1. Definitions and Interpretation
1.1 Definitions and rules of interpretation applicable to these Conditions and the Contract are set out in clause 23.
2. Duration of Contract
2.1 The Contract shall:
2.1.1 come into force on the Effective Date, where the Retailer is a New Retailer; or
2.1.2 shall continue in force from the Effective Date, where the Retailer is an Existing Retailer,
and shall, unless terminated earlier in accordance with any relevant provision of clause 18, continue for the Minimum Period and thereafter unless and until terminated pursuant to clause 2.3 or any relevant provision of clause 18.
2.2 For the purposes of these Conditions, the “Effective Date” shall mean:
2.2.1 where the Retailer is a New Retailer, the date on which the Agreement has been approved by Payzone; or
2.2.2 where the Retailer is an Existing Retailer, the later to occur of:
2.2.2.1 the expiry of 28 days after the date of the written notice sent to the Retailer stating that these Conditions will take effect, and
2.2.2.2 the date on which Payzone delivers the new Payzone tablet to the Retailer (being the new tablet as referred in such letter and in the leaflet accompanying such letter, or any equipment which supersedes such tablet).
2.3 The Retailer may terminate the Contract on or after the expiry of the Minimum Period by giving not less than sixty (60) days’ prior written notice to Payzone.
2.4 For the avoidance of doubt, where the Retailer is an Existing Retailer then the terms and conditions already applicable to such Existing Retailer’s membership of the Network shall continue to apply until the Effective Date (but these Conditions shall apply in place of such terms and conditions with effect from and including the Effective Date).
3. Retailer Information
3.1 The information in the Contract and obtained accordance with clause 3.2 relating to the Retailer, together with other information obtained about the Retailer and its staff in connection with the Contract, may be used and disclosed by Payzone in accordance with clauses 3.3 and 20 and (where the information comprises Personal Data) the Privacy Policy.
3.2 The Retailer agrees that Payzone shall be entitled to obtain and use all information provided by or on behalf of the Retailer in respect of the Card Acceptance Agreement (or any proposed Card Acceptance Agreement) as though such information was also provided directly to Payzone as part of the Contract. Such information may be used and disclosed by Payzone for any of the purposes referred to in clauses 3.3 and 20.2 and (where the information comprises Personal Data) the Privacy Policy, including after termination of the Contract for any reason.
3.3 Notwithstanding execution of the Agreement by Payzone and the entry into force of the Contract, Payzone may subsequently make all reasonable checks about the Retailer and any director, shareholder and/or other business owner of the Retailer including making financial checks (including checking the Retailer’s credit history and searching the files of licensed credit reference agencies, who may record the search) and seeking bank and/or trade references. The Retailer shall, promptly upon request by Payzone, provide any written authority which is required to enable such checks to be made. The Retailer acknowledges and agrees that Payzone shall be entitled to make any such checks (or further such checks) in the event of any non-payment by the Retailer of any sums due to Payzone under the Contract.
3.4 The Retailer represents and warrants to Payzone that all the information which the Retailer has provided to Payzone (in any form) in connection with the Contract (including Personal Data relating to the Retailer and/or its staff) is complete and accurate.
3.5 Without prejudice to any other provision of the Contract, the Retailer shall inform Payzone promptly (giving as much advance notice as is reasonably practicable, where appropriate) of any actual or proposed change in its ownership or trading name, address, telephone number or trading hours, or any closure of its business.
4. Set-Up, Delivery and Installation of the Equipment
4.1 Where the Retailer is a New Retailer, Payzone reserves the right, at any time, to charge the Retailer the Set-Up Charge in respect of Payzone’s processing of the Agreement and associated arrangements relating to the Retailer becoming a member of the Network. Accordingly, if so requested, the Retailer shall pay the Set-Up Charge on demand.
4.2 Where the Retailer is a New Retailer, Payzone’s representative shall attend the Retailer Site to install the Equipment within a reasonable period after the date of the Agreement. Such representative shall be entitled to access the Retailer Site without prior notice for such purposes. The Retailer shall ensure that (if necessary or if requested by Payzone) a duly authorised representative of the Retailer is available at the Retailer Site during normal business hours to enable installation of the Equipment to occur. The Retailer shall not refuse to accept installation of the Equipment for any reason. The Retailer shall provide full co-operation to enable Payzone’s representative to install the Equipment at the Retailer Site (including providing reasonable assistance and facilities where requested by the representative for such purposes). In the event that Payzone is unable to effect installation because a duly authorised representative of the Retailer is not available, or the Retailer does not provide full co-operation or the Retailer refuses to accept installation of the Equipment for any reason, the Retailer shall pay the Failed Installation Charge on demand.
4.3 Use of the Equipment by the Retailer after its installation pursuant to clause 4.1 shall constitute conclusive evidence that the Equipment was complete, in good condition and was satisfactorily installed.
4.4 Payzone shall be entitled (in its sole discretion) to update, upgrade, remove or replace the whole or any part of the Payzone System at any time and the Retailer shall provide full co-operation and assistance in respect thereof (including providing suitable access to the Retailer Site). Payzone may in its discretion remove or decommission any Equipment from the Retailer Site at any time.
4.5 Payzone shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Retailer's quiet possession of the Equipment.
5. Provision of Ancillary Functions
5.1 Payzone shall provide:
5.1.1 with effect from the Effective Date, any applicable Ancillary Functions which have been selected on the Agreement; and
5.1.2 with effect from the relevant date agreed, any applicable Ancillary Functions which have been agreed by the parties from time to time,
subject to the provisions of the Schedules applicable to the relevant Ancillary Functions.
6. Availability of Products and Services
6.1 Payzone has appropriate arrangements in place with the Clients under which the Retailer is, subject to compliance with any relevant Instructions and the provisions of these Conditions, entitled to undertake Transactions.
6.2 From time to time, Payzone may (at its discretion) notify the Retailer that additional Products and Services and/or Stock are available to the Retailer. Payzone shall also give notice of any relevant Instructions or separate terms and conditions at the relevant time if applicable to the additional Products and Services and/or Stock. Without prejudice to any other provision of these Conditions, the undertaking of a Transaction by the Retailer for those additional Products and Services and/or Stock shall indicate the Retailer’s acceptance of those separate terms and conditions.
6.3 Payzone may withdraw the availability of any Products and Services and/or Stock (by removing their availability on the Equipment and/or by other means) at any time and for any reason. Payzone shall, if and to the extent reasonably practicable to do so (having regard to the relevant circumstances), provide prior notice to the Retailer of any such withdrawal. Notwithstanding the foregoing, Payzone shall not be required to give prior notice of any such withdrawal where:
6.3.1 Payzone does not receive any (or sufficient) prior notice from a Client of the withdrawal of any Products and Services by a Client or of the termination of a Client’s agreement with Payzone;
6.3.2 giving prior notice would or may (in Payzone’s reasonable opinion):
6.3.2.1 contravene any law or the requirements of any Regulatory Body; or
6.3.2.2 prejudice the interests of Payzone (including where any delay in withdrawal would prevent Payzone from avoiding any breach in law or the requirements of any Regulatory Body).
7. Use of the Equipment and Undertaking Transactions
7.1 The Retailer shall (and shall ensure that, where applicable, its staff shall):
7.1.1 install and operate the Equipment only in accordance with the terms of the Agreement and any applicable Instructions or other directions given by Payzone;
7.1.2 where appropriate, use only suitable Consumables in the Equipment;
7.1.3 only sell or provide relevant Products and Services and Stock items at their face value or for such other amount as shall be authorised by Payzone;
7.1.4 not apply (or purport to apply) any additional charge or conditions to the sale or provision of Products and Services or Stock items;
7.1.5 ensure that it receives full payment by the Customer for all applicable Products and Services; and
7.1.6 accept all forms of payment authorised by Payzone for Transactions.
7.2 The Retailer shall not (and shall ensure that, where applicable, its staff shall not):
7.2.1 take payments for, or otherwise attempt to undertake any transaction in respect of, any Products and Services after the after the date of withdrawal of such Products and Services;
7.2.2 refuse to undertake a Transaction for any Customer (except where the Customer is required to make payment and does not have the means of payment, or where the Equipment is not functioning other than as a result of any act or omission of the Retailer or its staff);
7.2.3 split any single Transaction into smaller or separate Transactions;
7.2.4 accept any payment from a Customer for any Products and Services at any time when the Payzone System is not functioning; and
7.2.5 allow any Customer to undertake a Transaction on a self-serve basis (except if and to the extent otherwise provided for in any Instructions).
7.3 The Retailer acknowledges and agrees that it is the responsibility of the Retailer to verify the age of a Customer when undertaking Transactions for age-restricted Products and Services, whether those age restrictions are referred to in Instructions or apply pursuant to applicable laws.
7.4 The Retailer shall be solely responsible for:
7.4.1 the provision of all utilities and facilities (including the Equipment Connection) necessary to enable use of the Equipment at all relevant times; and
7.4.2 all third party charges incurred in connection with the Retailer’s use of the Equipment and its undertaking of Transactions (including the installation, rental, call and any other charges associated with the Equipment Connection).
7.5 The Retailer shall be solely responsible for all sales by it (or on its behalf) of any Products and Services and Stock items and shall account to Payzone accordingly, in accordance with the provisions of the Contract, for all such sales. For the avoidance of doubt, the Retailer shall be liable to pay for all mobile phone top-up vouchers and other payment vouchers of any kind which have a cash value which have been issued by the Retailer via the Equipment (including where issued by the Retailer or its staff in error), except if and to the extent due to any fault in the Equipment.
7.6 Should the Retailer require Payzone to supply any Consumables, the Retailer may contact the Helpdesk which will advise the Retailer of the availability and cost of any such Consumables. Subject to payment by the Retailer on demand of the Consumables Charge, Payzone will supply any such items as are agreed by the parties.
7.7 If, at any time, the Retailer Site does not process any Transactions for a consecutive period of 4 (four) weeks then, with effect from the expiry of such 4-week period, the Retailer shall pay the Non-Usage Charge, each week, for the remaining term of the Contract (in addition to any applicable Low Usage Charges pursuant to clause 13.1.4).
8. Promotional Material and Publicity
8.1 Payzone may (in its discretion) provide signage, stickers, posters and/or other materials to the Retailer from time to time, for the purposes of promoting the Retailer Site as a member of the Network and/or for promoting the availability of Products, Services and/or Stock at the Retailer Site. Any such signage, stickers, posters and other materials will be provided at no cost to the Retailer.
8.2 Should the Retailer require any promotional signage, stickers, posters or materials other than the Base Promotional Material then it may contact the Helpdesk which will advise the Retailer of the availability and cost of any such items. Subject to payment by the Retailer on demand of the Requested Promotional Material Charge, Payzone will supply any such items as are agreed by the parties.
8.3 The Retailer shall ensure that all Promotional Material is displayed in a suitable and prominent place at the Retailer Site at all times during the term of the Contract. The Retailer shall not move any Promotional Material from the Retailer Site at any time without the prior written approval of Payzone.
8.4 Except if and to the extent otherwise expressly agreed in writing by Payzone, the Retailer shall be solely responsible for:
8.4.1 the costs of installation, display and erection of all Promotional Material at the Retailer Site; and
8.4.2 obtaining all necessary permits and/or approvals for the installation, display, erection and removal of all Promotional Material at the Retailer Site (including any removal which is effected by Payzone’s representatives pursuant to clauses 9.6 and/or 19.7).
