Please select the “Merchant” or “Cardholder” or “QixPay Hire Agreement” terms & conditions from the tabs below.
This Agreement sets out the terms and conditions between us and you for the provision of the Services and is made between Acceptacard Limited (company registration number 6910204) whose registered office address is at Victory House, 400 Pavilion Drive, Northampton, NN4 7PA (“Paya”, “we” or “us”) and you the individual or organisation which registers to use the Service (“You”).
By entering into this agreement we both acknowledge that we both intend to be bound by this agreement and to follow its terms. In return for you doing this we agree to let you use the Service as described in this agreement.
It is important that you regularly check our website as throughout this agreement, we make reference to various items that may be notified to you on our website. Importantly, this includes any notifications of unavailability of the Service.
1. How you indicate that you accept this agreement and when this agreement starts
1.1 You indicate that you accept every term of this agreement by ticking a box or clicking on a button (or something similar) when asked to confirm this during sign up to the Services at which time this agreement is displayed to you.
1.2 If you don’t accept this agreement, you may not use the Services.
1.3 If you are dissatisfied with the Services, or have any other concern, please email our customer support team on firstname.lastname@example.org or call 0333 123 1243. Calls to 03 numbers from landlines and mobiles cost the same as dialling an 01 or 02 number and are included in bundled landline and mobile tariffs.
2. What do the defined terms in this Agreement mean?
2.1 “Acquirer” means the financial institutions to which customers’ transactions are routed for authorisation, clearing and payment;
2.2 “Agreement” means this Agreement which starts from the date on which you indicate that you accept it in the way set out in paragraph 1.1 above;
2.3 “Card Scheme Rules” means the relevant business rules that govern the issue of the payment cards that carry the scheme’s logo whether internationally or domestically. The schemes operate the clearing and settlement of payment card transactions. In the UK, financial institutions must be members of the appropriate scheme to issue cards and acquire card transactions.
2.4 “Chargeback” means a transaction that is invalid or disputed by a Customer and is charged back by the Acquirer;
2.5 “Customer” means an individual or company who purchases goods or services from you;
2.6 “Fees” means the fees payable by you to us for the provision of the Services, including application fees and transaction processing fees, as published on our website from time to time;
2.7 “Fraud Detection System” means a series of checks carried out by Acquirers and Fraud Detection Parties;
2.8 “Fraud Detection Parties” means third parties selected by us to review the level of potential fraud risk associated with a transaction, for example the checking of the results of AVS (address verification) and CV2 (the 3 or 4 digit security codes on the credit and debit cards); and
2.9 “Merchant Account” means a facility with one of the Acquirers chosen by you, to which we are connected, which allows you to process credit and debit cards.
2.10 “Paya Account” means a facility with an Acquirer chosen by us which allows you to process credit and debit cards.
2.11 “Supplier Account” means a facility with us which allows you to process credit and debit cards as a supplier to us.
2.12 “Services” means electronic payment processing services provided by us to you on a non-exclusive basis relating to the processing and settlement of credit card, debit card, or other payment transactions which are carried out in order to effect transfer of funds between your customers and yourself together with any related services we offer from time to time.
2.13 “Settlement” means the payment to you of transactions processed using our Services.
3. What are our obligations to you under this Agreement?
3.1 We shall provide the Services to you in an efficient and effective manner and to the best of our abilities using due skill, care and attention.
3.2 If you use a Paya Account, unless agreed otherwise, settlement of funds will be made each Thursday into your bank account for transactions processed in the week up to midnight the previous Friday. If you have a Merchant Account, settlement will be provided under the payment terms you agreed with your Acquirer. If you have a Supplier Account, settlement will be provided under the payment terms agreed between us.
3.3 We are responsible for securing all customer data, including credit and debit card data, which is solely in our possession and under our control. We comply with PCI DSS, which sets out the industry standards for maintaining a secure environment.
4. What are your obligations to us under this Agreement?
4.1 You agree to make your customers aware of our Services.
4.2 You acknowledge that our fraud detection system gives an indication of risk only and does not give you any guarantees against fraud.
4.3 If you use a Paya Account or Supplier Account:
4.3.1 you acknowledge that we may delay settlement of funds to you in the event of dispute, abnormal level of card transaction volume or value, suspicion of fraud, breach of clause 4.6 or where directed to by the Acquirer.
4.3.2 we will have no liability for settlement if we believe transactions may breach UK law, the transactions are not consistent with the description of goods and services you provided in your application, if the transactions breach or may result in fines under the Card Scheme Rules
4.4. If you use a Paya Account, any Chargebacks as a result of or in connection with your transactions are your responsibility unless expressly stated in this agreement. They will incur a refund fee and an administration charge of £25 per chargeback.
