For the purposes of this Agreement:
1.1 “Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity. For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity;
1.3 “Confidential Information” means (i) any and all non-public, confidential or proprietary information of a Party, including without limitation any information relating to the existence or content of this Agreement, the Services, the Documentation, a Party’s business, products, services, activities, operations, business affairs, clients and prospects, Intellectual Property, technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential, and (ii) any copies, extracts or reproduction, in whole or in part, of any of the foregoing;
1.4 “Currency” means any fiat currency as that term is normally understood. For clarity, this specifically excludes Bitcoin or any other digital currency;
1.5 “Data Controller” shall have the meaning given to it by the GDPR;
1.6 “Data Processor” shall have the meaning given to it by the GDPR;
1.7 “Data Subject” shall have the meaning given to it by the GDPR;
1.8 “Data Protection Laws” means any applicable laws relating to the protection of personal data including but not limited the GDPR, national laws relating to data protection, applicable industry standards, the EU-US Privacy Shield Framework, any guidance issued by a competent data protection authority in the UK or at a place of business of the Merchant if the Merchant has a place of business in the EU;
1.9 “Documentation” means any and all documentation, user manual or other information, available in writing, online or otherwise, relating to the Services provided by Payment Rails hereunder;
1.10 “GDPR” also “General Data Protection Regulation”, means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, as amended from time to time;
1.11 “Intellectual Property” means any and all ideas, concepts, inventions, methods, processes, know-how, works, software, computer programs and other computer software (including, without limitation, all source and object codes, algorithms, architectures, structures, user interfaces including display screens, lay-out and development tools), database, design, plans, drawings, brochures, website content, sales and advertising literature and other marketing materials, and any improvements thereon or applications or derivative works thereof, and all other forms of intellectual property, all whether or not registered or capable of such registration;
1.12 “Intellectual Property Rights” means any and all patents, copyrights, trademarks, trade names and other proprietary rights, and all registrations or applications in relation to the foregoing;
1.13 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
1.14 “Merchant Data” means all electronic data or information (in whatever form, including but not limited to text including numbers and / or any other symbols that may be used) created by Merchant or Users while using the Services, entered or uploaded manually by the Merchant or User, retrieved from other sources but belonging to a Merchant or User, or created as a result of using the Services;
1.15 “Party” means either Payment Rails or Merchant, as applicable, and “Parties” means Payment Rails and Merchant;
1.16 “Patches” means all updates, upgrades, patches, bug fixes, corrections, service packs and releases to the Services or any constituent component thereof;
1.17 “Personal Data” shall have the meaning given to it by the GDPR;
1.18 “PSR2017” means the Payment Services Regulations 2017 (SI 752/2017) of the United Kingdom, as amended from time to time;
1.20 “Term” shall have the meaning set out in Section 6.1;
1.21 “Trademarks“ means trade-marks, trade-names, brands, trade dress, business names, domain names, designs, graphics, logos and other commercial symbols and indicia of origin whether registered or not and any goodwill associated therewith;
1.22 “Transaction” means one instance of an outbound or inbound payment made through the Services, one instance of a bank transfer, one instance of a transfer of money to a credit or debit card, or any other individual financial transaction facilitated through the Services; and
2. Payment Rails Services
2.1 Provision of Services
Subject to the terms and conditions of this Agreement and payment in full of the applicable Fees, Payment Rails shall make the Services available to Merchant pursuant to this Agreement during the Term of this Agreement, solely for Merchant’s internal business operations. In particular, the Merchant shall not submit any payment transactions or receive funds for or due to an instruction of a third party. Merchant agrees that subscription for Services hereunder are neither contingent on the delivery of any future functionality or features of the Services nor dependent on any oral or written public comments made by Payment Rails regarding future functionality or features of the Services.
2.2 Execution times
Transactions shall be executed within the timelines prescribed by the PSR2017. For Transactions within the European Economic Area (a) in euro without currency exchange, (b) in sterling without currency exchange and wholly within the United Kingdom or (c) involving a currency exchange between euro and sterling in the United Kingdom and onward payment in euro, this means that payment funds shall reach the payee’s payment service provider at the end of the next business day after the payment order was given to Payment Rails. For other Transactions within the European Economic Area funds shall reach the payee’s payment service provider at the end of the fourth business day after the payment order was given to Payment Rails. For all other Transaction Execution Times see Cut off times.
2.3 Correct use of identifiers and payment order format
The Merchant is responsible for the correct submission of a payment order and the use of the correct identifier of the payee. The correct use of identifiers and the accepted format for the submission of payment orders is described in the Documentation. Payment Rails may reject any payment order that is not correctly formatted or contains errors that Payment Rails is able to detect in the normal course of events. Payment Rails will inform the Merchant promptly of any rejection of a payment order. Where possible, Payment Rails may inform the Merchant about ways to remedy any error. Payment Rails will assist the Merchant in tracing and recovering any misdirected funds, but reserves the right to charge for this service if allowed by applicable laws.
