Breathe Payments Merchant Service Agreement.
The following defined terms shall apply throughout this agreement:
‘You’ or ‘Your’ refers to the merchant business named in the Application Form to which this agreement relates;
‘We’, ‘Our’ or ‘Us’ refers to Breathe Payments Limited, a company registered in England and Wales.
‘Application Form’ refers to the application form completed by You (which includes the Application Form Summary’) as part of Your agreement.
‘Application Form Summary’ refers to the summary of main commercial terms agreed between Us and You.
‘Agreement’ means these terms & conditions and the terms of the Application Form.
‘Initial Term’ refers to the initial term of the agreement, as noted in the Application Form.
‘Equipment’ refers to any hardware supplied to You during the Term, including but not limited to card payment terminals & epos system hardware.
‘Charges’ refers to fees payable by You to Us for the provision of the Services, details of which are set out in the Application Form.
“Additional Charges” means the further fees payable by You for the Services which You have elected or may elect from time to time to obtain from or via Breathe Payments
‘Services’ refers to any service that is provided to You by Us or by one of Our approved Suppliers or Partners, as detailed in the Application Form.
‘Suppliers’ refers to any third party who may be providing all or part of the Services and any other services or Equipment to You and with whom You will have a direct contractual relationship.
‘Partner’ means one of Our approved Partners who we may outsource or sub-contract part of the Services to and with whom You will not have a direct contractual relationship.
‘Business Days’ means a day (other than a Saturday or Sunday) when banks are open for the transaction of normal banking business in London, United Kingdom; ‘Renewal Term’ has the meaning detailed in clause 2.8.
‘Term’ means the term of this agreement, consisting of the Initial Term together with any subsequent Renewal Term.
1. General Terms
Breathe Payments provides Merchant accounts, chip and pin terminals, e-commerce gateways, epos systems and related goods and services that allow businesses to process credit card, debit and other payments and the Merchant wishes Breathe Payments to provide to Merchant these services. Breathe Payments agrees to do so on the terms of this Agreement.
1.1. This document, together with the completed Application Form & application form summary is made on the date it is signed and is between the entity whose name and address is specified (the “Merchant”) and Breathe Payments Limited with its principal place of business at Stanford House, 19 Castle gate, Nottingham, NG1 7AQ.
1.2. Your completed Application Form is subject to Our required credit checks and financial due diligence.
1.3. We reserve the right, at Our discretion, to refuse your application with Your prior agreement.
1.4. Once We have carried out Our initial pre-approval checks, You will be sent written notification confirming whether Your application has been accepted or declined. You acknowledge that Your Agreement will only commence when Your application has been approved and You have been notified by Us in writing.
1.5. The Application Form details the duration of the Term of Your Membership Agreement and the associated Charges.
1.6. You acknowledge that this agreement is personal to You only and cannot be transferred, nor any of Your rights or obligations assigned, to another business or individual.
1.7. We may, from time to time, vary or amend the terms of Our Agreement at Our discretion. You will be notified in writing of any changes to these terms and conditions no later than 30 days before any variations or amendments are implemented.
1.8. You must notify Us immediately in writing if You change any details regarding Your business, such as:
2.1. The Services provided to You under this agreement may be provided by approved third party Suppliers or Partners.
2.2. Any third party Supplier providing Services to You will do so in accordance with their own terms and conditions and copies of such terms and conditions will be provided to You during the process of Your Application Form.
2.3. We may, at our discretion, out-source or sub-contract part of the Services provided to You to one or more of Our approved Partners. In doing so You will not have any direct contractual relationship with such Partners.
2.4. We will have sole discretion over the appointment of Suppliers and Partners.
2.5. You acknowledge that We accept no responsibility or liability for the provision of any Services or Equipment to You by such Suppliers or Partners.
2.6. There may be times when our Suppliers make changes to their own terms of and conditions of supply. Any changes may be communicated to You directly from the Supplier or through Us.
2.7. We may transfer any of Our rights and/or obligations under this agreement to any third party at Our discretion.
2.8. At the end of the Initial Term detailed in Your Application Form (subject to your right to terminate the agreement early in accordance with clauses 1.7 and 8.2) Your membership will continue on a rolling monthly basis (_‘Renewal Term’)_ _in accordance with these terms. This will ensure that You have business continuity. We may at that stage or before, contact You to discuss entering into a new Membership Agreement with You for a new fixed term. If You wish to cancel the agreement whether before, on, or after the expiry of the Initial Term, please refer to clause 8 ‘Ending the Agreement’.
3.1. Provision of Equipment
3.2. Delivery of Equipment 3.2.1. Any Equipment provided to You by Us will be delivered to the business address supplied by You on Your Application Form, once approval has been received for account set up and the terminal/s order is placed. You will be notified when the Equipment has been ordered and supplied, with an expected delivery date.
