1. HCE Service Limited (“HCE”), 8 The Drive, New Barnet, Hertfordshire, EN5 1DZ
2. NAME: SWIM ID Details of End User (“The Merchant”)
of [ADDRESS: SWIM ID Details of End User]
In this Agreement the following words shall (unless the context otherwise requires) bear the following meanings:
Agreement: This agreement between the parties, including the recital and any schedules or appendices to this agreement.
HCE: The Payment Facilitator (PF), HCE Service Limited, with which the Merchant has a Merchant Service Agreement.
Acquirer: The Visa and Mastercard Card Acquirer with which HCE Service Limited has a Payment Facilitator Agreement.
IPOSUP.COM Merchant Service: A fully hosted Card Acquirer accredited payment service that provides the capture, validation, authorisation and settlement of EMV Chip and PIN and Contactless Credit/Debit card transactions linking to authorisation and settlement host systems of the Card Acquirer.
General Terms: The terms set out in this Agreement.
Merchant Registration Form: The online self-registration form to be completed by the Merchant detailing information required to register the Merchant as an active user of the IPOSUP.COM Merchant Service.
Merchant Service Agreement: This agreement between the Merchant and HCE which sets out the card acquiring service charges and specific terms and conditions relating to assigning the Merchant a merchant account.
Minimum Period: means the Minimum Period set out in Schedule 2.
Payment Device Provider: A company other that HCE supplying payment devices to the Merchant.
Products: The payment devices to be supplied to the Merchant by HCE as part of the Services as defined in Schedule 1.
Service Charges: The card transaction, initial, fixed and/or percentage fees charged to the Merchant by HCE as defined in Schedule 2.
Services: The IPOSUP.COM Merchant Services to be supplied to the Merchant by HCE.
Systems Integrator: An organisation that has partnered with HCE to deliver the Merchant’s card transaction and payment processing platform.
2. TERM and CONTRACT
2.1 The Agreement will commence on the date the Merchant Registration Form has been accepted by HCE and shall continue for the Minimum Period unless and until terminated in accordance with Clause 8.
2.2 Any supply of Services or Products by HCE shall be subject to these General Terms.
2.3 Each of the parties acknowledges and agrees that, in entering into this Agreement it does not rely upon any Representations other than as expressly set out in this Agreement. Accordingly no such Representations shall give rise to any claim for damages by either party hereto nor to any right of rescission unless such Representations were made fraudulently.
2.4 HCE shall be entitled to use sub-contractors in relation to its supply of Products or Services. In such event HCE shall remain responsible for its obligations to the Merchant under these General Terms.
3. FEES and CHARGES
3.1 In return for HCE providing the Merchant with the Services and Products detailed in this Agreement, the Merchant will pay HCE on demand the fees and charges set out in the Service Charges which HCE shall be entitled to debit from the Merchant’s bank account by direct debit or net from the merchant transaction settlements together with any other amount due or payable under this Agreement. Such fees and charges are agreed on the basis that HCE is the sole processor of all card transactions generated via the Merchant payment devices hosted on the IPOSUP.COM Merchant Service.3.2 Unless stated otherwise, all fees, charges and other payments to be made by the
Merchant are exclusive of VAT (at the prevailing rate) and any other relevant taxes and in addition to paying all such fees, charges and other payments, the Merchant will pay any such taxes.
3.3 The Merchant agrees to pay HCE and HCE shall be entitled to debit the Merchant bank account or net from the merchant transaction settlement amounts with the following items:
3.3.1 the agreed Service Charges made on a daily basis
3.3.2 charges for any exceptional support services that the Merchant has requested
3.3.3 HCE may vary the fees by the prevailing rate of RPI plus 2% as set out in the Service Charges by giving the Merchant 30 days’ notice in writing or by publishing on iposup.com website.
3.4 Without prejudice to any other right or remedy of HCE if payment is not received by HCE on the due date HCE shall be entitled to:
3.4.1 charge the Merchant interest on a daily basis on the overdue amount at a rate of 2% over the Bank of England base rate.
3.4.2 suspend the provision of any Products or Services until payment in full is made.