2.4 Cut off times
For the purposes of calculating execution times and other timelines dependent on the time of submission of a payment order, the cut-off time shall be 2:00PM GMT (Greenwich Mean Time) on a business day in the United Kingdom. Payment orders submitted after that time are deemed to have been received on the next business day. Cut-off times can be viewed here: Cut off times.
2.5 Information about Transactions
2.6 Services Changes
Merchant acknowledges and agrees that Payment Rails may, from time to time and at its sole discretion, make changes or updates to the Services or the terms of this Agreement, including to reflect changes in technology, industry practices and patterns of system use. Payment Rails will give the Merchant at least two months prior notice of any contractual changes. Merchant may object to the proposed changes by terminating this Agreement (and any objection to the change may be treated as a termination notice). Continued use of the Service without termination amounts to acceptance of the changed terms. Any changes with regards to the technical use of the Service may be communicated with less than two months notice if this is necessary for the continued secure provision of the Service. In particular, the Merchant is required to accept all Patches necessary for the proper functioning and security of the Services, whenever such Patches are released by Payment Rails. Except for emergency or security related maintenance activities, Payment Rails will use commercially reasonable efforts to coordinate with Merchant the scheduling of application of Patches, based on Payment Rails’ next available standard maintenance window.
2.7 Payment Rails’ Responsibilities
Payment Rails shall: (i) provide support for the Services on an as needed basis; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Payment Rails shall use commercially reasonable efforts to give at least  hours’ advance notice; (b) any unavailability caused by circumstances beyond Payment Rails’ reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Payment Rails employees), Internet service provider or third-party service provider failures or delays, or denial of service attacks; or (c) a service suspension as set out in Sections 2.8.
2.8 Merchant Responsibilities
Merchant shall: (i) be responsible for the accuracy, quality and legality of Personal Data and Merchant Data, the means by which Merchant acquired Merchant Data and the use of Merchant Data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Payment Rails promptly of any such unauthorized access or use, and (iii) use the Services only in accordance with this Agreement and the Documentation and applicable laws and government regulations.
Merchant will not allow the Services to be accessed or used by anyone other than the Merchant. Except as provided herein, Merchant may not: (i) loan, rent, lease, transfer, convey, assign, sell, distribute or license the Services (or any part thereof); (ii) modify, combine and/or distribute the Services (or any part thereof) with any other software or code in a manner which would subject the Services to Open Source License Terms (as defined hereinbelow); (iii) sell information services to other parties through the use of the Services, whether in the form of a service bureau or other information processing entity; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material (including but not limited to Merchant Data) in violation of third-party privacy rights; (v) use the Services in violation of any applicable law; (vi) use the Services to store or transmit Malicious Code; (vii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (viii) copy, frame or mirror any part or content of the Services, other than copying or framing on Merchant’s own intranets or otherwise for Merchant’s own internal business purposes; (xi) reverse engineer, decompile or disassemble the Services or attempt to gain unauthorized access to the Services or their related systems or networks; or (x) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services. Payment Rails reserves all other rights not expressly granted to Merchant hereunder. For the purposes of this Agreement, “Open Source License Terms” means license terms of certain computer code (open source elements) which require such code to (i) be disclosed in source code form to third parties, (ii) be licensed to third parties for the purpose of making derivative works, or (iii) be redistributable to third parties at no charge.
Merchant shall not remove any copyright, trademark or patent notices that appear or are displayed through the Services. Merchant is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in or that Payment Rails otherwise provides with the Services.
2.11 Services Suspension
Payment Rails may suspend Merchant’s account, access to or use of the Services with prior notice, the length of which depends on the urgency of the matter if : (i) Merchant breaches any material provision of this Agreement (Payment Rails will restore Merchant’s account or use of the Services after Payment Rails determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured); (ii) Payment Rails is of the reasonable opinion that the Merchant is unable to fulfil its financial or contractual obligations hereunder (iii) Payment Rails has reasons to believe that the Merchant uses the Service for or in connection with illegal activity or in violation of applicable laws (iv) Payment Rails detects fraud, a security breach or any other similar threat that causes or that could cause, in Payment Rails’ reasonable opinion, damage to the Services, to Merchant’s account and/or Merchant Data (Payment Rails will use commercially reasonable efforts to restore the affected Services as soon as possible after the suspension of the Services). Any suspension by Payment Rails of the Services under this Section 2.8 shall not excuse Merchant from its payment obligations under this Agreement.