8.5 The Retailer shall be solely responsible (as between the parties) for any damage or injury caused by or in connection with the installation, display, erection or removal of any Promotional Material (even if the removal is effected by Payzone’s representatives pursuant to clauses 9.6 and/or 19.7), save if and to the extent that any such damage or injury is caused by any default or negligence of Payzone or its representatives.
8.6 For the avoidance of doubt, Payzone shall be entitled (at its discretion) to re-sell, distribute, use and/or dispose of any Promotional Material which is returned to or removed by Payzone in accordance with the relevant terms of the Contract (including any Requested Promotional Material, notwithstanding payment of the Requested Promotional Material Charge).
8.7 Regardless of whether or not the Retailer has been provided with any Promotional Material at any relevant time, during the term of the Contract:
8.7.1 Payzone will be entitled to publicise that the Retailer is a member of the Network; and
8.7.2 the Retailer will be entitled to publicise that it operates the Payzone System at the Retailer Site (including on any promotional literature which is intended to encourage potential Customers to undertake Transactions), provided always that:
8.7.2.1 such publicity and promotional literature complies with the reasonable instructions and corporate guidelines of Payzone and the relevant Clients (as applicable);
8.7.2.2 all artwork, photography and copy which incorporates any reference to any person other than the Retailer is submitted to Payzone and/or the relevant Clients (as applicable) for approval at least 28 days before its intended publication or use; and
8.7.2.3 no such artwork, photography or copy shall not be published or used without the prior approval of Payzone and/or the relevant Clients (as applicable).
9. Retailer’s General Obligations
9.1 The Retailer shall:
9.1.1 ensure that the Equipment is positioned on the Retailer’s main service counter or, if this is not physically possible, that it is situated in a prominent position which is suitable for installation and use and which is clearly visible to Customers;
9.1.2 ensure that each Retailer Site has a sufficient number of staff to undertake Transactions at all times;
9.1.3 ensure that such staff are fully trained to undertake Transactions and otherwise use and operate the Equipment and ensure that such training is kept up to date; and
9.1.4 on demand, provide to Payzone appropriate security for the Equipment, Stock and/or the Transaction Revenues (whether in the form of a bond or other security as Payzone may specify) and where applicable provide such increased or additional security in respect thereof as Payzone may require from time to time.
9.2 The Retailer shall (and shall ensure that, where applicable, its staff shall):
9.2.1 ensure that the Equipment (including the Equipment Connection) is fully operational at all times during the term of the Contract (including, for the avoidance of doubt, any period of notice to terminate the Contract);
9.2.2 without prejudice to the generality of clause 9.2.1, not disconnect the Equipment Connection or the power supply to the Equipment at any time unless otherwise instructed or approved to do so by Payzone;
9.2.3 have available at all times sufficient levels of Stock and sufficient stock of Consumables to be able to undertake Transactions;
9.2.4 promptly carry out such audits of Stock and Promotional Material as may be requested by Payzone from time to time and promptly provide the results of such audits to Payzone in a format reasonably specified by Payzone;
9.2.5 at all times, securely store at the Retailer Site all Stock, Promotional Material and Consumables which are in the possession of the Retailer;
9.2.6 retain and safely store all receipts relating to Transactions for a period of three years from the date of each Transaction;
9.2.7 provide to Payzone, within 48 hours of its request, all details of any particular Transactions (including any copies of receipts and any other applicable evidence of such Transactions);
9.2.8 permit Payzone or its duly authorised representatives to enter the Retailer Site (or, without prejudice to clause 9.4.2, any other premises at which the Equipment is or may be located) at all reasonable times in order to inspect the Equipment (and, where applicable, to collect it pursuant to clause 19.4), to inspect and access all relevant records relating to the Contract and Transactions and for the purpose of verifying the Retailer’s compliance with the Contract.
9.3 The Retailer shall not (and shall ensure that, where applicable, its staff shall not):
9.3.1 engage in any fraudulent activity or any other activity of any kind which does or is likely to adversely affect the reputation of Payzone, the Payzone System or the Clients;
9.3.2 do (or permit to be done) any act or thing which will or may jeopardise the right, title and/or interest of Payzone in the Equipment, or which would or may result in the Equipment becoming a fixture;
9.3.3 suffer or permit the Equipment, the Stock or any Transaction Revenues to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process; or
9.3.4 remove any SIM card supplied with or forming part of the Equipment (unless specifically instructed to do so by Payzone), or use or attempt to use any such SIM card for any purpose other than as part of the Equipment for the purposes permitted by the Contract.
9.4 The Retailer shall not (and shall ensure that, where applicable, its staff shall not) without the prior written consent of Payzone:
9.4.1 sell or sub-let the Equipment or part with possession or control of the Equipment;
9.4.2 move the Equipment from the Retailer Site;
9.4.3 permit any third party (other than relevant staff of the Retailer) to have use of the Equipment;
9.4.4 remove, deface, obstruct, alter or add to any peripheral supplied with or forming part of the Equipment and/or any proprietary notices (including any of Payzone’s trade marks and trade names) affixed to the Equipment or the Products and Services (or any part thereof);
9.4.5 use the Equipment for processing any transactions other than valid Transactions (and associated activities) permitted under the terms of the Contract (and, for the avoidance of doubt, shall not use the Equipment for any unlawful purpose);
9.4.6 create or allow the creation of any mortgage, charge, lien or other security interest in respect of the Equipment, the Stock or any Transaction Revenues; or
9.4.7 add or combine the Equipment with any other equipment or software.
9.5 Payzone may, at any time during or after the term of the Contract, request the Retailer to return any Stock and/or Promotional Material in the possession of the Retailer at the relevant time (excluding Exterior Promotional Material, in respect of which clauses 19.4.4 and 19.7 shall apply). Payzone shall provide the Retailer with a pre-paid return envelope or bag for the Retailer to use to return to Payzone any such Stock and/or Promotional Material. The Retailer shall return such Stock and/or Promotional Material within seven (7) days of receipt of such envelope or bag.
9.6 If the Retailer does not return any applicable Stock and/or Promotional Material in accordance with clause 9.5 then Payzone shall be entitled to access the Retailer Site (or any other premises at which such Stock and/or Promotional Material are or may be located) without notice to collect such Stock and/or Promotional Material and the Retailer shall pay the Collection Charge on demand.
9.7 Notwithstanding clauses 9.5 and 19.4.4, Payzone may at any time (including on or after termination of the Contract) require the Retailer to destroy any remaining Stock and/or Promotional Material (including Exterior Promotional Material) in the possession of the Retailer at the relevant time. The Retailer shall securely and responsibly destroy such Stock and/or Promotional Material promptly after such request.
9.8 If the Retailer breaches any of its obligations under the Contract (including failure to pay any of the Due Amounts on the Payment Date) then Payzone shall be entitled (at its option) to deploy a representative to visit the Retailer Site with a view to investigating and discussing the breach with the Retailer. Where Payzone so deploys a representative then, regardless of whether or not such representative meets the Retailer on such visit (and even if the relevant breach is subsequently remedied by the Retailer), the Retailer shall pay the Default Visit Charge on demand. For the avoidance of doubt, Payzone shall be entitled to deploy a representative to visit the Retailer Site under this clause 9.8 on each occasion that the Retailer is in breach of the Contract (including each occasion that any Due Amount is not paid on the Payment Date) and the Default Visit Charge shall be payable on demand for each such visit.
9.9 Payzone’s rights under clause 9.8 shall be without prejudice to any other rights and remedies of Payzone (including its rights to terminate the Contract under clause 18.4.1), subject always to clause 13.13.
10. Title, Risk and Insurance
10.1 The Equipment (including, for the avoidance of doubt, any peripherals and any SIM card supplied with or forming part of the Equipment) shall remain the exclusive property of Payzone at all times and the Retailer shall have no right to or interest in the Equipment, except for the right to possession and use of it in accordance with and subject to the provisions of the Contract.
10.2 The Stock and the Promotional Material shall remain the exclusive property of Payzone or the Clients (as the case may be) at all times. For the avoidance of doubt, the Retailer shall not at any time have any right or title in the Requested Promotional Material, notwithstanding payment by the Retailer of the Requested Promotional Material Charge (save for the right to display such Requested Promotional Material in accordance with and subject to the relevant terms of the Contract). The Retailer shall be responsible for ensuring that the Stock and the Promotional Material is not stolen, defaced, damaged or (other than as part of a valid Transaction, in the case of Stock) removed.
10.3 The risk of loss, theft, damage to or destruction of the Equipment and Stock shall pass to the Retailer on delivery of it to the Retailer. The Equipment and Stock shall remain at the sole risk of the Retailer until such time as it is redelivered to Payzone (or, in the case of Stock, sold or provided to Customers as part of a valid Transaction).
10.4 The Retailer shall keep the Equipment insured under an all-risks policy for the benefit of Payzone for not less than £650 (six hundred and fifty pounds) for each Terminal.
10.5 In the event of a claim under the insurance to be maintained by the Retailer pursuant to clause 10.4, the full amount of the Insurance Value shall be payable to Payzone and any excess payable under such insurance shall be the Retailer’s sole responsibility.
10.6 The Retailer shall, within seven (7) days of a request by Payzone, produce a certificate of insurance in respect of the insurance to be maintained by the Retailer pursuant to clause 10.4 together with evidence of payment of the applicable premiums.
10.7 If the Retailer fails to comply with its obligations under clauses 10.4 or 10.6, Payzone shall be entitled to effect and maintain insurance in respect of the Equipment, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Retailer.
11. Loss of or Damage to the Equipment or Stock
11.1 The Retailer shall immediately report to:
11.1.1 Payzone any theft, loss, damage and/or failure of the Equipment or Stock; and
11.1.2 the police and to the Retailer’s insurer theft of the Equipment or Stock, or any damage to the Equipment or Stock caused by third parties.
11.2 The Retailer shall not tamper with or undertake any repairs to the Equipment or Stock without the prior written consent of Payzone.
11.3 Without prejudice to clauses 10.4 and 10.5, the Retailer shall pay to Payzone on demand an amount equal to the Insurance Value in the event of any theft or loss of the Equipment. The Retailer shall reimburse Payzone on demand the cost of the replacement of any Stock which has been stolen from the Retailer.
11.4 Payzone’s representative shall be entitled to access the Retailer Site without prior notice at any time during normal business hours in connection with any Equipment which has been damaged, lost or stolen (including attendance to inspect the Equipment, undertake repairs or to install any replacements for any Equipment). The Retailer shall ensure that a duly authorised representative of the Retailer is available at the Retailer Site during normal business hours for such purposes and shall provide full co-operation to enable Payzone’s representative to inspect the Equipment and/or install replacement Equipment (including providing reasonable assistance and facilities where requested by the representative for such purposes). The Retailer shall not, for any reason, refuse to allow such representative to inspect and/or replace the Equipment. Where Payzone’s representative visits the Retailer Site for the purposes referred to in this clause 11.4 then the Retailer shall pay the Equipment Inspection Charge on demand (regardless of the outcome of such visit).
11.5 Without prejudice to clause 11.4, Payzone shall, as soon as reasonably practicable, attempt to repair any faults in the Equipment that have been reported to Payzone, using remote diagnostics. In the event that the Equipment cannot be repaired using remote diagnostics (and it has not been repaired or replaced pursuant to clause 11.4), Payzone shall replace the Equipment as soon as reasonably practicable after receipt of the faulty Equipment. The faulty Equipment shall be returned by the Retailer at the Retailer’s risk and cost, except that Payzone shall reimburse the reasonable cost of returning the faulty Equipment where there is a breach by Payzone of the warranty in clause 16.1 in respect of such Equipment.