3.2.2. Any dates for delivery are estimates only and We will not be liable for any losses suffered by You, resulting from any failure to meet any expected delivery dates communicated by Us to You.
3.2.3. It is Your responsibility to ensure that You are available to take receipt of the Equipment when notified.
3.3. Installation of Equipment 3.3.1. If the Equipment supplied can be installed without any configuration, guidelines will be provided by Us with step by step instructions for set up.
3.3.2. If the Equipment supplied requires support for installation, We will schedule with You an appropriate time for one of Our employees or agents to install the Equipment at Your premises. We reserve the right to charge a fee for installation.
3.3.3. To enable authorised employees or agents to install or remove Your Equipment they will need access to Your premises. You agree to grant Our authorised employees and agents a licence to enter your premises specifically for these purposes. It is important that You provide appropriate space for the installation and adequate health and safety protection for Our employees or agents entering the premises.
3.3.4. We may from time to time replace the Equipment with similar or upgraded models, or it may be necessary to provide updated parts which We may require You to fit, as far as is reasonable.
3.4. Care and use of the Equipment 3.4.1. It is Your responsibility to keep the Equipment safe and secure, and comply with supplied operator instructions at all times. Failure to do so may result in Us terminating Your Membership Agreement under clause 8.3.
3.4.2. You must at all times keep the Equipment in Your possession or control and located at the premises detailed in Your Application Form, or as otherwise notified and agreed with Us in writing. The Equipment must not be removed from the premises without Our Consent, unless using a mobile or GPRS terminal.
3.1.1 You acknowledge, agree and confirm that any Equipment provided by Us or any Suppliers to You during the Term is provided at the cost detailed in the application form summary..
3.1.2 Ownership of the Equipment will at all times remain with Us or with the relevant Supplier (as applicable) and nothing in this Agreement will give You any rights of ownership in and to the Equipment at any time during the Term.
3.4.3. You must tell Us immediately if there is any loss or damage to, or fault in, the Equipment. You will be liable for and will fully indemnify Us from and against any loss or damage caused to the Equipment by You or Your employees, agents, sub-contractors or customers, whether any loss or damage is caused by any wilful or deliberate acts or negligence.
3.4.4. We will replace or repair any Equipment found to be faulty, provided that at all times You have complied with the operator instructions supplied.
3.4.5. You must at all times insure the Equipment and keep the Equipment fully and adequately insured with a reputable insurer against any loss or damage by accident, fire, theft and any other risks (including third party damage) against which it is usual to insure the Equipment, or as we may reasonably require from time to time. If You receive any insurance monies following the loss of or damage to the Equipment such monies shall be held by You on trust for us and pay such monies to Us on demand.
3.5. Our service level promise 3.5.1. If there is any fault in the Equipment You can call our Customer Service Team and We will endeavour to fix this remotely with You where possible.
3.5.2. We will endeavour to replace any faulty or damaged Equipment, where You are not liable for any faults in the Equipment, within the following timeframes:
3.5.3. We will endeavor to replace faulty equipment next working day
3.6. Return of Equipment 3.6.1. All Equipment in Your possession must be returned to Us upon termination of this agreement regardless of the reason for termination.
3.6.2. All Equipment must be returned to Us either through a courier arranged by Us, or returned via Royal Mail with specific instructions provided by Us.
3.6.3. All Equipment must be returned to Us promptly after termination of the agreement and in any event, no later than 30 days from the date of termination.
3.6.4. Failure to return the Equipment to Us following the termination of the agreement will result in a charge of £200 +VAT.
3.7. Protecting Our ownership of the Equipment 3.7.1. During the Term, You must not:
- sell, let, charge, pledge or otherwise dispose of the Equipment
- part with or share possession of the Equipment; or allow any lien on the Equipment
- allow any distraint, execution or other legal process against the Equipment
- modify or interfere with the Equipment or allow any third party to do so;
- cover, remove or interfere with any name plate, serial number, trade mark or other mark on the Equipment or allow any third party to do so;
- reverse engineer, alter, modify, copy or analyse the software supplied with the Equipment or sub-licence or assign the right to use the software or sub-licence or assign the right to use the Equipment to any third party; or use the software other than for Your own use as per the terms of this agreement.
4.1 The following terms of this clause 4 apply only to the e-commerce Services supplied to You (including Online Ordering, virtual terminal, e-com payment gateway, pay by link or shopping cart integration).
4.2 By agreeing to these terms, You acknowledge that the relevant e-commerce Services will be supplied by one of Our approved Partners and not by Us directly.
4.3 Your contract with Us for the provision of e-commerce Services will be on a twelve month basis as stated in Your Application Form and Application Form Summary and You will be entitled to terminate that part of this agreement, relevant to one or more of the e-commerce Services by giving Us no less than 30 days notice.
4.4 Should you terminate all or part of the e-commerce Services provided to You under this agreement in accordance with clause 4.3 there will be no cancellation fees payable to Us. However, You will remain liable to pay any Suppliers any cancellation fees due and owing to the Suppliers as detailed in their terms and conditions.
