1 DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Means any applicable foreign or domestic anti-bribery and anti-corruption laws and regulations, including the UK Bribery Act 2010, the US Foreign Corrupt Practices Act 1977 and any laws intended to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
Means all applicable laws, statutes, regulations and binding codes from time to time in force.
Means all applicable laws, statutes, regulations and binding codes from time to time in force.
Means the tools or programmes, software, material, documentation or other output provided to Payink by or on behalf of the Client under or in connection with this Agreement.
The data inputted by the Client, Users, or Payink on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services;
Means information of each of the Parties by its nature confidential, or that the other Party knows or ought to know is confidential, or designated by the first Party as confidential, relating the business, products, affairs and finances of the relevant Party, including the contents of this Agreement;
Data Protection Legislation
Means (i) the UK's Data Protection Act 2018 (as applicable); (ii) the General Data Protection Regulation 2016/679 (the “GDPR”); (iii) any UK data protection legislation replacing or adopting the GDPR in the UK as applicable, (iv) Schrems II judgement (“Schrems II”) on the applicability of the EU:US Privacy Shield Framework for personal data transfers; (v) California Consumer Privacy Act (“CCPA”) applicable to residents of California, United States of America; and (vi) any other applicable data protection legislation;
01 December 2020
Means the fees payable by the Client for the provision of the Services and the Software as set out in this Agreement, each Order Form or as otherwise agreed by the parties in writing.
Force Majeure Event
Means any matter outside the reasonable control of the affected party including acts of God, fire, floods and natural disasters; acts of terrorism; strikes, lock-outs and labour disputes (except, in the case of Payink); pandemic circumstances such as Covid-19; civil commotion, riots and acts of war, delays, interruptions or failures of telecommunication networks or services or internet service providers or interruption or failure of utility service.
Intellectual Property Rightsor IPR
Means: (i) patents, rights to inventions, designs, copyright and related rights, database rights, trade marks and trade names, rights in get-up and related goodwill and the right to sue for passing off or unfair competition (in each case whether registered, registerable or unregistered); (ii) proprietary rights in domain names; (iii) rights to use, and protect the confidentiality of, trade secrets and Confidential Information; (iv) applications, and rights to apply for and be granted registrations, including extensions and renewals of, such rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world.
Has the meaning set out in Clause 6.13.
Means an Order Form entered into by the parties detailing the Services and/or Software to be provided by Payink.
Means a payment processing company such as Stripe, Square, Elavon, Dlocal etc, with which the Client has a direct merchant account, and to which it pays directly payment processing fees.
Has the meaning set out in Clause 6.7.
The services provided by Payink to the Client under this agreement via the Site.
Means https://client.payink.com or any other website notified to the Client by Payink from time to time, as set out in the Order Form.
The online software applications provided by Payink as part of the Services, as set out in an Order Form.
Standard Industry Practice
Means the use of the standards, resources, practices and methods, and exercising the due skill, care, diligence, attention and judgment, which would reasonably be expected from a skilled, qualified and experienced person engaged in services which are the same as or similar to the Services.
Third Party Materials
Means any third party materials (including software and data) directly licensed or otherwise directly provided to the Client by a third party.
Total Volumes Processed
Total Volumes Processed means (in USD or GBP or EUR) the payment transactions processed for the Client
Those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services provided via the Site or otherwise.
Any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, Section and Paragraph headings, are for ease of reference only and shall not affect the interpretation of this Agreement.
1.3 References to any Laws shall be construed as a reference to the Laws as amended, replaced, consolidated or re-enacted from time to time and shall include Laws made under them.
1.4 References to clauses, schedules and appendices are to the clauses, schedules and appendices of the Agreement.
1.2 Clause, Section and Paragraph headings, are for ease of reference only and shall not affect the interpretation of this Agreement.
2.2 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property; and Payink reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.
2.3 Any updates to the Software and Services shall be provided shall be subject to all the terms and conditions of this Agreement.
2.4 The Client shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties; or
(d) subject to Clause 11.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Users.
3 Payink Obligations
3.1 Payink shall provide the Services in accordance with the Agreement and use all reasonable endeavours to adhere to the dates specified in the Agreement or in any relevant Order Form.