4.5 If we receive any complaints from your customers, we will direct the customer to you. If a customer continues to contact us regarding your service, we reserve the right to suspend provision of the Services to you until such time as we believe the complaint has been resolved or to terminate the provision of the Service to you and this agreement.
4.6 If you use a Paya Account or Supplier Account, you agree that you will only use the service for payments within the transaction limits we agree and in respect of services already provided. You agree not to use the service to take card payments as deposits for future services unless specifically agreed with us.
5. Conditions and warranties
5.1 Any dates quoted for the provision of the Services are for guidance only and whilst we will aim to meet such dates, we shall not be liable for any delay in completion of any Service howsoever caused.
5.2 We reserve the right to stop providing the Services with immediate effect if you are investigated by a bank, credit card issuer or other third party under its Card Scheme Rules or if you have failed to comply with such Card Scheme Rules.
Unless confirmed otherwise in writing, we reserve all copyright and all intellectual property rights throughout the world to any information, idea, design, computer program, database, textual, graphical or other material developed by us or on our behalf. This material may not be reproduced or copied by any means whether electronically or not without our prior written permission.
7. What are the terms of payment?
7.1 You agree to pay our Fees (plus VAT where applicable) through deduction from settlements or monthly in arrears within 14 days of the date of invoice, as we direct. Fees may be subject to amendment from time to time and we will provide details of such amendment to you on our website or directly with a minimum of 30 days written notice.
7.2 You agree to sign a direct debit mandate to allow the Fees and any amount owed by you to us to be debited directly from your bank account in accordance with the regulations imposed under the BACS scheme. You agree to keep such mandate in place until termination of this Agreement and all monies due to us have been paid in full.
7.3 We reserve the right to charge an additional nominal administration fee to you if you do not sign a direct debit mandate where requested by us to do so as per paragraph 7.2.
7.4 When payment of any invoice or direct debit is overdue, we may:
7.4.1 suspend performance of the Services;
7.4.2 charge and recover interest from you on the sum of the outstanding invoice or direct debit calculated at a compound rate of two per cent per month from the due date until the date of full payment; and
7.4.3 charge a reconnection fee of £50 to resume the Services.
7.5 If you breach clause 4.3 you will be responsible for any fines and we may charge administration fees to cover our investigation and management of the account. If we are forced to take legal action against you to recover overdue payments, you shall also be responsible for all costs and disbursements incurred by us on a full indemnity basis.
7.6 We may charge you a fee to join the service (the “Application Fee” or “Joining Fee”).
7.6.1 In the event that we charge such a fee at the time of your application, the fee is deemed to cover the costs of setting up your account.
7.6.2 In the event that your application to join the service is declined, we will refund your joining fee in full.
7.6.3 Once your application has been accepted, access to the service is provided free of charge, subject to transaction fees and other fees as detailed on our website.
7.6.4 Once your application has been accepted, the joining fee is non-refundable.
8. Our responsibility if something goes wrong:
8.1 Subject to paragraphs 8.2 and 8.3 below, our maximum responsibility and liability to you (including for negligence) in relation to this agreement will be limited to paying you an amount equal to the total amount of Fees you paid to us in the 12 months prior to the incident for which we are responsible.
8.2 We will not be responsible for any of the following:
8.2.1 financial or similar loss of any kind, including for example: loss of profits, business, chargeable time, anticipated savings, goodwill, any business interruption (including interruption to Service) or loss of or corruption to data; in each case however caused and in each case whether caused directly or indirectly;
8.2.2 loss or damage which we could not have reasonably known about at the time you entered this agreement (sometimes called indirect, consequential, incidental or special damage);
8.2.3 losses you suffer which arise from you using the Service other than as described on our website, including if we actually knew or should have known about the possibility you could experience such loss.
8.3 The following sentence is necessary under English law to help ensure that we benefit from the protection given by the rest of this paragraph 8. Nothing in this agreement will prevent or limit either of our liability for:
8.3.2 death or personal injury arising out of our negligence; or
8.3.3 any legally binding promise which is implied by law that we can provide the Service to you or that you can use the Service without interference.
8.4 We both acknowledge that the allocation of risk and responsibility in this agreement is reasonable because it reflects that:
8.4.1 it is not within the control of Paya as to how, and for what purposes, you use the Service;
8.4.2 we have not developed the Service specifically for you.
9. How this Agreement can be terminated
9.1 This Agreement can be terminated as set out elsewhere in this Agreement or immediately by either of us providing to the other written notice of termination.
9.2 On termination, all outstanding Fees will become immediately due and payable.
9.3 On termination for any reason, you shall stop using our logo and no longer refer to yourself as offering the Paya Services and shall return to us your Identity card, all information, sales, marketing and other materials and documents that we have provided to you. You are also responsible for the replacement cost of any equipment rented or provided to you which is not returned within 30 days.