4.5 You will be responsible for ensuring that any e-commerce Services purchased by You are compatible with any website, applications or other platforms owned or operated by You and can be fully integrated within such websites, applications or other platforms. We accept no liability for any failure of the e-commerce Services supplied to You caused by any acts or omissions of Our Suppliers or Partners, or caused by any integration or compatibility issues.
5. Payments 5.1. We will supply You with itemised monthly invoices during the Term detailing all applicable Charges as specified in Your Application Form;
5.2. All Charges are payable by You by monthly Direct Debit in arrears and will only be considered as paid when We receive payment in cleared funds in our designated account. Alternative methods of payment may be accepted relating to this agreement as exceptions, by prior agreement with Us.
5.3. All payments must be paid directly by You and not by an agent or their representative or any other third party on Your behalf.
5.4. If You fail to pay any amount when due, then in addition to any other rights or remedies available to Us in law, We will be entitled to charge interest on such overdue amounts at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1998, from the due date for payment until the date we receive payment (together with applicable interest) in cleared funds.
5.5. In addition, where you fail to make any one or more payment when due, We may suspend all or any part of the Services until the payment is received by Us in full and in cleared funds.
5.6. We accept no liability for any Charges that may be made by Your Bank and/or Building Society for processing and/or setting up the direct debit.
5.7. It may be necessary for Us to alter any Charges or alter any other term of this agreement by giving at least 30 days notice in writing to You, unless the change is a change in the rate of VAT, when the change will take effect immediately from the date of the change in VAT.
6. Data Protection 6.1. As part of Your application it is necessary for Us to disclose Your information to credit reference agencies, Suppliers and Partners, for the purpose of making credit decisions and appropriately assessing Your application and so that the Services can be provided to You. In signing Your Application form, You have agreed for Us to disclose Your information as is
necessary, for Us to obtain a decision on the whether Your application passes our relevant credit checks.
6.2. Your Personal data will not be shared with third parties unless it is necessary for the performance of the contract between us.
6.3. Some personal data may need to be transferred outside the EEA for underwriting purposes. Where personal data is transferred outside the EEA, We will ensure that appropriate provisions and safeguards are put in place and will obtain Your explicit consent and will comply at all times with Our obligations as a data controller and processor under the General Data Protection Regulation (‘GDPR’).
6.5. We may contact You from time to time with regards to Services or Equipment updates.
7.1. This clause sets out the entire financial liability of Us (including any liability for the acts or omissions of Our employees, agents or sub-contractors) to You in respect of (i) any breach of the Membership Agreement; and (ii) any use made by You of the Services or the Equipment.
7.2. If any Equipment supplied by Us under this agreement becomes defective in any way, then provided the defect has not been caused by any act or omission by You or Your employees, agents, sub-contractors or customers, Our obligation and liability is limited to the repair or replacement of the Equipment.
7.3. We will not be liable to You for any acts or omissions of Our Suppliers or Partners, including any failure by Our Suppliers or Partners to perform any part of their Services or the supply of the Equipment.
7.4. Nothing in this agreement will limit or exclude Our liability for death or personal injury caused by negligence or for any damage or liability incurred as a result of fraud of fraudulent misrepresentation.
7.5. Subject to clause 7.4, We will not be liable to You for:
7.6. Our maximum liability to You under this agreement (whether for breach of contract, negligence, breach of statutory duty or otherwise) will be limited to the value of Charges You have paid to Us under this agreement up to the point of breach.
8.1. The following conditions apply if You wish to terminate the Membership Agreement with Us:
7. Limitation of Liability
6.5.1 loss of profits;
6.5.2 loss of business;
6.5.3 depletion of goodwill and/or similar losses;
6.5.4 loss of anticipated savings;
6.5.5 loss of goods;
6.5.6 loss of contracts;
6.5.7 loss of or corruption of data or information; or
6.5.8 any other special, indirect, consequential or pure economic loss, costs, damages, charges and expenses.
8. Ending the Agreement
8.1. The following conditions apply if You wish to terminate the Agreement with Us:
- At least 30 days notice must be provided to Us at any time.
- All Equipment must be returned at the end of the Term or the Renewal Term in good condition and in accordance with clause 3.6.
- Your termination will be acknowledged by Us in writing and any final invoices will be issued and payable immediately when the termination is confirmed.
8.2. Upon termination of the agreement You will be liable to pay the following charges, dependent on the date of termination relative to the Term:
8.2.1 During the Initial Term, to terminate before the end of the Initial Term
You are liable to pay Us the following:
- Remaining agreement charges up to the end of the Initial Term; and
- A sum in liquidated damages equal to £40 for each month remaining in the Initial Term following the date of termination (which You acknowledge is a genuine pre-estimate of the loss We would suffer in the event You terminate)
8.2.2 During the Renewal Term
- You are liable to pay all Charges up to the end of the relevant Renewal Term.
