Pay360 by Capita PayCash Standard Terms of Business

1.1. This Agreement sets out the terms and conditions upon and subject to which Pay360 by Capita agrees to provide the Services to the Merchant.
1.2. In this Agreement, the words and expressions listed below shall have the following meanings: Additional Services: such additional services set out in the Schedule that may be provided by Pay360 by Capita in accordance with this Agreement;
Agreement: these terms and conditions together with the Schedule;
Authorisation: has the meaning set out in clause 2.3
Banking Day: means a day (other than a Saturday or Sunday) on which banks are open for normal banking business in the City of London and “Banking Days” shall be construed accordingly;
Cash Collector: means the third parties that provide a network of Retailers and a means of collecting payments from Retailers appointed by Pay360 by Capita in the capacity as agent for the receipt, collection and delivery of the payment funds so that Customers can pay for goods and/or Services sold by the Merchant Website via the Cash Collector;
Charges: the charges and fees applicable to the services provided by Pay360 by Capita under the Agreement as set out in the Schedule and such other charges as notified to the Merchant by Pay360 by Capita from time to time;
Control: means:
  1. in relation to a body corporate, the power of a person to secure:
  2. by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate; or
  3. by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate;
  4. that the affairs of the first mentioned body corporate are conducted in accordance with the wishes of that person; and
  5. in relation to a partnership, means the right to a share of more than one half of the assets, or of more than one half of the income, of the partnership;
Customer: means the customer of the Merchant who wishes to pay the Merchant via the Cash Collector for goods and/or services;
Customer Security Data: any codes or other security measures relating to a Transaction used to verify the identity of the Customer and/or the authenticity of a Transaction;
Customer Terms and Conditions means the terms and conditions the Merchant has in place with the Customer for the receipt of goods and or services;
Deductions means any of the sums that may be deducted from the aggregate Transaction Values due to the Merchant as set out in clause 3 below;
Default Interest Rate: means the amount specified in the schedule, or if no amount is specified the Default Interest Rate shall be 4% above the base rate from time to time of Barclays Bank plc and/or its successor bank(s) Designated Account means the bank account in the name of the Merchant nominated by the Merchant into which Pay360 by Capita makes payments under this Agreement;
Effective Date: The Effective Date shall be the date the Merchant registers and accepts the PayCash Terms of Business via the Pay360 by Capita website or the date specified in the Schedule, whichever is the later. If the Merchant did not accept the PayCash Terms of Business via the Pay360 by Capita website and no date is specified the date in the Schedule, the Effective Date shall be the date the Schedule is signed by Pay360 by Capita's authorised signatory.
Extranet: the online resource provided by Pay360 by Capita which may be accessed by the Merchant or its authorised representatives for the purposes of receiving management information, reports, notices relevant to the Service and any other forms of information or functionality that Pay360 by Capita wishes to provide from time to time;
Extranet Manual: the online manual available on the Extranet as updated from time to time;
Initial Term: shall be 12 months from the Effective Date or the period specified in the Schedule whichever is the longer;;
Intellectual Property: copyrights (including rights in computer software), patents, trade marks, trade names, service marks, business names (including internet domain names), design rights, database rights, rights in undisclosed or confidential information (such as know-how, trade secrets and inventions (whether patentable or not)) and all other intellectual property or similar proprietary rights of whatever nature (whether registered or not and including applications to register or rights to apply for registration) which may now or in the future subsist anywhere in the world;
Merchant: the trading entity with whom Pay360 by Capita enters into the Agreement as identified in the Schedule;
Merchant Website: the website or websites of the Merchant approved in accordance with clause 4.14;
Payment Failure Administration Fee: the fee set out in the Schedule;
Payment Media: means a document containing a bar-code or reference number or code, a description of the goods and or services being sold by the Merchant and the amount to be paid for such goods and or services by the Customer which shall be provided to Customers by the Merchant via the Merchant’s website in order that Customers may make over the counter cash payments via the Cash Collector; Payment Method: the method by which the Merchant shall pay Pay360 by Capita all fees described under the Agreement as notified during sign up;
Payment Period: means the period of time that the Payment Media shall be readable by the Cash Collector as specified to the Merchant during set up;
Pay360 by Capita PayCash Acceptable Use Policy: the policy for acceptable use of the Service published by Pay360 by Capita from time to time and available at the URL as may be notified to the Merchant via the Extranet from time to time;
Retailers: means the collection agents retained by the Cash Collector from time to time to interface with and collect payments on behalf of the Merchant and others from Customers (and “Retailer” means any one of them);
Reporting: the information in relation to Transactions and the Services provided to the Merchant via the Extranet, e-mail and or any other communication method that Pay360 by Capita may reasonably use from time to time.
Schedule: the document setting out the pricing and the services ordered by the Merchant from Pay360 by Capita and other information, which incorporates or refers to this Agreement;
Service: the online system provided by Pay360 by Capita to the Merchant for the receipt of Transaction Data, the generation of the bar code or reference number contained within Payment Media, the electronic transmission of Transaction Data to the Cash Collector for the purpose of facilitating the collection of cash payments using the Payment Media and the transmission of Customer cash payments the Merchant and which for the avoidance of doubt shall include any service provided by Pay360 by Capita to the Merchant via the Extranet and any Additional Services;
Set-up Fee: the amount payable by the Merchant to Pay360 by Capita as specified and in accordance with the Schedule;
Term: the term of the Agreement as outlined in clause 7.1 ;
Terminal: means each of the multi-function terminals used to process Transactions and which are located at outlets operated by Retailers;
Transaction: a request made via the Service for collection of a cash payment from a Customer via the Cash Collector on behalf of the Merchant;
Transaction Data: all information provided by a Customer that is required for a Transaction;
Transaction Day: means a specific Banking Day subsequent to the day of the Transaction as specified in the Schedule;
Transaction Fee: the amount payable by the Merchant to Pay360 by Capita for each Transaction as specified and in accordance with the Schedule;
Transaction Value: a cash value equal to the Transactions received on the relevant day; means in respect of any Transaction, the amount collected by the Cash Collector from the relevant Customer.
1.3. Where the Merchant consists of more than one person all such persons shall be jointly and severally liable for the performance of all Merchant obligations under the Agreement.
1.4. Headings to the clauses, the schedules, the appendices and the table of contents are inserted for convenience of reference only and shall be ignored in the interpretation of these Terms of Business.
1.5. In these Terms of Business, unless it is stated or the context otherwise requires:
 
