FAREPAY LIMITED
END USER TERMS AND CONDITIONS
1.1 In this Agreement the following expressions have the following meanings:
Acquiring Partner means the third party nominated by Farepay or their Partners from time to time who shall supply Card Acceptance Services and accordingly such third party may be subject to change.
Affiliate means in relation to a body corporate, any other entity that directly or indirectly controls, is controlled by, or is under direct or indirect common control with, that body corporate from time to time.
Agreement means these terms and conditions
Agreement Particulars means where applicable the agreement particulars which are attached to this Agreement and which contains details of the End User’s order for Products and Services.
Applicable Laws means applicable laws, statutes, enactments, orders, regulations, policies or other similar instruments in any jurisdiction in the world enacted by any court or government body or by common law or any consent, decree or settlement agreement entered into with any governmental body, to the extent applicable to a party, to the business of that party or to the obligations of that party under this Agreement.
Authorised Site means each site, location or vehicle where the Service is used or accessed by or on behalf of the End User using a Device.
Card means any form of credit card, debit card or charge card acceptable to the Acquiring Partner that may be used by a Cardholder to carry out a Card Transaction.
Card Acceptance Services means the acceptance of Card Transactions in documentary and/or electronic form from Cardholders and/or End Users in order to process and clear such Card Transactions for settlement and payment to such End Users and other related products and services provided by the Acquiring Partner.
Card Acceptance Services Agreement means an agreement in writing between the Acquiring Partner and End User for Card Acceptance Services pursuant to which the End User undertakes to honor Cards.
Card Association means Visa, MasterCard, American Express, Maestro and any other association of Card providers or any other person who engages in the distribution, promotion or issue of Cards.
Cardholders means any person who is issued a Card and uses the same.
Card Transactions means a purchase or refund of goods and or services from an End User effected by a Cardholder with use of a Card. Condition means a condition contained within this Agreement.
Confidential Information means all information designated as confidential by either party, together with all such other information which relates to the business affairs, finance, products or services, customers or suppliers of that party; data, software programs, specifications, documentation, developments, trade secrets and know how; and all information which may reasonably be regarded as the confidential information of the disclosing party.
Content means all content either supplied by the End User to Farepay to be displayed on the Service, or which is uploaded directly by the End User onto the Service, including all text, images, photographs, artwork, brands (including the End User Brand), logos and other material of any type.
Contractual Liability shall have the meaning given in 16.4.
Customer means a Cardholder or someone who uses coins or notes or other legal tender with monetary value.
Data Protection Legislation means the Data Protection Act 1998, the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.
Device means any device using a wired (ethernet) or wireless (WiFi or cellular) connection to the internet used to access the Service and which may include items of Hardware.
Documentation the documents made available to the End User by Farepay online via the End User Portal which sets out a description of the Service and the user instructions for the Service.
E-Comms means the Software that is supplied as a template driven e-commerce solution and provided through the End User URL.
End User means the individual or a body corporate entering into this Agreement with Farepay.
End User Access Right means the right to use the Software Service as defined by and in accordance with Condition 2.2.
End User Account Pages means the webpages of the Farepay Portal and or End User Portal accessible by the End User via secure login on which an order for Products and Services is placed by the End User and as confirmed by Farepay by automated or manual means.
End User Data means data relating to the End User and/or Customers, or any modifications, amendments, alterations to the same, which is made available to the parties pursuant to this Agreement.
End User Portal means the collection of web pages made available by Farepay to the End User by means of secured login on which the End User can: (a) order and purchase Products and Services from Farepay; (b) manage its account with Farepay; (c) obtain transactional data relating to the Products and Services; (d) obtain information relating to the Service, including without limitation, the Documentation.
End User URL means the sub-domain as given by Farepay to the End User.
Excluded Losses shall have the meaning given in Condition 16.1.
Farepay means Farepay Limited, a company registered in England with registration number 10102791, with registered address of 7-11 Woodcote Road, Wallington, Surrey, SM6 0LH.
Farepay App means the Farepay software application used to display transactional data relating to Card Acceptance Services known as Farepay App published by iOS and Android in native formats, including any updates introduced from time to time by Farepay in its discretion.
Farepay Brand means Farepay's, or its licensor's name, branding, trading style, logos and other trade-marks or service marks and domain names which it applies from time to time to the Products and Services (together with all other associated Intellectual Property Rights).
Gateway Services means provision of services by Farepay or its Affiliates or their Partners or Third Party Suppliers specifically relating to E-Comms and the Wallet and Loyalty App, to authorise and settle payment transactions between End Users, banks and other third parties.
Hardware means all hardware and other computer equipment provided by a Third Party Supplier to the End User (which may include without limitation tablets, tablet stands, cash drawers, printers, chip and pin reader, scanners, SIM cards and routers) and which are used from time to time in connection with the Service and which are set out on the End User Account Page or Agreement Particulars.