2.12 Third Party Modules
Merchant acknowledges and agrees that: (i) certain third party software or services may be included or embodied in or used in connection with the Services and are provided to Merchant as part of the Services in accordance with the terms of this Agreement (collectively, “Third Party Modules”); (ii) Merchant is and remains subject to the terms and conditions and policies of such Third Party Modules; and (iii) by accessing and using such Third Party Modules, Merchant expressly relieves Payment Rails from any and all liability arising from such access or use, including, without limitation, for any disclosure, modification or deletion of Merchant Data.
3. Merchant Obligations
Safeguarding of Merchant’s Service Credentials
The Merchant may access the Service only by using the service credentials communicated to it by Payment Rails and in a manner described in the Documentation. The Merchant may not share the service credentials and must secure them at all times against unauthorised access or use. Payment Rails shall not be responsible for unauthorised use of service credentials up to an amount of 50 EUR/35 GBP or if the Merchant has acted with intent or gross negligence in failing to secure the service credentials. The Merchant must immediately inform Payment Rails of any suspected or actual loss, theft, unauthorized access or use of the service credentials, by emailing firstname.lastname@example.org.
Merchant shall provide Payment Rails with all necessary information and assistance that is necessary for the performance of Payment Rails’ obligations hereunder or otherwise that is reasonably requested by Payment Rails. This includes, but is not limited to, providing all information reasonably required (in Payment Rail’s sole opinion) in order to comply with applicable laws and regulatory requirements, including but not limited to applicable anti-money laundering and anti-terrorism financing regulations and guidelines. Payment Rails may withhold or suspend the provision of Services until the Merchant provides all information required. The Merchant is also obliged to keep all data and information up to date and inform Payment Rails of any changes.
3.2 Accurate Information
Merchant shall be responsible for ensuring that all Merchant Data (including but not limited to User account information or any other information required to complete a Transaction) is accurate. Payment Rails shall in no way be held responsible for a Transaction that is not completed as a result of Merchant supplying incorrect Merchant Data or other information.
Payment Rails shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services or other feedback that Merchant may propose or make during the term of this Agreement or which Merchant and Payment Rails may jointly make during the term of this Agreement (collectively, “Feedback”). Merchant hereby irrevocably: (i) assigns all right, title and interest in and to the Feedback to Payment Rails; and (ii) waives in favour of Payment Rails, its successors and assigns any and all moral rights that Merchant has or may have in the Feedback and agrees to provide Payment Rails such assistance as it may require to document, perfect, and maintain Payment Rails’ rights to the Feedback.
3.4 Viruses and Security
It is Merchant’s responsibility to have and maintain in place Malicious Code protection software and security for all of its systems and data including at a minimum firewalls, passwords, physical security, and access control policies. If Merchant’s systems have persistent connections to the Internet, where there is potential for unauthorized access, Merchant acknowledges that the security and protection of the network and the data and applications on that network, including protections against unauthorised access, is solely and entirely Merchant’s responsibility. Merchant acknowledges that, to be effective, Malicious Code protection software requires periodic and routine updates, which Merchant must obtain from its supplier or the manufacturer, as appropriate. The Merchant must promptly inform Payment Rails of any system malfunction, actual or suspected security breach or incident that can be reasonably expected to have a negative effect on the provision of Services by Payment Rails or may in turn compromise the functionality or security of the Payment Rails systems or the Service. In turn, Payment Rails will promptly inform the Merchant of any such security incidents if required under applicable laws. Payment rails disclaims any warranty, express or implied, that the services or merchant’s data will remain virus-free. Support or other services hereunder necessitated by computer viruses, or by any failure or breach of merchant’s security for its systems or data, including, without limitation, damage caused by persons lacking authorized access, are not covered under this agreement. Merchant waives any claims hereunder against payment rails to the extent such claims arise: (i) from merchant’s failure to have or maintain current virus protection, (ii) as a result of a failure or breach of merchant’s security for their systems or merchant data, or (iii) as a result of any unauthorized access to merchant’s systems or devices (except if such access is made by payment rails’ employees or agents).
4. Protection of Personal Data
4.1 In this Agreement, a Party that acts as a Data Controller with respect to certain Personal Data shall be referred to as a “Controlling Party” and a Party that acts as a Data Processor with respect to certain Personal Data shall be referred to as a “Processing Party” with respect to the Personal Data in question.
4.2 Nothing in this Agreement shall make the Parties joint Data Controllers. Each Party shall refrain from any communication or other acts vis-à-vis third parties that may declare, imply or suggest that the parties are joint Data Controllers.
4.3 Each Party has taken commercially reasonable steps to maintain appropriate administrative, organisational, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data.