1.5.1. references to clauses, schedules and appendices are to be construed as references to clauses of and schedules and appendices to these Terms of Business and references to these Terms of Business includes such schedules and appendices; and
1.5.2. words importing the singular shall include the plural and vice versa; words importing a gender include every gender; and references to persons include natural persons, partnerships, and governmental and quasi-governmental bodies as well as bodies corporate and unincorporate; and
1.5.3. references to statutory provisions shall be construed as references to those provisions as replaced, amended or re-enacted from time to time; and
1.5.4. the rule of interpretation known as “ejusdem generis” rule shall not apply, so that, for example, any phrase introduced by the terms “including”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.5.5. references to “include” or “including” or “in particular” are to be construed without limitation; and
1.5.6. all sums payable hereunder are stated exclusive of value added tax and any other relevant sales or purchase tax which may be payable by the Merchant in addition to such sum.
   
2. PayCash services
2.1. The Merchant appoints Pay360 by Capita as agent for the receipt of payments on behalf of the Merchant.
2.2. In respect of each Transaction:
 
2.2.1. Pay360 by Capita shall generate the bar code or reference number within Payment Media and log Transaction Data against such Payment Media so that the Payment Media can be read by the Cash Collector in respect of a specific Transaction for the Payment Period;
2.2.2. there will be a binding agreement between the Merchant and the Customer to supply the goods and/or provide the services once a Customer has been issued with a valid Transaction receipt by the Cash Collector.
2.3. In accordance with the daily payments file provided by Pay360 by Capita and subject to the Cash Collector successfully collecting Customer payments via the Retailers, on the Transaction Day Pay360 by Capita shall authorise transmission by the Cash Collector to the Designated Account of the Transaction Value less any Deductions in accordance with and subject to the terms of this Agreement (“Authorisation”).
2.4. The Merchant shall ensure that the goods being sold or the services being provided in relation to a Transaction shall either:
 
2.4.1. in respect of goods being sold be ready for dispatch to the Customer; or
2.4.2. in respect of services being sold the Merchant shall be in a position to provide the relevant service;
2.4.3. at the point in time when Customer elects to pay the Merchant for the goods and/or services via the Cash Collector and until the Merchant’s obligation to supply goods or services to the Customer has been extinguished.
2.5. The Merchant shall ensure that no Transaction Value shall fall outside the minimum and maximum Transaction values issued to the Merchant by Pay360 by Capita when it agrees to this Agreement or any other values notified to the Merchant from time to time thereafter.
 
2.5.1. The Merchant shall ensure that Customers are made aware that any payment they make via the Cash Collector, shall be a payment made to Merchant.
2.5.2. The Merchant shall ensure that the Customer Terms and Conditions fully reflect payment by Customers to the Merchant via the Cash Collector in accordance with this Agreement, the Merchant shall notify Pay360 by Capita in writing of any significant changes to such terms and conditions.
2.6. Authorisation shall be carried out on a daily basis during the Term unless Pay360 by Capita knows or suspects that:
 