11.6 Payzone shall only arrange for an engineer to visit the Retailer Site to repair any faulty Equipment if Payzone (in its absolute discretion) deems it necessary or desirable. Such visit shall take place at times agreed by the Retailer and Payzone. If the Retailer does not permit access to the Equipment and/or the Retailer Site at the time agreed then the Retailer shall pay the Site Visit Charge on demand (except on any occasion that the Equipment Inspection Charge is instead payable pursuant to clause 11.4).
11.7 The Retailer shall pay to Payzone on demand:
11.7.1 the applicable Repair Charge where Payzone determines, in its absolute discretion, that the relevant repair of Equipment is necessary due to any act or omission of the Retailer; or
11.7.2 an amount equal to the Insurance Value if the relevant Equipment cannot be repaired for any reason (other than where the damage has been caused by any default of Payzone).
11.8 For the avoidance of doubt, any applicable amount payable by the Retailer pursuant to clause 11.7 shall be in addition to any required payment of the Equipment Inspection Charge or the Site Visit Charge.
11.9 Payzone shall not be obliged to repair or replace the relevant Equipment unless and until the Retailer has paid the Equipment Inspection Charge or the Site Visit Charge and the relevant amount due under clause 11.7 (in each case, where applicable).
11.10 For the avoidance of doubt, the Retailer shall be solely responsible for any damage caused to the Equipment through use of unsuitable Consumables (unless supplied by or on behalf of Payzone).
11.11 The Retailer shall remain liable to pay all Due Amounts (including, for the avoidance of doubt, the Service Charges, the Card Acceptance Charges and the Ancillary Functions Charges) in respect of any period during which the Equipment is lost or damaged (except if and to the extent any such loss or damage is caused by any default of Payzone).
11.12 Where Payzone replaces any Equipment pursuant to the provisions of the Contract:
11.12.1 the replacement equipment shall be of equal or greater specification to the Equipment but may not be new; and
11.12.2 with effect from the date of replacement, the replacement equipment shall constitute the Equipment to the extent relevant for the purposes of the Contract (and references in the Contract to the Equipment shall be construed accordingly).
12. Helpdesk and Training
12.1 Payzone will provide the Helpdesk which will operate during such hours as Payzone may determine from time to time (in its absolute discretion), as published on Payzone’s website.
12.2 If Payzone considers that a Retailer is making excessive or unreasonable requests of the Helpdesk services, it may discuss with the Retailer appropriate changes to the Retailer’s arrangements with Payzone (which may include the possibility of levying a one-off or recurring charge for use of those services). Any such changes which are agreed shall form part of the Contract and be binding on the Retailer accordingly. Payzone reserves the right at all times to terminate the Contract in accordance with clause 18.3 whether or not any such changes are agreed.
12.3 Payzone may (at its discretion) visit the Retailer from time to time to check on the Retailer’s compliance with the provisions of the Contract and to assess any additional needs of the Retailer.
12.4 Where requested by the Retailer, Payzone may (at its discretion) provide training to the Retailer relating to the undertaking of Transactions and other use of the Equipment (including relating to Ancillary Functions), subject to payment by the Retailer on demand of the Training Charge.
13. Charges and Financial Arrangements
13.1 In addition to any other Due Amounts, the Retailer shall pay:
13.1.1 the Service Charge, per week, for each Terminal;
13.1.2 where applicable, the Card Acceptance Charge, per week, for the provision of the Card Acceptance Functionality;
13.1.3 where applicable, the Ancillary Functions Charges, per Relevant Period, for the relevant Ancillary Functions provided to the Retailer from time to time; and
13.1.4 subject to clause 13.2, the Low Usage Charge for each week that the Retailer Site undertakes Transactions totalling less than the number of Minimum Transactions (in addition to any payment of the Non-Usage Charge pursuant to clause 7.7).
13.2 Where the Retailer is a New Retailer, clause 13.1.4 shall apply only with effect from the expiry of one month after the Effective Date.
13.3 Payzone may, at any time (at its discretion), request payment of any of Due Amounts to be paid immediately by debit or credit card. If and to the extent that any such Due Amounts are so paid by debit or credit card, the amounts which have been so paid shall not appear on any subsequent invoices issued by Payzone pursuant to clause 13.7 (unless such payment is cancelled or reversed for any reason).
13.4 Without prejudice to clause 9.4.2, where Payzone permits the Equipment to be moved to any alternative location, the Retailer may be charged for such relocation at such rates as shall be advised by Payzone (in addition to payment on demand of the Administration Charge for making the Requested Change in accordance with clause 22.15).
13.5 Payzone shall (or shall procure that the Payment Agent shall) debit the Retailer Bank Account twice a week for an amount equal to the Transaction Revenues undertaken in each Transaction Period, as follows:
13.5.1 amounts due in respect of the First Transaction Period shall be debited on the following Thursday; and
13.5.2 amounts due in respect of the Second Transaction Period shall be debited on the following Tuesday,
except (in each case) where there are bank or public holidays in the relevant week, in which case such debits will occur on any Banking Day subsequent to the day on which the debit would otherwise have occurred. Payzone will endeavour to give the Retailer advance notice of the day on which such debit will occur.
13.6 Payzone shall issue reconciliation statements to the Retailer (or shall provide the Retailer with access to reconciliation statements, whether via the Terminal or otherwise) on or after the expiry of every Relevant Period, in respect of each Transaction Period in such Relevant Period. Each such reconciliation statement will show the applicable total of the Transaction Revenues since the previous statement and the amounts payable by the Retailer in respect of those Transaction Revenues. The Retailer shall notify Payzone within five (5) days of the reconciliation statement being issued if it disputes any of the information in such statement, failing which the Retailer shall be deemed to have accepted that the information on the reconciliation statement is correct. Where a reconciliation statement is provided via the Terminal, each such reconciliation statement shall remain available on the Terminal until the issue of the next reconciliation statement (or for such longer period as Payzone may determine, in its discretion).
13.7 Subject to clause 13.2:
13.7.1 Payzone may, at its discretion, issue an invoice for the Service Charges in advance of each Relevant Period for the Service Charges, Card Acceptance Charges and/or Ancillary Functions Charges due for such Relevant Period;
13.7.2 Payzone shall invoice the Retailer, on or after the expiry of every Relevant Period, for all Due Amounts in respect of such Relevant Period which have not already been invoiced pursuant to clause 13.7.1;
13.7.3 all such invoices shall be due and payable 7 days from the date of the relevant invoice; and
13.7.4 Payzone shall (or shall procure that the Payment Agent shall) debit the Retailer Bank Account for the amount shown on each such invoice on or after the due date for payment.
13.8 For the purposes of clause 13.7.1, Payzone may either issue invoices or provide the Retailer with access to invoices, whether via the Terminal or otherwise. Where an invoice is provided via the Terminal, each such invoice shall remain available on the Terminal until the issue of the next invoice (or for such longer period as Payzone may determine, in its discretion).
13.9 Any Due Amounts relating to:
13.9.1 any period commencing on the Effective Date and ending immediately before the commencement of the first Relevant Period; and/or
13.9.2 any period commencing on the expiry of any Relevant Period and ending on the date of termination of the Contract for any reason,
shall be calculated and due on a pro-rata basis for any such period, even if otherwise expressed to be payable in relation to any other specified period.
13.10 Subject to clause 13.2, all Due Amounts (excluding the Early Termination Amounts) shall be collected by Payzone on the Payment Date by direct debit. The Retailer shall ensure that there are sufficient funds in the Retailer Bank Account to meet each such correct direct debit request for the Due Amounts.
13.11 All payments of all amounts due to Payzone under the Contract shall be made without withholding or set-off on account of disputes, counterclaims or for any other reason whatsoever.
13.12 If the Retailer fails to pay any of the Due Amounts on the Payment Date then (without prejudice to clause 13.14 or Payzone’s other rights and remedies, including its rights to terminate the Contract under clause 18.4.1) the Retailer shall pay the Non-Payment Charge on demand (for each instance that any payment was not paid on the Payment Date), subject to clause 13.13.
13.13 Where Payzone deploys a representative pursuant to clause 9.8 as a result of the Retailer’s failure to pay any of the Due Amounts on the Payment Date then the Non-Payment Charge shall not be payable (but the Default Visit Charge shall remain payable in accordance with clause 9.8). For the avoidance of doubt, the Non-Payment Charge shall be payable under clause 13.12 on each occasion that the Retailer fails to pay any of the Due Amounts on the Payment Date but where Payzone does not deploy a representative pursuant to clause 9.8.
13.14 If the Retailer fails to pay any of the Due Amounts on the Payment Date then (without prejudice to Payzone’s other rights and remedies, including its rights under clauses 9.8, 13.15, 18.1 or 18.4.1) the Retailer shall, on demand:
13.14.1 pay the Direct Debit Resubmission Charge demand (for each occurrence that a direct debit is unsuccessful and is resubmitted for payment);
13.14.2 pay interest on all unpaid sums at a rate of 4% per annum above the base rate prevailing at the relevant time at the Bank of England (payable daily) until the sums are paid, whether before or after any judgment; and
13.14.3 pay all fees, costs, charges and/or legal costs properly incurred (or to be incurred) by Payzone as a result of or in connection with such non-payment.
13.15 If the Retailer, in breach of clause 7.2.3, splits Transactions, then then (without prejudice to Payzone’s other rights and remedies) the Retailers shall pay to Payzone on demand an amount equal to the amount of Commission wrongfully earned by the Retailer as a result of such breach.
13.16 For the avoidance of doubt, the Non-Payment Charge payable in accordance with clause 13.12:
13.16.1 shall be payable every day until the relevant sums are paid; and
13.16.2 shall apply even if the Due Amounts are paid in full and on time by some other means of payment (including any subsequent payment by debit or credit card in accordance with clause 13.2).
13.17 In the event of any non-payment of any Due Amounts, Payzone shall be entitled to set-off any such unpaid Due Amounts against any Commission or any other amounts due to the Retailer (whether such sums are due to the Retailer in connection with the Contract or otherwise).
13.18 Should the Retailer require any copies (whether in paper or electronic form) of any invoices or statements which have previously been provided by Payzone in connection with the Contract (including the reconciliation statements and invoices referred to in clauses 13.6 and 13.7), the Retailer must contact Payzone and such copies will be issued following payment of the relevant Statement Charge on demand. Notwithstanding the foregoing, Payzone shall not be obliged to produce copies of any invoices or statements which were originally provided more than five years prior to the date of the Retailer’s request.
14. Banking arrangements
14.1 The Retailer shall maintain a Retailer Bank Account with facilities to pay to Payzone and/or the pay the Payment Agent all Due Amounts by direct debit via the Bankers Automated Clearing Services (BACS). The Retailer acknowledges and agrees that, pursuant to the BACS scheme, payment may be taken from the Retailer Bank Account at any time up to two working days after the Payment Date (or, where the Payment Date is a bank or public holiday, up to four working days after the Payment Date).
14.2 The Retailer shall not without the prior written consent of Payzone (which shall not be unreasonably withheld):
14.2.1 close or change the Retailer Bank Account; or
14.2.2 cancel the direct debit for payment of the Due Amounts from the Retailer Bank Account.