10. Provision of uninterrupted Service. Whilst we aim to provide uninterrupted Service, unfortunately we cannot guarantee this as interruptions may be caused by factors beyond our reasonable control. If circumstances happen that are beyond our reasonable control, we will not be liable for any failure to perform our obligations under this agreement because of those circumstances, and we will be excused from that failure for so long as those circumstances continue. Wherever possible, we will provide advance warning on our website of any known or planned interruptions and will try to ensure any interruption is kept as brief as possible. Interruptions caused by factors outside our control may include, but are not limited to: failure of our telecommunications or internet service provider, or an issue with our Acquirers.
11. Using Your Information
11.1 Acceptacard Limited is the data controller.
11.2 Your information includes any information we hold now or in the future including details of any dealings with us and any payments received by you through our services.
11.3 We will use any information you provide us under this Agreement to: (a) manage and administer your use of the Service; (b) fulfil our contractual obligations under this agreement; (c) contact you to see if you would like to take part in our customer research; (d) liaise with Police & Fraud Detection Parties; (e) contact you about our other products and services, and (f ) contact you about those other products and services which we think you will be interested in. If we do contact you in this way, we will try to speak to the relevant person in your organisation, and we may contact you directly, or use other organisations which we have hired to contact you for us.
11.4 We may disclose information to other companies in the the group, our contractors, and other organisations for example, we may disclose information to: (a) Richmond International Limited (of which we are a subsidiary), (b) our Acquirers; and (c) your customer’s card issuing bank.
11.6 We may make periodic searches at credit reference agencies to manage and take decisions about your account. In the event that you share a joint account with another person, this will be recorded at credit reference agencies as a “financial association”. In this circumstance, all parties’ information will be taken into account in future applications until one of you successfully files a “notice of disassociation” at the credit reference agencies.
11.7 In relation to your account with us, we will liaise only with your named contact. It is your responsibility to let us know of any changes to your named contact.
12. What happens if you become insolvent or go into bankruptcy.This agreement will automatically (i.e. without us having to tell you) and immediately end without refund if you become bankrupt (or something similar happens) or your business is not able to pay its debts, stops trading or becomes insolvent (or something similar happens). In those circumstances we shall have no further obligation to you under this Agreement and any monies due from you shall become immediately due and payable.
13. What else you need to know
13.1 It is important to us to have a direct relationship with you so you will not transfer this agreement to anyone else. We may transfer this agreement to another organisation which is part of the group of companies of which we are a member.
13.2 From time to time we may modify this agreement by notifying you by email or on our website that it has been modified. If you do not agree with those modifications, please contact us as soon as possible. By continuing to use the Service after such notifications, you indicate your acceptance of those modifications.
13.3 If either of us fails or delays the exercise of any rights or remedies under this agreement, we will not be deemed to have given up those rights or remedies in any way.
13.4 If a court or similar body decides that any wording in this agreement is invalid or unenforceable, that decision will not affect the rest of this agreement, which will remain binding on both of us. However, if the wording that is invalid or unenforceable can be made valid and enforceable by deleting part of it, we will both treat the wording as if it is deleted, so that the remainder of the wording in question becomes valid and enforceable.
13.5 Nothing in this agreement will give anyone any right or benefit under the Contracts (Rights of Third Parties) Act 1999. This means that only you and we can benefit from the rights in this agreement.
13.6 This agreement is the entire agreement between you and us with respect to your use of the Service, and supersedes all documentation, information and other communications (in each case whether spoken or written) between us with respect to such access and use.
14. Which laws govern this Agreement?
This agreement is governed by the laws of England and Wales and we both agree that the courts of England and Wales will be the courts that can decide on legal disputes or claims between us about this agreement.
This Agreement sets out the terms and conditions between us and you for the provision of the hire agreement and is made between Qixpay Limited
(company registration number 07373435) whose registered office address is at Victory House, 400 Pavilion Drive, Northampton, NN4 7PA (“Qixpay”,
“we” or “us”) and you the individual or organisation which commits to the Hire Agreement (“You”)
By entering into this agreement we both acknowledge that we both intend to be legally bound by this agreement and to follow its terms. In return for
you doing this we agree to let you use the Services as described in this agreement.
PARTIES TO THE AGREEMENT
This Hire Agreement is made between Qixpay and You.
KEY SERVICES AND FINANCIAL INFORMATION
Description of Services:
The Services are as described on the website and detailed in the order process. They include every individual item or component part and all replacements, renewals or additions required for the purpose.