2.6.1. any Transaction is outside the Merchant’s normal course of business; or
2.6.2. any Transaction relates to fraudulent or criminal activity; or
2.6.3. the aggregate number or value of Transactions in a measured period is significantly greater than expected; or
2.6.4. the Merchant is subject to insolvency proceedings or is otherwise unable to pay its debts as they fall due; or
2.6.5. the Merchant is unable to fulfil its obligations to the Customer under the Customer Terms and Conditions or otherwise;
2.6.6. in such circumstances Pay360 by Capita may either defer its Authorisation for such period as it considers necessary or immediately terminate this Agreement.
2.7. Acceptance of any Transaction for processing by Pay360 by Capita and Pay360 by Capita’s online confirmation of an Authorisation to the Merchant does not guarantee the settlement of any Transaction. Pay360 by Capita accepts no liability to the Merchant for any losses, damages, costs or expense arising out of any failure to pay a remittance to the Merchant on the relevant due date.
2.8. In the event of a change in circumstances affecting the provision of the Service (including any regulatory or other change affecting the payment processing industry and/or any revised policies, guidelines or regulations issued by the Cash Collector), Pay360 by Capita reserves the right at its option to make such alterations to the Service it deems reasonably necessary from time to time provided that such alterations do not have a material adverse effect on the functionality of the Service. Any alterations to the Service that are introduced pursuant to this clause 2.7 shall be notified to the Merchant via the Extranet and shall form part of the Agreement.
2.9. The Agreement is personal to the Merchant and under no circumstances shall the Merchant use the Service for the processing of Transactions on behalf of a third party.
2.10. The Merchant acknowledges that the accuracy of any information the Service
 
2.10.1. is subject to review by Pay360 by Capita as part of its normal procedures, and is subject to any changes that may be required following such a review by Pay360 by Capita;
2.10.2. reflects the entries that have been posted in relation to the relevant Service and that can be accessed through the Service at the time the information is obtained, and so may not be completely up to date.
2.11. The Merchant acknowledges that the Merchant:
 
2.11.1. should carefully reviewed the information obtained through using the Reporting and Transaction function with the Service;
2.11.2. should notify Pay360 by Capita promptly of any errors, inconsistencies or other discrepancies that the Merchant becomes aware of;
2.11.3. is responsible for reconciling the information provided in relation to Transactions via any Reporting function.
2.12. Without limiting any other term of the Agreement, Pay360 by Capita does not represent or warrant that the Reporting and or Transaction function can be used to satisfy any of the Merchant’s legal, audit, compliance, risk or other requirements.
   
3. Payment
3.1. Pay360 by Capita shall be entitled to the Charges as set out in the Schedule by way of deduction from the aggregate Transaction Values due to the Merchant.
3.2. Notwithstanding any other provision of this Agreement, if any payments fall due to Pay360 by Capita from the Merchant, or in Pay360 by Capita’s reasonable opinion are likely to fall due but remain unpaid, Pay360 by Capita may at its option deduct such payments from the amounts that would otherwise be transmitted to the Designated Account by the Cash Collector.
3.3. The Merchant shall repay to Pay360 by Capita the full amount of any overpayment made or authorised by Pay360 by Capita or transmitted by the Cash Collector regardless of how caused.
3.4. Where no payment terms are specified, invoices shall be paid (in cleared funds) within 14 (fourteen) days of the date of invoice.
3.5. Pay360 by Capita shall issue its invoices (including value added tax invoices where applicable) directly to the Merchant via the Extranet and shall not be obliged to provide invoices in any other form.
3.6. All Charges shall be paid by the Merchant to Pay360 by Capita without deduction, set-off or counterclaim via the Payment Method.
3.7. If Pay360 by Capita cannot obtain payment by such means for whatever reason then the Merchant shall settle any amount due to Pay360 by Capita by cheque or debit/credit card. The Merchant shall sign such authorities as Pay360 by Capita may require to enable Pay360 by Capita to obtain payment of the Charges by debiting the Merchant’s bank account or via any other means pursued by Pay360 by Capita.
3.8. Without prejudice to any other right or remedy of Pay360 by Capita:
 
3.8.1. Pay360 by Capita may charge the Merchant the Payment Failure Admin Fee for each occasion on which it is unable to obtain payment from the Merchant’s bank account in respect of any invoice. The administration fee may be increased from time to time but not more than once in each 12-month period and Pay360 by Capita shall notify the Merchant of any such increase via the Extranet; and
3.8.2. if the Merchant fails to make any payment in cleared funds within 14 (fourteen) days of the due date of the invoice, Pay360 by Capita may (without prejudice to Pay360 by Capita’s other rights or remedies) suspend the Service until all amounts payable to it have been paid and/or Pay360 by Capita may terminate the Agreement with immediate effect on written notice to the Merchant; and
3.8.3. Pay360 by Capita may charge the Merchant interest (both before and after any judgment) on any amount unpaid when due at the Default Interest Rate until payment is made. If Pay360 by Capita employs a collection agency to pursue any outstanding payment(s), the Merchant shall be liable for the full costs incurred including any legal costs.
3.9. Pay360 by Capita may increase the Charges (or any of them) by giving not less than one month’s notice to the Merchant.
3.10. Except where specified in the Agreement, the Merchant is committed to the Initial Term, during which it will be liable for all Charges. The Set-up Fee is non-refundable.
   