Hosting means the hosting and management of the Software and End User Portal using cloud infrastructure of Third Party Suppliers.
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and related rights, trade-marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
IP Claim shall have the meaning given in Condition 13.1.
Licence means each licence granted by Farepay to the End User pursuant to Condition 2 that entitles the End User to access and use the Service and the Documentation.
PCI DSS Compliant means complying with the requirements of the AIS Standards and the SDP Program (collectively known as the Payment Card Industry Data Security Standards ("PCI DSS")), as applicable, and any amendments from time to time.
Permitted Purpose has the meaning given in condition 3.2.
Partner means Farepay’s nominated partners for the delivery of the Service from time to time;
Partner Portal means the collection of webpages and other digital content made available by Farepay or its Affiliates or their Partners via the world wide web which may display the Partner Brand.
POS means the Farepay software application known as POS published by iOS and Android in native formats, including any updates introduced from time to time by Farepay or its Partners in its discretion.
Products and Services shall mean: the Service (including for the avoidance of doubt, the Software and the End User Portal); Hardware; Support; Gateway Services; and such other products and services displayed on the Partner Portal.
Service means the Software Service and the End User Portal. Software means Farepay App, and E-Comms and such other software that the End User may purchase via the End User Account Page or Agreement Particulars.
Software Service means as the context requires making the functionality of the Software available as a service to the End User using cloud infrastructure of Farepay (or its Third Party Suppliers) and where applicable making Software accessible via the world wide web.
Standard Support means Support provided Monday to Sunday, 24 hours per day, 7 days per week, 365 days per year (366 days per leap year).
Start Date means the date on which the Service is activated and is available to the End User, and which shall be notified by Farepay to the End User or as specified in the Agreement Particulars.
Support means the support and helpdesk services provided by Third Party Suppliers pursuant to Condition 8 in respect of the Service and/or Hardware and as the context requires shall include the provision of the facilities, equipment, online staff and services necessary to operate a helpdesk service.
Term means the Term and where applicable any renewal period renewing automatically in accordance with the terms of Condition 17.1.
Third Party Supplier means a third party company used by Farepay to supply the Service, Hardware, Hosting services, Gateway Services, Support and other Third Party Supplier Products.
Third Party Supplier Conditions means the Third Party Supplier contractual terms and conditions applicable in respect of any aspect of the Service (or any part thereof), including Hosting services, Gateway Services, supply of Hardware and Support and any other Third Party Supplier Products.
Third Party Supplier Products means certain products and services provided by Third Party Suppliers, including without limitation any aspect of the Service (or any part thereof), including Hosting services; Gateway Services, Hardware and Support. For the avoidance of doubt,. This Agreement may be concluded and shall have full force and effect either where:
(a) completed online by the End User via the End User Account Pages by the End User placing its order and accepting these terms. Where completed online details of the End User’s order shall be contained on the End User Account Pages; or
(b) completed in writing by the End User where signed by a signatory acting on its behalf. Where completed in writing details of the End User’s order shall be contained in the Agreement Particulars.
In the event of a conflict or inconsistency between any provisions of this Agreement and the terms of the Agreement Particulars, the terms of this Agreement shall prevail and take priority to the extent of such inconsistency or conflict.
In this Agreement, unless the context otherwise requires:
(a) headings shall not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) reference to a gender includes the other gender and the neuter;
(d) reference to a statute, enactment, order or regulation shall include reference to that statute, enactment, order or regulation as from time to time amended or to any statute, enactment, order or regulation from time to time replacing, extending, consolidating or amending the same;
(e) any phrase introduced by the words "including", "includes", "in particular", "for example" or similar, shall be construed as illustrative and without limitation to the generality of the related general words;
(f) references to any agreement or document may include that agreement or document as properly varied, supplemented, substituted, novated or assigned;
(g) reference to "parties" means the parties to this Agreement and references to "a party" mean one of the parties to this Agreement.
2. LICENCE
2.1 Subject to the End User’s compliance with all terms and conditions of this Agreement, Farepay hereby grants to the End User a non-exclusive, revocable, non- transferable licence for the End User to use the Service and the Documentation during the Term in accordance with the End User Access Right and for the number of Licences specified in the End User Account Pages or the Agreement Particulars.
2.2 The End User Access Right for the Software Service shall be as follows:
(a) in respect of all Software, the End User must acquire a Licence for each Authorised Site and each Device as follows: a Licence for an Authorised Site shall allow the Software Service to be used on a single Device at the said Authorised Site; each additional Device at such Authorised Site shall require an additional Licence; and Licences for additional Authorised Sites and Devices must be purchased by the End User in accordance with the terms of this Agreement.
3. PERMITTED USE
3.1 The End User shall not access or use the Service in any manner or for any purpose other than is expressly permitted by this Agreement.
3.2 In particular, the End User shall only use the Products and Services for commercial purposes, specifically in connection with marketing and selling its goods and services to Customers, and will not use the same for any household or personal purposes (“Permitted Purpose”).