3.2 Payink shall not be responsible for any delays to provide the Services caused by the Client’s (its sub-contractors or suppliers) actions or omissions or caused by reasons out of Payink reasonable control.
3.3 Payink shall use reasonable endeavours to:
(a) perform the Services in accordance with Standard Industry Practice and in compliance with all applicable laws;
(b) promptly deal with and respond to reasonable queries from the Client;
(c) protect any Client’s Materials from damage so far as is reasonably possible.
3.4 Notwithstanding the foregoing, Payink:
(a) shall provide the Software “as-is”,
(b) does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services, and/or the information obtained by the Client through the Services will meet the Client’s requirements; and
(c) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(d) Shall maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
3.5 Payink shall throughout the Term and for a period of 5 years thereafter, or longer if required by law, to keep accurate and contemporaneous records of all work undertaken in relation to the Services.
4 Client Obligations
4.1 To enable Payink to provide the Services, the Client shall:
(a) provide any information and documentation necessary for the provision of the Services;
(b) fully cooperate with Payink and provide any approvals and reasonable assistance to Payink that may be necessary for the performance of the Services;
(c) ensure no measure is taken by the Client (its subcontractors, suppliers and Affiliates) that could interfere with the provision of the Services by Payink or its subcontractors; and
(d) ensure that Payink’s staff have reasonable access to the Client’s Materials and any other information reasonably requested by Payink (where this is necessary for the provision of the Services).
(e) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Payink’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
4.3 If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
4.4 You and your Users may be required to register with the Site. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
4.5 Payink shall not be liable for its failure to perform any of its obligations under this Agreement if this is due to the Client’s breach of any of its obligations under this Agreement or to any actions or omissions of Client’s subcontractors or suppliers.
4.6 Payink shall not be responsible for any chargebacks, refunds, partial refunds, disputes in relation to the Client’s separate agreement with its Payment Processor.
4.7 The Client shall be responsible for the calculation of and payment of any and all applicable sales and other taxes owed to applicable governmental agencies as a result of the transactions between the Clients and its Customers.
5 Payment Terms
5.1 In consideration for the provision of the Services, the Client shall pay Payink the Fees.
5.2 Payink Fees shall be calculated as a Subscription Fee per month plus a percentage of the Total Volumes Processed (“TPV”) by the Client.
5.3 Invoices for the Fees shall be submitted together with any incurred expenses and VAT at the prevailing rate, where applicable. The Fees will not be deemed to include any applicable taxes or duties, which will be charged separately.
5.4 The Client shall pay each invoice within fifteen (15) days from the invoice date.
5.5 If the Client disputes any invoice or any other amounts due under the Agreement the Client will always do so acting reasonably and in good faith.
5.6 If the Client has a bona fide dispute in relation to the whole or any part of an invoice submitted by Payink, the Client shall notify Payink of the amount in dispute and the nature of the dispute within fifteen (15) days from receipt of the invoice. After such period the invoice shall be deemed to be accepted by the Client.
5.7 If the Client fails to pay any due amounts under the Agreement not validly in dispute, Payink may charge interest on the overdue amount, from the due date up to the date of actual payment, at a rate of five percentage (5%) per annum above the base rate of Barclays Bank PLC from time to time until the recovery is made in full.
5.8 Nothing in this Agreement shall limit or exclude Client’s liability to pay the Fees under the Agreement.
5.9 Unless the Parties agree otherwise in the relevant Order Form, the Fees shall not include any costs derived from the acquisition or pass-thru of software licences, sale and purchase of hardware, network connections and communications that are necessary to execute the Services, including data migrations, implantations or integrations.
5.10 The Client acknowledges and agrees that Payink’s Fees are in addition to the fees paid directly by the Client to the Payment Processor and / or any other third party vendor with whom the Client has valid agreement with.
5.11 Payink shall be entitled to increase any element of the Fees listed in the relevant Order Form at any time from the 1st anniversary of the Effective Date by giving the Client not less than 30 days' prior written notice of the variation and this Clause shall be deemed to have been amended accordingly.
6.1 The Client agrees that it shall not, without the prior consent of Payink, during the Term and for a period of twelve (12) months thereafter, directly or indirectly offer to employ or otherwise endeavour to entice away any employee, worker, consultant or contractor of Payink or any of its Affiliates who is, or has been, engaged in the provision of the Services.