- Should You serve notice to terminate the agreement mid-way through a month then You will remain liable to pay the Charges for the next full subsequent month.
Software licence to Use
SECTION 1. DEFINITIONS
Whenever the context requires, the singular form of words shall include the plural (and vice versa). The following capitalized terms used herein shall have the meanings given below:
“Data Controller” means the natural or legal person, public authority, agency or other body that collects Personal Data and determines the purposes and means of processing Personal Data. The Licensee is the Data Controller.
“Data Processor” means the natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Data Controller. Smart Volution is the Data Processor.
“Data Subject” means the identified or identifiable individual whose Personal Data is being processed.
“Device Software” means the Smart Volution Register Software operating on a tablet computer Tablet Device.
“Documentation” means any user guides, reference manuals, or other end-user documentation (embodied in any media) that Smart Volution from time to time makes generally available to users of the Software.
“GDPR” means the General Data Protection Regulation (EU 2016/679) and is a legal framework that sets guidelines for the collection and processing of personal information of individuals within the European Union.
“Hosted Software” means the Licensor’s server side software provided as a hosted service This is used for configuration, set up and reporting on data for the Register product.
“Insolvency Event” means with respect to Licencee: (i) that Licencee: (A) is unable to pay its debts within the meaning of sections 122 and 123 of the Insolvency Act 1986, (B) has a petition presented against it or any other step is taken by any person (including the filing of any notice) which may lead to the appointment of an administrator in relation to Licensee, or any administrator or receiver (whether or not an administrative receiver) or manager is appointed over Licensee or the whole or any part of its assets and undertaking, (C) takes any step in connection with any arrangement compromise scheme moratorium or composition with any creditor, (D) becomes bankrupt, (E) has a bankruptcy order made against it or a petition for such order is presented, (F) has an interim receiver appointed of its respective property, (G) takes any step in connection with any arrangement compromise scheme moratorium or composition with any creditor; or (ii) the occurrence of any events or circumstances similar or equivalent to those mentioned in clause (i) of this definition occurs or arises in respect of Licensee in any local jurisdiction in which Licensee is resident registered or domiciled from time to time.
“Licensee Data” means all data and other information submitted or otherwise entered and saved by Licensee via the Software.
“Licence Fees” means the applicable licence fees for the Software together with any other applicable charges as set out in the written agreement between the Service Provider and the Licensee pursuant to which the right to use the Software has been sold to the Licensee
“Licensee” means the natural or legal person who clicks on the website to accept these terms and conditions.
“Licence Term” means (subject to earlier termination in accordance with these terms and conditions) the initial term stated in the Licensor’s order acknowledgement and any subsequent Renewal Term.
“Personal Data” means the personal data of a Data Subject as defined in the GDPR.
“Service Provider” means the natural or legal person who sells or resells to the Licensee the right to use the Software.
“Smart Volution” means Smart Volution Limited (company no. 05418140).
“Software” means the Hosted Software and the Device Software.
“Tablet Devices” means such tablet or other computer devices that are designated by Smart Volution for use with the Software.
SECTION 2. GRANT OF RIGHTS
A. LICENCE. Subject to payment of the Licence Fees to the Service Provider and the terms of this Section 2, Smart Volution hereby grants the Licensee the non-exclusive, non-transferable right (with no right to grant sublicences), solely for Licensee’s internal business purposes: (i) to access the Hosted Software and Licensee Data on Smart Volution’s servers and use the Hosted Software via (A) the display and processing thereof on Tablet Devices controlled by Licensee (but not on more than the number of such Tablet Devices for which the Licence Fees have been paid), and (B) the transmission of Licensee Data from such Tablet Devices to (and for storage on) Smart Volution’s servers; (ii) to install and use the Device Software on such Tablet Devices, and (iii) to use the Documentation solely in connection with this Agreement. The licences granted hereunder shall remain in effect for the licence period set out in the Licensee’s written agreement with the Service Provider (the “Licence Term”) provided that in no circumstances shall a licence be perpetual. By way of example only, licences may be provided on annual or monthly basis by the Service Provider.