3.3 The End User shall follow all reasonable instructions given by Farepay from time to time with regard to use and access to the Service. The End User shall ensure that the Products and Services are used only for lawful purposes.
3.4 The End User shall not, and shall not permit any third party, to:
(a) access or attempt to access the Service, (or any part) or any related systems or networks that are not intended or made available for public use, or access and/or engage in any use of the Service for fraudulent or illegal purposes;
(b) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying ideas or algorithms in connection with any aspect of the Service (or any part), except to the extent permitted by law;
(c) probe, scan or test the vulnerability of the Service or any related systems or networks, or breach the security or authentication measure of the Service any network or systems connected to the Service;
(d) circumvent, disable or defeat any of the security features or components (such as digital rights management software or encryption) that protect the Service;
(e) directly or indirectly copy the Service (or any part) except for backup and archival purposes or for copying data, nor modify, translate, or alter in any manner, the Service (or any part), or create derivative works based on the Service (or any part);
(f) republish, upload, post, transmit, disclose, or distribute (in any format) the Service (or any part) except as permitted herein;
(g) access or use (in any format) the Service (or any part) through any time-sharing service, service bureau, network, consortium, or other means;
(h) rent, lease, sell, sublicense, assign, or otherwise transfer the End User’s licence rights to any third party, whether by operation of law or otherwise;
(i) remove, relocate, or otherwise alter any proprietary rights notices from the Service (or any part);
(j) perform or attempt to perform any actions that would interfere with the proper working of the Service or prevent access to or use of the Service by other users, or in Farepay’s reasonable judgment (taking into account the size and resources of the End User) impose an unreasonable or disproportionately large load on the infrastructure, network capability or bandwidth; or
(k) build a competitive product or service or a product or services using similar ideas, features, functions or graphics of the Service; or copy any ideas, features, functions or graphics of the Service; and
(l) copy or reproduce the Farepay Brand without the prior written consent of Farepay.
4. ADDITIONAL LICENCES
4.1 Subject to Condition 4.2 and Condition 4.3 the End User may, from time to time during the Term, purchase additional Licences and Farepay shall grant access to the Service and the Documentation to such additional Authorised Sites and Devices in accordance with the provisions of this Agreement.
4.2 If the End User wishes to purchase additional Licences, the End User shall notify Farepay in writing. Farepay shall evaluate such request for additional Licences and respond to the End User with approval or rejection of the request.
5. THE SERVICE
5.1 The End User Account Page or Agreement Particulars specifies which Products and Services are applicable to the End User and are selected as being applicable to this Agreement and ordered by the End User and the terms of this Agreement shall apply solely on the basis of those selected items. Additional Products and Services may be ordered via the End User Portal. Accordingly, all reference to the “Products and Services” in this Agreement shall be to those which are selected as being applicable to this Agreement and all reference in this Agreement shall be construed accordingly.
5.2 With effect from the Start Date Farepay shall provide the Service to the End User in accordance with this Agreement.
5.3 Third Party Suppliers shall be responsible for Hosting the Service and the supply of the said Hosting shall be subject to the terms of this Agreement.
5.4 The End User acknowledges that certain functionality and features of the Service are provided to all end users or customers of Farepay. The features, functionality or other aspects of the user experience of the Service will be determined from time to time by Farepay and will be enhanced and otherwise developed by Farepay and may be modified and supplied to all end users or customers of Farepay. Accordingly Farepay shall be entitled without notice to the End User to make changes to the Service.
5.5 The End User further acknowledges and agrees that the Service is powered by software which by its very nature cannot be free of bugs and errors.
5.6 The End User will connect to the Service via a device using a wired (ethernet) or wireless (Wi-Fi or cellular) connection to the internet. Farepay will be responsible for making available the End User URL to enable the End User to access the Service. The End User is responsible for providing its own ISP connection to the internet. Farepay shall seek to make the Service available to the End User but save as expressly stated in this Condition Farepay does not make any warranty, condition, representation or guarantee as to such availability (whether express or implied).
5.7 Farepay may perform maintenance on the Service from time to time which may result in service interruption, delays or errors. Farepay will not be liable for any such interruptions, delays or errors. The End User agrees that Farepay may contact the End User in order to assist the End User with the Service and to obtain information needed to identify and fix any errors.
5.8 The Service may automatically download and install updates from time to time from Farepay. These updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. The End User agrees to receive such updates.
5.9 During the Term Farepay shall from time to time provide to the End User with details of Farepay's security procedures in effect from time to time and the End User shall comply with the same. 5.10 Farepay is authorised by the End User to use the End User Brand to facilitate provision of the Software Service, including but without limitation as part of the End User URL.
6. END USER RESPONSIBILITIES
6.1 The End User shall:
(a) keep full back-up copies of the End User Data used in or with the Products and Services
(b) be responsible for all activities that occur under End User’s user accounts;
(c) be responsible to maintain the security and confidentiality of all usernames and passwords; and
(d) be responsible for providing all equipment and software necessary to make (and maintain) a connection to the internet or world wide web.