14.3 Without prejudice to clause 14.2, the Retailer shall give Payzone not less than 10 days’ advance notice of any proposed closure, change or cancellation of the Retailer Bank Account.
14.4 At the end of each dapy, the Retailer shall carry out an ‘end of day’ function on the Terminal to show the total amount of Transaction Revenues applicable to that day. The Retailer shall, before the end of the next Banking Day, deposit an amount equal to those Transaction Revenues in the Retailer Bank Account.
14.5 The Retailer acknowledges and agrees that:
14.5.1 it will remain liable for payment the Transaction Revenues from the time of the relevant Transaction until the time of collection of the Transaction Revenues by the Payment Agent;
14.5.2 such liability for payment of the Transaction Revenues shall apply at all times notwithstanding any theft or loss of any monies paid to the Retailer and notwithstanding any other circumstances of any nature;
14.5.3 once the Transaction Revenues are paid into in Retailer Bank Account, they will be held by the Retailer on trust for the relevant Client; and
14.5.4 it has no rights whatsoever in the Transaction Revenues and they never form any part of the Retailer’s assets.
15. Commission
15.1 Each reconciliation statement issued by Payzone pursuant to clause 13.1 shall show the Commission due to the Retailer for the relevant period.
15.2 Payzone shall (subject to clause 13.17) pay any applicable Commission due to the Retailer weekly in arrears by direct credit to the Retailer Bank Account. The Retailer shall be solely liable to account for and pay to any relevant authorities any taxes, duties and/or levies that accrue in respect of Commission.
16. Warranties
16.1 Payzone warrants that the Equipment shall be of satisfactory quality and fit for any purpose held out by Payzone (including being capable of undertaking Transactions).
16.2 As the Equipment is not manufactured or produced by Payzone, Payzone does not give any warranties beyond those contained in clause 16.1. In particular, but without prejudice to the foregoing, Payzone does not warrant that the Equipment:
16.2.1 will be error-free or be free of defects; or
16.2.2 will achieve any particular performance criteria.
16.3 Without prejudice to the generality of clause 16.2, Payzone does not warrant that the Payzone System will be functional or otherwise available at any particular time or times for the processing of Transactions.
17. Liabilities
17.1 Subject to clauses 17.2 and 17.3, Payzone’s maximum aggregate liability arising under or in connection with the Contract (including any liability for breach of the Contract and any liability for the acts or omissions of its employees, agents or subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall be limited to:
17.1.1 £250,000 (two hundred and fifty thousand pounds) for loss of or damage to physical property; and
17.1.2 in all other cases, the greater of:
17.1.2.1 the value of all Service Charges, Card Acceptance Charges and Ancillary Functions Charges paid by the Retailer to Payzone under the Contract (or, where an event giving rise to any such liability occurs prior to the expiry of the Minimum Period, the value of all Service Charges, Card Acceptance Charges and Ancillary Functions Charges paid and payable by the Retailer to Payzone under the Contract in respect of the Minimum Period); and
17.1.2.2 £1,000 (one thousand pounds).
17.2 Subject to clause 17.3, Payzone shall not be liable to the Retailer under or in connection with the Contract for any:
17.2.1 special, indirect or consequential loss;
17.2.2 loss of profit;
17.2.3 loss of use (including loss of use of the Equipment or interruptions in any service affecting the Equipment and/or the Payzone System);
17.2.4 loss of business or revenue;
17.2.5 loss of (or depletion of) goodwill; or
17.2.6 any increased costs or expenses,
in each case, however caused (even if foreseeable).
17.3 Nothing in the Contract excludes or limits Payzone’s liability for:
17.3.1 death or personal injury caused by negligence
17.3.2 fraud (including deception, dishonesty and fraudulent misrepresentation);
17.3.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; or
17.3.4 any liability if and to the extent that it cannot be excluded or limited by applicable law.
17.4 The Retailer shall indemnify Payzone and/or the relevant Clients on demand and keep them fully indemnified and held harmless from and against any costs, claims, expenses (including legal costs) and liabilities incurred as a result of or in connection with any fraud by the Retailer and/or any member of its staff.
18. Suspension and Termination
18.1 Payzone shall be entitled to suspend the availability of the Equipment, the Network and/or any Ancillary Function or the Retailer’s ability to process any one or more of the Products and Services (in each case without prior notice to the Retailer) if:
18.1.1 so requested by a Client;
18.1.2 the Retailer is in breach of (or Payzone has reason to believe that the Retailer may be in breach of) any of the provisions of the Contract.
18.2 Any suspension by Payzone pursuant to clause 18.1 shall be without prejudice to any other rights or remedies available to Payzone (including its rights to subsequently terminate the Contract where applicable) and may continue in place for such period as Payzone (in its absolute discretion) determines. Payzone shall have no liability to the Retailer (whether for loss of Commission or otherwise) for any such suspension.
18.3 Payzone shall be entitled to terminate the Contract (or the provision of any Ancillary Functions, in addition to its rights of termination in any Schedules) at any time without cause by giving the Retailer not less than 30 days’ notice.
18.4 Payzone shall be entitled to terminate the Contract (or the provision of any Ancillary Functions, in addition to its rights of termination in any Schedules) immediately on giving notice to the Retailer if:
18.4.1 the Retailer is in breach of any provision of the Contract and, if capable of remedy, does not remedy such breach within 7 days of receiving notice of such breach;
18.4.2 the Retailer Site undertakes less than the number of Minimum Transactions for a total period of 8 weeks or more in any consecutive twelve-month period;
18.4.3 the Retailer is or becomes bankrupt or insolvent or is in serious financial difficulty;
18.4.4 the Retailer ceases to trade or has an administrator, receiver or similar appointed over the whole or any part of its assets;
18.4.5 the Retailer fails to pay any sum due under the Contract on the due date for payment;
18.4.6 Payzone reasonably believes the Retailer’s financial position has deteriorated (or is likely to deteriorate) to such an extent that the Retailer may not be able to fulfil its obligations under the Contract;
18.4.7 the Retailer, or any of its staff or any other person engaged in the Retailer’s business, has been convicted of a criminal offence and/or a judgment in a civil action involving dishonesty;
18.4.8 any judgment debt enforcement proceedings are issued against the Retailer by any person; or
18.4.9 there is a change in ownership or control of the Retailer and/or the Retailer Site (or there is such change in circumstances of the Retailer and/or the Retailer Site that Payzone considers, in its absolute discretion, that an effective change of ownership or control has occurred).
18.5 Without prejudice to clause 22.14 or any other provision of the Contract, if the Retailer wishes to effect any change to its legal entity or basis of trading (such as a change from a sole trader to a partnership or a limited company) then it may contact Payzone to request termination of the Contract prior to the end of the Minimum Period in order for the relevant new entity to enter into a new contract with Payzone which shall replace the Contract. If Payzone agrees to such termination then the Retailer shall be liable to pay the Change of Legal Entity Charge on demand.
19. Consequences of Termination
19.1 Termination of the Contract (for any reason) shall be without prejudice to any other rights or remedies which Payzone and the Retailer may be entitled to under the Contract or at law and shall not affect any rights or liabilities of Payzone or the Retailer which have accrued as at the date of termination.
19.2 Termination of any Ancillary Function shall not affect the remaining provisions of the Contract or (where applicable) any other Ancillary Functions, which shall remain in full force and effect in accordance with the provisions of these Conditions.
19.3 Without prejudice to clause 19.1, all relevant Due Amounts outstanding or becoming due as at the date of termination of the Contract (for any reason) shall remain due and payable notwithstanding such termination.
19.4 On termination of the Contract (for any reason), the Retailer shall:
19.4.1 no longer be entitled to possession or use of the Equipment;
19.4.2 immediately stop using the Equipment (and for the avoidance of doubt shall not undertake or attempt to undertake any further Transactions) and shall return the Equipment to Payzone in accordance with clause 19.5; and
19.4.3 immediately cease to:
19.4.3.1 use the Payzone name, brand and logo;
19.4.3.2 represent itself as a member of the Network;
19.4.3.3 use or attempt to use any Stock; and
19.4.3.4 display or use any Promotional Material (excluding Exterior Promotional Material, in respect of which clauses 19.4.4 and 19.7 shall apply) or otherwise represent or advertise the Retailer Site as a place at which Transactions may be undertaken;
19.4.4 at its own cost, promptly remove all Exterior Promotional Material which is affixed to the Retailer Site and immediately remove all other Exterior Promotional Material;
19.4.5 immediately cease to display (or otherwise use) the Exterior Promotional Material removed by the Retailer pursuant to clause 19.4.4; and
19.4.6 immediately return all Stock and Promotional Material in the possession of the Retailer if so requested by Payzone pursuant to clause 9.5.
19.5 The Retailer shall, at its own cost, arrange for the Equipment to be returned to Payzone (at such address as may be specified by Payzone from time to time) within seven (7) days after termination of the Contract. Without prejudice to clauses 10.3 and 19.8, the Retailer shall ensure that the Equipment is properly and securely packaged to prevent any damage in transit and shall (unless returning the Equipment personally) use a reputable courier or postal service to return the Equipment.
19.6 If the Retailer does not return the Equipment in accordance with clause 19.5 then Payzone shall be entitled to access the Retailer Site (or any other premises at which the Equipment is or may be located) without notice to collect the Equipment and/or the Stock and the Retailer shall pay the Collection Charge on demand.
19.7 If the Retailer does not remove and cease use of any Exterior Promotional Material pursuant to clauses 19.4.4 and 19.4.5 then Payzone shall be entitled (at its discretion) to attend and access the Retailer Site without prior notice to remove such Exterior Promotional Material. The Retailer shall (if necessary or if requested by Payzone) provide full co-operation to enable Payzone’s representative to remove the Exterior Promotional Material (including providing reasonable assistance and facilities where requested by the representative for such purposes). Where Payzone’s representative visits the Retailer Site for the purposes referred to in this clause 19.7 then the Retailer shall pay the Promotional Material Removal Charge on demand (even if such representative did not successfully remove the Exterior Promotional Material).
19.8 If the Equipment returned by the Retailer (pursuant to clause 19.5) or collected by Payzone (pursuant to clause 19.6) is not in complete working order and in good condition (allowing for fair wear and tear) then the Retailer shall pay on demand:
19.8.1 the applicable Repair Charge, or
19.8.2 if the Equipment cannot be repaired for any reason (other than where the damage has been caused by any default of Payzone) an amount equal to the Insurance Value.
19.9 If the Contract is terminated for any reason (other than termination by Payzone pursuant to clause 18.3) before the end of the Minimum Period:
19.9.1 the Retailer shall (without prejudice to clauses 19.1 and 19.3) remain liable to pay on demand an amount equal to all Service Charges, Card Acceptance Charges and Ancillary Functions Charges which would otherwise be payable for the remainder of the Minimum Period; and
19.9.2 the Retailer shall pay the Early Termination Administration Charge relating to Payzone’s processing of such termination.
19.10 Where applicable, the Early Termination Amounts may be invoiced by Payzone at any time after termination of the Contract and shall be payable within 7 days of the date of Payzone’s invoice.
19.11 The provisions of the Contract which expressly or by implication have effect after termination of the Contract shall continue to be enforceable notwithstanding such termination (for any reason).
20. Data Protection
20.1 This clause 20 applies to any Personal Data which Payzone obtains about the Retailer and/or any of its staff in their capacity as a data subject (as such term is defined by the Data Laws). For the avoidance of doubt, this clause 20 applies to any Personal Data which is obtained by Payzone pursuant to clause 3.2 or from any third parties from time to time.