4. Merchant obligations and warranties
4.1. The Merchant shall promptly provide to Pay360 by Capita such information as may be requested by Pay360 by Capita for the purposes of activating the Service. The Merchant acknowledges that any delay or failure to provide such information and to comply with its obligations under this clause 4 may result in Pay360 by Capita being unable to provide the Service. Pay360 by Capita accepts no responsibility for any losses, costs, damages or other liabilities arising from its inability to provide the Service in such circumstances.
4.2. The Merchant shall ensure that all forms of Payment Media provided to Customers are configured in accordance with Pay360 by Capita’s instructions so that Transactions can be processed via the Cash Collector. In the event that the Merchant makes any alterations to the Payment Media provided to Customers, the Merchant shall inform the Company in advance of the alteration and ensure that such alteration has not affected the ability of the Merchant to process Transactions. It is the Customer’s responsibility to accurately reproduce the Payment Medium as it appeared on the Merchant’s website, Pay360 by Capita will not be responsible for Payment Media that is for any reason unreadable by the Terminal.
4.3. In the event that the Merchant wishes to sell age restricted goods and or services to its Customers the Merchant shall ensure that its website cannot be used as a means of payment for goods or services by Customers under the age of 18. The Merchant shall demonstrate to Pay360 by Capita (to Pay360 by Capita’s reasonable satisfaction) that it has the necessary controls in place to prevent inappropriate use and Pay360 by Capita shall not (under any circumstances) be held responsible or liable in any way for a Customer under the age of 18 purchasing goods and or service via the Merchant’s website.
4.4. The Merchant acknowledges and accepts that Pay360 by Capita may carry out or commission credit checks on the Merchant for the purpose of obtaining an indication as to whether the Merchant is likely to be able to pay the Charges and to supply the goods and/or services to the Customer.
4.5. The Merchant warrants that all information provided to Pay360 by Capita in connection with its application for Services and any other information it provides under this Agreement is correct and that no information has been withheld which could reasonably be expected to have adversely affected Pay360 by Capita’s decision to enter into the Agreement.
4.6. In addition to complying with the Integration Manual provided to the Merchant during integration, the Merchant shall provide all such assistance as may reasonably be required by Pay360 by Capita to facilitate testing and installation.
4.7. The Merchant shall fully and promptly comply with the Pay360 by Capita PayCash Acceptable Use Policy and any reasonable operating instructions or procedural guides which Pay360 by Capita may issue from time to time. Updates to the Pay360 by Capita PayCash Acceptable Use Policy and any operating instructions or procedural guides shall be notified to the Merchant via the Extranet.
4.8. The Merchant shall clearly display on the Merchant Website such information provided from time to time by Pay360 by Capita to indicate that Customers can make payments to the Merchant via PayCash. Any such information (including details of when the Payment Period expires) shall be displayed in the manner reasonably required by Pay360 by Capita and subject at all times to clause 4.9. Without prejudice to the generality of the foregoing, the Merchant shall make it clear to the Customers that at the point of payment via the Cash Collector in accordance with the relevant Payment Medium the Customer has satisfied its obligation to pay for the goods and or services ordered and such obligation is thereafter extinguished.
4.9. The Merchant warrants that its Customer Terms of Business shall include a statements that:
 