B. RESTRICTIONS. Licensee shall not (and shall not allow any third party to): (i) reverse compile, disassemble, or otherwise reverse engineer any object code or other parts of the Software (except to the extent applicable law expressly prohibits any such restriction); (ii) copy the Software or Documentation for any purpose (including for purposes of (A) building a competitive product or service, (B) building a product using similar ideas, features, functions or graphics of the Software or (C) copying any ideas, features, functions or graphics of the Software), (iii) copy the Documentation, except for limited backup purposes; (iv) permit any of Licensee’s Tablet Devices to transmit or communicate the Software to, between, among or through any other machines or devices; (v) adapt, create derivative works of, translate, localize, port or otherwise modify the Software or Documentation; (vi) sell, resell, transfer, assign, distribute, time share, rent or lease the Software to, or otherwise use it for the benefit of, any third party; (vii) publish, disseminate or otherwise release to third parties any performance evaluations or benchmark data about the Software; (viii) file or register in any jurisdiction any patent or claim of patent rights with respect to any works, discoveries or inventions incorporated in the Software or referenced in the Documentation (whether or not reduced to practice); (ix) obfuscate, remove or alter any of the trademarks, trade names, logos, patent or copyright notices, confidentiality or proprietary legends or other notices or markings on any Software or Documentation; or (x) add any other notices or markings to any Software or Documentation, without the express prior written consent of Smart Volution. The interface information necessary to achieve interoperability of the Software with independently created computer programs will be provided by Smart Volution on the Licensee’s request on payment of Smart Volution’s reasonable costs and expenses for procuring and supplying such information.
C. OWNERSHIP; RESERVATION OF RIGHTS. Licensee acknowledges that the Software and Documentation are proprietary products of Smart Volution and that ownership thereof and of all patents, copyrights, trade secrets, trademarks, trade names, mask work rights and other proprietary rights relating to or residing therein (including without limitation, all modifications and derivative works, even if conceived by Licensee), any other intellectual property licenced hereunder and any suggestions, ideas, enhancements, requests, feedback, recommendations or other information provided by Licensee concerning the Software or Documentation, shall remain with Smart Volution. Other than as set forth in Section 2(A) herein, the Licensee shall have no right, title or interest therein. Smart Volution reserves all rights in the Software, the Documentation and any other Smart Volution intellectual property other than those right expressly granted under this Agreement. The Licensee shall promptly notify Smart Volution of any actual or threatened misappropriation or infringement of Smart Volution’s or its suppliers’ or licensors’ proprietary rights which comes to Licensee’s attention. Without
limiting the generality of the foregoing, Smart Volution reserves the right at any time, in its discretion and without prior notice, to change, revise, modify, enhance, add to and/or upgrade the Software, including (but not limited to) to remove or discontinue particular features or functionalities.
SECTION 3. ADDITIONAL OBLIGATIONS
A. LICENCEE’S USE OF SOFTWARE. The Licensee is responsible for all activities that occur by means of the access to and use of the Software by Licensee’s users thereof (whether or not they are authorized by the Licensee to access and use the same). The Licensee shall not, and shall not permit any of its users to, impersonate another licensee of the Software or provide false identification information to use or gain access to the Software. The Licensee shall: (i) notify Smart Volution immediately of any unauthorized access to or use of the Software or any known or suspected breach of any security measures implemented by Smart Volution or the Licensee in connection with the performance of this Agreement; (ii) report to Smart Volution immediately and use reasonable efforts to stop immediately any distribution or unauthorized copying of the Software which is known or suspected by the Licensee; (iii) assure that the Licensee’s use of the Software complies with all applicable local, state, federal and international laws, regulations and conventions, including (but not limited to) those related to data or personal privacy, international communications and the transmission or exportation of technical or Personal Data; and (iv) assure that the Software is used by the Licensee’s users in accordance with the Documentation.
B. LICENSEE DATA.
(1) As between Licensee and Smart Volution, the Licensee collects and controls all Licensee Data. The Licensee shall have sole responsibility for (i) the accuracy, quality, integrity, reliability, legality, suitability, appropriateness and legal protection (e.g., by copyright), right to use, Data Controller GDPR compliance or intellectual property ownership of all Licensee Data, (ii) all acts or omissions of the Licensee’s users of the Software relating to the entering, correction, modification, deletion, destruction, over-writing or saving of Licensee Data, and (iii) defending all claims, suits or proceedings brought against any party to this Agreement (or any affiliate thereof) alleging that any Licensee Data or the storage or use thereof infringes any right of, or has caused any damage to, a third party. The Licensee, in using the Software, will not enter, save, store or send (A) any infringing, obscene, threatening, defamatory, libellous or otherwise unlawful or tortious material (including material harmful to children or violative of third party privacy rights); (B) any material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (C) any data that infringes GDPR compliance.