6.2 The End User shall not upload to, transmit through or otherwise post or share through the Service any Content which is:
(a) deemed harassing, threatening, indecent, obscene, pornographic, libelous, defamatory or otherwise objectionable, unlawful or tortious, harmful to children, or which violates third party privacy rights; or
(b) is an infringement of the Intellectual Property Rights of a third party.
6.3 Farepay shall not be responsible for compliance of the Content with any Applicable Law in any jurisdictions of the world and the End User shall ensure compliance. It is the End User’s responsibility to satisfy itself of such compliance.
6.4 The End User shall not send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or send spam or otherwise duplicative or unsolicited messages in violation of any Applicable Laws.
6.5 The End User shall use all reasonable endeavors to prevent any unauthorised access to, or use of, the Service and or the Documentation and, in the event of any such unauthorised access or use, promptly notify Farepay.
6.6 The End User shall indemnify and keep Farepay indemnified from and against all loss, damages, liabilities, settlements, judgments, costs and expenses arising out of or in connection with any breach of this Condition 6.
6.7 Without prejudice any other rights or remedies Farepay reserves the right to suspend provision of the Service or deny the End User access to the Service in whole or in part if Farepay believes that the End User is in breach of this Condition 6.
7. HARDWARE
7.1 End User Hardware will be delivered to the End User by Farepay or a Third Party Supplier in accordance with condition 7.2 and on the basis of the information provided by the End User in the End User Account Page or Agreement Particulars.
7.2 Any dates quoted for delivery of the Hardware are estimates only and Farepay shall not be liable for any delay in delivery of the Hardware however caused. Time for delivery shall not be of the essence and shall not be made of the essence by notice. The Hardware may be delivered by Farepay or a Third Party Supplier in advance of the target date for delivery upon it giving reasonable notice to the End User.
7.3 Risk of damage to or loss of the Hardware shall pass to the End User upon delivery, whether that takes place at the End User’s premises or elsewhere.
7.4 Once the risk in the Hardware has passed to the End User and in the event that the Hardware is (in whole or in part) destroyed damaged or lost, Farepay shall only replace the same subject to the End User paying the then prevailing Fees for such item.
7.5 If the End User fails to take delivery of the Hardware then without prejudice to any other right or remedy available to Farepay, Farepay may at its sole discretion:
(a) store the Hardware until actual delivery and charge the End User for the reasonable costs (including insurance of storage); or
(b) re-utilise the Hardware for the provision of service to another End User.
7.6 Ownership of the Hardware shall not pass to the End User unless the End User choses to purchase the Hardware out right and Farepay has received in full (in cash or in cleared funds) all Fees due to it in respect of the Hardware and all other Fees which are or which become due to Farepay from the End User on any account.
7.7 Whilstever ownership of the Hardware remains with Farepay, the End User shall:
(a) not do, or permit or cause to be done, any matter or thing whereby the rights of Farepay in respect of the Hardware are or may be prejudiced;
(b) hold the Hardware on a fiduciary basis as Farepay’s bailee;
(c) store the Hardware (at no cost to Farepay) separately from all other hardware of the End User or any third party in such a way that they remain readily identifiable as Farepay’s property;
(d) not destroy, deface or obscure any identifying mark on or relating to the Hardware;
(e) maintain the Hardware in good condition insured on Farepay’s behalf for its full price against all risks to the reasonable satisfaction of Farepay. On request, the End User shall produce the policy of insurance to Farepay; and hold the proceeds of the insurance referred to in this Condition 7.7 on trust for Farepay and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
7.8 The End User’s right to use of the Hardware shall terminate immediately if:
(a) any of the events set out at Condition 18.2 occurs;
(b) if the End User fails to observe or perform any of its obligations under these Conditions. 7.9 The End User hereby grants to Farepay and it’s Affiliates and or agents full access to any Hardware in order to inspect it, or, where the End User’s right to use has terminated, to recover it.
8. SUPPORT SERVICES
8.1 Farepay provides Support in respect of the Service and Hardware, in accordance with this condition 8. The provision of Support may include Third Party Products.
8.2 Support shall comprise all or any of the following categories:
(a) advice by telephone call, email, or post on the use of the Service and Hardware;
(b) acting as first point of contact in respect of the diagnosis of errors or defects that the End User encounters in connection with the Service and Hardware.
8.3 In respect of the provision of Support the End User must:
(a) co-operate with Farepay (or its Third Party Supplier) in the diagnosis of incidents and / or defects that the End User encounters, and in particular, provide sufficient information to aid Farepay (or its Third Party Supplier) in its reproduction and diagnosis of incidents and / or defects;
(b) upon Farepay’s correction of any incident and / or defect, provide prompt confirmation of the resolution of such incidents and / or defect; and
(c) comply with the Support process and other obligations notified to the End User by Farepay or its Third Party Supplier from time to time.