Payments (exclusive of VAT):
Monthly payments are as detailed on the order form at the time of the order.
Duration of hire:
This agreement is for the minimum period of months from the date this Agreement as detailed in the order. It is accepted on Qixpay Ltd’s behalf by acceptance and fulfilment of your order. You understand that this Agreement is for the Minimum Term shown subject to your right to cancel as set out below under ‘Key Information’. If this Agreement is terminated early, you will be liable to pay the termination costs set out below within these Terms & Conditions.
You agree to pay the Rental Fees for the duration of the Minimum Term and you are deemed to accept these terms and conditions when you sign to confirm this Agreement.
You will pay the Charges applicable for each respective period during the Minimum Term whether or not you use the Payment Equipment or Services. If a payment is not received on the due date Qixpay may as its discretion charge interest on the outstanding amount at four (4) per cent per annum above the base rate from time to time of National Westminster Bank Plc from the due date until payment in accordance with clause 19 of the Terms and Conditions below.
In addition, Qixpay may charge the Hirer £25 for each default notice that Qixpay issues to the Hirer under this agreement. In accordance with clause 7.3.3 of the Terms and Conditions below, if the Hirer fails to insure or maintain the insurance on the Equipment, Qixpay may insure it. If Qixpay does so, the Hirer must then reimburse Qixpay on demand the premium and any other costs that it incurs.
You understand that this Hire Agreement will not have the benefit of the protection and remedies that would be available to You under the Consumer Act 1974 if this Agreement were a regulated agreement under that Act. If You are in any doubt as to the consequence of the Agreement not being regulated by the Consumer Act 1974 You should seek independent legal advice before accepting it.
Under this agreement the Equipment does not become your property and you must not sell it.
In this Agreement unless the context otherwise requires:
“Commencement of Hire” means the date on which the Services are delivered to or collected by the Hirer or its agent.
“Delivery Address” means the delivery address specified by the Hirer in its Order Form.
“Period of Hire” means the period of hire as detailed in the order form for this Hire Agreement.
“Order Form” means the Qixpay order form for the Services as requested by the Hirer and forming part of this Agreement.
“Rental Fees” means the rental fees as detailed on the Order Form.
“Services” means Qixpay’s equipment as detailed on the Order Form, the repair services provided under Section 9 below and any other services to be supplied by Qixpay under this Agreement.
“Set Up Charges” means the set-up charge as detailed on the Order Form.
“Software” means software supplied by Qixpay for use with the Services.
“Equipment” means Qixpay supplied computer hardware and/or card processing terminal(s), power supply and cables supplied to the Hirer by Qixpay, together with any replacement parts, additions, repairs or accessories now or hereafter incorporated or affiliated to it, the details of which are detailed on the Order Form.
2. SUPPLY OF EQUIPMENT
2.1 In consideration of the Hirer paying the Set Up Charges, Qixpay shall:
2.1.1 deliver such quantity and type of Equipment as detailed on the Order Form to the Hirer at the Delivery Address; and
2.1.2 use all reasonable endeavours to meet any agreed delivery date which shall be provisional only and Qixpay will not be responsible for any consequence of delay if the delivery date is not met.
2.2 Where the Equipment is a card processing terminal, it will not be dispatched unless the Hirer’s acquiring bank has advised Qixpay that the acquiring banks systems have been configured to accept the Hirers transactions.
2.3 Terminals will be configured as shown on the Order Form. It is the responsibility of the Hirer to verify that the information on the Order Form is correct.
3. OWNERSHIP OF EQUIPMENT
3.1 The Equipment at all times remain the property of Qixpay and the Hirer shall have no rights to the Equipment other than as the Hirer and the Hirer shall not do or permit or cause to be done any matter of thing whereby the rights of Qixpay in respect of the Equipment are or may be prejudicially affected.
3.2 Except as regards loss or damage cause by the negligence of Qixpay, the Equipment shall be at the Hirer’s risk from the time of delivery by Qixpay to the Delivery Address until the time they are returned by the Hirer to Qixpay at Victory House, 400 Pavilion Drive, Northampton NN4 7PA or such other address as Qixpay may specify to the Hirer in writing.
3.3 Failure, for any reason to return the Equipment to Qixpay’s address in accordance with Section 3.2 shall cause the Hirer to be liable for such replacement costs as shall apply from time to time.
4.1 Qixpay shall hire the Equipment to the Hirer and provide the Services on the terms of this Agreement.
4.2 Payments to Qixpay will be made by standing order or Direct Debit as directed by Qixpay. The Hirer must complete the relevant standing order or direct debit form as directed by Qixpay. The Rental Fees shall be due monthly in advance. The Rental Fees shall commence and be due upon the date of shipment of the Equipment from Qixpay or its designated agent to the Delivery Address and shall continue to be due monthly thereafter during the Period of Hire.
