1: TERMS & APPLICATION
The definitions & rules of interpretation in this condition apply in these terms & conditions:
1.1. Acquirer: The financial institution to which your Payment Transactions & Refund instructions are routed for authorisation & settlement.
1.2 Agreement: These Terms & Conditions (including any front sheet to which they are attached or with which they are provided) effective from the date of the agreement.
1.3. Application Form Summary: Refers to the application form completed by the customer (which includes the Application Form Summary’) as part of Your agreement & includes the summary of main commercial terms agreed between the customer & Breathe Payments.
1.4. 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.
1.5. Business Day: Monday, Tuesday, Wednesday, Thursday & Friday except for UK Bank Holidays.
1.6. Breathe Payments: Breathe Payments 3 West St, Leighton Buzzard LU7 1DA being a company registered in United Kingdom.
1.7. Breathe Payments Equipment: Any equipment, including card payment terminals, Epos system hardware, 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.
1.8. Card: A current valid, credit, debit or charge card that we may accept for processing under the terms of this Agreement.
1.9. Cardholder: The individual holder of a Card.
1.10. 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 & as set out in the Application Form.
1.11. Commencement Date: The effective start date of the Contract as set out on the Application Form Summary.
1.12. Contract: The Application Form Summary, all applicable Special Conditions (if any) & these conditions.
1.13. Core Service: Transaction authorisation & payment settlement.
1.14. Consumables: Batteries, paper rolls, printer ink or cartridges, all power & other accessories required or desired for operation of the Payment Terminal or EPOS System;
1.15. Customer: The person or entity that is transacting with the Merchant in an e-commerce context.
1.16. 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.
1.17. 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.
1.18.DPA: Data Protection Act 2018 (as amended or replaced from time to time).
1.19. Duration: The total time comprising any calendar month.
1.20. EPOS System: The tablet display device, software, cash draw & printers.
1.21. 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.
1.22. 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.
1.23. 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.
1.24. Merchant Equipment: Any equipment, hardware, computer, systems, cabling or facilities provided by the Merchant & used directly or indirectly in the supply of the Services.
1.25. 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.
1.26. Minimum Term: The Minimum Term as shown on the front sheet of this Agreement;
1.27. 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.
1.28. MPTV: Maximum permitted transaction volume set at 10 concurrent transactions per second as standard & may be increased with advance notice.
1.29. Network: The PSTN, Broadband or mobile telephone network upon which the Payment Terminal will operate.
1.30. 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.
1.31. pa: Per annum
1.32. Partner: One of Breathe Payments approved Partners who we may outsource or sub-contract part of the Services to & with whom the customer will not have a direct contractual relationship.
1.33. Party(ies): Breathe Payments & the Merchant as named in the Application Form Summary.
1.34. Payment Terminal: The Payment Terminal(s) described on the Agreement, provided to you for the purpose of processing Payment Transactions hereunder & subject to the terms of this Agreement.
1.35. Payment Transaction: A Card transaction processed with the intention of a Cardholder incurring a liability resulting in monies being received from the Card issuer to your Acquirer & credited to your bank account or non-Card transactions registered on the EPOS System.
1.36. Personal Information: Information (in any reproducible format) which relates to a Cardholder or other identifiable individual, whether supplied by you for processing by us or whether generated by us in the course of performing our obligations. This information may include some or all of the following information: Cardholder name & all data encoded on a Cardholder’s Card.
1.37. PCI: Payment Card Industry.
1.38. PCI: DSS: Payment Card Industry Data Security Standard.
1.39. pm: Per month
1.40. Refund: A Card transaction which has been processed with the intention of monies being remitted to the Cardholder’s Card account.
1.41. Rolling Term: Successive periods of one year following the end of the Initial Term.
1.42. 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”).
1.43. SIM card: The card used with a Payment Terminal which uses a Network to provide the Services.
1.44. 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.
1.45. Suppliers: Any third party who may be providing all or part of the Services & any other services or Equipment to the customer & with whom they will have a direct contractual relationship.
1.46. 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.
1.47. Term: The period for which the Parties are contracted as defined in the Initial & Rolling Terms, together with any subsequent Renewal Term.
1.48. Third Party Provider: A service or goods provider that is unconnected with Breathe Payments & provides solutions different from & complementary to Breathe Payments.
1.49. 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.
1.50. 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.
1.51. Transaction: A transaction is defined as a successful or declined pre-authorisation, full authorisation or refund; this includes 3D Secure authentication requirements.
1.52. VAT: Value Added Tax chargeable under English law & any similar additional tax.
2: APPLICATION OF THIS AGREEMENT
2.1: This Agreement shall apply to any Products &/or Services provided by Breathe Payments to the Customer (& shall be incorporated into any quotation or order for such Products &/or Services).