(2) In relation to all Licensee Data provided by Licensee to Smart Volution in connection with Licensee’s access to and use of the Hosted Software, it is agreed that Licensee is the Data Controller and Smart Volution is the Data Processor under the GDPR. The Licensee agrees that Smart Volution may sub-contract any or all of its data processing obligations to a third party contractor (or contractors) at its discretion (“Subcontractor”). As the Data Processor, Smart Volution agrees that it and its licensors and any Subcontractors shall only process the Licensee Data as is provided for under the terms of this Agreement and to enable the effective provision of the Hosted Software to Licensee. To the extent that any Licensee Data is Personal Data of a Data Subject, Smart Volution and its Subcontractors shall only process such Personnel Data in accordance with this Agreement and any instructions and directions of the Licensee and shall not process such Personal Data outside of the European Economic Area (or any country deemed adequate by the Commission pursuant to Article 25(6) of Directive 95/46/EC) without the prior written consent of the Licensee. Smart Volution and its licensors and Subcontractors shall take and implement all such technical and organisational security procedures and measures necessary or appropriate to preserve the security and confidentiality of any Personal Data processed by it or them and protect such Personal Data against unauthorised or unlawful processing, accidental loss, destruction or damage as may reasonably be required or directed by the Licensee from time to time. To the extent that any Licensee Data is not Personal Data and is not identifiable to the source of such data Smart Volution and/or a Subcontractor may share such data “anonymously”. Each party warrants to the other that it shall, in all matters relating to this Agreement, comply with all applicable obligations placed upon it by the GDPR as it applies to its respective role as Data Processor or Data Controller, as applicable. Smart Volution shall promptly notify Licensee of any unauthorised disclosure of Licensee Data to any third party. Notwithstanding any other provision of this Agreement, Smart Volution shall have no liability to the Licensee or any
third party whatsoever, on account of any loss or destruction of, damage to, inaccuracy or unreliability of or unauthorized copying, distribution or other disclosure of any Licensee Data (including any Personal Data contained therein, except in the event that Smart Volution shall breach its obligations under this paragraph (2) by its grossly negligent acts or omissions. The Licensee shall indemnify, defend and hold harmless Smart Volution and its affiliates from and against any claim asserted by a third party relating to Licensee Data which shall be inconsistent with the liability of Smart Volution set out above in this paragraph (2).
(3) The Licensee acknowledges that the Licensee alone will have the power to determine the types of data that from time to time will be entered and stored as Licensee Data and accordingly, whether or not the Licensee Data will include any Personal Data of a Data Subject. The Licensee represents that the Licensee has (A) undertaken its own investigation concerning the suitability of the systems and procedures that Smart Volution will utilize hereunder to fulfil its obligations set out in paragraph (2) immediately above and (B) determined the same to be suitable for the Licensee’s purposes with respect to the possible need (if any) during the Licence Term to store any Personal Data as part of the Licensee Data.
(4) Logging in to use by the Licensee, or the Licensee’s or any of Licensee’s affiliates’, employees’ or contractors’ registration for, or use of, the Software, shall be deemed to be the Licensee’s agreement to abide by any materials or additional terms and conditions available on Smart Volution’s website related to the Software, which terms and conditions are hereby incorporated by reference herein (including but not limited to Smart Volution’s privacy and security policies).
(5) If the Licensee utilises third party applications it accepts that they may communicate and pass data between Register Software and third party applications and this is at the Licensee’s risk and responsibility. Examples may include a loyalty application or stock management application.
(6) The Licensee accepts the use of “Cookies” on the Register web portal.
C. AVAILABILITY OF THE SOFTWARE.
(1) Smart Volution does not represent, warrant or guarantee that Smart Volution’s servers or any communications media (including related mechanical, electronic, computer, telecommunications and Internet equipment and systems) by means of which the Licensee accesses the Software will be available to the Licensee either (i) at any particular time or times or (ii) on a basis that is not subject to interruptions, delays, degraded transmission quality, outages, security breaches or other malfunctions, errors or defects. The Licensee will not be entitled to any credits, refunds or damages of any kind in the event of any such issues.
(2) The Licensee is solely responsible for providing and maintaining, and for all losses of data and other damages of any kind which the Licensee may suffer due to malfunctions affecting, (i) the communications and other equipment required for the Licensee’s users of the Software to access and use the Software on Smart Volution’s servers, and (ii) the Tablet Devices required to display and process the Software locally. Such losses and damages include (by way of example only) data that is lost during synchronization or other transfer between the Tablet Devices and Smart Volution’s servers.
(3) The Service Provider is the first line of support to the Licensee on all matters.
SECTION 4. PUBLICITY
A. PUBLICITY. Each party hereto may disclose to third parties, in general terms, the business relationship contemplated by this Agreement, including (by way of example only) by publishing or otherwise disclosing Licensee’s status as a Licensee that is utilizing or has utilized the Software. The other party’s prior written consent shall be required, however, in respect of the disclosure in any manner (including by press release or similar publication) of (i) the financial arrangements contemplated hereby or any of the other terms or conditions of this Agreement or (ii) the performance or termination of this Agreement. Except as aforesaid, the parties and their affiliates shall keep this Agreement and its provisions strictly confidential.