4.3 Hirer hereby authorizes Qixpay, and irrevocably constitutes and appoints Qixpay (and any officer or agent thereof, with full power of substitution) as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead Hirer and in the name of the Hirer or in its own name (which appointment is coupled with an interest), to debit directly from the banking account maintained by Hirer and set forth above (the “Account”), the full amount (or any portion thereof) of any monthly rental fees and payments owed to Qixpay hereunder (including any and all interest, taxes, fees and other amounts chargeable to Hirer under this Agreement) when and as the same shall become due and payable.
4.4 On the return of the Equipment to Qixpay, the Rental Fees and any other accrued charges will be invoiced to the Hirer or Qixpay may continue to receive standing orders or direct debit Hirer’s Account as set forth herein, at Qixpay’s discretion. For the avoidance of doubt the Hirer must continue to pay Rental Fees for any period when the Equipment has been returned to Qixpay for repair or replacement or have been lost or for any other reason are not useable.
4.5 Qixpay will charge additional fees in the event that the Equipment is not returned at the end of the Period of Hire.
5. VALUE ADDED TAX
All sums due from the Hirer to Qixpay hereunder are exclusive of VAT and the Hirer shall pay VAT on such sums on production of the appropriate invoice.
6. REVISION OF RENTAL FEES PRIOR TO COMMENCEMENT OF HIRE
6.1 The Hirer expressly acknowledges and accepts that Qixpay shall be entitled to revise the Rental Fees (by such amount as Qixpay shall in its absolute discretion determine) at any time before the Commencement of Hire in the event that, between the date of completion of the Order Form and the date of Commencement of Hire (but not otherwise), an increase is announced or imposed by Qixpay’s service provider for the Services.
6.2 Any such revision will be notified by Qixpay to the Hirer as soon as practicable and in any event on or before the Commencement of Hire. In the event the Hirer does not accept such price revision, it shall have the right for a period of seven (7) days after receipt of such notification to serve notice on Qixpay cancelling this Agreement. Subject to return of any Equipment then in the
possession of the Hirer in good repair and condition, the Hirer will incur no liability or obligation to Qixpay on account of such cancellation.
7. USE OF EQUIPMENT
7.1 The Hirer may use the Equipment solely for the purpose of its business. The Equipment shall not be used and the Hirer will not permit them to be used for any purposes for which they are not expressly designed. The Hirer will not use or permit the Equipment to be used for any illegal purpose whatsoever.
7.2 The Hirer agrees that it will not:
7.2.1 make any modification or alteration to the Equipment,
7.2.2 remove or interfere with any identification marks or plates affixed to the Equipment, or
7.2.3 deface the Equipment in any way.
7.3 The Hirer must:
7.3.1 keep the Equipment in good repair and properly maintained and insured,
7.3.2 replace any lost or stolen Equipment,
7.3.3 maintain adequate third party insurance against death or injury or loss or damage to property arising directly or indirectly out of the
Hirer’s hiring of the Equipment, and
7.3.4 return the Equipment to Qixpay at the end of the Period of Hire.
8. PROPRIETARY RIGHTS; LICENSE
8.1 Hirer acknowledges that the Equipment contains proprietary electronics, software and technical information of Qixpay or its licensor (collectively “Proprietary Materials”) and that (as between Qixpay and Hirer) ownership of all patents, copyrights, mask work rights, trademarks, trade names and other intellectual property rights relating to or residing in the Equipment and the Proprietary Materials shall remain with Qixpay or its Licensor. Hirer understands and agrees that this Hire Agreement does not constitute a sale of any Proprietary Materials or any such intellectual rights; except Hirer shall have the limited right to use Proprietary Materials in the course of using the
Equipment (subject to Section 8.2 below).
8.2 Without limiting the generality of Section 8.1 above, the parties acknowledge that (as between Qixpay and Hirer) Qixpay owns all rights (including without limitation all copyrights) in any software provided by Qixpay at any time (whether contained in the Equipment, provided on electronic or any other media, downloaded remotely or otherwise transferred and including any documentation provided by Qixpay at any time. The Term “rent”, and similar terms, as used in this Agreement with respect to any such software and/or documentation shall mean the grant to Hirer of a non-exclusive, non-transferable limited license to use such software (in object code form only) and/or documentation together with the Equipment provided by Qixpay, for the sole purpose of using such Equipment. Hirer shall have no right to market, distribute or otherwise transfer such software and/or documentation.
8.3 Hirer shall not reverse engineer, decompile, disassemble, translate, copy, modify, alter or otherwise change any Equipment, or part thereof (including without limitation any Proprietary Materials, the software installed in the Equipment or any other software or documentation provided by Qixpay), without the prior express written consent of Qixpay.