2.2: Any acceptance of a quotation or placement of an order by the Customer will be treated as an offer to purchase the Products &/or Services from Breathe Payments who retain the right to reject such offers at any time.
3: USAGE & OBLIGATIONS
3.1: Breathe Payments shall provide information about its Products & Services to help inform the Customer’s basis of its purchase, including a free demo if its software if required.
3.2: It is the sole responsibility of the Customer to ensure that the Product(s) &/or Services it is purchasing meet the Customer’s requirements.
3.3: Upon the Customer’s request, Breathe Payments will provide a written quotation for any Product(s) &/or Services. This quotation will be a guideline price & does not form the basis of any contract.
3.4: Any advice or recommendation given by Breathe Payments or its representatives to the Customer regarding the Services or the application or use of the products which is not confirmed in writing by is followed or acted upon at the Customer’s own risk. As such, Breathe Payments shall not be liable for any such advice or recommendation which is not so confirmed in writing.
3.5: Breathe Payments accepts no liability for Epos software & as such, Epos software failures are not grounds for cancellation of hardware lease agreements.
3.6: Should a software fault occur, the customer is required to allow Breathe Payments to replace the software with an appropriate alternative software solution. The customer must cooperate with the implementation of this software in a timely manner.
3.7: The Customer is responsible for installing the Hardware (unless otherwise agreed in writing) & will keep the Hardware in a good, clean condition.
3.8: The Customer will ensure that the Hardware is only used by properly trained staff in accordance with official instructions. The Customer will ensure that only personnel authorised by Breathe Payments, or its partners, adjust, modify, configure, maintain, repair, replace or remove any part of the Hardware.
3.9: The customer agrees to use the Payment Terminal &/or EPOS System in accordance with any operating instructions only for the purpose of effecting Payment Transactions or Refunds in accordance our instructions & to keep the Payment Terminal &/or EPOS System in good repair & condition & to be responsible for any loss or damage to it & not to remove any identifying marks.
3.10: The customer is responsible for insuring the Payment Terminal &/or EPOS System for loss or damage for its full replacement value or otherwise indemnify us against the full cost of repair or replacement.
3.11: The customer must keep the Payment Terminal &/or EPOS System in your own possession in the United Kingdom & not to alter, sell, lend or otherwise deal with it nor to allow any charge or lien or similar right to be created over it.
3.12: The customer agrees to indemnify & keep us fully indemnified at all times against all losses, actions, claims, demands, costs or expenses arising directly or indirectly from the use, possession, operation, condition or maintenance of the Payment Terminal or EPOS System or your failure to carry out any obligation under this Agreement.
3.13: The Customer is responsible for ensuring that their login password to their Epos System remains secure & confidential. The Customer should update their password regularly & the ‘remember me’ type functions should not be used on publicly available or shared computers.
3.14. Liability:
3.14.1: We are only liable to you as set out in this Agreement. We have no other duty or liability to you.
3.14.2: Nothing in this Agreement removes or limits our liability for death or personal injury caused by our negligence.
3.14.3: Our entire liability to you for something we or anyone who works for us does or does not do will be limited to 125% of any monies paid by you to us under your Agreement.
3.14.4: We are not liable to you in any way for any loss of income, business or profits, or for any loss or damage occasioned by the use of the Services or any failure of the Services.
3.14.5: We will not be liable to you if we cannot carry out our duties or provide our services because of something beyond our control.
3.15: The customer may not transfer your account or any of your rights & responsibilities under this Agreement.
3.16: The customer must advise us in writing about any change in the address supplied to us.
4: SERVICES
Subject to due payment of the relevant Charges we agree to provide the Services as follows:
4.1: Airtime
4.2: To fit a SIM card into & configure the Payment Terminal.
4.3: To arrange continuous connection to a suitable Network (subject to Clause 5 below).
4.4: Charges in respect of Airtime service may be subject to change after the first twelve months of this Agreement, if the Network provider increases the cost to us.
4.5. Help Desk & Support Service: A Help Desk service on the telephone number shown on the front sheet, is available between the hours of 8.00 am – 11.00 pm Monday to Saturday & 10.00 am – 4.00 pm on Sundays & Public Holidays as a telephone advice bureau for operational difficulties.
4.6. Terminal & Transaction Processing Service: To configure the Payment Terminal with appropriate software for the processing of Payment Transactions or Refunds by any Card capable of being accepted by you under the terms of your agreement with an Acquirer; To provide software upgrades from time to time; To ensure secure routing for Card authorisations & Payment Transactions to & from your Acquirer.