4.9.1. at the point of payment via the Cash Collector in accordance with the relevant Payment Medium the Customer has satisfied its obligation to pay for the goods and or services ordered and such obligation is thereafter extinguished; and
4.9.2. payment by the Customer to the Cash Collector is in full and final settlement of the Customer’s obligations to make payment to the Merchant for the goods and or services supplied to the Customer under the Customer Terms of Business; and
4.9.3. the receipt obtained by a Customer from the Cash Collector is evidence of payment, and shall be treated as such.
4.10. The Merchant shall not use or display any material referring to Pay360 by Capita or any name, mark or logo without the prior written approval of Pay360 by Capita (such approval may be conditional on the Merchant’s compliance with restrictions or obligations imposed on it by Pay360 by Capita).
4.11. The Merchant shall not incur any liabilities on behalf of Pay360 by Capita or pledge Pay360 by Capita’s company’s credit or make any representations or give any warranty on behalf of Pay360 by Capita or hold itself out as having power to do any of these things.
4.12. The Merchant acknowledges that neither Pay360 by Capita nor does the Cash Collector provide support to Customers and agrees to take sole responsibility for dealing with any questions, complaints, refunds or enquiries raised by any Customer in relation to a Transaction. The Merchant is responsible for resolving all disputes with Customers or other parties to a Transaction and undertakes to act in a reasonable manner to resolve them and shall ensure that Pay360 by Capita company is not cited, contacted or requested for information in relation to such disputes.
4.13. The Merchant shall take all reasonable steps to detect and prevent fraud against Pay360 by Capita or any Customer or other party involved in a Transaction (including without limitation the Cash Collector). The Merchant shall immediately notify Pay360 by Capita if it knows or has reasonable grounds to suspect any fraudulent activity is being or may be committed in relation to the Service.
4.14. Any Transaction which has been accepted is taken entirely at the Merchant’s own risk. The Merchant acknowledges and accepts that a Transaction of this nature may be subject to a later dispute.
4.15. The Merchant shall only accept Transactions for goods and/or services that have been notified to and authorised by Pay360 by Capita. The Merchant shall notify Pay360 by Capita in advance of each uniform resource locator (URL) from which it intends to process any Transactions. The Merchant shall not process any transactions from any URL unless approved in advance by Pay360 by Capita. Any breach by the Merchant of the provisions of this clause shall be deemed a material breach that is not capable of remedy.
4.16. The Merchant shall not process any Transactions where there is a prepayment period longer than seven days (including deposit payments, memberships, subscriptions and full payments in advance of goods or services being supplied) without the prior written consent of Pay360 by Capita. Pay360 by Capita reserves the right to withdraw such consent at any time on written notice to the Merchant.
4.17. The Merchant shall not process any Transactions outside the normal course of the Merchant’s business (as such business has been notified or represented to Pay360 by Capita prior to the date of the Agreement).
4.18. All Transactions shall be carried out at arms length. The Merchant shall not process any Transactions where the Customer is the Merchant or a principal, director or owner of the Merchant.
4.19. The Merchant accepts full responsibility for regularly reviewing the Extranet for change notices, scheduled Service downtime and other information posted by Pay360 by Capita. Where these Terms of Business indicate that information is to be made available via the Extranet, the Merchant acknowledges that it is solely responsible for maintaining its own procedures to ensure that it is aware of any new notices or information published on the Extranet from time to time.
4.20. The Merchant is responsible for the safekeeping of the access codes issued to it for the Extranet. The Merchant shall have procedures in place to limit access and loss, including (without limitation) only allowing up to three of its senior employees to have access to the Extranet. Pay360 by Capita shall not be responsible for any losses, liabilities and expenses due to or arising from any failure to keep any access codes safe in accordance with this clause 4.19. The Merchant shall at all times act in accordance with the Extranet Manual and shall not misuse the Extranet by introducing viruses or other material which is technologically harmful. The Merchant must not attempt to gain unauthorised access to the Extranet, the server on which the Extranet is stored or any server, computer or database connected to the Extranet. Pay360 by Capita reserves the right to suspend the Merchant’s access to the Extranet at any time without notice to the Merchant.
4.21. The Merchant shall act in accordance with any special terms set out in the Schedule.
4.22. The Merchant shall comply with all applicable laws, regulations and codes of practice in the execution and performance of the Agreement and shall not use the Service or permit the Service to be used in any manner which could, in Pay360 by Capita’s reasonable opinion, damage Pay360 by Capita’s reputation.
4.23. The Merchant is responsible for maintaining its interface with Pay360 by Capita and updating its interfaces and connections arising from any changes implemented by Pay360 by Capita.
   
5. Pay360 by Capita obligations
5.1. Pay360 by Capita shall use all reasonable endeavours to co-operate with the Cash Collector.
5.2. In providing the Service, Pay360 by Capita shall comply with all applicable laws and regulations and shall, so far as is reasonably practicable, comply with such requirements as are notified to it by the Cash Collector.
5.3. Pay360 by Capita shall process personal data in accordance with the Data Protection Act 1998.
5.4. Pay360 by Capita shall provide the Service with reasonable skill and care.
5.5. Pay360 by Capita undertakes, wherever reasonably practicable, to publish on the Extranet advance notification of any changes affecting the Service or advice notes relating to the provision of the Service.
5.6. In the event that the Merchant wishes to sell age restricted good and or services to its Customers Pay360 by Capita shall use reasonable endeavours to enable the Terminal to prompt the Retailer to check the age of the Customer. Once the Customer has confirmed their age, the Retailer will confirm or cancel the Transaction as appropriate. For the avoidance of doubt, the Company shall not be held liable for a Transaction being processed for a Customer under the age of 18 years where the Customer is purchasing age restricted goods or services.
   
6. Trade marks and intellectual property
6.1. The Merchant agrees that Pay360 by Capita may refer to the Merchant and use the Merchant’s main corporate logo, brand or image for the purposes of publicity or promotion from time to time and in order to enable Pay360 by Capita to carry out its obligations under the Agreement and the Merchant hereby grants to Pay360 by Capita a non-exclusive, revocable, royalty-free right to use: (i) the Merchant’s corporate logo, brand or image pursuant to this clause 6.1; and (ii) the Merchant’s branding on the payment webpage presented as part of the Service to each user of the Merchant Website(s) who wishes to initiate a Transaction provided that the form of such branding use shall be subject to the prior written approval of the Merchant.
6.2. All Intellectual Property in the Service and any Intellectual Property created by Pay360 by Capita during the provision of the Service is and shall be proprietary to Pay360 by Capita. All other Intellectual Property which either party (the Licensing Party) permits the other party to use shall remain the exclusive property of the Licensing Party.
   
7. Duration and termination
7.1. The Agreement shall commence on the Effective Date and shall, except as otherwise provided in the Agreement, continue in force for the Initial Term. Thereafter, the Agreement will be automatically renewed for a further 12 (twelve) months on each anniversary of the expiry of the Initial Term unless terminated by either party (without prejudice to Pay360 by Capita’s right to terminate under clause 7.4) giving to the other not less than three months’ prior written notice to expire on the date of expiry of the Initial Term or any subsequent anniversary thereof.
7.2.  
 