4.4 Each Party shall:
(a) process all Personal Data in accordance with applicable Data Protection Laws,
(b) limit the processing of Personal Data to the purpose of fulfilling its obligations under this Agreement and/or any obligations of a Party towards a Merchant or Data Subject;
(c) promptly correct any incorrect Personal Data or update Personal Data at the request of the Data Subject.
4.5 A Processing Party shall:
(a) follow all reasonable instructions of the Controlling Party with respect to the processing of Personal Data; the reasonableness of the instruction is to be assessed against Data Protection Laws and the rights of Data Subjects; where it is commercially unreasonable for the Processing Party to follow the instruction free of charge, the Controlling Party shall undertake to indemnify the Processing Party when giving the instruction;
(b) immediately inform the Controlling Party of any IT security incident or other incident affecting Personal Data and which may have a negative impact on the rights of a Data Subject with respect to the processed Personal Data; to this effect the Parties shall put in place and maintain relevant communication channels for urgent communication;
(c) forward, without undue delay, to the Controlling Party any communication from regulators or Data Subjects (including but not limited to complaints, data subject access requests, data correction or deletion requests, data migration requests) that is relevant for the Controlling Party;
(d) not transfer any Personal Data outside the EEA unless
i. the transfer is to a jurisdiction that is deemed equivalent to the EEA by a decision of the EU Commission or the transfer is to a recipient outside the EEA under an agreement with the Processing Party that binds the recipient to the EU Standard Contractual Clauses, and
ii. the Processor has notified the Controller of its general intention transfer Personal Data to a particular recipient in accordance with sub-section (i) and the Controlling Party has not objected to the intention within 5 business days.
(e) provide the Controlling Party upon request with reasonable assistance in connection with the Controlling Party’s obligations to comply with Data Protection Laws (including but not limited to necessary inspections, audits and request for information); the reasonableness of such assistance is to be assessed against Data Protection Laws and the rights of Data Subjects; where it is commercially unreasonable for the Processing Party to provide assistance free of charge, the Controlling Party shall undertake to indemnify the Processing Party when requesting assistance;
(f) execute such further documents, including but not limited to further processing agreements or EU standard contractual clauses, as the Controlling Party requires in order to comply with Data Protection Laws;
4.6 The Merchant is aware that international payment transactions frequently require the transfer of Personal Data outside the EEA. Section 4.5(d) shall not apply to Personal Data processed by Payment Rails in connection with such international payment transactions. Instead, the Merchant shall at all times ensure that it has:
(a) procured and will maintain the necessary informed and valid consents from the Data Subject that allows the transfer of Personal Data worldwide for the purposes of providing the Services under this Agreement
(b) notified the Data Subject about the purpose, nature and extent of the processing of Personal Data (by way of a privacy statement presented to the Data Subject or otherwise).
The Merchant shall indemnify Payment Rails for any loss (including but not limited to claims by Data Subjects or fines imposed by regulators or courts) caused by the Merchant’s failure to comply with this section 4.6.
4.7 If the Merchant is an individual trader or Payment Rails otherwise processes Personal Data of an individual within the Merchant’s organisation for the purposes of administrating the business relationship or providing the Services under this Agreement (“Personal Merchant Data”), Payment Rails shall process such data in accordance with its published privacy notice (which can be found here: [LINK]) and applicable laws. The Merchant is aware that Personal Merchant Data related to customer due diligence may be processed by Payment Rails for a minimum of 5 years after the end of the business relationship. The Merchant is obliged to bring Payment Rails’ privacy notice to the attention of the individual whose Personal Merchant Data is being processed. The Merchant is further obliged to procure and maintain all relevant consents from individuals within its organisation for the processing of Personal Merchant Data by Payment Rails. The Merchant shall indemnify Payment Rails against any claims of unlawful data processing that is due to the Merchant’s breach of this section 4.7.
4.8 The Merchant shall reimburse Payment Rails for any reasonable cost incurred in connection with directly dealing with individuals whose Personal Merchant Data are being processed, including but not limited to cost incurred in connection with any individual’s data subject access requests, deletion requests, complaints resolved in favour of Payment Rails, data migration requests or the exercise of any other individual rights under the GDPR or other applicable laws.
5. Fees and Payment for Services
In consideration of the Services provided under this Agreement, Merchant shall pay the applicable fees as outlined on our Pricing Page, which shall also be communicated with you upon your becoming a Merchant (hereinafter “Fees”). Standard fees are listed in EUR, GBP, USD or CAD, however, fees may vary according to the currency chosen for payment. As a Logged-in User, detailed fees can be found in your account under “Fee Schedule”.
5.2 Payment / Withholding of Fees
Fees due to Payment Rails under this Agreement may be automatically withheld by Payment Rails from the Currency exchanged through a Transaction, or other funds or additional service fees transferred as part of a Transaction. By entering into this Agreement, Merchant explicitly authorizes Payment Rails to withhold the Fees in this manner, and as more specifically defined in the “Fee Schedule”.