SECTION 5. INFRINGEMENT
A. INDEMNITY. Subject to the provisions of this Section 5 and Section 6 herein, Smart Volution will defend or settle any claim or action against the Licensee to the extent such claim or action is based on an allegation that the Software delivered under this Agreement infringes a copyright or misappropriates a trade secret, and Smart Volution shall pay those damages and costs finally awarded against the Licensee in such claim or action which are specifically attributable to such allegation; provided the Licensee: (a) notifies Smart Volution promptly in writing of such claim or action, (b) gives Smart Volution sole control of the defence thereof (and any negotiations for settlement or compromise thereof), and (c) cooperates in the defence thereof at Smart Volution’s expense. The Licensee shall not incur any costs or expenses for the account of Smart Volution under or pursuant to this Section 5(A) without Smart Volution’s express prior written consent.
B. SMART VOLUTION OPTIONS. If Software becomes, or in Smart Volution’s opinion is likely to become, the subject of such an allegation of infringement or misappropriation, then Smart Volution may, at its sole option and expense,
(1) procure the right to continue using such Software, or
(2) replace or modify such Software so that it becomes non-infringing and does not include any misappropriated trade secrets.
C. EXCEPTIONS. Smart Volution has no obligation for any claims of infringement or misappropriation arising from (a) Smart Volution’s compliance with the Licensee’s designs, specifications or written instructions; (b) Smart Volution’s use of technical information or technology provided by the Licensee; (c) Software modifications by the Licensee or a third party; (d) any use of any Software in a manner other than as specified by Smart Volution; (e) the use of any Software in combination with other products, equipment, devices, software, systems or data not supplied by Smart Volution (including without limitation any software produced by the Licensee for use with such Software) to the extent such claim is directed against such combination; (f) any failure to install an update to any Software provided by Smart Volution; (g) incorrect configuration or set up of the Register Software by the the Licensee, Service Provider, Smart Volution or any third party; or (h) support provided by the Service Provider.
D. EXCLUSIVE REMEDY. This section 5 states the entire liability of Smart Volution and the Licensee’s sole and exclusive remedy for infringement claims and actions.
E. INDEMNITY BY LICENSEE. In the event of an infringement or misappropriation action or claim against Smart Volution which is based on any of the circumstances or conduct described in Section 5(C) herein, the Licensee shall at its own expense defend such action or claim and the Licensee shall pay those damages and costs finally awarded against Smart Volution in connection with such action or claim; provided Smart Volution: (a) notifies the Licensee promptly in writing of such claim or action, (b) gives the Licensee sole control of the defence thereof (and any negotiations for settlement or compromise thereof), and (c) cooperates in the defence thereof at the Licensee’s expense. Smart Volution shall not incur any costs or expenses for the account of the Licensee under or pursuant to this Section 5(E) without the Licensee’s express prior written consent.
SECTION 6. DISCLAIMERS; LIMITATIONS OF LIABILITY
A. DISCLAIMERS. Subject always to section 6(b) below, the Software and any services provided pursuant to this Agreement are being provided “as is” and “with all faults”. All representations, terms, conditions and warranties, express or implied, are to the fullest extent permitted by law excluded, including without limitation the implied conditions or warranties of satisfactory quality, or fitness for a particular purpose. Smart Volution does not warrant that the functions contained in any Software will meet the Licensee’s requirements or that the operation of any Software will be uninterrupted or error free. The Licensee acknowledges that under no circumstances does Smart Volution represent or warrant that all errors in the Software can be remedied. No oral or written information or advice given by Smart Volution, its suppliers, or its or their dealers, distributors, agents or employees shall create a warranty and the Licensee may not rely on any such information or advice. Smart Volution has no liability for configuration or set up of the register software by the Licensee, the Service Provider, Smart Volution or any third party.
B. LIMITATIONS OF LIABILITY. Notwithstanding anything to the contrary contained in this Agreement: (a) Smart Volution’s aggregate liability in connection with this Agreement, the Software and any services provided pursuant to this Agreement, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), and including any liability under section 5 herein, shall not exceed the fees paid by the Service Provider to Smart Volution for the subscription of the Product on specific Tablet Devices under this Agreement which give rise to a proven or accepted claim during the twelve (12) month period immediately preceding the claim; (b) Smart Volution shall not be liable for any loss of profits, loss of business, loss of contracts, loss of goodwill or reputation, loss of anticipated savings, loss of or damage to or corruption of data, or for any indirect or consequential loss or damage of any kind, even if Smart Volution has been advised of the possibility of such loss or damages; and (c) except as set forth in section 5 above, Smart Volution shall not be liable for any claims of third parties relating to any Software or any services provided pursuant to this Agreement, and the Licensee shall defend Smart Volution from, and indemnify and hold Smart Volution harmless against, all such claims. Nothing in this Agreement shall restrict Smart Volution’s liability for death or personal injury resulting from Smart Volution’s negligence, for fraud, for breach of terms regarding title implied by s.12 Sale of Goods Act 1979 and/or s.2 Supply of Goods and Services Act 1982 or for any liability to the extent the same may not be excluded or limited as a matter of law. The foregoing states the entire liability of Smart Volution with regard to this Agreement, the Software and any services provided pursuant to this Agreement. The limitations of liability contained in section 5 herein and this section 6 are a fundamental part of the basis of Smart Volution’s bargain hereunder, and Smart Volution would not enter into this Agreement in the absence of such limitations.