7.2.1. The number of occasions Merchant has failed to supply goods and/or services to Customers in accordance with the terms and conditions agreed with the Customer, relevant legislation and any terms implied by legislation (including the Unfair Terms in Consumer Contracts Regulations, the Unfair Contract Terms Act, Distance Selling Regulations) becomes unacceptably high;
7.2.2. the Merchant has failed to pay any sum when due; or
7.2.3. the Merchant commits any breach of this Agreement or any other agreement that the Merchant may have in place with Pay360 by Capita which either the Merchant has failed to remedy within 30 (thirty) days after written notice requiring it to do so or which is incapable of remedy; or
7.2.4. the Merchant goes into liquidation or a petition is presented for the Merchant’s administration liquidation; or
7.2.5. Pay360 by Capita has reasonable concerns about the financial position of the Merchant; or
7.2.6. the Merchant ceases or threatens to cease to carry on business or in any way changes the nature of its business and/or the nature of the goods and services it sells; or
7.2.7. there is a change in Control of the Merchant or of any person who has Control of the Merchant either directly or through a chain of persons each of whom has Control over the next person in the chain, a change of Control occurring if any person acquires Control of the Merchant or any person who previously had Control of the Merchant ceases to have such Control (whether or not another person acquires Control of the other party); or
7.2.8. the Merchant engages in any activity which, in the absolute discretion of Pay360 by Capita, directly or indirectly competes with the business of Pay360 by Capita; or
7.2.9. the Merchant breaches the Pay360 by Capita PayCash Acceptable Use Policy; or
7.2.10. any event occurs in relation to the Merchant which in Pay360 by Capita’s reasonable opinion could damage Pay360 by Capita’s reputation, prove detrimental to Pay360 by Capita’s business or may give rise to fraud, suspicion of fraud or any other criminal activity.
7.3. The Merchant may terminate this Agreement with immediate effect on written notice to Pay360 by Capita if:
 
7.3.1. Pay360 by Capita commits any material breach of this Agreement and in the case of a material breach capable of remedy, fails to remedy it within 30 (thirty) days after service, and confirmation of receipt, of a written notice requiring it to do so; or
7.3.2. Pay360 by Capita goes into liquidation (except for the purposes of a solvent amalgamation or reconstruction and in a way that results in its successor company being bound by this Agreement) or a petition is presented for Pay360 by Capita’s administration liquidation.
7.4. Pay360 by Capita may at any time terminate the Agreement at its convenience by giving the Merchant not less than 30 days’ notice in writing, which termination shall be effective on the date specified in the notice of termination.
7.5. The rights to terminate the Agreement given by this clause shall be without prejudice to any other right or remedy of Pay360 by Capita.
   
8. Consequences of termination
8.1. On termination of the Agreement for any reason each party shall cease to make use of the Intellectual Property belonging to the other party and the Merchant shall remove all references to Pay360 by Capita from its website or any other promotional material.
8.2. Termination of this Agreement shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after the date of such termination.
8.3. Upon termination of this Agreement, Pay360 by Capita shall be entitled to recover on demand from the Client all sums which the Merchant is liable to pay under this Agreement.
   
9. Liabilities, limitations and indemnity
9.1. Nothing in the Agreement shall exclude or limit the liability of either party:
 
9.1.1. for death or personal injury resulting from the negligence of that party or its directors, officers, employees, contractors or agents; or
9.1.2. in respect of fraud or of any statements made fraudulently by that party or its directors, officers, employees, contractors or agents.
9.2. Subject to clause 9.1 above, Pay360 by Capita shall not be liable to the Merchant whether in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise for any:
 
9.2.1. loss of profit;
9.2.2. loss of revenue;loss of revenue;
9.2.3. loss of anticipated savings;
9.2.4. loss or corruption of data;
9.2.5. loss of contract or opportunity;
9.2.6. loss of goodwill;
9.2.7. processing charges; or
9.2.8. borrowing costs; or
9.2.9. Customer compensation payments (including but not limited to not ex gratia payments);or
9.2.10. costs associated with Customer disputes; or
9.2.11. indirect or consequential loss of whatever nature including any loss of a type described in sub-clauses 9.2.1 to 9.2.6 above which could be regarded as indirect or consequential and whether or not reasonably foreseeable, reasonably contemplatable, or actually contemplated by the parties at the time of execution of the Agreement.
9.3. Subject to clause 9.1 above the parties agree that:
 