20.2 The Retailer acknowledges and agrees that (where applicable) Personal Data of the Retailer (and Personal Data of the Retailer’s staff which is provided by the Retailer to Payzone) may be processed by Payzone (and its agents) for various purposes relating to the administration and performance of the Contract and as otherwise set out in the Privacy Policy.
20.3 Where the Retailer provides Personal Data about the Retailer’s staff in connection with the administration or performance of the Contract, the Retailer warrants and represents that it has the consent of all such staff to
20.3.1 pass their Personal Data to Payzone;
20.3.2 for Payzone to use and disclose their Personal Data for any of the purposes set out in the Privacy Policy; and
20.3.3 (where applicable) for Payzone to make any financial and other checks as referred to in clause 3.3.
20.4 The Retailer and any applicable members of its staff have various rights relating to the Personal Data which is processed by Payzone. Details of such rights and how to exercise them are set out in the Privacy Policy.
21. Notices
21.1 All notices and consents to be given by Payzone under the Contract shall be given in writing and may be delivered personally or sent by post, SMS, facsimile or email using the contact details set out on the Agreement and/or the Contract Form or otherwise notified to or obtained by Payzone during the term of the Contract, or (where the functionality of the Equipment, or any other equipment provided to the Retailer by Payzone under any other contract, permits) sent to the Retailer by way of message notification via the Terminal.
21.2 All notices to be given by the Retailer under the Contract shall be given in writing and sent by post to Payzone at Andmore House, Unit 4 Triangle Court, Cheshire Business Park, Manchester Road, Lostock, Cheshire CW9 7YL, marked for the attention of Customer Services (or to such other address and/or marked for such other person as may be notified by Payzone from time to time).
21.3 Correctly addressed notices and consents in accordance with the foregoing provisions of this clause 21 shall be deemed to have been delivered as follows:
21.3.1 if sent by post, two days after posting; and
21.3.2 if delivered personally or sent by facsimile, SMS, email or Terminal message notification, at the time of delivery or sending.
21.4 For the avoidance of doubt but without prejudice to the generality of clause 21.1, Payzone shall be entitled to send to the Retailer by SMS or email, using the contact details set out on the Agreement and/or the Contract Form or otherwise notified to or obtained by Payzone during the term of the Contract, or to send to the Retailer by way of message notification via the Terminal:
21.4.1 copies of any invoices and statements relating to the Contract;
21.4.2 reminders or notices relating to any overdue amounts payable under the Contract;
21.4.3 requests or reminders relating to any information to be provided by the Retailer under the Contract;
21.4.4 notice of any changes to the Contract pursuant to clause 22.13; and
21.4.5 notices regarding any faults with the Equipment or any instructions relating to the maintenance or operation of the Equipment.
22. General matters
Value Added Tax
22.1 All applicable charges and other amounts stated to be payable by the Retailer under the Contract (excluding, for the avoidance of doubt, any Transaction Revenues) are exclusive of any applicable value added tax and any other applicable taxes and duties or similar charges, which shall be payable by the Retailer in addition at the prevailing rate from time to time in force.
22.2 The Commission is stated as inclusive of any applicable value added tax and any other applicable taxes and duties or similar charges.
Intellectual property
22.3 All intellectual property rights shall remain with the owner of such rights and shall not be transferred to the other party in any way.
22.4 Without prejudice to the generality of clause 22.3, the intellectual property rights in the Payzone System and the Equipment shall remain vested exclusively in Payzone at all times. Intellectual property rights in the Promotional Material shall remain vested in Payzone (and/or the Clients, as applicable) at all times.
22.5 Unless otherwise expressly agreed, the Retailer shall use the trade marks and/or trade names of Payzone or the Client (including in respect of any Promotional Material) only on the basis permitted pursuant to the Contract and in accordance with any applicable Instructions or guidelines and the applicable terms of the Contract.
Force Majeure
22.6 Save in respect of payment of the Due Amounts, each party shall be relieved of its obligations to perform any obligation in the Contract to the extent and for the duration that it is prevented from doing so due to causes beyond the affected party’s reasonable control including fire, flood, failure of utility or telecommunications supplies, failure of banking services, extreme weather conditions, disaster, emergency or where the law delays or prohibits the relevant obligation.
Communication with Retailer staff
22.7 Payzone shall be entitled to contact the Retailer’s staff to exercise its rights and perform its obligations under the Contract and, unless notified otherwise by specific members of the Retailer’s staff, for all relevant purposes set out in clause 20.
Relationship of the parties
22.8 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of the other, nor authorise either party to make or enter into any commitments for or on behalf of the other.
Subcontracting and assignment
22.9 Payzone shall be entitled to transfer and/or subcontract its rights and/or obligations under the Contract. Without prejudice to the generality of the foregoing, any Payment Agent appointed by Payzone from time to time shall be entitled to collect from the Retailer (including by way of debiting the Retailer Bank Account) any sums due to Payzone pursuant to the Contract.
22.10 The Contract is personal to the Retailer and the Retailer shall not be entitled to transfer or subcontract the whole or any part of the Contract to any other person.
Confidentiality
22.11 The parties agree to keep confidential and not to disclose to any person (other than other companies in its group and/or professional advisers in each case on a need to know basis) any confidential information of the other party (unless such was in the public domain other than by breach of this provision or the law requires the disclosing party to disclose such information). This clause 22.11 shall survive the expiry and/or termination of the Contract. The Retailer shall ensure that all of its staff comply with these confidentiality obligations.
Third party rights
22.12 Nothing in the Contract is intended to confer a benefit on any third party and a person who is not a party to the Contract is not entitled to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
Changes to the Contract
22.13 Payzone shall be entitled to change any terms of the Contract (including any charges in the Charges Annex or any other amounts payable to Payzone under the Contract) without reference to any other person by giving the Retailer at least 7 days’ notice. Payzone shall be entitled to change any Instructions at any time with immediate effect on giving notice to the Retailer and/or by issuing additional or replacement Instructions. Without prejudice to the foregoing, continued use of the Equipment, the undertaking of any Transactions or the use of any Ancillary Function after service of such notice shall be deemed to constitute the Retailer’s acceptance of the changes.
22.14 The Retailer may not change any of the terms of the Contract unless such change is agreed in writing with Payzone or Payzone otherwise notifies the Retailer of its agreement to such change.
22.15 Without prejudice to clause 22.14, in the event that Payzone agrees to make any Requested Change then the Retailer shall be liable to pay the Administration Charge on demand (for each occasion that any Requested Change is so agreed).
Waiver
22.16 The failure of a party to exercise or enforce any right under the Contract, or the grant by that party of any forbearance, delay or indulgence, shall not be construed as a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.
Severability
22.17 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision (or part) shall, to the extent required, be deemed not to form part of the Contract and the validity and enforceability of the other provisions of the Contract shall not be affected. Where the removal of any such provision (or part) would result in the intentions of the parties not being met with regard to the remaining provisions of the Contract, an alternative provision which is lawful and enforceable shall (where appropriate and to the extent necessary to give effect to such intentions) be deemed to be included in the Contract in its place.
Entire Agreement
22.18 The Contract supersedes all prior agreements, arrangements and understandings between the parties in respect of its subject matter and constitutes the entire agreement between the parties in relation to the Retailer’s membership of the Network and all associated matters. Each party confirms that it is not relying on any understanding or on any statement, representation, warranty or covenant of the other party (whether negligently or innocently made) except as specifically set out in the Contract. Nothing in this clause 22.18 shall operate to limit or exclude any liability of either party for fraud.
22.19 For the avoidance of doubt but without prejudice to the generality of clause 22.18, where the Retailer is an Existing Retailer:
22.19.1 with effect from the Effective Date, these Conditions shall supersede and replace all prior terms and conditions applicable to any agreements, arrangements and understandings between the Retailer and Payzone in relation to the Retailer’s membership of the Network and all associated matters; and
22.19.2 subject to clause 22.19.1, the Agreement and existing Contract Form shall continue to have effect for the purposes of the Contract.
Law and jurisdiction
22.20 The Contract and any matter arising from or in connection with it is governed by and shall be interpreted in accordance with English law and each party irrevocably submits to the jurisdiction of the English courts in relation to all claims and matters arising out of or in connection with the Contract.