Unless otherwise stated, the Fees described in the “Fee Schedule” do not include any applicable sales, use, value added, property, excise or any other taxes or duties of any nature whatsoever. Where applicable, these taxes will be charged in addition to the fees.
5.4 Additional Terms in “Fee Schedule”
For clarity, any and all additional terms regarding Fees or any other financial considerations in the “Fee Schedule” shall be considered integral to this Agreement.
6. Intellectual Property
6.1 Payment Rails Property
Payment Rails (or its licensors) retains any and all Intellectual Property Rights in and to: (i) the Services and its constituent components, including any enhancements, upgrades or other modifications to the Services or any constituent component thereof; (ii) the Documentation; (iii) all Payment Rails Trademarks (including, without limitation, the “Payment Rails” trademark and logo); (iv) any work products arising from additional custom services, unless otherwise agreed to by the Parties; and (v) all Intellectual Property related to any of the foregoing. Merchant will acquire no rights or licences to any Payment Rails Intellectual Property unless otherwise expressly provided in this Agreement.
6.2 Merchant Data
Merchant grants Payment Rails a royalty-free, worldwide, non-exclusive, non-transferable (except to Payment Rails’ Affiliates and agents) and non-sublicensable (except to Payment Rails’ Affiliates and agents) license to use, process and transmit Merchant Data for the purposes of, and only to the extent necessary for, the provision of the Services. Payment Rails acquires no right, title or interest from Merchant or Merchant’s licensors under this Agreement in or to Merchant Data, including any Intellectual Property Rights therein.
7. Term and Termination
This Agreement will commence on the Effective Date and will remain in effect for the period defined on the cover page of this Agreement (the “Term”) unless terminated earlier in accordance with the terms and conditions set forth herein. If the Term is indefinite, then notwithstanding earlier termination under 6.2, the Merchant may terminate without cause at any time by giving one months’ notice to Payment Rails and Payment Rails may terminate without cause at any time by giving two months’ notice to the Merchant.
7.2 Early Termination for Cause
Either Party may terminate this Agreement if:
(a) a Party fails to perform any of its obligations under this Agreement and, if remediation is possible and reasonable under the circumstances, such failure is not remedied within 15 days from written notice (including by email) thereof having been given.
(b) if the other Party takes or is required by any person with proper authority to take, any of the following actions: (a) an assignment, composition or similar act for the benefit of creditors; (b) an attachment or receiving of assets; (c) the filing of a petition for bankruptcy, insolvency or relief of debtors or the institution of any proceedings relating to bankruptcy, insolvency or relief of debtors; (d) committing or threatening to commit any act of bankruptcy; or (e) a winding-up, liquidation or dissolution of the business pursuant to an order of a court of competent jurisdiction.
7.3 Early Termination for Cause by Payment Rails
Payment Rails may terminate this Agreement without notice or with such notice as Payment Rails reasonably determines:
(a) if the Merchant is in material breach of any provision of this Agreement; or
(b) if Merchant fails to comply with Payment Rails’ request for information about the Merchant or its business or its customers, or with Payment Rails’ instructions on the use of the Services, in order to comply with legal or regulatory requirements (including but not limited to regulations on anti-money laundering, counter-terrorism financing, fraud or data protection); or
(c) if Payment Rails reasonably suspects that the Merchant or any of the Merchant’s customers is involved in any illegal activity (and an activity shall be deemed illegal if it violates any laws or regulations where the Merchant has any place of business or where any of the Merchant’s customers are located, or if it is illegal in the United Kingdom); or
(d) if Payment Rails reasonably suspects that the Merchant uses the Services other than for bona fide payments for its own business (including but not limited to processing payments for third parties); or
(e) if Payment Rails is ordered to terminate the Agreement or otherwise ordered to cease doing business with the Merchant by a court or competent authority; or
(f) if Payment Rails has reasons to believe that the Merchant is unlikely able to fulfil its financial obligations under this Agreement.
The termination of this Agreement for any reason whatsoever will in no way affect either Party’s rights and recourse against the other Party, at law or in equity, for damages for failure to discharge an obligation under this Agreement.
7.5 Access to Merchant Data
Unless otherwise agreed in writing between the Parties, after a 30-day period following the date of termination of this Agreement, Payment Rails shall have no obligation to maintain or grant access to any of Merchant Data and may thereafter, unless legally obliged to retain all or part of the Merchant Data, delete Merchant Data in Payment Rails systems or otherwise in Payment Rails’ possession or under Payment Rails’ control.
7.6 Surviving Provisions
Sections 5, 6.3 to 6.5 and 7 to 11 shall survive any termination or expiration of this Agreement. Any other section (or portion thereof) that by its very nature should survive termination shall also survive termination.