9.3.1. in the event that Pay360 by Capita shall be liable to the Merchant in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise, the liability of Pay360 by Capita to the Merchant shall be limited, to the full extent permissible by the law, in respect of each event or series of connected events to an amount equal to the amount of Charges paid by the Merchant to Pay360 by Capita in the calendar year in which the claim is first notified to Pay360 by Capita; and
9.3.2. in no event shall the total cumulative liability of Pay360 by Capita to the Merchant under this Agreement (other than losses expressly included under clause 9.1) exceed an amount equal to the amount of Charges paid or payable by the Merchant to Pay360 by Capita during the Term. This clause shall not limit the Merchant’s liability to pay Pay360 by Capita any amounts due under the Agreement.
9.4. Any action against Pay360 by Capita must be brought within 12 months after the cause of action arises.
9.5. The parties agree that the limitations on liability contained in the Agreement have been subject to commercial negotiation and are reasonable in all the circumstances.
9.6. Pay360 by Capita does not accept any responsibility for the accuracy of Transaction Data or any liabilities to the Merchant or other third party for any inaccuracies or misrepresentations contained in the Transaction Data.
9.7. Pay360 by Capita does not represent or warrant that the Merchant’s use of the Service will be secure, timely, uninterrupted or error-free or that the Service will meet the Merchant’s requirements. For the avoidance of doubt, Pay360 by Capita does not give any representation or warranty that the Service will alert the Merchant to, avert or prevent occurrences of fraudulent payments made by Customers and other transaction methods and the Merchant acknowledges that it should obtain insurance against such fraudulent behaviour. The Service is provided on an “as is” and “as available” basis and for commercial use only.
9.8. Except as expressly provided in these Terms of Business, all warranties, conditions, representations or other terms implied by statute or common law are excluded to the fullest extent possible by law.
9.9. Any typographical, clerical or other error or omission in any promotional material or other information issued by Pay360 by Capita (including information on the Extranet and on Pay360 by Capita’s website) shall be subject to correction without any liability on the part of Pay360 by Capita.
9.10. The Merchant shall keep Pay360 by Capita fully and effectively indemnified against all actions, claims, costs (including reasonably incurred legal fees on a solicitor and own client basis), damages, demands, expenses, losses and liabilities incurred by, or made against Pay360 by Capita as a result of the Merchant’s acts, omissions or breach of the Agreement or any relevant law.
   
10. Force majeure
10.1. Neither party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform any of its obligations, if the delay or failure was due to any cause beyond the party’s reasonable control including (without limitation) flood, fire, acts of terrorism, civil disturbance, acts of any government or authority, revocation of any licence or consent, default of any supplier or sub-contractor, failure of any power supply, theft, malicious damage, strike lock-out or industrial action, or the failure of any machine computer data processing system or communication link or by any other circumstance whatever beyond its reasonable control.
   
11. Confidentiality
11.1. Subject to clause 11.2, the parties to the Agreement will at all times keep confidential information acquired in consequence of the Agreement and relating to the other party, except for information which they may be entitled or bound by law to disclose or where requested by regulatory agencies or to their professional advisers where reasonably necessary.
11.2. The Merchant acknowledges and agrees that Pay360 by Capita may:
 
11.2.1. conduct searches via credit reference agencies in relation to the Merchant’s creditworthiness; and/or
11.2.2. disclose information relating to the Merchant to third parties to assist in fraud detection or prevention.
   
12. General
12.1. Both parties warrant that they have full capacity and authority to enter into the Agreement and that the Agreement is executed by a duly authorised representative of the relevant party.
12.2. The Agreement shall be binding on and endure for the benefit of the parties’ successors in title.
12.3. Neither party shall be entitled to assign the benefit, in whole or in part, of any rights or obligations under the Agreement without the prior written consent of the other party except where such assignment is made by Pay360 by Capita to another group in which case such assignment and transfer is permitted.
12.4. The Agreement constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all prior understandings, representations, transactions or communications, whether written or oral, as to the subject matter hereof. Each party acknowledges that it has not entered into the Agreement in reliance on any representation other than any representations expressly set out in the Agreement.
12.5. The parties acknowledge that from time to time variations, deletions or additions may have to be made by them to the Agreement. No such variations, deletions or additions shall be effective except by agreement in writing between the parties.
12.6. Any forbearance or delay on the part of any party in enforcing any of the provisions of the Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or of a right thereafter to enforce the same.
12.7. Except as otherwise provided in the Agreement, every notice required or authorised to be given under the Agreement shall be in writing and shall be deemed to be duly given if it (or the envelope containing it) is marked for the attention of, in the case of Pay360 by Capita, the Chief Executive Officer, or, in the case of the Merchant, the Procurement Manager (or such other person or persons as each party may from time to time notify to the other in writing) and:
 
12.7.1. it is delivered by being handed personally to the addressee (or any one of the relevant party's directors or its secretary); or
12.7.2. it is delivered by being left in a letterbox or other appropriate place for the receipt of letters at the addressee party's authorised address; or
12.7.3. the envelope containing the notice is properly addressed to the addressee party at its authorised address and duly posted by first class letter post or express or other fast postal service or registered post or the recorded delivery service or the notice is duly transmitted to that address by facsimile or email transmission, and in proving the giving or service of such notice, it shall be sufficient to prove that the notice was duly given within the meaning of this clause 12.7.
12.8. The envelope containing the notice shall not be deemed to be duly posted for the purposes of clause 12.7.3 unless it is put into the post properly stamped or with all or other charges in respect of it otherwise prepaid.
12.9. For the purposes of clause 12.7.1 and 12.7.2, the authorised address of each party shall be the address specified for such party in the Schedule or (in the case of notices transmitted by facsimile or email transmission) the facsimile number or email address set out in the Schedule or such other addresses and numbers as that party may from time to time expressly substitute for them by notice duly given to the other party.
12.10. Any notice duly given within the meaning of clause 12.7 shall be deemed to have been both given and received:
 