23. Definitions and Interpretation
23.1 In the Contract and in these terms and conditions, the following terms (whether used in singular or plural form) shall have the following meanings:
Administration Charge means the prevailing charge payable in accordance with clause 22.15 where Payzone agrees to make a Requested Change, as set out in the Charges Annex;
Agreement means the agreement signed by the Retailer which forms part of the Contract;
Ancillary Functions means the services and/or products referred to in the Schedules;
Ancillary Functions Charge means the charge for the provision of the relevant Ancillary Function (other than the Card Acceptance Functionality), as set out in the Annex;
Banking Day means any day (excluding Saturdays and Sundays) on which banks generally are open for business in London;
Base Promotional Material means signage, stickers, posters and other materials supplied by Payzone or the Clients from time to time in accordance with clause 8.1;
Card Acceptance Addendum means an addendum to the Contract, which is signed by the Retailer, relating to the provision of the Card Acceptance Functionality;
Card Acceptance Agreement means the agreement (provided to the Retailer by Payzone on behalf of the Card Acceptance Provider on or around the date on which the Retailer signs the Agreement or, where applicable, signs the Card Acceptance Addendum) between the Card Acceptance Provider and the Retailer for the provision of merchant acquiring services by the Card Acceptance Provider, including any applicable application form and other documents provided or to be provided to the Card Acceptance Provider by or on behalf of the Retailer in connection therewith;
Card Acceptance Charges means the charges for the provision of the Card Acceptance Functionality, as set out in the Agreement or the Card Acceptance Addendum (as the case may be);
Card Acceptance Functionality means the configuration of the Equipment and its subsequent functionality which enables the processing of card payment transactions for the purposes of the Card Acceptance Agreement;
Card Acceptance Provider means the provider (or proposed provider) of merchant acquiring services for the Retailer, as specified on the Card Acceptance Agreement;
Change of Legal Entity Charge means the prevailing charge payable in accordance with clause 18.5 where Payzone agrees to early termination of the Contract in connection with a change to the Retailer’s legal entity or basis of trading, as set out in the Charges Annex;
Charges Annex means Payzone’s list of sundry charges, as set out in the Annex (including as may be amended from time to time in accordance with the provisions of the Contract);
Clients means the persons for the time being that have entered into an arrangement with Payzone relating to the sale or provision (as applicable) of Products and Services and/or Stock;
Collection Charge means the prevailing charge for collecting the Equipment, Stock and/or relevant Promotional Material, as set out in the Charges Annex;
Commission means the commission payable by Payzone for each Transaction undertaken by the Retailer, as notified by Payzone to the Retailer from time to time (and which applies when the associated Transaction Revenues have been collected by the Payment Agent);
Conditions means these terms and conditions applicable to the Contract, as may be amended from time to time in accordance with clause 22.13;
Consumables means paper rolls and any other consumables necessary for the proper use of the Equipment;
Consumables Charge means the applicable charge for any Consumables which are agreed to be supplied to the Retailer pursuant to clause 7.6;
Contract means the contract between the Retailer and Payzone in respect of the Retailer’s membership of the Network, comprising the Agreement, the Contract Form, these Conditions (including the Schedules and the Annex) and any applicable Instructions (in each case as may be amended from time to time in accordance with these Conditions);
Contract Form means the document entitled ‘Contract Information Form’ which sets out certain contact information for the Retailer, information about the configuration requirements for the Equipment and certain other information relating to the Retailer’s business;
Customer means an individual for whom a Transaction is undertaken (or is to be undertaken) by the Retailer;
Data Laws means all applicable laws and regulations relating to the processing and privacy of personal data, including the General Data Protection Regulation (EU) 2016/679 and any applicable laws and regulations which supplement and/or replace such Regulation;
Default Visit Charge means the prevailing charge payable in accordance with clause 9.8 in the event that Payzone deploys a representative to visit the Retailer Site following any breach of the Contract by the Retailer, as set out in the Charges Annex;
Direct Debit Resubmission Charge means the prevailing charge for resubmitting a direct debit in accordance with clause 13.14.113.14.1, as set out in the Charges Annex;
Due Amounts means any applicable amounts which are due to be paid by the Retailer pursuant to the Contract (including all applicable Transaction Revenues);
Early Termination Administration Charge means the charge payable in accordance with clause 19.9.2 where the Contract is terminated before the end of the Minimum Period;
Early Termination Amounts means the amounts due to be paid by the Retailer pursuant to clause 19.9 together with any other amounts due to be paid by the Retailer pursuant to the terms of any Schedules if the Contract is terminated before the end of the Minimum Period;
Effective Date has the meaning given in clause 2.2;
Equipment means the equipment, devices and ancillary items (including the Terminal, SIM card, scanner, key box, junction box, cables, user guides and training materials) provided by Payzone to the Retailer in connection with the Contract;
Equipment Connection means the dedicated internet connection to be provided by the Retailer to enable the Payzone System to be continuously operated;
Equipment Inspection Charge means the prevailing charge pursuant to clause 11.4 for visits to the Retailer Site in connection with in connection with any Equipment which has been damaged, lost or stolen, as set out in the Charges Annex;
Existing Retailer means a person who, at the time when these Conditions took effect pursuant to clause 2.2.2, had a valid current contract already in place with Payzone in respect of their membership of the Network;
Exterior Promotional Material means all Promotional Material which is (or which is intended to be) displayed or erected externally at the Retailer Site (including, by way of illustration, A-frames or wall signs);
Failed Installation Charge means the prevailing charge payable in accordance with clause 4.1 in the event that Payzone is unable to install the Equipment, as set out in the Charges Annex;
Helpdesk means the telephone helpdesk provided by Payzone which may be used by the Retailer for making general enquiries, reporting faults on the Payzone System and/or for ordering Consumables, Stock, potential promotional items referred to in clause 8.2 or copies of statements or invoices;
Instructions means particular instructions given by Payzone to the Retailer that the Retailer must follow in relation to Transactions;
Insurance Value means the value of the insurance required to be maintained by the Retailer for the Equipment pursuant to clause 10.4);
Low Usage Charge means the prevailing charge applicable where the Retailer Site undertakes less than the number of Minimum Transactions in the relevant week, as set out in the Charges Annex;
Non-Payment Charge means the prevailing charge for non-payment of any Due Amounts on the Payment Date, as set out in the Charges Annex;
Non-Usage Charge means the prevailing charge applicable from the point at which the Retailer Site has undertaken no Transactions for a consecutive period of 4 (four) weeks, as set out in the Charges Annex;
Minimum Period means the longer of: (a) a period of 3 (three) years with effect from (and including) the Effective Date; and (b) the minimum duration of any applicable Ancillary Function (including any extended minimum duration), as set out in the Schedule applicable to such Ancillary Function (and for the avoidance of doubt, where there is more than one applicable Ancillary Function then the longest such minimum period shall apply);
Minimum Transactions means 40 (forty) Transactions per week (or such other number of Transactions per week as may be notified to the Retailer may Payzone from time to time);
Network means Payzone’s network of Retailers which are authorised by Payzone to undertake Transactions and/or which are provided with any Ancillary Function;
New Retailer means a person who is joining the Network pursuant to a new Agreement (and who is not an Existing Retailer);
Payment Agent means the person appointed by the Client to collect Transaction Revenues from the Retailer and to pay them to the Client or (as the context shall require) the person appointed by Payzone to collect any other amounts due from the Retailer under the Contract and which shall be entitled to debit the Retailer Bank Account accordingly (being, as at the date of the Agreement, Alphyra Payment Services Limited);
Payment Date means the due date for payment of the relevant Due Amounts pursuant to the provisions of the Contract;
Payzone means Payzone Bill Payments Limited, a company registered in England and Wales under company registration number 11310918;
Payzone System means Payzone’s software application, processes, computer system, networks and websites which (together with the Equipment) is used to undertake and communicate details of Transactions;
Personal Data has the meaning set out in the Data Laws;
Privacy Policy means Payzone’s Privacy Policy from time to time in force as set out at payzone.co.uk/bill-payments-privacy;
Products and Services means the products, bills and services of the Clients for which the Retailer is authorised to take payment from and/or provide to Customers under the terms of the Contract, as permitted by the Equipment from time to time and/or as notified to the Retailer by Payzone from time to time;
Promotional Material means the Base Promotional Material and/or the Requested Promotional Material (as applicable);
Promotional Material Removal Charge means the prevailing charge for removing the Exterior Promotional Material from the Retailer Site pursuant to clause 19.7, as set out in the Charges Annex;
Relevant Period means each consecutive period of 28 days commencing on such date, on or after installation of the Equipment at the Retailer Site, as shall be specified by Payzone;
Repair Charges means the prevailing charges for the relevant repair of the Equipment as set out in the Charges Annex;
Requested Change means any change to the Contract (including, for the avoidance of doubt, any change to the Equipment, the Service Charges, the Card Acceptance Charges, the Ancillary Functions Charges, the Minimum Period, the Retailer Bank Account, the Retailer Site, the Retailer’s trading name and any change to any of these Conditions) which is agreed by Payzone in writing following a request from the Retailer to make such change;
Requested Promotional Material means signage, stickers, posters and other materials supplied by Payzone or the Clients from time to time at the request of the Retailer in accordance with clause 8.2;
Requested Promotional Material Charge means the applicable charge for the Requested Promotional Material which is agreed to be supplied to the Retailer pursuant to clause 8.2;
Retailer means the person specified as such on the Agreement;
Retailer Bank Account means the bank account nominated by the Retailer for the processing of the direct debit in respect of the payment of the Due Amounts (subject to clause 13.2) and for receipt of the Commission, or such other bank account as may be notified to and agreed by Payzone from time to time in accordance with clause 14.2;
Retailer Site means the Retailer’s address as specified in the Agreement;
Service Charge means the weekly charge for the Retailer’s membership of the Network as set out in the Annex (or as may be amended from time to time on giving notice to the Retailer);
Set-Up Charge means the prevailing charge payable pursuant to clause 4.1 in respect of Payzone’s processing of the Agreement and associated arrangements relating to the Retailer becoming a member of the Network, as set out in the Charges Annex;
Site Visit Charge means the prevailing charge for an aborted visit to the Retailer Site in accordance with clause 11.6 (as the case may be) as set out in the Charges Annex;
Statement Charge means the prevailing charge shown in the Charges Annex for the applicable copy of the invoice or statement which is required by the Retailer;
Stock means any tangible items provided by or on behalf of Payzone or the Clients for the purposes of undertaking Transactions (including a voucher, coupon, token, key, smartcard, SIM card, gift card, pre-paid card, reusable lottery card);
Terminal means such part of the Equipment which (in addition to any other items) comprises the combination of a tablet device and an accompanying card terminal or PIN entry device;
Training Charge means the prevailing charge for the provision of any training at the request of the Retailer, as set out in the Charges Annex;
Transaction Period means the following successive periods in respect of the days on which the relevant Transactions occurred:
(a) Friday to Monday (inclusive) in each week (the First Transaction Period); and
(b) Tuesday to Thursday (inclusive) in each week (the Second Transaction Period),
or such other period(s) as may be notified by Payzone;
Transaction Revenues means an amount equal to all payments received by (or which should have been received by) the Retailer from Customers for Transactions; and
Transactions means the sale or provision (as applicable) of Products and Services and/or Stock to or for Customers, via the Payzone System.
23.2 Terms used in these Conditions which are defined in any of the Schedules shall have the meaning given to them in the relevant Schedule.
23.3 In the Contract (unless the context otherwise requires):
23.3.1 references to the Contract or to any other document referred to in the Contract (including the Contract Form, these Conditions, the Annex, the Schedules and the Instructions) shall mean the Contract or such other document as amended, varied, supplemented, modified or novated from time to time;
23.3.2 the words “including”, “include” and “such as” and words of similar effect shall be deemed to have the words “without limitation” following them;
23.3.3 the words “other” and “otherwise” are illustrative and shall not limit the sense of the words preceding or following them;
23.3.4 references to a “person” shall include natural persons, firms, companies, associations, corporate or unincorporated bodies (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns;
23.3.5 words importing the singular shall include the plural and vice versa;
23.3.6 references to a numbered clause are to a clause of these Conditions so numbered;
23.3.7 references to the Schedules means the schedules to these Conditions and references to a numbered Schedule are to a schedule of these Conditions so numbered;
23.3.8 references to a numbered paragraph of a Schedule are to a paragraph in the relevant Schedule so numbered;
23.3.9 references to the Annex are to the Annex to these Conditions;
23.3.10 references to a “party” mean Payzone or the Retailer (and references to the “parties” shall be construed accordingly); and
23.3.11 any reference to any legislative provision is a reference to it as it is in force from time to time (taking account of any amendment, extension or re-enactment) and includes any subordinate legislation for the time being in force made under it.
23.4 The Schedules to these Conditions and the Annex form part of these Conditions (and accordingly form part of the Contract) and any reference to these Conditions or the Contract shall include such Schedules and the Annex.
23.5 In the event of any inconsistency between the provisions of the Agreement and the provisions of the Conditions, then the latter shall prevail.
23.6 The headings in the Contract are for ease of reference only and shall not affect the construction or interpretation of the Contract.
Charges Annex
Payzone’s sundry charges under the Contract are as follows:
| Service Charge | £0.99 (ninety-nine pence) |
| Set-Up Charge | £120 (one hundred and twenty pounds) |
| Non-Payment Charge | £95 (ninety-five pounds) |
| Collection Charge | £100 (one hundred pounds) |
| Site Visit Charge | £50 (fifty pounds) |
| Equipment Inspection Charge | £75 (seventy-five pounds) |
| Promotional Material Removal Charge | £125 (one hundred and twenty-five pounds) |
| Direct Debit Resubmission Charge | £10 (ten pounds) |
| Failed Installation Charge | £75 (seventy-five pounds) |
| Default Visit Charge | £75 (seventy-five pounds) |
| Non-Contract Charge | £30 (thirty pounds) |
| Administration Charge | £25 (twenty-five pounds) |
| Early Termination Administration Charge | £40 (forty pounds) |
| Change of Legal Entity Charge | £75 (seventy-five pounds) |
| Low Usage Charge | £2.49 (two pounds and forty-nine pence) |
| Non-Usage Charge | £5 (five pounds) |
| Training Charge | £40 (forty pounds) per hour (applied pro-rata for periods of less than an hour) |
Statement Charges:
The Repair Charges are as follows in respect of the specified damage to the Equipment:
| Payzone lens (logo) missing / damaged | £65 (sixty-five pounds) |
| All other damage | £125 (one hundred and twenty-five pounds) |
Schedule 1 – Card Acceptance Functionality
1. Application of this Schedule
1.1 This Schedule applies where the Retailer is provided with the Card Acceptance Functionality.
2. Definitions applicable to this Schedule
2.1 In this Schedule 1, the following terms (whether used in singular or plural form) shall have the following meanings (in addition to the definitions and rules of interpretation set out in clause 23):
Equivalent Supplies means goods which are the same as or similar to the Equipment (or which offer similar functionality) and/or any services which are the same as or similar to the services provided by the Card Acceptance Provider pursuant to the Card Acceptance Agreement;
Existing Agreements means the agreements in force, as at the date the Retailer signs the Agreement or the Card Acceptance Addendum (as the case may be), between the Retailer and third parties pursuant to which such third parties provide Equivalent Supplies, or (if applicable instead) the single agreement in force, as at the date the Retailer signs the Agreement or the Card Acceptance Addendum (as the case may be), between the Retailer and a third party pursuant to which such third party provides Equivalent Supplies;
Extended Period means a period of twelve (12) months commencing on the expiry of the period referred to in paragraph 3.1.1 or (as the case may be) commencing on the date on which the previous such twelve month period expires; and
Non-Contract Charge means the prevailing charge applicable where the Card Acceptance Agreement is terminated for any reason during the term of the Contract, as set out in the Other Charges List.
