unreasonably withheld or delayed.
8: LIMITATION OF LIABILITY
Neither Party will be liable to the other Party or any Third Party for consequential, indirect or punitive damages, losses or costs; & the total liability of either Party for direct damages or losses, however arising, together with their reasonable legal costs in any twelve month period will not exceed the Fixed Charges payable during that twelve month period.
9: DATA PROTECTION
The Parties agree that they will perform their obligations under the Contract in strict compliance with the Data Protection Legislation. For the purposes of the Contract, references to “the Merchant’s personal data” will include personal data obtained from Third Parties & individuals using Third Party services. Merchant warrants & undertakes that it has & will only process personal data obtained from Third Parties based on a valid & recorded legal basis. The Merchant further warrants & undertakes that its Third Party agreements will permit Breathe Payments to process the personal data of Third Parties & the individual users of their services as contemplated by the Contract.
The Merchant acknowledges that the Merchant’s personal data will be processed by & on behalf of Breathe Payments in connection with its provision of the Services for the purposes of performing the Contract & for the purposes of Breathe Payments legal & regulatory obligations & its legitimate interests.
In processing Merchant’s personal data obtained from Third Parties & individuals using Third Party services as contemplated by clause 9.1, Breathe Payments will act as data processor for the Merchant & accordingly the Parties acknowledge that:
9.1.1. The Merchant alone will determine the purposes for which & the manner in which personal data (as defined in the DPA) are, or are to be, processed in the performance of the Services;
9.1.2. Breathe Payments will be the data processor (as defined in the Data Protection Legislation) in respect of the personal data processed as required for performance of the Services.
The Merchant warrants & undertakes that any instructions given by it to Breathe Payments (whether specific or non-specific) in respect of the processing of personal data will at all times be in accordance with the requirements of the Data Protection Legislation & that compliance with such instructions by Breathe Payments in its provision of the Services will not put the Merchant or Breathe Payments in breach of the Data Protection Legislation.
Any obligation on Breathe Payments or the Merchant under this condition 9 to do, or refrain from doing, any act or thing will include an obligation on Breathe Payments or the Merchant respectively to procure that its employees, agents & sub-contractors (if any) also do, or refrain from doing, such act or thing.
In respect only of personal data that Breathe Payments processes on behalf of the Merchant in connection with the Services, Breathe Payments will:
9.2.1. Only process the personal data in such manner as is necessary for the provision of the Services or as is required by law or any regulatory body or otherwise as appropriate including where necessary involving credit reference, fraud prevention & law enforcement agencies & other organisations in relation to preventing fraud & money laundering;
9.2.2. Promptly notify the Merchant if it receives a request from a data subject (as defined in the Data Protection Legislation) to have access to personal data or any other complaint or request relating to the Merchant’s obligations under the Data Protection Legislation & provide full co-operation & assistance to the Merchant in relation to any such complaint or request (including, without limitation, by allowing data subjects to have access to their personal data);
9.2.3. Otherwise provide reasonable assistance to the Merchant as necessary to allow the Merchant to comply with the Data Protection Legislation.
10: TERMINATION
The Merchant may terminate the Contract without liability to Breathe Payments immediately on giving written notice to Breathe Payments if Breathe Payments commits a material breach of any of the terms of the Contract & , if such a breach is remediable, fails to remedy that breach within 30 days of Breathe Payments being notified in writing of the breach.
Breathe Payments may immediately suspend the provision of the Services &/or terminate the Contract or any part of the Contract without liability to the Merchant immediately on giving written notice to the Merchant if the Merchant fails to pay any amount due under the Contract on the due date for payment & remains in default not less than (30) thirty days after being notified in writing to make such payment.
On termination of the Contract for any reason:
10.1.1. The Merchant will immediately pay to Breathe Payments all of any outstanding unpaid invoices & interest & , in respect of Services supplied but for which no invoice has been submitted & any portion of the remaining Fixed Charges for that calendar year that has not yet been invoiced, Breathe Payments may submit an invoice, which will be payable immediately on receipt, calculated in accordance with the following termination condition:
10.1.2. Breathe Payments will be entitled to & will submit an invoice for an early termination fee of 2x (twice) the remaining months’ Fixed Charges, which invoice will be payable on receipt.
10.1.3. The Merchant will promptly return all & any of Breathe Payments Equipment; &
10.1.4. The accrued rights & liabilities of the Parties as at termination & the continuation of any provision expressly stated to survive or implicitly surviving termination will not be affected.