6.2 Intellectual Property
6.3 The Client acknowledges and agrees that Payink and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
6.4 Payink confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
6.5 The Client represents, warrants and undertakes that it has, and shall, at all times maintain all licences, authorisations, consents and approvals necessary from third parties (including any licensors of software) or required by applicable law in respect of the tools or programmes, software, material, documentation or other output provided to Payink by or on behalf of the Client under or in connection with this Agreement.
6.6 Each Party retains ownership of any Intellectual Property Rights owned by it prior to the Effective Date or which are or have been developed independently of this Agreement (whether prior to the Effective Date or not) ("Pre-Existing IPRs").
6.7 The Parties agree that the Intellectual Property Rights in any derivative works, improvement, enhancements or modifications to such Pre-Existing IPRs carried out during the course of this Agreement are to vest in the Party which owns such Pre-Existing IPRs, regardless of who carried out such improvement, enhancement or modification.
6.8 The Client hereby grants to Payink (and to its subcontractors if applicable) a royalty-free, non-exclusive, non-transferrable licence to use the Client's Pre-Existing IPR and Client’s Materials (and any derivative works, modifications, enhancements or improvements to such Pre-Existing IPR or Client’s Materials) solely to the extent necessary and for as long as it is necessary in order for Payink to provide the Services and perform its obligations under this Agreement. Payink may only sublicense its rights under this Clause to its subcontractors to the extent necessary and for as long as is necessary in order for such subcontractors to provide any Services and perform any obligations under this Agreement.
6.9 The Client shall not be permitted to use any of Payink’ Pre-existing IPRs for the benefit of any person other than the Client, without the prior written consent of Payink.
6.10 Unless the Parties agree otherwise in writing, if the Client requires the use of any Third Party Materials in order to benefit from the provision of the Services the Client shall enter directly into a licence agreement with the applicable third party licensor.
6.11 Payink shall indemnify the Client from and against any losses suffered or incurred by the Client as a result of or in connection with any claim that the provision, use or receipt of the Services by the Client, in accordance with the provisions of this Agreement infringes the Intellectual Property Rights of a third party.
6.12 The Client shall indemnify Payink from and against any losses suffered or incurred by Payink as a result of or in connection with any claim that Payink’ use of the Client Pre-existing IPRS or Client’s Materials in accordance with the provisions of this Agreement infringes the Intellectual Property Rights of a third party (with such claims under Clauses 6.12 or 6.13 each being an "IPR Claim").
7.1 Subject to clause 7.5 below, neither Party will disclose any Confidential Information received from the other Party for the purposes of the Agreement, without the other Party’s written consent.
7.2 Once the Services have been completed, each Party shall return to the other any Confidential Information in its possession or those of its employees, or destroy it at the other Party’s express request and in the manner established by the latter, irrespective of the means in which this information is registered.
7.3 The Parties may not use registered trademarks, logos, commercial names, Internet domain names or any other distinctive sign of the other Party without its prior written consent, which will not be unreasonably withheld.
7.4 Each Party acknowledges that damages alone would not be an adequate remedy in the event of breach by the other Party of the provisions of this clause. Accordingly, it is agreed that either Party shall be entitled, without proof of special damages, to seek an injunction or other interim remedy for any threatened or actual breach of this clause, without prejudice to any other rights and remedies which that Party may have.
7.5 The receiving Party may disclose Confidential Information to its own officers, directors, employees, contractors, sub-contractors (which in Payink’ case includes any of its Affiliates involved in the provision of the Services), agents and advisers who reasonably need to know it for the purposes of the Agreement (each a "Permitted Third Party"), provided that the Permitted Third Party is bound by confidentiality obligations equivalent to those specified in this clause 7) and that the receiving Party shall remain liable to the disclosing Party for the acts, omissions of, and for the compliance with the terms of this Clause 7, by such Permitted Third Party.
7.6 If a receiving Party is required by Law or by any regulator to which it is subject to disclose any Confidential Information of the disclosing Party, then it shall be entitled to do so provided that it promptly informs the disclosing Party (if permitted by Law).
7.7 The confidentiality obligations under this clause 7 will remain in force during the term of the relevant Order Form connected to the disclosure, and for a period of three (3) years, after its termination.