8.4 Farepay shall not be obliged to provide Support in respect of any:
(a) incidents and / or defects that result from the End User’s misuse or improper use of the Service or Hardware;
(b) incidents and / or defects that result from the End User’s combination or merger of the Service or Hardware with any hardware or software not supplied or supported by Farepay or not specifically authorised by Farepay;
(c) incidents and / or defects that result from the End User’s failure to implement any maintenance updates, patches, or fixes; and
(d) element of the Hardware that has been modified by or on behalf of the End User and any incidents and / or defects caused by such modification (which will extinguish Farepay’s support obligations immediately but will not entitle the End User to any refund), except where Farepay has provided written confirmation to the End User that it will support such modified elements.
8.5 Unless specified otherwise, Support will consist of Standard Support, for which no additional fee will be charged.
9. THIRD PARTY SUPPLIER CONDITIONS
9.1 All Third Party Supplier Products supplied to the End User by Farepay shall be provided solely upon the basis of and to the standards and subject to the restrictions set out in the relevant Third Party Supplier Conditions, and the End User shall be entitled to any benefits arising from the terms of the relevant Third Party Supplier Conditions as if the End User were named in and bound by the relevant Third Party Supplier Conditions in the place of Farepay, and as if Farepay were named in the place of the applicable Third Party Supplier. The End User agrees to be bound by the same Third Party Supplier Conditions as imposed upon Farepay by their Suppliers and their Affiliates, Accordingly the End User agrees to comply with the Third Party Supplier Conditions (and agrees to abide by any restrictions contained therein) and agrees that it shall not by its act or omissions cause a breach of the same. The End User acknowledges and agrees that the extent of any contractual remedy pursuant to the Third Party Supplier Conditions shall apply (on a back-to-back basis) between Farepay and the End User in respect of such Third Party Supplier Products.
9.2 The End User shall pay the Fees in respect of Third Party Supplier Products to Farepay.
9.3 The Parties agree that:
(a) in the event of any delay or failure in the provision of any Third Party Supplier Products which is related to services that Farepay will be relying on the applicable Third Party Supplier and /or its installed components to provide, Farepay shall inform the End User of the delay or failure and take all reasonable steps available to it under the relevant Third Party Supplier Conditions to require the reinstatement of such Third Party Supplier Products as soon as is reasonably practicable, or in the event of complete failure of delivery, to source alternative suitable services to such Third Party Supplier Products as soon as is reasonably practicable for the End User; and
(b) subject to sub-condition (a), the End User shall not be entitled to any type or level of contractual remedy from Farepay in respect of any Third Party Supplier Products to which Farepay is not itself entitled and able to recover from the applicable Third Party Supplier under the relevant Third Party Supplier Conditions, and the End User agrees and acknowledges that limitations on liability apply between the applicable Third Party Supplier and Farepay.
9.4 In the event of a conflict or inconsistency between any provisions of this Agreement and the terms of the relevant Third Party Supplier Conditions and or in the event that the relevant Conditions are held to be ineffective in respect of the provision of any Third Party Supplier Products, the following order of precedence shall apply but only to the extent of such conflict or inconsistency, or ineffectiveness:
(a) the terms of Condition 16 and Condition 17;
(b) the terms of this Condition 9;
(c) Third Party Supplier Conditions; followed by
(d) the remaining provisions of this Agreement.
9.5 In the event that the End User breaches this Agreement and Farepay is properly required to pay cancellation charges or liquidated damages to any Third Party Supplier in respect of any related Third Party Supplier Products, the End User shall promptly upon demand refund to Farepay all such cancellation charges or liquidated damages, to the extent that they are incurred by Farepay as a result of such a breach by the End User, and the End User hereby indemnifies Farepay in full and holds Farepay indemnified in full against all such cancellation charges or liquidated damages.
10. CARD ACCEPTANCE SERVICES
10.1 The End User shall be responsible for entering into, and complying with the:
(a) Acquiring Partner in respect of Card Acceptance Services; and accordingly the End User acknowledges that separate contractual rights and obligations exist between it and the relevant third party. Accordingly the End User will have a direct business relationship with the Acquiring Partner and will be subject to the terms and conditions of the applicable Card Acceptance Services Agreement as applicable.
10.2 The End User acknowledges that, in the event of, for any reason whatsoever, the End User ceasing to be PCI DSS Compliant then:
(a) if the Acquiring Partner terminates or suspends the Card Acceptance Services, this may cause interruption to delivery of the Service by Farepay, including without limitation, the Fareapy App; and
(b) Farepay shall under no circumstances be liable to the End User for any loss or damage caused by such interruption of the Service arising from the termination or suspension of the Card Acceptance Services.
10.3 The End User shall not be entitled to any kind of contractual remedy from Farepay arising from suspension or termination of the Card Acceptance Services Agreement pursuant to Condition 10.2 and Farepay excludes all liability for the provision of Products and Services relating thereto to the fullest extent permitted by law.