3. Duration of the Card Acceptance Functionality
3.1 The provision of the Card Acceptance Functionality shall apply for the following minimum period:
3.1.1 a period of 12 (twelve) months with effect from (and including) the date on which the provision of the Card Acceptance Functionality commences; and
3.1.2 for each Extended Period,
unless and until the Retailer terminates the provision of the Card Acceptance Functionality in accordance with paragraph 3.2.
3.2 The Retailer may terminate the provision of the Card Acceptance Functionality on the expiry of the period referred to in paragraph 3.1.1 or on the expiry of any Extended Period (as the case may be) by giving not less than two (2) months’ prior written notice to Payzone, specifically referring to the Card Acceptance Functionality.
3.3 For the avoidance of doubt, where any notice served by the Retailer pursuant to paragraph 3.2 is not served within sufficient time to give the full period of notice (as required by paragraph 3.2) prior to the expiry of the period referred to in paragraph 3.1.1 or (as the case may be) the relevant Extended Period, then such notice shall not take effect until the expiry of the subsequent Extended Period.
4. Termination of the Existing Agreements
4.1 The following provisions of this paragraph 4 apply only where the Retailer has Existing Agreements at the date on which the provision of the Card Acceptance Functionality commences.
4.2 As soon as reasonably practicable after signing the Agreement or the Card Acceptance Addendum (as the case may be), the Retailer shall take such steps as are necessary to terminate the Existing Agreements at the earliest possible date. Promptly after taking such steps, the Retailer shall inform Payzone of the dates on which the Existing Agreements will terminate and shall promptly provide to Payzone:
4.2.1 a copy of any applicable notices sent by the Retailer to terminate the Existing Agreements; and
4.2.2 a copy of any applicable notices and/or letters of confirmation received by the Retailer from the other parties to the Existing Agreements to confirm the dates of termination of the Existing Agreements.
4.3 Payzone may, from time to time (and at its absolute discretion), provide assistance to the Retailer in connection with the termination of the Existing Agreements. Such assistance shall be in such form as Payzone may, in its absolute discretion, determine from time to time.
4.4 The Retailer acknowledges and agrees that, notwithstanding any other provision of the Contract (and, for the avoidance of doubt, notwithstanding any assistance offered by Payzone as referred to in paragraph 4.3):
4.4.1 as between Payzone and the Retailer, the Retailer is solely responsible for determining its ability to enter into the Contract with regard to the Card Acceptance Functionality and accordingly (without prejudice to paragraph 4.5) the Retailer is solely responsible for its decision to enter into the Contract with regard to the Card Acceptance Functionality, notwithstanding the existence of the Existing Agreements;
4.4.2 it is the Retailer’s sole responsibility to terminate the Existing Agreements and to pay any and all amounts due in connection with the Existing Agreements (including the termination of the Existing Agreements);
4.4.3 Payzone’s obligations to the Retailer are limited to those obligations expressly set out in the Contract and Payzone shall not be obliged to provide any advice or services to the Retailer in connection with the Existing Agreements; and
4.4.4 accordingly, Payzone shall have no responsibility or liability to the Retailer for any matters relating to the Existing Agreements, including (without prejudice to paragraph 4.5) any default charges or other liability which the Retailer may incur as a result of the Retailer entering into the Contract (including with regard to the Card Acceptance Functionality).
4.5 The Retailer represents and warrants to Payzone that the provision of the Card Acceptance Functionality (and the Retailer’s agreement to the provisions of this Schedule) will not contravene the rights of any third party or breach any provision of the Existing Agreements.
5. Use of the Card Acceptance Functionality
5.1 Notwithstanding clause 9.4.7, the Retailer may add or combine the Equipment with other equipment or software if and to the extent specifically required by the Card Acceptance Agreement or if specified by Payzone for the purposes of the Card Acceptance Functionality.
5.2 As soon as reasonably practicable after the commencement of the provision of the Card Acceptance Functionality, the Retailer shall complete all applicable requirements for PCI/DSS compliance relating to the Card Acceptance Functionality, including those advised to the Retailer by the Card Acceptance Provider.
5.3 The Retailer acknowledges and agrees that it is its sole responsibility to become PCI/DSS compliant and that fees, fines or other charges may be levied by the Card Acceptance Provider in the event of failure to do so.
6. The Card Acceptance Agreement
6.1 Payzone is officially licensed by MasterCard and Visa International as an independent Sales Organisation and Member Service Provider and works in association with the Card Acceptance Provider which undertakes the processing of card transactions. The Retailer acknowledges and agrees that Payzone is remunerated by the Card Acceptance Provider in connection with introducing the Retailer to the Card Acceptance Provider. Notwithstanding the foregoing, the Card Acceptance Agreement is a separate contract entered into between the Retailer and the Card Acceptance Provider and Payzone has no rights or responsibilities under the Card Acceptance Agreement.
6.2 The Retailer shall be solely responsible for all and any charges payable under the Card Acceptance Agreement.
6.3 The Retailer shall not without the prior written consent of Payzone (save as otherwise provided in the Contract) use the Equipment for processing any transactions other than those permitted under the terms of the Card Acceptance Agreement (and, for the avoidance of doubt, shall not use the Equipment for the processing of transactions by any card processor other than the Card Acceptance Provider).
6.4 If the Card Acceptance Agreement is terminated for any reason during the term of the Contract, the Retailer shall pay the Non-Contract Charge each month from the date of such termination. The Non-Contract Charge shall remain payable each month until the expiry of the period referred to in paragraph 3.1.1 or on the expiry of any Extended Period (as the case may be).
7. Warranties
7.1 Payzone does not give any warranties relating to the use of the Card Acceptance Functionality beyond the warranties contained in clause 16.1. It is the Retailer’s sole responsibility to ensure that the Equipment is suitable for its use and suitable for the purposes of (including any standards required under) the Card Acceptance Agreement.
8. Suspension and Termination
8.1 Payzone shall be entitled to suspend or terminate the provision or use of the Card Acceptance Functionality immediately (in each case, without prior notice to the Retailer) if so requested by the Card Acceptance Provider.
8.2 Payzone shall be entitled to terminate the provision or use of the Card Acceptance Functionality immediately on giving notice to the Retailer if the Card Acceptance Provider declines the application made by the Retailer pursuant to the proposed Card Acceptance Agreement, or the Card Acceptance Provider does not otherwise enter into, or terminates, the Card Acceptance Agreement for any reason within 14 days after the date on which the Retailer signed the Card Acceptance Agreement.
8.3 If the Contract is terminated for any reason (other than termination by Payzone pursuant to clause 18.3) before the end of the Minimum Period, the Card Acceptance Agreement shall be deemed to have been terminated with effect from the date of termination of the Contract and the Retailer shall (without prejudice to any other provision of the Contract including payment of other Early Termination Amounts) be liable to pay an amount equal to the aggregate amount of the Non-Contract Charge per month for the remainder of the Minimum Period.
Schedule 2 – HubBox Parcel Services
1. Application of this Schedule
1.1 This Schedule applies where the Retailer agrees to become a HubBox Collect Point and uses the HubBox App.
2. Definitions applicable to this Schedule
2.1 In this Schedule 2, the following terms (whether used in singular or plural form) shall have the following meanings (in addition to the definitions and rules of interpretation set out in paragraph 23):
HubBox means Convenient Collect Limited (trading as HubBox), a company incorporated and registered in England and Wales with company number 9271441;
HubBox App means the application developed and provided by or on behalf of HubBox which is available on the Equipment and which enables the Retailer to receive Parcels for collection by Customers and pass such parcels to eligible Customers;
Parcel Commission means £0.40 (plus any VAT, if and to the extent applicable from time to time), or such other amount as Payzone may notify to the Retailer from time to time pursuant to paragraph 9.6, for each parcel correctly processed via the HubBox App;
Parcels means any consignments that the Retailer handles pursuant to this Schedule 2 on behalf of HubBox, its clients or users of the HubBox App as part of the Retailer’s performance of the Parcel Services;
Parcel Services means the HubBox Collect Point services which the Retailer must provide pursuant to this Schedule 2 (which shall include, but shall not be limited to, those set out in paragraph 7);
Point of Sale Materials means all decals and other point of sale or promotional materials which are provided to the Retailer by Payzone pursuant to paragraph 5.1.2;
Post-Termination Services has the meaning given in paragraph 12.9.1; and
Retailer Guidelines means the guidelines issued by Payzone and/or HubBox for the Retailer’s use of the HubBox App and the Retailer’s provision of the Parcel Services (including the standards to which the Parcel Services must be performed), as updated or replaced from time to time.
3. Interpretation of the Contract
3.1 Without prejudice to paragraph 2.1, if and to the extent that the context permits:
3.1.1 references to the ‘Clients’ in the Contract shall be deemed to include HubBox;
3.1.2 references to the ‘Products and Services’ in the Contract shall be deemed to include the Parcel Services;
3.1.3 references to a ‘Customer’ in the Contract shall be deemed to include customers who collect Parcels; and
3.1.4 references to the ‘Commission’ in the Contract shall be deemed to include the Parcel Commission (except with regard to the payment to the Retailer of the Parcel Commission, as to which the provisions of paragraph 9 shall apply).
4. Duration of the Parcel Services
4.1 The Retailer shall be appointed as a HubBox Collect Point (and therefore be entitled and obliged to provide the Parcel Services) for the duration of the Contract, unless and until the Parcel Services are terminated by Payzone in accordance with paragraph 12.
5. Payzone’s Responsibilities
5.1 Payzone shall:
5.1.1 provide the HubBox App to enable the Retailer to provide the Parcel Services;
5.1.2 provide the Retailer with decals and other point of sale or promotional materials relating to the Parcel Services;
5.1.3 provide the Helpdesk (in accordance with the provisions of the Contract) to deal with any enquiries in relation to the Parcel Services;
5.1.4 maintain the functionality of the Equipment (in accordance with the provisions of the Contract) to such standard as is required to allow the Retailer to provide the Parcel Services; and
5.1.5 train the Retailer how to use the HubBox App.