8 Data Protection
8.3 United States of America Clients:
(a) Please be advised that your access to the Site, and the Client and Customer data is hosted in the United States of America (the “ USA”).
(b) You warrant that your Customers are predominantly based in the USA.
(c) You warrant that your Users will not access the Site from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the USA, then through your continued use of the Site, you are transferring your data to the USA, and you agree to have your data transferred to and processed in the USA.
(d) You warrant that you will only grant Users access to the Site on a need-to-know, least-privilege basis.
(e) For California Clients, if any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
8.4 European Economic Area Clients or United Kingdom Clients
(a) Please be advised that your access to the Site, and the Client and Customer data is hosted in Republic of Ireland.
(b) You warrant that your Customers are predominantly based in the European Economic Area (the “EEA”) or the United Kingdom (the “ UK”).
(c) You warrant that your Users will not access the Site from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the EEA or the UK, then through your continued use of the Site, you are transferring your data to the EEA or the UK, and you agree to have your data transferred to and processed in the EEA or the UK.
(d) You warrant that you will only grant Users access to the Site on a need-to-know, least-privilege basis.
(e) In those cases where the provision of Services by Payink involves processing Client’s or Customers’ personal data, the Parties shall comply with the Data Processing Addendum as detailed in Schedule A of this agreement (“ DPA”).
9 Liability and Indemnification
9.1 Nothing in this Agreement excludes or limits each Party’s liability with respect to: (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; and (iii) any other liability which cannot be limited or excluded by applicable law.
9.2 Subject to clause 9.1, Payink shall not be liable to the Client for any of the following direct or indirect types of loss or damage arising under or in relation to this Agreement, including (but not limited to) liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including but not limited to negligence), breach of statutory duty, liability under any indemnities or otherwise:
(a) any loss of profits (whether direct or indirect) or contracts; or
(b) loss of business, business opportunities, loss of sales, loss of revenue or turnover; or
(c) loss of agreements or contracts; or
(d) loss or damage to goodwill or reputation; or
(e) loss of income; or
(f) cost of procurement of substitute goods or services; or
(g) any and all losses (including but not limited to chargebacks, refunds, partial refunds, disputes) in relation to the Client’s separate agreement with its Payment Processor; or
(h) any indirect, special or consequential loss or damage of any kind howsoever arising, whether caused by tort (including negligence), breach of contract or otherwise or, whether any such losses could be reasonably foreseen by Payink or not or whether Payink has been advised of the possibility of such damages or not
9.3 To the extent that the Services provided by Payink to the Client are based on inaccurate, incorrect or incomplete data provided by the Client (or its sub-contractors or suppliers), or instructions or information provided by the Client (or its sub-contractors and suppliers) to Payink, Payink shall not be liable or responsible for any losses suffered by the Client as a result of Payink providing the Services to the Client relying on such inaccurate, incorrect or incomplete data, instructions or information.
9.4 SUBJECT TO CLAUSE 9.1, IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE PAYINK FEES PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
9.6 The Parties acknowledge and agree that any delay in or failure of performance by the Company under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by Force Majeure.
9.7 This clause shall survive and shall not be rendered ineffective by the completion of the Services or the expiry or termination of this Agreement for any reason whatsoever.
10 Term and Termination
10.1 This Agreement shall commence on the Effective Date and shall continue for 12 months (the Initial Term) and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless terminated in accordance with the provisions of this Agreement (Term).
10.2 During the first 30 days of the Initial Term ( Trial Period) the Client may terminate this agreement at any time without cause and Clause 10.9 shall not apply.
10.3 The Client may terminate this Agreement, or any Order Form, without cause on giving ninety (90) days’ written notice to Payink of such termination.
10.4 Payink may terminate this Agreement, or any Order Form, without cause, on giving ninety (90) days’ written notice to the Client of such termination.
10.5 Payink may terminate the Agreement or any Order Form, or suspend access to any of the Services provided under the Agreement, if the Client fails to pay any amount under this Agreement not validly in dispute on the due date for payment and remains in default for more than thirty (30) days after being notified in writing by Payink to make such payment.
10.6 If either Party commits a material breach of this Agreement and (in the case of a remediable breach) fails to remedy the breach within thirty (30) days of receipt of the other Party's written notice requiring it to do so, the other Party may terminate the Agreement with immediate effect on written notice to the Party in breach.