On termination of the Contract for any reason, the following conditions will survive & continue in full force & effect:
10.2.1. Condition 6 (IPR);
10.2.2. Condition 7 (Non-Disclosure, Confidentiality & Breathe Payments Property);
10.2.3. Condition 8 (Limitation of Liability);
10.2.4. Condition 9 (Data Protection);
10.2.5. Condition 10 (Termination);
10.2.6. Condition 12 (Non-Solicitation)
10.2.7. Condition 21 (Governing Law & Jurisdiction).
On any termination of this Contract, at the discretion of Merchant, Breathe Payments will perform hereunder for up to ninety (90) days following termination.
On any termination hereof, Merchant has the right, but not the obligation, to offer to assign to Breathe Payments its rights & obligations under Third Party Terms to Breathe Payments.
11: FORCE MAJEURE
Neither party will be liable to the other under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract 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; failure of a utility service or transport network; failure of or interruption to the internet or any other communication network; natural disaster; 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 subcontractors.
12: NON-SOLICITATION
Each Party agrees that they will not, without the prior written consent of the other Party, at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services or termination of the Contract, solicit or entice away from the other or employ (or attempt to employ) any person who is, or has been, directly engaged as an employee or as a consultant or subcontractor.
In the event that one Party gives consent in accordance with condition 12, the requesting Party agrees to pay the other Party, on demand, an amount that is equal to 30% of the relevant gross annual salary (or average annual income arising from working for the requesting Patry) of each person solicited or enticed in circumstances.
13: VARIATION & SCOPE CHANGE
Breathe Payments may, from time to time & without notice, change the Services in order to comply with any applicable safety or statutory requirements or PCI standard guidance, provided that such changes do not materially affect the nature, scope of, or the Charges for the Services. If Breathe Payments requests a change to the scope of the Services for any other reason, the Merchant will not unreasonably withhold or delay consent to it.
No variation of the Contract or these conditions or of any of the documents referred to in them will be valid unless it is in writing & signed by or on behalf of each of the Parties.
14: WAIVER
A waiver of any right under the Contract is only effective if it is in writing & it applies only to the circumstances for which it is given.
15: SEVERANCE
If any provision of the Contract (or part of any provision) is found by any Court to be invalid, illegal or unenforceable, that provision or part-provision will be deemed not to form part of the Contract & the validity & enforceability of the other provisions of the Contract will not be affected & the Parties will negotiate in good faith to amend such provision so as to achieve the Parties’ original commercial intention.
16: ENTIRE AGREEMENT
The Contract constitutes the whole agreement between the Parties & supersedes all previous agreements between the Parties relating to its subject matter.
Subject to condition 16, each Party acknowledges that, in entering into the Contract, it has not relied on, & will have no right or remedy in respect of, any statement, misrepresentation, assurance or warranty (whether made negligently or innocently), other than as expressly provided in the Contract.
Nothing in this condition 16 will limit or exclude the liability of either Party for fraud.
17: ASSIGNMENT
Breathe Payments & Merchant will have the right to assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights & obligations under the Contract & should apprise the other Party of any such assignment.
The Merchant having rights under the Contract is acting on its own behalf & not for the benefit of another person.
18: NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or will be deemed to, constitute a partnership or joint venture of any kind between any of the Parties, nor constitute any Party the agent of another Party for any purpose. No Party will have authority to act as agent for, or to bind, the other Party in any way.
19: RIGHTS OF THIRD PARTIES
A person who is not a Party to the Contract will not have any rights under or in connection with it pursuant to the Contract (Rights of Third Parties) Act 1999 but nothing in the Contract will affect any right or remedy of a Third Party that exists or is available otherwise than as a result of that Act.
20: NOTICES
Any notice required to be given under the Contract & its Schedules will be in writing & will include delivery of the communication to the address listed below in this subsection either in person; or by pre-paid first class post; or by recorded delivery; or by commercial courier; or by e-mail from the email address listed below in this subsection to the email address of the other party listed below in this subsection.
Addresses & numbers to be used for delivery are as follows:
Breathe Payments Limited
3 West Street
Leighton Buzzard
Bedfordshire
LU7 1DA
Email: support@BreathePay.co.uk
Any notice will be deemed to have been duly received if delivered personally, when left at the address as specified on the Application Form Summary or as otherwise notified to the other Party in writing; or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or, if delivered by commercial courier, on the date & at the time that the courier’s delivery receipt is signed; or, if sent by email from the email address listed above to the email address of the other party.
This condition 20 will not apply to the service of any documents in any proceedings or legal action.
21: GOVERNING LAW & JURISDICTION
The Contract & any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), will be governed by & construed in accordance with the law of England & Wales.
The Parties irrevocably agree that the Courts of England & Wales will have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).