6. The Retailer Guidelines
6.1 The Retailer Guidelines may be issued via the HubBox App, issued by email, made available online and/or produced in paper form (at Payzone’s discretion).
6.2 Payzone and/or HubBox may update or replace the Retailer Guidelines from time to time by notifying the Retailer where the new Retailer Guidelines can be found and/or providing the Retailer with an updated copy.
7. The Parcel Services
7.1 The Retailer shall:
7.1.1 take receipt of all Parcels and securely store them at the Retailer Site (in accordance with any applicable requirements set out in the Retailer Guidelines) until collected by Customers in accordance with paragraph 7.1.2;
7.1.2 grant access to the Retailer Site during the Retailer’s normal opening hours to Customers and permit any Customer entitled to collect a Parcel (either by providing a valid six digit collection code or bearing valid proof of entitlement, as specified in the Retailer Guidelines) to collect that Parcel;
7.1.3 prominently display at an appropriate location at all times within the Retailer Site (and not deface or interfere with) all Point of Sale Materials; and
7.1.4 allocate sufficient personnel and resources to be able to provide the Parcel Services in accordance with the Retailer Guidelines.
8. The Retailer’s Performance of the Services
8.1 The Retailers agrees and warrants to Payzone that the Retailer will perform the Parcel Services:
8.1.1 in accordance with all of the requirements, standards and guidelines set out in the Retailer Guidelines;
8.1.2 using reasonable care and skill;
8.1.3 in accordance with all applicable laws;
8.1.4 in accordance with the highest standards that it is usual to expect from someone performing services like the Parcel Services;
8.1.5 using people that have been well trained by the Retailer to use the HubBox App and to provide the Parcel Services; and
8.1.6 in a way which does not damage Payzone’s name and/or reputation or HubBox’s name and/or reputation.
8.2 The Retailer shall only perform the Parcel Services at the Retailer Site and shall not remove the Parcels from the Retailer Site unless Payzone has given the Retailer written permission to do so.
8.3 If the HubBox App is not functioning correctly, the Retailer shall advise Payzone immediately on becoming aware of this, by contacting the Helpdesk.
8.4 The Retailer shall fully and promptly co-operate with Payzone and HubBox with regard to any enquiries which are raised from time to time relating to the Retailer’s provision of the Parcel Services (including with regard to any missing Parcels or any enquiries from Customers). The Retailer shall promptly provide Payzone and HubBox with all relevant information (and copies of any applicable documents) relating to any such enquiries.
9. Payment
9.1 In return for the Retailer carrying out the Parcel Services in accordance with this Schedule 2 and the Retailer Guidelines, Payzone shall pay the Retailer the Parcel Commission. The Parcel Commission will be paid on a monthly basis direct to the Retailer Bank Account, by the end of the month after the month in which the relevant Parcel Services were undertaken. Unless agreed otherwise in writing, the Parcel Commission will be fully inclusive of all of the Retailer’s costs and Payzone will not pay the Retailer anything else for anything else that the Retailer does in connection with the Parcel Services or this Schedule 2.
9.2 Within 14 (fourteen) days after the expiry of each month, Payzone will issue a statement on the Retailer’s behalf for the aggregate amount of Parcel Commission due to the Retailer since the date of the last statement.
9.3 If the Retailer is a VAT registered business then VAT shall be payable to the Retailer on the Parcel Commission provided that the Retailer promptly enters into a VAT self-billing agreement on request, in such form as shall be provided by Payzone. The Retailer shall promptly enter into any further VAT self-billing agreements whenever requested by Payzone, in such form as shall be provided by Payzone.
9.4 If the Retailer is a VAT registered business then (without prejudice to paragraph 9.3) the Retailer shall promptly provide Payzone with the Retailer’s VAT number whenever requested by Payzone.
9.5 For the avoidance of doubt, the Retailer shall not be entitled to any payment of VAT on the Parcel Commission if, at the relevant time:
9.5.1 the Retailer is not a VAT registered business;
9.5.2 the Retailer is a VAT registered business but has not entered into a VAT self-billing agreement pursuant to paragraph 9.3;
9.5.3 the Retailer is a VAT registered business but has not provided Payzone with its VAT number pursuant to paragraph 9.4; and/or
9.5.4 any VAT number provided by the Retailer pursuant to paragraph 9.4 (or as part of any VAT self-billing agreement pursuant to paragraph 9.3) is incorrect or is no longer valid for any reason.
9.6 Payzone may change the Parcel Commission with immediate effect from time to time (and at any time) on giving the Retailer notice in accordance with the relevant provisions of the Contract for the service of notices by Payzone.
9.7 For the avoidance of doubt, Parcel Commission will only be paid to the Retailer for Parcels which are logged in and out correctly using the HubBox App in accordance with the Retailer Guidelines.
10. Responsibility for the Parcels
10.1 The Retailer shall be responsible for the Parcels whilst they are in the Retailer’s possession.
10.2 If any Parcel delivered to the Retailer is not available for collection by the correct Customer for any reason or is damaged when collected by the Customer then the Retailer shall pay to Payzone on demand the value of such Parcel, as specified by Payzone or HubBox (up to a maximum amount of £200).
10.3 Title to Parcels shall not pass to the Retailer.
10.4 The Retailer shall:
10.4.1 hold the Parcels on a fiduciary basis as HubBox’s bailee;
10.4.2 store the Parcels separately from all other goods that the Retailer holds, so that they remain readily identifiable as property which does not belong to the Retailer; and
10.4.3 ensure that Parcels are kept safe and not damaged whilst at the Retailer Site.
10.5 The Retailer shall not be entitled to exercise any lien over the Parcels for any reason.
11. Liability
11.1 If any person claims against Payzone in relation to injury, loss or damage suffered whilst on the Retailer’s Retailer Site, the Retailer shall indemnify Payzone and keep Payzone fully indemnified against any losses costs or damages which Payzone suffers or incurs as a result of such person’s claim (subject to paragraph 11.2).
11.2 The indemnity in paragraph 11.1 does not apply if and to the extent that any claim referred to in such paragraph was caused by Payzone’s negligence or any breach of contract by Payzone.
12. Termination and Suspension of the Parcel Services
12.1 Payzone may terminate the Retailer’s appointment as a HubBox Collect Point (and therefore terminate the Retailer’s right to provide the Parcel Services) without terminating the Contract. Unless the Contract is terminated at the same time, termination of the Parcel Services shall not affect the Contract or any other services the Retailer provide under the Contract.
12.2 Payzone shall be entitled to terminate the Retailer’s appointment as a HubBox Collect Point (and therefore terminate the Retailer’s right to provide the Parcel Services) immediately at any time on giving the Retailer notice if:
12.2.1 requested to do so by HubBox for any reason;
12.2.2 the Retailer fails to comply with any of the Retailer’s obligations under this Schedule 2 (including, without limitation, any failure to observe any requirements, standards or guidelines set out in the Retailer Guidelines);
12.2.3 the Retailer is in breach of any terms of the Contract;
12.2.4 the Retailer commits (or Payzone has reasonable grounds to suspect that the Retailer has committed) any fraud; or
12.2.5 the Retailer does something which could damage or has damaged Payzone’s brand, reputation or goodwill and/or HubBox’s brand, reputation or goodwill.
12.3 Payzone may suspend the Retailer’s appointment as a HubBox Collect Point (and therefore suspend the Retailer’s right to provide the Parcel Services) at any time, without prior notice, in any of the circumstances specified in paragraph 12.2 and any such suspension will last for such period as Payzone may determine (in its discretion).
12.4 Payzone may terminate the Retailer’s appointment as a HubBox Collect Point (and therefore terminate the Retailer’s right to provide the Parcel Services) at any time and without any reason on giving the Retailer 30 (thirty) days’ notice.
12.5 The Retailer may only terminate its appointment as a HubBox Collect Point (and therefore the Retailer’s obligation to provide the Parcel Services) at the same time and on the same basis that the Retailer may terminate the Contract.
12.6 For the avoidance of doubt, if Payzone terminates the Contract for any reason, the Retailer’s right to provide the Parcel Services shall also terminate automatically at the same time as the Contract terminates.
12.7 Notwithstanding termination of the Retailer’s appointment as a HubBox Collect Point, the Retailer shall, if specified by Payzone:
12.7.1 continue to provide the Parcel Services for a period of up to one month after such termination (as specified by Payzone), in order to manage any final deliveries of Parcels to the Retailer Site and enable Customers to collect such Parcels or any Parcels already at the Retailer Site; and
12.7.2 retain all Point of Sale Materials for the period specified by Payzone as referred to in paragraph 12.7.1.
12.8 The Retailer shall continue to comply with the relevant provisions of this Schedule 2 (including the Retailer Guidelines) in respect of the Parcel Services which are provided after termination of the Retailer’s appointment as a HubBox Collect Point pursuant to paragraph 12.7.
12.9 Immediately after termination of the Retailer’s appointment as a HubBox Collect Point (or, where applicable, immediately after the period specified by Payzone as referred to in paragraph 12.7.1), the Retailer shall:
12.9.1 cease to provide the Parcel Services;
12.9.2 cease to hold itself out as a HubBox Collect Point; and
12.9.3 promptly remove all Point of Sale Materials and destroy them (or, if Payzone specifies, promptly return them to Payzone at the Retailer’s cost).
13. Exclusivity
13.1 For the duration that the Retailer provides the Parcel Services, the Retailer shall not perform any services which are the same as or similar to the Parcel Services for any third party without Payzone’s written consent. The restriction in this paragraph 13.1 shall no longer apply if the Retailer has provided the Parcel Services for a continuous period of 5 years.
13.2 Where the Retailer provides any other services for a third party, they must not be detrimental to the Retailer’s performance of the Parcel Services.
14. Use of Data by HubBox
14.1 The Retailer acknowledges and agrees that:
14.1.1 HubBox shall be entitled to contact the Retailer directly at any time in connection with the purposes referred to in paragraph 8.4;
14.1.2 Payzone may share with HubBox any information and documents provided by the Retailer to Payzone (or otherwise obtained by Payzone) relating to the Parcel Services, including information and documents provided or obtained pursuant to paragraph 8.4;
14.1.3 HubBox shall be entitled to access, view, store, use and process (for any purpose in connection with the Parcel Services):
14.1.3.1 all information transmitted using the HubBox App (including transaction data relating to the processing of parcels and the number of parcels processed);
and
14.1.3.2 all information and documents provided to HubBox by Payzone or by the Retailer pursuant to paragraph 8.4 or 14.1.2.
14.1.4 HubBox may share with Payzone any information and documents provided by the Retailer to HubBox (or otherwise obtained by HubBox) relating to the Parcel Services, including information and documents provided or obtained pursuant to paragraphs 8.4 and 14.1.3.1; and
14.1.5 Payzone shall be entitled to access, view, store, use and process (for any purpose in connection with the Parcel Services) all information and documents provided to Payzone by HubBox pursuant to paragraph 14.1.4.
15. General
15.1 The Retailer’s appointment as a HubBox Collect Point pursuant to this Schedule 2 does not create any partnership or joint venture between the Retailer and us, nor is it intended to (or shall) create an employment relationship between the Retailer and Payzone. The Retailer has no right to contract in Payzone’s name or HubBox’s name or to make any promises on behalf of Payzone or HubBox (and shall not purport to do so).
15.2 The Retailer will at all times be responsible and liable for and shall indemnify Payzone for and in respect of all income tax, national insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Parcel Services, where the recovery is not prohibited by law.
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Cert No. 9819
Stores