10.7 If an Insolvency Events occurs in respect of a Party, the other Party may terminate the Agreement with immediate effect on written notice to the Party to whom the Insolvency Event relates. An "Insolvency Event" means, in relation to a person (a " Relevant Entity"):
(a) when the Relevant Entity becomes unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), admits its inability to pay its debts or becomes insolvent;
(b) a petition is presented, an order made or a resolution passed for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of the Relevant Entity;
(c) an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to the Relevant Entity and/or over all or any part of the assets of the Relevant Entity;
(d) the Relevant Entity enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; or
(e) anything equivalent to any of the events or circumstances stated in 10.7 inclusive occurs in any applicable jurisdiction.
10.8 Termination or expiry of any Order Form shall not affect the continuing validity or operation of any other Order Forms entered into pursuant to this Agreement (nor the continuing application of the terms of this Agreement to such other Order Forms), or the Agreement itself. Termination or expiry of this Agreement as a whole shall not affect any outstanding Order Forms then in force and the provisions of this Agreement shall be deemed to apply to any such outstanding Order Forms for the duration of each applicable Order Forms, until the termination or expiry of such outstanding Order Forms.
10.9 If the Agreement is terminated for any reason the Client shall:
(a) pay Payink all Fees and expenses related to the Services provided, or due to Payink under the Agreement until the date of termination of the Agreement; and
(b) also be responsible for Payink and its sub-contractors’ reasonable and justified costs, investments and expenses incurred by Payink (or its subcontractors) in their preparation for the provision of any Services not yet supplied, up to the termination date.
Payink may submit an invoice, which shall be payable by the Client within fifteen (15) days of the date of the invoice.
10.10 Termination or expiry of this Agreement or any Order Form shall be without prejudice to the respective rights and liabilities of each of the Parties accrued prior to such termination or expiry.
10.11 All Payink licences shall be terminated, with the exception that the termination of this Agreement or any Order Form shall not affect the licences specified in clause 6.9 which shall continue in full force and effect notwithstanding the termination of this Agreement or the relevant Order Form.
12.1 The Client may not assign its obligations derived from this Agreement without Payink’s prior written consent. Payink may assign the provision of the Services to any of its Affiliates, or use subcontractors to provide the Services. Notwithstanding the foregoing, if there is a change of control of the Client to a direct competitor of Payink, Payink may terminate this Agreement upon written notice. In the event of such a termination, Payink will refund the Client any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.2 Each Party shall remain responsible for the acts and omissions of all its subcontractors in each case as if they were the acts and omissions of itself, to the extent that said Party would be liable under this Agreement or an Order Form.
12.3 A person who is not a Party to this Agreement (including any Order Form) may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.
12.4 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
12.5 This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and replaces and extinguishes all prior agreements, draft agreements, arrangements, collateral warranties, collateral contracts, statements, assurances, representations and undertakings of any nature made by or on behalf of the Parties, whether oral or written, in relation to that subject matter. Nothing in this clause shall exclude or restrict the liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.
12.6 Each of the Parties shall: a) comply with all applicable laws and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and the Foreign Corrupt Practices Act 1977 (" Relevant Requirements"); (b) not engage in any practice or conduct that would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if that activity, practice or conduct had been carried out in the UK; and (c) have, and shall maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements and part (b) above, and will enforce them where appropriate.
12.7 No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
12.8 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
12.9 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
12.10 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
12.11 Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
12.12 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand at its registered office (if a company) or its principal place of business (in any other case) or sent by email to the address specified in the Order Form. Any notice or communication shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and (ii) if sent by email, at 9.00 am on the next business day after transmission. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13 Governing Law and Jurisdiction