8. Representations And Warranties
8.1 Payment Rails to Merchant
Payment Rails represents and warrants to Merchant that:
(a) Authority: (i) it has the full right, power and authority to enter into this Agreement; and (ii) that Payment Rails’ entering into this Agreement shall not result in a breach of or constitute a default under any agreement or instrument to which it is a party;
(b) Rights: (i) subject to third party software licensed directly to Merchant, if any, in connection with the use of the Services, it has all necessary rights to provide the Services and (ii) to its reasonable knowledge, the Services do not violate any third party Intellectual Property Right; and
(c) Services: (i) Payment Rails, its employees and agents have the necessary knowledge, experience, and skills to provide the Services; (ii) Payment Rails has and/or will acquire and maintain all license and permits required of them in order to provide the Services; and (iii) maintenance and continuing operation of the Services will be performed in a competent and professional manner.
8.2 Merchant to Payment Rails
Merchant represents and warrants to Payment Rails that:
(a) Authority: (i) it has the full right, power and authority to enter into this Agreement; (ii) that Merchant’s entering into this Agreement shall not result in a breach of or constitute a default under any agreement or instrument to which Merchant is a party;
(b) Rights: (i) it is entitled to post, submit, transmit or otherwise make available Merchant Data through Services (as an owner, licensor or otherwise) and to grant Payment Rails the license described in Section 5.2; and (ii) Merchant Data is accurate, not confidential and not in violation of any contractual restrictions, intellectual property rights or other third- party rights; and
(c) Malicious Code Protection: it has and will maintain in place during the term of this Agreement Malicious Code protection software and security for all of Merchant’s and User’s systems, devices and data, which such security includes firewalls, passwords, physical security, and access control policies.
8.3 Warranty Disclaimer
Except as set out in section 7.1 and except to the extent that liability for the provision of payment services to a payment user is mandatory under applicable laws, payment rails expressly disclaims on its behalf and on behalf of its affiliates, shareholders, officers, directors, employees and agents all representations, warranties and conditions express, legal or implied not contained herein, including representations, warranties and conditions of merchantability, quality, performance, fitness for a particular purpose, accuracy and non-infringement. Among others, payment rails does not represent or warrant and expressly disclaims that: (i) the services will meet merchant’s business requirements; (ii) the operation of the services will be error-free or uninterrupted or, that the results obtained from their use will be accurate or reliable; (iii) all service errors can be corrected or found in order to be corrected. Payment rails shall not be responsible for and disclaims any liability associated with any failure to process credit card transactions or the result of any tax calculation through third party modules. Payment Rails shall not, by reason of the discontinuation or modification of the services or the termination or non-renewal of this agreement, be liable to merchant for compensation, reimbursement or damages on account of the loss of prospective profits, or on account of expenditures, investments or commitments made in connection with the establishment, development or maintenance of merchant’s business.
9. Limitation of Liability
9.1 Exclusion of Certain Damages
Payment Rails shall not be liable and assumes no responsibility for any loss or damages arising from or in connection with: (i) the modification or alteration in any manner by Merchant of any part of the Services; (ii) the use of any Merchant Data or other services or products not developed or provided by Payment Rails; (iii) failure of Merchant to meet their obligations hereunder; (iv) claims related to or arising from any error in the treatment of any Merchant Data or other information received or processed by Merchant through the Services; (v) the access or use by Merchant of any third-party websites or resources that may be accessed from the Services through a link or otherwise; or (vi) claims by any of Merchant’s employees.
9.2 Exclusion of Indirect damages To the maximum extent permitted by law, in no event will payment rails, its shareholders, officers, directors, employees or agents: (i) be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to this agreement or caused by the any of the services, or the use, misuse or inability to use the services or the documentation, even if payment rails has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in whether in contract, warranty, tort, negligence, strict liability or under any other legal theory.
9.3 Amount limitation The total liability of payment rails for claims by merchant or any other person arising under this agreement shall be limited to the fees paid by merchant to payment rails during the 12-month period preceding the event from which the liability arises. Any damage in favor of merchant against payment rails shall be reduced by any refund or credit received by merchant under the agreement and any such refund and credit shall apply towards the limitation of liability.
9.4 Statutory Liability
Clauses 8.1 to 8.3 shall not apply to Payment Rails’ statutory liability under the PSR2017 requiring payment service providers to assume liability for unauthorised, defective, late or incorrectly executed Transactions. Notwithstanding Payment Rails’ right to suspend the Service to the Merchant due to suspicion of fraudulent use of the Service, Payment Rails’ shall reimburse unauthorised or incorrectly executed Transactions (except where the incorrect execution is due to an incorrect use of the Service by the Merchant) on the next business day after the Merchant has informed Payment Rails of the unauthorised or incorrectly executed Transaction.