8.4 Hirer shall not remove from the Equipment (or the documentation), or alter, any Qixpay
trademarks, trade names, logos patent or copyright notices, or other notices or markings, or add any other notices or markings to the Equipment (or the documentation), without the prior express written consent of Qixpay.
9. REPAIR SERVICES
9.1 Qixpay shall, during the continuance of this Agreement repair or replace, at its option, defective Equipment returned to Qixpay or its designated agent Hirer. Hirer must obtain a Return Material Authorisation from Qixpay prior to returning any Equipment to Qixpay.
9.2 The Hirer shall bear the cost of:
9.2.1 any missing parts or the repair, rectification or replacement due to damage to the Equipment resulting from the negligent or improper use of the Equipment or any wilful damage to the Equipment by the Hirer or any person whether or not permitted by the Hirer to use the Equipment.
9.2.2 the repair, rectification or replacement due to damage to the Equipment resulting because of acts of God, accident, fire, neglect, misuse, failure of electrical power, failure of air conditioning, failure of humidity control, transportation of the Qixpay Equipment, or causes other than normal, and all associated shipping costs.
10. HIRER’S OBLIGATIONS
10.1 The Hirer undertakes that it shall use or permit any other person to use the Equipment only:
10.1.1 in accordance with such reasonable operating instructions as may be notified in writing to the Hirer by Qixpay Ltd from time to time; and
10.1.2 for the purpose for which the Equipment is provided.
10.2 The Hirer shall not and shall not permit any person to:
10.2.1 misuse the Equipment or use it in a manner which constitutes a violation or infringement of any statutory duty or obligation, or any obligation on contract, tort or otherwise;
10.2.2 take or attempt to use the Equipment outside the United Kingdom or the Republic of Ireland; or
10.2.3 hire, rent or lease or in any other way attempt to pass ownership or possession of or responsibility for the Equipment to anyone else.
10.3 The Hirer shall indemnify Qixpay against claims, proceedings and expenses arising from any breach of Sections 10.1 and 10.2 of this Agreement.
10.4 The Hirer shall provide Qixpay with all such necessary information and co-operation that Qixpay may reasonably require from time to time to enable it to proceed uninterruptedly with the performance of its obligations under this Agreement or to prevent or detect fraud. This shall include:
10.4.1 the provision of a suitable environment for the Equipment;
10.4.2 full and convenient access to the Hirer’s and other premises for the purpose of delivery of the Equipment or any additional visits to site made at the Hirer’s request or which may be necessary from time to time; and
10.4.3 a prompt report by the Hirer to Qixpay of any loss or damage to the Equipment whilst at the Hirer’s risk.
10.5 The Hirer shall allow Qixpay or its designated agent to inspect the Equipment at any reasonable time to ensure that the terms of this Agreement are being complied with.
10.6 The Hirer acknowledges that it is its responsibility not to do or allow anything which might compromise the security and integrity of any card details captured within the Equipment before transmission to Qixpay.
11. GENERAL LIABILITY
11.1 The Hirer shall be solely responsible for and hold Qixpay fully indemnified against all claims, demands, liabilities, losses, damages, proceedings costs and expenses which may be brought against or incurred by Qixpay as a result of any accident involving the Equipment (other than death or personal injury resulting from the negligence of Qixpay, its employees or agents).
11.2 Qixpay does not hire the Equipment or provide the Services subject to any condition or warranty express, implied or statutory connection with the fitness for any conditions and warranties are hereby expressly excluded insofar as permitted by law and (save for Qixpay’s liability for death or personal injury caused by negligence of Qixpay, its employees or agents)
Qixpay will not be responsible for any liability, claim loss, damage or expense of any kind or nature caused directly or indirectly by the Equipment, the Services or their use.
11.3 The Hirer shall be solely responsible for and hold Qixpay fully indemnified against all claims, demands, liabilities, losses, damages, proceedings, costs and expenses suffered or incurred by Qixpay as a result of any breach or default on behalf of the Hirer in the discharge of its duties under this Agreement.
11.4 Notwithstanding anything to the contrary contained in this agreement: (a) the total cumulative liability of Qixpay, if any, arising out of this agreement, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise) shall not exceed the aggregate amount paid by hirer for the rental of the equipment and the services for the 12-month period immediately preceding the initial incident underlying Qixpay’s liability; and (b) Qixpay shall have no liability to hirer, its customers or third parties for any exemplary, special, indirect, consequential or incidental damages of any kind (including without limitation lost profits, lost transactions or other similar damages), even if Qixpay has been advised of the possibility of such
damages, including, without limitation, damages based on strict liability, tort or warranty.