13.1 This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.
13.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Payink Affiliate: means any entity that directly or indirectly controls, is controlled by, or is under common control with Payink;
Controller: means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data, or as otherwise defined in the Data Protection Legislation;
Client Personal Data: means Personal Data of the Client’s personnel or Customers of the Client served by Payink for the purposes of this Agreement;
Data Breach: means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Client Personal Data transmitted, stored or otherwise processed by Payink, or as otherwise defined in the Data Protection Legislation;
Data Protection Legislation: means the General Data Protection Regulation 2016/679 (“GDPR”), until such time as it is repealed or ceases to apply in the UK; and any UK data protection legislation replacing or adopting the GDPR in the UK once in force and applicable;
Data Subject Request: means, in connection with Personal Data, a request from a Data Subject to exercise any of its rights under the Data Protection Legislation;
Personal Data: means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, or as otherwise defined in the Data Protection Legislation;
Process or Processing: means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, or as otherwise defined in the Data Protection Legislation;
Processor: means the person, entity or body which processes Personal Data on behalf of the Controller, or as otherwise defined in the Data Protection Legislation; and
Standard Contract Clauses: means the standard contractual clauses set out in the Commission Decision 2010/87/EU (as amended) covering the transfer of Personal Data to processors located in a country or territory outside the European Economic Area (the “EEA”) in respect of which the Commission has not made a positive finding of adequacy.
2. PERSONAL DATA PROCESSING
2.1 The Client and Payink shall comply with Data Protection Legislation when Processing the Client Personal Data.
2.2 Notwithstanding the generality of paragraph 2.1, the Client shall ensure that it has all necessary appropriate consents and notices in place to enable the lawful processing of Client Personal Data by Payink for the duration and purposes of this Agreement.
Scenario 1 – The Client acts as the Data Controller, Payink acts as a Data Processor
2.3 When acting as a Processor of the Client, Payink shall:
(a) process the Client Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Client Personal Data for any purpose other than those authorised by the Client, unless Payink is required by applicable law to process Personal Data in such manner. Where Payink is relying on applicable law as the basis for processing Personal Data, Payink shall notify the Client of this before performing the processing required by the applicable law unless the applicable law prohibit Payink from so notifying the Client;
(b) not disclose the Client Personal Data to any third party other than in accordance with this Addendum, the Data Protection Legislation or at Client’s request;
(c) notify the Client within three (3) Business Days if it receives a Data Subject Request and provide the Client with reasonable co-operation and assistance in relation to any Data Subject Request;
(d) ensure that only persons authorised by Payink Process the Client Personal Data and that such persons are subject to binding obligations to maintain the confidentiality of the Client Personal Data; and
(e) without undue delay after discovering a Data Breach: (c) notify the Client within three (3) Business Days if it receives a Data Subject Request and provide the Client with reasonable co-operation and assistance in relation to any Data Subject Request; (i) notify the Client about the Data Breach;(ii) provide to the Client the details and describe the likely consequences of the Data Breach in accordance with the information requirements specified in Article 33 of the GDPR; and (iii) provide to the Client any reasonable co-operation and assistance.
2.4 Payink shall be entitled to charge the Client for its assistance:
(a) when the Client request Payink’ assistance to comply with Data Protection Legislation;
(b) with a Data Subject Request; or
(c) during a Data Breach (unless the Data Breach is directly attributable to Payink), at Payink’s standard rate card, unless the parties agree otherwise in writing.
Scenario 2 – Payink acts as a Controller
2.5 Payink will comply with Data Protection Legislation in relation to any Client Personal Data that Payink Processes as a Controller. Payink may process Client Personal Data as a Controller when it determines what Personal Data to collect and process, and the purposes of means for which the Personal data is processed:
(a) to provide the services under the Agreement; or
(b) to comply with its own professional obligations.
2.6 Payink may act as a Controller when it:
(a) processes Personal Data from Client’s representatives or personnel to provide the Services; or
(b) records emails and calls from the Client, members of staff, subcontractors or the Client’s Customers relating to the provision of the Services (including emails and calls to its Services support team). Payink will do so for the purposes of providing the Services to Client, for training and quality purposes and to keep a record of the Services provided to the Client.
Each party shall take reasonable steps to ensure the reliability and adequate training on all applicable requirements of the Data Protection Legislation of all its employees who have access to Client Personal Data.
4.1 Each party warrants to the other that it will comply with all applicable requirements of the Data Protection Legislation and that it will Process the Client Personal Data in compliance with the Data Protection Legislation.
4.2 Payink warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful Processing, and accidental loss or destruction of, or damage to, Client Personal Data;
(b) ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful Processing or accidental loss or destruction of, or damage to the Client Personal Data and the nature of the data to be protected; and
(c) take reasonable steps to ensure compliance with the chosen technical and organisational measures.