12.10.1. if it is delivered in accordance with clauses 12.7.1 or 12.7.2, on such delivery; or
12.10.2. if it is duly posted or transmitted in accordance with clause 12.7.3, by any of the methods therein specified, when in the ordinary course of post or transmission by that method it would first be received by the addressee in normal business hours.
12.11. For the purposes of this clause 12, "notice" shall include any request, demand, instruction, communication or other document.
12.12. If one or more of the clauses is held to be unlawful or unenforceable or in any way an unreasonable restraint of trade (whether because its duration is excessive or for any other reason) the parties agree that such clauses will be modified to the minimum extent necessary to ensure that they are enforceable to the maximum extent and period of time permitted by law and, regardless of this, the remaining clauses shall continue to bind the parties in full.
12.13. The Service is supplied subject to these Terms of Business to the exclusion of any other terms and conditions.
12.14. Where the Merchant has incurred any liability to Pay360 by Capita, whether under the Agreement or otherwise and whether such liability is liquidated or unliquidated, Pay360 by Capita may set off the amount of such liability against any sum that would otherwise be due to Merchant under the Agreement.
12.15. Nothing in the Agreement shall be deemed to constitute a partnership between the parties nor other than as specified in clause 2.1, constitute any party being the agent of the other party.
   
13. Governing law and jurisdiction
13.1. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter.
   
14. Contracts (Rights of Third Parties) Act 1999
14.1. Save for where specifically provided for under the Agreement and also with the exception of the Cash Collectors who are intended beneficiaries and may enforce the terms of this Agreement in their favour either jointly or severally, nothing in the Agreement shall confer on any third party any benefit or the right to enforce any term of the Agreement.
   
15. Special conditions – Financial Services and Payment Services
15.1. For the purpose of clause 4, reference the extinguishing the Customer’s obligation will mean that the payment received from the Customer will be allocated by the Merchant against any debt owed by the Customer to the Merchant in accordance with the allocation schedule applicable to the terms of the agreement between the Customer and the Merchant. Any such debt will be extinguished in proportion to the payment received.
15.2. In addition to the warranties contained in clause 4, the Merchant warrants;
 
15.2.1. there is a pre-existing agreement in place between the Customer and the Merchant in respect of any payment made by the Customer; and
15.2.2. the payment by the Customer does not constitute a payment service under the terms of the Payment Service Regulations 2009 as amended.
15.3. The Merchant agrees the Customer will not be subject to any surcharge and or additional fees or charges other than where such fees or charges may under the terms of the agreement between the Customer and he Merchant be applied when the Customer makes a cash payment directly to the Merchant.
15.4. The parties agree the use of PayCash shall not constitute a demand for payment in relation to any Customer's debt and or loan.
15.5. Nothing in this Agreement will require Pay360 by Capita to perform any service and or function that will require Pay360 by Capita to be;
 
15.5.1. licensed under the Consumer Credit Act 1974 as amended; and or
15.5.2. authorised or registered under the Payment Service Regulations 2009 as amended;or
15.5.3. any other regulatory or legislative authority in relation to financial service products.
   

 

1. Schedule – PayCash

Parties

 

Pay360 by Capita

Name:

Pay360 Limited Owned by Capita Holdings Limited

Description

A company registered under company number 03539217

Address

17 Rochester Row

London

SW1P 1JB

Phone:

 

Fax:

+ 44 (0) 207 374 6510

E-mail:

support@paypoint.net

 

Effective Date:

The date of registration.

Initial Term:

12 months

Default Interest Rate 4 per cent above the base rate from time to time of Barclays Bank plc or its successor bank(s).
Payment Terms: 14 days from the date of invoice
Extranet Access Rights Number of persons authorised to use Extranet Services - 3 Senior Employees
Merchant Details: As specified by the Merchant during the registration process.

 

 

Schedule – Fees and Charges – PayCash

 

 

 

 

Set Up Fee:

Monthly Service Charge:

 

 

 

Product

 

 

PayCash

Please see details provided directly to the Merchant.

Please see details provided directly to the Merchant.

 

 

 

Transaction Fees (PayCash):

 

Completed Transactions Fee PayCash:

Please see details provided directly to the Merchant.

 

 

 

Other Transaction information

 

Minimum Transaction Value

£10

Maximum Transaction Value

£499.99

Transaction Day:

4th Day after the day of the Transaction

 

Note

The Set Up Fees are non refundable.

All other Fees and Charges are paid at the end of each month in accordance with the PayCash Terms of Business for the product and or Service.

 


If no additional information on pricing including but not limited to Set Up Fees, Transaction Fees and or Monthly Service Charges as specified above is not provided by Pay360 by Capita and or agreed by the Merchant Pay360 by Capita may immediately terminate this Agreement.

Provision of the Service by Pay360 by Capita to the Merchant does not waive this termination right.

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