SECTION 7. GENERAL
A. ARBITRATION; GOVERNING LAW. Any and all disputes or differences pertaining to or arising out of this Agreement, or the breach, termination or invalidity thereof, shall be finally and exclusively settled by binding arbitration in accordance with the International Dispute Resolution Procedures of International Centre for Dispute Resolution (ICDR). The arbitration shall be held in London, UK before three arbitrators, each party hereto shall have the right to appoint one arbitrator and the third arbitrator will be chosen by the two appointed arbitrators. The arbitration proceedings shall be conducted in English. Judgment upon an award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The prevailing party in any such proceeding shall be entitled to its actual reasonable attorneys’ fees and all other reasonable costs in connection with the arbitration and enforcement of the arbiter’s award. Nothing in this Section 7(A) shall prevent either party from seeking interim or provisional relief (including without limitation, injunctive relief) from a court of competent jurisdiction. This Agreement and all non-contractual obligations arising out of or in connection with it is governed under the laws of England and Wales, and both parties submit themselves to the exclusive jurisdiction of the English courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
B. SEVERABILITY; CONSTRUCTION. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. The headings and subheadings contained herein shall not be considered a part of this Agreement.
C. MODIFICATIONS. The Licensor may unilaterally modify, amend, supplement or otherwise change this Agreement. Any such future modification, amendment, supplement or other change (a “Change”) shall have immediate effect. As used herein, the term “Agreement” shall include any such future Change.
D. ASSIGNMENTS. No right or obligation of the Licensee under this Agreement shall be assigned, novated, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without the prior express written consent of Smart Volution, and any attempt to assign, novate, delegate or otherwise transfer any of the Licensee’s rights or obligations hereunder, without such consent, shall be void. Subject to the preceding sentence, this Agreement shall bind the Licensee and its permitted successors and assigns. Smart Volution may assign, novate, transfer or subcontract all or any of its rights, duties or obligations under this Agreement at its discretion.
E. WAIVERS. All waivers must be in writing. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, shall not be deemed to be a waiver for the future of such provision or right, and no waiver of any provision or right shall affect the right of the waiving party to enforce any other provision or right under this Agreement.
F. EQUITABLE REMEDIES. The parties agree that any breach of Section 2 above would cause irreparable injury to Smart Volution for which no adequate remedy at law exists; therefore, the parties agree that equitable remedies, including without limitation injunctive relief and specific performance, are appropriate remedies to redress any breach or threatened breach of Section 2 above, in addition to all other remedies available to the parties.
G. RIGHTS AND REMEDIES. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive except as provided in Section 5 above. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive. This Agreement is not intended to provide any rights or remedies to any person or entity other than Smart Volution and the Licensee and their respective permitted successors and assigns (if any).
H. FORCE MAJEURE. Smart Volution shall not be responsible for any failure to fulfil its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, labour disturbances, riots or wars, any internet or web disruption or issue.
I. NOTICES. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, or sent by electronic facsimile (fax), to the addresses set out below. All notices shall be effective upon receipt.
If to Smart Volution:
Peartree Business Centre
Ferndown Industrial Estate
Dorset BH21 7PT
FAO Justin Coward
If to the Licensee:
At the Licensee’s address set out on the Register web portal ore provided by the Service Provider
J. RELATIONSHIP BETWEEN PARTIES. Nothing contained in this Agreement shall be construed to constitute either party hereto as the partner, joint venturer, employee, agent or other representative of the other party hereto.
K. EXPORT CONTROL. The Licensee must: (a) comply with all applicable export statutes and regulations, and (b) not permit any other third party to use the Software in violation of such export control laws, statutes and regulations. The Licensee will indemnify and hold Smart Volution harmless from and against any and all claims, proceedings, losses, damages, liabilities, fines, penalties, costs and fees (including reasonable attorneys’ fees) arising in connection with any violation of any export control laws by the Licensee, its directors, officers, employees and agents.
L. TERM AND TERMINATION. The term of this Agreement is governed by the Licensee’s contract with the Service Provider. The Licensee has the right to use the Software while the term is valid and the licence fees are paid to the Service Provider. If the licence fees are not paid to the Service Provider or the Service Provider does not pay Smart Volution then use of and access to the Software will be terminated by Smart Volution at its absolute discretion.
M. ENTIRE AGREEMENT. This Agreement consisting of these Terms and Conditions and the applicable order document is the final, complete and exclusive agreement between Smart Volution and the Licensee relating to the subject matter, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether
oral or written, relating to such subject matter. Any term or condition in any order, confirmation or other document furnished by the Licensee at any time, which is in any way inconsistent with or in addition to the terms and conditions set out in this Agreement does not form part of the contract between Smart Volution and the Licensee.