11.5 Nothing in this clause 11 or otherwise in this Agreement shall exclude or in any way limit Qixpay’s liability to the Hirer for (i) fraud, (ii) death or personal injury caused by negligence of Qixpay, its employees or agents (iii) any liability to the extent the same may not be excluded or limited as a matter of the law.
12. COMMENCEMENT AND TERMINATION
12.1 The Agreement shall continue for the Minimum Period unless the Hirer exercises it right to terminate the Agreement, earlier by giving to Qixpay at least one month’s notice to terminate. In order to exercise this right of early termination the Agreement must have been allowed to run for at least 18 months though this may include the period of the notice.
12.2 If the Hirer shall fail to pay any Rental Fees or other sum payable under this Agreement within 14 days of its becoming due (whether demanded or not), or if Qixpay is unable to direct debit Hirer’s account because there is insufficient funds, or the bank account has closed, or Qixpay’s direct debit attempt has been blocked, or Hirer shall commit a breach of the other terms and conditions whether express or implied of this Agreement or shall do or allow to be done any act or thing which in the opinion of Qixpay may jeopardise Qixpay’s rights in the Equipment, then in each and every such case the Hirer shall be deemed to have repudiated this Agreement and Qixpay may thereupon by notice in writing to the Hirer for all purposes forthwith terminate the hire constituted by this Agreement.
12.3 If the Hirer, being a body corporate, shall enter into liquidation, shall call any meeting of its creditors or shall have a receiver or receiver manager of all or any of its undertakings or assets appointed, or shall suffer the appointment or the presentation of a petition for the appointment of an Administrator under the provisions of Part 1 of the Insolvency Act 1986, or shall be deemed by virtue of section 123 of the Insolvency ACT 1986 to be unable to pay its debts, then in each and every such case the hire constituted by this Agreement shall ipso facto and without notice terminate and no payment subsequently accepted by Qixpay without knowledge of such termination shall in any way prejudice or affect the operation of this clause.
12.4 Qixpay reserves the right to terminate this Agreement at any time upon written notice to the Hirer in the event that Qixpay ceases to make available the Services to its Hirers.
12.5 The Hirer shall upon any termination under Sections 12.1, 12.2 and 12.3 above pay to Qixpay:
12.5.1 all remaining Rental Fees due for the Period of Hire;
12.5.2 the cost of all repairs required as at the date of termination (excluding those covered under the Repair Services);
12.5.3 reasonable compensation for the loss suffered by Qixpay as a result of such termination such loss being determined by Qixpay having regard to all relevant circumstances; and
12.5.4 any other sums which are or become due to Qixpay or to which Qixpay is entitled by way of damages.
12.6 The Hirer shall upon any termination under section 12.4 above pay to Qixpay the cost of all repairs required as of the date of termination (excluding those covered under the Repair Services)
12.7 The termination of the hire constituted by the Agreement shall not affect any rights of Qixpay or liabilities of the Hirer at the date of termination.
12.8 On termination of this Agreement howsoever or whenever occasioned, the Hirer shall no longer be in possession of the Equipment with Qixpay’s consent and shall (unless otherwise agreed with Qixpay) forthwith return the Equipment to Qixpay at such address Qixpay may direct in good order and in good working condition and at the Hirer’s expense and risk. Without prejudice to the forgoing or to Qixpay’s claim for any arrears of Rental Fees or damages for any breach by the Hirer of this Agreement or any other rights hereunder, Qixpay or its authorised representatives may at any time after such termination or expiry of the Hire Period without notice retake possession of the Equipment and for such purposes enter upon any premises belonging to or in the occupation or control of the Hirer shall be responsible for all costs charges and expenses incurred in retaking possession of the Equipment. The Hirer shall also bear the reasonable costs incurred by Qixpay at any time in asserting the whereabouts of the Equipment and/or the Hirer.
12.9 Notwithstanding anything contained in this Agreement Qixpay may, after due notice, terminate this Agreement if the Hirer has made any misrepresentation, whether or not recorded in this Agreement, or if Qixpay decides at its own discretion that the Equipment can no longer be efficiently serviced or maintained.
12.10 On termination of this Agreement howsoever and whenever occasioned, Qixpay shall be entitled to cease providing the Services immediately.
12.11 Upon any such termination as aforesaid you shall immediately pay us a debt the sum of £150 (excluding VAT) by way of liquidation damages. The parties confirm that this sum represents a genuine pre-estimate of the loss that Qixpay would suffer in the event that this Agreement was terminated early.