4.7. Guaranteed Replacement Service:
4.7.1: In addition to the Help Desk service set out in 4.5, if the Payment Terminal or EPOS System develops a fault, we will, unless prevented by circumstances outside our control, provide a replacement within 24 hours. You acknowledge that this target response time is our service level goal & we do not warrant that any particular replacement shall be made within 24 hours.
4.7.2: Any replacement shall be provided configured for your use & will be of a similar or improved specification but may be new or refurbished.
4.7.3: Our repair services under this clause 2.4 shall not extend to accidental damage to the Payment Terminal or EPOS System, nor in respect of any damage caused though misuse or malicious damage, or for theft or loss, nor to faults in respect of batteries or battery packs, network outages or to any third-party device or attachment that is not part of the Payment Terminal or EPOS System provided by us.
4.7.4: Breathe Payments shall be entitled to levy a charge in respect of a Payment Terminal or EPOS System, which upon inspection, is not found to be faulty.
4.8. EPOS Enhanced Support: Unless selected in the Agreement, additional software & support for enhanced features or out of hours support is not otherwise included in the base Services & Support described above.
5: SERVICE LIMITATIONS
5.1: We will always try to make our Services available to you, but sometimes they may be affected by things beyond our control, including (inter alia) the availability of the Network. We may suspend certain services, but will endeavour to give as much notice as practical.
5.2. The Services are made available subject to:
5.2.1: Any software, upgrades or other intellectual property relating to the Payment Terminal or EPOS System not being copied, modified or sub-licensed by you without our specific written consent.
5.2.2: Their not being used for or to access anything illegal, immoral or improper. 5.2.3: Their being used only with the Payment Terminal or EPOS System & SIM cards provided for use with the Network (& which have not been lost or stolen) & all relevant laws & rules being followed.
5.2.4: Their being used only for the purposes of processing Payment Transactions or Refunds & no other purpose.
5.2.5: The SIM card not being used for any other purposes or otherwise modified or removed from the Payment Terminal.
5.2.6: All reasonable instructions that we may give you being followed.
5.2.7: Where appropriate, the Payment Terminal being in range of base stations forming part of the Network.
6: PAYMENT & FEES
6.1: All invoices are due & payable by the Customer (or via a finance provider, where applicable) immediately upon receipt of the applicable invoice. The Customer acknowledges that no Products will be dispatched, & no Services will be provided, until payment of the applicable invoice is received by Breathe Payments in cleared funds.
6.2: All prices are quoted are exclusive of VAT (or such other applicable sales tax in force from time to time). Where VAT is payable by the Customer, this will be added to the invoice in addition to the fees.
6.3: Without prejudice, if the Customer fails to pay by the relevant invoice due date, Breathe Payments may:
6.3.1: Charge interest on such sum from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998
6.3.2: Suspend the provision of the Services (including all of the Customer’s access to the Software); &/or
6.3.3: Request that any products/ equipment are immediately returned to Breathe Payments & if the customer fails to do so, the customer acknowledges & agrees that Breathe Payments may charge a fixed amount for these products
6.3.4: Pass your details to a third-party debt collection agency &/or start legal proceedings to recover the debts &/or products/ equipment.
6.4: Your payment obligations shall not be affected by the unavailability of the Services.
7: TERMINATION
7.1: Subject to the terms of Clause 6.3 , either party can terminate their Agreement at any time after expiry of the Minimum Term, by the giving of one month’s notice in writing to the other party.
7.2: Breathe Payments can terminate the Agreement immediately & stop providing the Services if any of the following happens:
7.2.1: The customer fails to pay any Charges or other sums due under the Agreement when due or break an important condition of the Agreement.
7.2.2: The customer breaks any other condition of the Agreement & does not put it right within 7 days of us asking you to; or
7.2.3: The customer becomes bankrupt or make any arrangement with your creditors or are liquidated or have an Administrator or receiver appointed or suffer any other form of insolvency event.
7.2.4: The customer is unable to pay your debts as they fall due.
7.3: Upon termination of the Agreement for any reason, you must, pay us immediately any & all sums then due & owing; & all Charges which would have been payable for the remainder of the Minimum Term but for the termination less a discount of 5%.
7.4: Breathe Payments may at our discretion, be able to offer a reduction in the amount payable upon termination in exchange for return of the Payment Terminal, EPOS System & SIM card in good condition & complete with all accessories, power leads, batteries, chargers & handbooks. The customer should contact us at the address given on the Agreement to make arrangements for re-delivery & valuation of the Payment Terminal &/or EPOS System for this purpose.