11. DATA The End User shall own all right, title and interest in and to all of the End User Data and shall have sole responsibility for the legality, reliability, integrity and accuracy and quality of the End User Data. Each of the parties hereby agrees to comply in full with the Data Protection Legislation and all regulations or codes of practice made in connection therewith.
The parties hereby agree to enter into such further agreements as may be reasonably necessary for each party to comply with Data Protection Legislation.
The End User hereby gives its consent to the collection and processing by Farepay of any End User Data and other End User specific information for direct marketing purposes, administration of the Service, compliance with legal and regulatory obligations to which Farepay or its Affiliate are subject, and as may be otherwise permitted or required by Applicable Laws and for the purposes as set out in this Agreement.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Ownership of the Intellectual Property Rights in the Farepay Products and Services and the Farepay Brand shall remain vested in and the sole ownership of Farepay or its licensors. The End User shall not obtain ownership of any Intellectual Property Rights in the same under this Agreement.
12.2 The End User shall promptly enter into such documentation as is reasonably required by Farepay to vest ownership of Intellectual Property Rights in accordance with this clause 12.
13. IP CLAIMS
13.1 Farepay shall indemnify and keep the End User indemnified from and against all actual incurred loss, damages, liabilities, settlements, judgments, costs and expenses arising out of or that are awarded or adjudged by a court or arbitration panel with competent jurisdiction in connection with any third party claim that the use of the Service by the End User in accordance with the terms of this Agreement infringes any United Kingdom Intellectual Property Rights of any third party ("IP Claim"), provided that:
(a) the End User gives written notice to Farepay of the IP Claim(s) immediately following receipt;
(b) the End User makes no admission of liability and gives Farepay sole authority to defend or settle the IP Claim(s) at Farepay's cost and expense;
(c) the End User gives Farepay all reasonable help in connection with the IP Claim(s); and
(d) the IP Claim(s) has not arisen as a result of the Content that the End User has supplied or the use of the Service in combination with any material not supplied by Farepay.
13.2 In dealing with any IP Claim, Farepay may at its own expense and option:
(a) pay for the End User's right to continue using the Service; or
(b) make any changes to the Service without materially reducing its functionality or purpose; and / or
(c) replace the Service with other functional equivalents (with the same performance capability).
13.3 The indemnity at Condition 13.1 is the End User's sole remedy against Farepay in respect of any IP claim(s).
14. WARRANTIES 14.1 Each party warrants, represents and undertakes that at all times during the Term:
(a) it has full capacity and authority to enter into and to perform this Agreement;
(b) it will comply with all Applicable Laws in performing its obligations pursuant to the terms of this Agreement;
(c) once completed this Agreement will constitute its legal, valid and binding obligations; and
(d) it will obtain and maintain consents, permissions, licenses or registrations in connection with the performance of its obligations hereunder.
14.2 The End User hereby warrants, represents and undertakes that, as at the Start Date and throughout the Term, it will not do anything to compromise PCI DSS Compliance and upon request will provide evidence of the same to Farepay or its licensors.
14.3 Use of the Service is at the risk of the End User. To the maximum extent permitted by Applicable Law, the Service is provided “as is”. Except as set out in this Agreement, Farepay makes no warranty, condition, representation or guarantee of any kind (express or implied) with regard to the Service including without limitation, warranties of accuracy, usability, fitness for a particular purpose of non- infringement, or that the Service will be available, function uninterrupted or error free or that the Service is secure, free of viruses or other harmful components or that any defects or errors will be corrected.
14.4 In respect of Third Party Supplier Products the End User shall be entitled to any warranties solely upon the basis of and to the standards and subject to the restrictions set out in the relevant Third Party Supplier Conditions.
15. CONFIDENTIAL INFORMATION AND PUBLICITY
15.1 Each party that receives (“Receiving Party”) Confidential Information from the other (“Disclosing Party”), whether before or after the date of this Agreement shall:
(a) keep the Confidential Information confidential;
(b) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Conditions 15.2, or 15.3; and
(c) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under this Agreement (“Authorised Purpose”).
15.2 The Receiving Party may disclose Confidential Information to its own, or any of its officers, directors, employees agents and advisers who reasonably need to know for the Authorised Purpose (each an “Authorised Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Condition 15 of such Authorised Third Party as if such Authorised Third Party was the Receiving Party (and a party to this Agreement). The Receiving Party shall ensure that each Authorised Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Condition 15.
15.3 If required by law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving Party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and cooperate with any attempt by the Disclosing Party to obtain an order for providing for the confidentiality of such information.
15.4 Farepay may disclose to third parties, or may otherwise publicise the existence of this Agreement, or the parties relationship, (both during and after the Term) and the End User expressly permits the use the End User’s Brand or name or its Affiliates’ brand or name in connection with such purposes.