9.5 Infringement Limitation
If all or any portion of the Services is, in Payment Rails’ opinion, likely to or otherwise does become the subject of a claim for infringement of any Intellectual Property Rights, Payment Rails may, at its option and its sole cost and expense, either: (i) procure in favour of Merchant the right to use the same as contemplated herein, (ii) modify the same to become non infringing provided that any such modification does not materially impair the ability of the Services, or any part thereof to conform to and perform in accordance with the specifications therefor or the intended use of the Services; or (iii) replace the infringing part of the Services, with compatible, feature and functionally equivalent, and non-infringing products or services or documentation, as the case may be. If in Payment Rails’ reasonable opinion it is not commercially reasonable for it to comply with any of (i), (ii) or (iii) above, it may upon written notice to Merchant, terminate this Agreement in case the Services are infringing. The remedies set forth in this Section 8.4 are Merchant’s sole remedy in the event of a potential infringement or a claim for infringement in connection with the Services.
9.6 Allocation of Risk
Merchant acknowledges that Payment Rails pricing reflects the allocation of risk under this Agreement and the limitation of liability specified herein.
10. Merchant Indemnification
10.1 Merchant shall defend Payment Rails against any claim, demand, suit or proceeding made or brought against Payment Rails, any of its Affiliates, or any of their respective shareholders, officers, directors, employees, or agents (“Indemnified Parties”) by a third party alleging that Merchant Data, or Merchant (or any User) use of the Services in breach of this Agreement, infringes or misappropriates the Intellectual Property Rights or other rights of a third party or violates applicable law (a “Claim”), and shall indemnify and hold harmless the Indemnified Parties for any loss, claim, damages, cost, expenses, and other liability (including reasonable lawyers’ and experts’ fees and expenses) that any Indemnified Party incurs a result of or in connection with such Claim, provided that Payment Rails: (i) promptly gives Merchant written notice of the Claim; (ii) gives Merchant sole control of the defense and settlement of the Claim (provided that Merchant may not settle any Claim unless the settlement unconditionally releases Payment Rails of all liability); and (iii) provide to Merchant all reasonable assistance, at Merchant’s expense.
11.1 Prior Non-Disclosure Agreement
If the Parties have entered into a non-disclosure agreement prior to the Effective Date, such agreement is hereby terminated and replaced in its entirety by the terms of this Section 10.
11.2 Obligation of Confidentiality
The Party (“Recipient”) receiving from the other Party (the “Discloser”) any Confidential Information, or otherwise obtaining any Confidential Information, shall keep confidential Discloser’s Confidential Information and shall protect Discloser’s Confidential Information with the same degree of care as Recipient employs in the protection of its own confidential and proprietary information, but at least with a reasonable degree of care. Without limiting the foregoing, Recipient shall not copy, reproduce, disclose, circulate or publish the Confidential Information of Discloser or permit such action, except as reasonably required for the purpose of this Agreement or pursuant to applicable laws, directives, policies or procedures. Recipient shall disclose Confidential Information only to those of its employees, consultants and subcontractors (including, without limitation, its legal advisors) who have a need to know the Confidential Information for the purpose of this Agreement or as permitted herein. Recipient remains liable and responsible for any breach of the terms of this Section 10 made by such employees, consultants or subcontractors.
11.3 Use of Confidential Information
Recipient shall not use the Confidential Information of Discloser in any manner except as reasonably required for the purpose of this Agreement or as permitted herein.
11.4 Legal Disclosure
In the event that Recipient becomes legally compelled to disclose any portion of the Discloser’s Confidential Information, Recipient shall forthwith give notice thereof to Discloser and shall collaborate with same in good faith and on a reasonable basis in order to prevent or limit the disclosure or obtain any appropriate protective order or measure. In the event that disclosure may not be prevented, that the protective order or other measure is not obtained or that Discloser waives compliance with this provision, Recipient shall disclose only that portion of the Confidential Information which is legally required (as reasonably determined by Recipient) and exercise reasonable efforts to obtain reliable assurance that the confidentiality of the disclosed Confidential Information will be ensured in accordance with the terms hereof.
11.5 Injunctive Relief
Each Party acknowledges that the restrictions contained in this Section 10 are reasonable and necessary to protect the other Party’s legitimate interests. Each Party understands and agrees that the remedies at law for the violation of any of the covenants or provisions of this Section 10 will be inadequate, that such violations will cause irreparable injury within a short period of time, and that each Party shall be entitled to preliminary injunctive relief and other injunctive relief against any such violation by the other Party without the necessity of proving actual damages. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies the Party shall have at law and in equity for the enforcement of those covenants and provisions.