13. SECURITY AND BACKUP REGIME
Where the Equipment is a card processing terminal, the Hirer shall check on a regular and routine basis and at least once in every three working day period that all transactions have been processed successfully and credited to the Hirer’s nominated bank account and ensure it runs an efficient
card transaction voucher backup regime. Vouchers should be retained for a minimum period of twelve calendar months after the original date of processing.
14. FORCE MAJEURE
14.1 Neither party shall be liable for any breach of its obligations resulting from cause beyond its reasonable control including but not limited to fires, strikes (of its own or other employees), lock outs or other industrial disputes, insurrection or riots, terrorists action, embargoes, delays in transportation, civil hostilities, Acts of God, computer virus, power supply interruption,
inability to obtain supplies, the requirements or regulations of any civil or military authority or any other unforeseen circumstances (an “Event of Force Majeure”).
14.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
14.3 If a default due to an Event of Force Majeure shall continue for more than thirteen (13) weeks then the party not in default shall be entitled to terminate this Agreement.
No forbearance, indulgence or relaxation on the part of Qixpay shown or granted to the Hirer in respect of any of the provisions of this Agreement shall in any way affect, diminish, restrict or prejudice the rights or powers of Qixpay under this Agreement or operate so as to be a waiver of any breach by the Hirer of the terms and conditions of this Agreement.
16. CONCURRENT REMEDIES
No right or remedy herein conferred upon or reserved by Qixpay is exclusive of any other right or remedy herein or by law or equity provided or permitted but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing and may be enforced concurrently therewith or from time to time.
Any notice hereunder shall be in writing and may be served by sending it by email, fax or pre-paid first class letter or delivery if (in the case of a limited company) to the address stated herein, and in any other case, to the last known address of the addressee. In proving service of any notice it shall be sufficient to prove in the case of email a copy of the sent email, in the case of fax that the addressee’s fax number appeared on the sender’s fax machines sent items report and in the case of posting that the envelope containing the notice was properly addressed, stamped and posted. Service shall be deemed to be effective in the case of email and fax on the next business day following the day on which the email or fax was sent and in the case of posting at noon of the second business day following the day of posting and any notice delivered to an address by hand shall be deemed to be effective from the date of such delivery.
18. WAIVER OR SET OFF
The Hirer hereby waives all and any future claims and rights of set off against any instalment of Rental Fees or any payment due hereunder and agrees to pay the Rental Fees and other amounts hereunder regardless of equity, set off or cross claim on the part of the Hirer against Qixpay.
Qixpay reserves the right to charge interest in respect of the late payment of any sum due (as well as before judgement) at the rate of four per cent per annum above the base rate from time to time of National Westminster Bank Plc from the due date until payment.
20. DATA PROTECTION
20.1 Qixpay are the Data Controller and responsible under the Data Protection Act of 1998. Acceptacard Limited is a sister company and Data Processor. Before entering into this Agreement Qixpay may search the Hirer’s records at credit reference agencies. Qixpay will add to those records details of its search which will be seen by other organisations making searches. Details
about the Hirer and the Hirer’s payment record under this Agreement will be used to help make credit, credit related and insurance related decisions about the Hirer and members of the Hirer’s household (if the Hirer is not incorporated) and occasionally for fraud prevention or to trace debtors. The Hirer can ask Qixpay for details of the credit reference agencies used by Qixpay. The hirer has a legal right to these details and can receive a copy of the information held about them on payment of a fee.
20.2 Information held about the Hirer by credit reference agencies may be linked to records relating to any person with whom the Hirer is linked financially and other members of the Hirer’s household.
20.3 Qixpay may give information about the Hirer and the Hirer’s payment record under this Agreement to credit reference agencies, debt collecting agents and any proposed assignee, transferee or charge of this Agreement or of Qixpay’s interest in this Agreement, their insurers or advisers.
20.4 Qixpay may use credit scoring or other automated decision making systems.
Qixpay may monitor and record telephone calls for the purposes of security and training.
21.1 The Hirer may not assign or transfer this Agreement.
21.2 Qixpay may not assign, transfer or subcontract any of the rights, duties or obligations without the agreement of the Hirer.
22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the Law of England and Wales
23. ENTIRE AGREEMENT
This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter. Any term or condition in any order, confirmation or other document furnished by Hirer which is in any way inconsistent with or in addition to the terms and conditions set forth in this Agreement is hereby expressly rejected.
PayaCharity is operated by Acceptacard Limited, (company registration number 6910204) registered office address Victory House, 400 Pavilion Drive, Northampton, NN4 7PA. Registered with the FCA as a small payment institution, firm number 617090. AML supervision registration number XYML00000123676. Hardware supply and rental is provided by sister company QixPay Limited, (company registration number 07373435) registered office address Victory House, 400 Pavilion Drive, Northampton, NN4 7PA. Authorised with the FCA, firm number 714818