16. LIABILITY
16.1 Neither party shall exclude or limit its liability for:
(a) death or personal injury caused by its negligence; and or
(b) fraudulent misrepresentation.
16.2 Farepay shall not be liable for
(a) any loss of profit (whether direct, indirect, or otherwise);
(b) loss of revenue (whether direct, indirect, or otherwise);
(c) loss of income (whether direct, indirect, or otherwise);
(d) loss of anticipated savings (whether direct, indirect, or otherwise);
(e) loss of data (including End User Data);
(f) loss of goodwill; and
(g) any indirect or consequential loss; ("Excluded Losses") arising under or in connection with this Agreement, except where Excluded Losses arise under Condition 16.1.
16.3 The End User agrees that it will have no remedy in respect of any untrue statement or representation made to it upon which it relied in entering into this Agreement and that its only remedies can be for breach of contract (unless the statement was made fraudulently).
16.4 Farepay’s Contractual Liability to the End User shall not exceed a figure equivalent to 100% of the total value of the Fees paid or payable to Farepay by any Party in relation to this agreement at the date of the Claim. "Claim" shall mean the first occasion on which written notification of a particular liability hereunder is provided. For these purposes "Contractual Liability" means aggregate liability howsoever arising under or in relation to this Agreement (including under the indemnity at Condition 13) that is not excluded pursuant to Condition 16.2 above,
16.5 The End User shall indemnify and keep Farepay indemnified from and against all losses, damage, liabilities, settlements, judgments, costs and expenses arising out:
(a) any breach of the End User's obligations under this Agreement, or negligent or unlawful act or willful default of the End User in performing or failing to perform its obligations under this Agreement;
(b) any breach of the End User’s obligations or negligent or unlawful act or willful default in performing or failing to perform its obligations under the Third Party Supplier Conditions or Card Acceptance Services Agreement as applicable;
(c) any fine, penalty or determination made by any Card Association due to the acts or omissions of the End User.
17. TERM, TERMINATION AND SUSPENSION
17.1 This Agreement will commence on the Start Date and shall continue for the Term unless and until terminated earlier in accordance with this Condition 17 and or Condition 21.1.
17.2 The End User may give notice in writing to Farepay at any time prior to the end of the initial Term that it wishes to terminate the provision of the Products and Services (but not Hardware) and following giving notice this Agreement shall terminate with effect from the expiry of the then current Term. Where the End User does not give such notice this Agreement shall continue in effect and shall automatically renew for a further Term.
17.3 Farepay may suspend the provision of the Products and Services (or any part thereof) or terminate the Agreement without liability to the End User and with immediate effect if:
(a) Farepay determines that the use by the End User of the Products and Services
(i) poses a material security risk to Farepay or any third party;
(ii) may have a material adverse impact on the Products and Services or the systems or data of any other customer; or
(iii) may subject Farepay, its Affiliates, Third Party Suppliers, the Acquiring Partner or any other third party to material liability or unacceptable reputational, financial or operational risk;
(b) Farepay has reasonable grounds to suspect that the End User is using the Products and Services for fraudulent, illegal or unauthorised purposes.
(c) if the End User commits any material breach of this Agreement and fails to remedy that breach within thirty (30) days’ written notice of that breach (the thirty (30) day period only applies where a breach is capable of remedy – if it is incapable of remedy, this Agreement may be terminated by written notice immediately); or
(d) if the End User commits fraud or willful or intentional misconduct; or
(e) if the End User fails to obtain or maintain consents, permissions, licences or registrations in connection with the performance of its obligations hereunder; or
(f) where there is a change of control of the End User (within the meaning of section 1124 of the Corporation Tax Act 2010).
17.4 The End User shall be entitled to terminate this Agreement immediately if Farepay commits any breach of any material obligation and fails to remedy that breach within thirty (30) days’ written notice of that breach.
17.5 The End User shall not exercise, or purport to exercise, any right to terminate this Agreement (or accept any repudiation of this Agreement) except as expressly set out in this Agreement.
18. CONSEQUENCES OF EXPIRY, TERMINATION OR SUSPENSION
18.1 On expiry or termination of this Agreement:
(a) the End User’s access to the Service, Documentation, Support, Gateway Services, and End User URL shall immediately cease;
(b) the rights and duties created by Conditions 15 (Confidential information), 16 (Liability), 17 (Term and Termination), 18 (Consequences of Termination), and 21 (General Provisions) shall survive.
(c) Farepay shall have the right to recover any Hardware and associated equipment in the possession of or being used by the End User.
18.2 Within thirty (30) days of termination or expiry of this Agreement the End User may request that Farepay shall provide an extract of the End User Data to the End User (in such file format as Farepay shall determine). Farepay hereby reserves the right to charge a fee to the End User for providing the said extract in accordance with its then current applicable charges for such service. If the End User fails to request the return of End User Data within the thirty (30) day timeframe, then, to the extent permitted by Applicable Law, Farepay reserves the right to delete all End User Data in its possession.