5. LIABILITY AND INDEMNITY
5.2 The Client acknowledges that Payink is reliant on the Client for direction as to the extent to which Payink is entitled to use and Process the Client Personal Data. Consequently, Payink shall not be liable for any claim brought by a Data Subject or a regulator arising from any action or omission by Payink, to the extent that such action or omission resulted from the Client's instructions or it is based on inaccurate, incorrect or incomplete data, or information provided by the Client.
5.3 Subject to paragraphs 5.1 and 5.2 above, Payink shall indemnify the Client against all liabilities, costs, expenses, damages and losses suffered or incurred by the Client, arising from Payink’s breaches of Data Protection Legislation.
5.4 Notwithstanding clause 18.4 of the PPS Agreement, the Client shall indemnify Payink against all liabilities, costs, expenses, damages and losses suffered or incurred by Payink arising out of or in connection with Client’s breaches of Data Protection Legislation.
6. APPOINTMENT OF SUB-PROCESSORS
6.1 Subject to paragraph 6.2 below, Payink shall not engage another Processor (“ Sub-Processor”) without prior specific or general written authorisation of the Client. Payink may authorise a third party to Process the Personal Data provided that the Sub-contractor's contract:
(a) is on terms which are substantially the same as those set out in this Addendum; and
(b) terminates automatically on termination of this Agreement for any reason.
6.2 The Client herewith expressly authorises Payink to engage any Payink Affiliate as a Sub-processor if that Payink Affiliate is engaged in the provision of the Services and it is Processing Client Personal Data for such purpose.
6.3 In addition to the Sub-processors engaged pursuant to paragraph 6.1, Payink shall be entitled to engage additional or replacement Sub-processors, subject to:
(a) the provisions of paragraph 6.1 above being applied; and
(b) Payink notifying the Client of the additional or replacement Sub-processor.
7. RETURN OR DESTRUCTION OF CLIENT PERSONAL DATA
7.1 Subject to paragraph 7.2 below, Payink shall, at the choice of the Client, delete or return all the Client Personal Data to the Client after the end of the provision of the Services relating to the Processing. The Client shall be responsible for arranging a back-up of such Client Personal Data before the end of the provision of the Services.
7.2 In the event that the Client requires Payink to return the Client Personal Data, Payink shall be entitled to charge the Client for this service, at Payink’s standard rate card.
7.3 In the event that Payink is required by applicable law to retain all or part of the Client Personal Data (e.g. for tax and/or accounting purposes) Payink shall retain such data only for as long as it is required or needed. The provisions of this DP Addendum shall continue to apply to any Client Personal Data retained by Payink pursuant to this paragraph.
Payink shall use reasonable endeavours to make available to the Client all information necessary to demonstrate compliance with its obligations as a Processor under Data Protection Legislation and allow the Client or the Client’s designated auditors to carry out data protection compliance audits under terms agreed by the parties acting reasonably and in good faith.
9. TRANSFERS OF CLIENT PERSONAL DATA OUTSIDE THE EEA
In the event that Payink transfers any Client Personal Data to a country outside the EEA in respect of which the EU Commission has not made a positive finding of adequacy, Payink shall ensure that there is adequate protection and appropriate safeguards in place for such transfer of Client Personal Data in accordance with applicable Data Protection Legislation. Such adequate protection and appropriate safeguards may include entering into Standard Contractual Clauses with the Client.
APPENDIX 1 TO SCHEDULE A
DATA PROCESSING APPENDIX
The personal data transferred concern the following categories of data subjects (please specify):
Client’s personnel and management individuals, and Customers
Categories of data
The personal data transferred concern the following categories of data (please specify):
• first name,
• date of birth,
• place of birth,
• full address,
• contact details including email address, business telephone number and facsimile number.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The personal data transferred will be subject to the following basic processing activities (please specify):
Provision of payment processing services to the Client, support services and other ancillary services.
Duration of the Processing of Personal Data
Payink will process Personal Data during the Term, including an exit period (if any), and thereafter, as long as Payink is required to process the Personal Data by applicable law.
Personal Data transfers outside the EEA or outside an Adequate Country or Sector
Payink may transfer Client Personal Data to countries outside the EEA. However, it will always ensure that adequate protection and appropriate safeguards are in place for such transfer in accordance with applicable Data Protection Legislation.