Each Party agrees that it shall notify the other Party if it becomes aware of, or has reasonable grounds to suspect, that the unauthorized disclosure of the Confidential Information of the other Party has occurred or is likely to occur.
12. General Provisions
12.1 Merchant Reference
Merchant agrees that Payment Rails may identify Merchant as a user of the Services and use its name, trademark(s) and logo(s) in sales presentations, marketing materials and press releases.
Payment Rails may subcontract any of or all of its obligations under this Agreement to any third party without Merchant’s prior written consent.
12.3 Governing Law; Jurisdiction
This Agreement will be governed by, interpreted and construed in accordance with English law, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be submitted to the exclusive jurisdiction of the courts of England and Wales. The foregoing choice of jurisdiction and venue shall not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction. The Parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods and any legislation implementing such Convention will not apply to this Agreement nor to any dispute arising therefrom.
12.4 Regulatory Information
Payment Rails Ltd is incorporated in England and Wales with company registration number 10318200 and registered office at Aldgate Tower, 2 Leman St, London, E1 8FA. Payment Rails Ltd is authorised and regulated as a payment institution by the Financial Conduct Authority of the United Kingdom (“FCA”) with Financial Services Register reference number 771016. The FCA can be contacted at 25 The North Colonnade, Canary Wharf, London E14 5HS, United Kingdom, or by phone under +44 207 066 1000. Further information about the FCA can be found at https://www.fca.org.uk.
With regards to the Service, the Merchant can contact Payment Rails as follows:
+44 20 3868 6355
If the Merchant has an urgent query, such as a suspected breach of its systems or unauthorised access to the Service, Payment Rails should be contacted at:
+44 20 3868 6355
All communication shall be in English.
The Service is used via the Payment Rails API, and such use is governed by the relevant parts of the Documentation. Other communication is via email or telephone. Certain communication may require the ability to read PDF-files. The use of other file formats or other communication channels will be advised to the Merchant as and when necessary. Merchant may write to us to our registered office address but this may result in longer response times.
If the Service is not provided in accordance with this Agreement or the Merchant otherwise has a complaint in connection with the Service, it shall first contact Payment Rails Complaints Team at email@example.com or +44 20 3868 6355. The Merchant may also write a letter to the Payment Rails office at: Aldgate Tower, 2 Leman St, London, E1 8FA, UK; however, this will likely take considerably longer than making contact by email or phone. Payment Rails will make reasonable efforts to deal with any complaints promptly and in a fair manner, and in any case within the timelines stipulated by law or our complaints procedure. Copies of the applicable complaints procedure are available upon request. Should a complaint not be resolved to the satisfaction of the Merchant or in a timely manner, the Merchant may possibly raise the complaint to the Financial Ombudsman Service, which can be contacted at The Financial Ombudsman Service, Exchange Tower, London E14 9SR, United Kingdom or by phone under +44 20 7964 0500. Further information can be found at http://www.financial-ombudsman.org.uk.
12.7 Relationship of Parties
This Agreement is an agreement between separate legal entities and neither Party is the agent or employee of the other for any purpose whatsoever. The Parties do not intend to create a partnership or joint venture between themselves. Neither Party shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other Party. In addition, any use of the term “Merchant” in this Agreement or in connection with the relationship described in this Agreement shall in no way imply that either Party is engaged in a joint venture with the other Party or otherwise has any ownership interest in or in any common enterprise with the other Party.
12.8 Other binding agreements incorporated by reference
12.9 Entire Agreement
Merchant may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without Payment Rails’ prior written consent. Notwithstanding the foregoing, provided that Merchant is in compliance with this Agreement, Merchant may upon advance written notice to Payment Rails assign all of Merchant’s rights and obligations under this Agreement to an existing Affiliate, solely in connection with an internal restructuring provided that such Affiliate: (i) agrees to comply with all of Merchant’s obligations under this Agreement evidenced by executing such documentation as Payment Rails reasonably requires to effectuate such assignment; and (ii) is not, in Payment Rails’ sole opinion, a competitor of Payment Rails and does not otherwise pose a threat to Payment Rails’ Intellectual Property Rights. Any assignment, delegation or transfer which violates the foregoing will be void.
12.11 Successors and Assigns
All obligations set forth in this Agreement will bind and enure to the benefit of the respective successors and permitted assigns of the Parties.
If any of the provisions contained in this Agreement are found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired hereby.
The failure of a Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or of the right of such Party to enforce such provision and every other provision.
All notices, permissions and approvals required to be sent hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the 5th day after mailing, (iii) the 2nd day after sending by confirmed facsimile, or (iv) the 1st day after sending by email. All notices sent to a Party in connection with this Agreement (including its termination) must be addressed to the Party’s contact listed on the cover page of this Agreement.
© Payment Rails 2018
Last Revised: August 23, 2018