18.3 During any period of suspension of the provision of the Products and Services (or any part thereof) the End User’s access to the Service, Documentation, Support, Gateway Services and End User URL shall immediately cease (as specified by Farepay) but the End User shall remain responsible for the Fees which shall continue to accrue during such period of suspension for the then current Term.
18.4 In the event that Farepay suspends provision of the Service then, following such period of suspension, where Farepay elects to reactivate the Service, the End User shall pay to Farepay a reconnection fee of £30.00 plus VAT for each Licence.
19. AUDITING
19.1 The End User shall keep and shall make available to Farepay on request accurate records to enable Farepay to verify the End User’s compliance with this Agreement.
19.2 During the Term, Farepay shall have the right at any time and from time to time (subject to as provided below), during the End User’s normal business hours, to send a Farepay employee or an independent accountant to audit the records of the End User relating to the licensing of the Software and to verify compliance with this Agreement. The End User shall give such person full access to its premises, staff, computers, system logs, and relevant records for such purpose. Any such audit shall be conducted in such a manner as to minimise any interference with the End User’s normal business activities and will not include access to the End User’s cost or profit information.
19.3 Farepay agrees not to cause such audits to be carried out more frequently than twice a year. Each such audit shall be carried out at Farepay’s expense unless it reveals a material breach of the terms of this Agreement, in which event the End User shall pay the costs thereof.
20. ASSIGNMENT AND SUB-CONTRACTING
20.1 The End User shall not sub-contract, assign, and / or otherwise transfer this Agreement or any of its rights and duties under this Agreement without the prior written consent of Farepay.
20.2 Farepay may freely sub-contract, assign, and / or otherwise transfer this Agreement or any of its rights and duties under this Agreement without the prior written consent of the End User.
20.3 The rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.
21. GENERAL PROVISIONS
Changes. Farepay may amend this Agreement from time to time if Farepay may consider such amendment reasonably necessary. If Farepay wish to make such an amendment to this Agreement, Farepay shall notify the End User in writing of such amendment or notify the End User of an amendment when the End User next logs onto the End User Portal or by such other means as Farepay determines. The amendments will be deemed agreed by the End User unless the End User raises objections in writing within a period of thirty days (30) of receipt of notification of the amendments to the Agreement. If the End User objects to the amendments within the objection period, Farepay reserve the right to terminate this Agreement on ninety (90) days’ notice in writing. Other than in respect of changes made pursuant to this Condition 21.1, no changes to this Agreement shall be valid unless made in writing and signed by the authorised representatives of both parties.
21.1 Performance. Time shall not be of the essence for the performance of Farepay’s obligations pursuant to this Agreement.
21.2 Cost of performance. The End User shall perform its obligations pursuant to this Agreement at its own cost and expense.
21.3 Force majeure. Neither party shall be liable for any delay or failure in performing its duties under this Agreement caused by any:
(a) act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental agency or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions or trade disputes;
(f) failure of Third Party Suppliers; and / or
(g) power failure or breakdown in machinery.
21.4 Disputes. Any dispute arising under this Agreement shall be referred to the senior management of each party who shall attempt resolution through negotiations. If the dispute remains unresolved for a period of twenty-one (21) days, either party may refer the dispute to the exclusive jurisdiction of the courts of England and Wales.
21.5 Third Party Rights. Except as stated herein the parties hereby exclude to the fullest extent permitted by law any rights of third parties to enforce or rely upon any of the provisions of this Agreement. The parties acknowledge and agree that the terms of this Agreement are intended to be enforceable by Verofy by virtue of The Contracts (Rights of Third Parties) Act 1999. Verofy shall mean Verofy Limited (company number 09627304) whose registered office is at Block E, Brunswick Square, Union Street, Oldham, OL1 1DE. Verofy shall have the right to enforce this Agreement when the Taxi Payment Solution (the Service) has been used for anything other than the Permitted Purpose without prior reference to Farepay, however all direct communication with a Driver/Operator must be done through Farepay.
21.6 Entire Agreement. This Agreement supersedes any prior contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire agreement between the parties relating to the subject matter.
21.7 Severance. If any part of this Agreement is held unlawful or unenforceable that part shall be struck out and the remainder of this Agreement shall remain in effect.
21.8 No Waiver. No delay, neglect or forbearance by either party in enforcing its rights under this Agreement shall be a waiver of or prejudice those rights.
21.9 Notices. All notices (which include invoices and correspondence) under this Agreement shall be in writing and shall be sent to the address of the recipient set out in this Agreement or to such other address as the recipient may have notified from time to time. Any notice may be delivered personally, by a reputable courier service, by first-class post, by fax, or by email and shall be deemed to have been served if by hand when delivered, if by courier service or first class post forty eight (48) hours after delivery to the courier or posting (as the case may be), if by fax when confirmation of transmission is received, or if by email immediately.
21.10 Law and jurisdiction. This Agreement is governed by and to be construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.