4. SERVICES TO BE PERFORMED
4.1 HCE will provide the Merchant the Services and Products to the best of its ability pursuant to the completion of the following stages:
4.1.1 the Merchant having fully conducted connectivity testing from the location(s) where the payment device(s) will be installed thus approving its payment device(s) with the IPOSUP.COM Merchant Service, such tests to be performed between HCE and the Merchant (or its Payment Device Provider or Systems Integrator) to ensure proper and correct operation of the payment device(s) and the hosted IPOSUP.COM PF Service.
4.1.2 the Merchant having established this formal Merchant Service Agreement with HCE (IPOSUP.COM), the Merchant Payment Facilitator that enables the Merchant to use the Services provided by HCE.
4.1.3 the Merchant having correctly completed and online submitted the Merchant Registration Form to HCE and HCE having created a merchant account within the IPOSUP.COM Merchant Service database.
4.1.4 the Merchant having paid the initial Service Charges as stated in this Agreement.
4.2 HCE will ensure the Service is available (99.9% availability) 24 hours per day and 7 days a week to perform the following activities:
4.2.1 Route the on-line EMV credit/debit card transactions, generated from payment devices registered within the IPOSUP.COM Merchant Service database, on behalf of the Merchant to card acquirer authorisation Hosts.
4.2.2 Batched transaction files will be prepared on a daily basis within the IPOSUP.COM Merchant Service to clear the payment transactions via the acquirer (Valitor) host systems. HCE will then be able to settle the payment values directly into the Merchant’s bank account net of Service Charges.
4.3 In return for the Services and Products being supplied by HCE, the Merchant agrees to punctually pay the Service Charges as set out in this Agreement. For the avoidance of doubt, the Service Charges shall be payable in accordance with the provisions of clause 3 and are in addition to any other fees and charges payable under this Agreement. Time of payment is of the essence of the Agreement.
4.4 HCE will operate a Merchant help desk between the hours of 08:30 – 17:30 Monday-Saturday. The help desk operator will analyse the Service or Product problem the Merchant is experiencing and will take appropriate action to help resolve the Service problem and/or instruct the Merchant about the process to replace the Product if it is faulty.
4.4.1 Where agreed between HCE and the Merchant, and where the Merchant’s payment system has been provided by a Payment Device Provider or Systems Integrator, the Merchant agrees to contact its Payment Device Provider or Systems Integrator as first line support. Out of hours support can also be provided at additional cost to be agreed with the Merchant.
5. PRODUCTS TO BE SUPPLIED
5.1 As part of the Services provided by HCE, it may, at the Merchant’s request, provide the Merchant with a variety of payment device Products. The Merchant agrees to operate its payment device in accordance with the provisions of any operating manuals and instructions issued by HCE or the provider of the Merchant’s payment device(s).
5.2 The Products are supplied to the Merchant for the purpose of using the IPOSUP.COM Merchant Service. The Merchant shall not sell, charge, encumber, part with possession or otherwise dispose of the Products. The Merchant will insure against loss or damage to the Products. The Merchant will install and use the Products only at the agreed location(s) or trading premises, being premises in which the Merchant has previously notified HCE on the Merchant Registration Form.
5.3 The Merchant acknowledges that HCE is not the manufacturer of the Products it supplies in this Agreement. HCE has no obligations or liabilities to the Merchant or any person claiming through the Merchant in respect of the quality or condition of the Products or their use. However, HCE will use reasonable endeavours to extend the benefit of any warranty given by the supplier of the Products to the Merchant in respect of the Products at the written request of the Merchant.
5.4 The Products installed at the Merchant’s premises shall be at the sole risk of the Merchant who shall indemnify HCE against loss or damage caused howsoever it occurred. The Merchant will take reasonable care of the Products and keep the same in a safe condition and good working order and will not alter, amend or interfere with the same. The Merchant will report any damage to the Products forthwith to HCE.
5.5 The Merchant will provide all necessary power and telecommunication links for the Products and HCE shall not be under any obligation to install any Products if such links are not in place. The Merchant shall not modify or change the telecommunication link from the Products to the IPOSUP.COM Merchant Service without prior notification or written agreement with HCE. Any such unauthorised changes may invalidate the Merchant’s approved status as a valid IPOSUP.COM Merchant Service merchant.
5.6 The Merchant will indemnify HCE against all claims and all losses, costs, expenses, damages and liabilities whatsoever incurred by HCE (including cost of repairing or replacing or removing the Products) by reason of, or in any way attributable to, the Merchant’s use of the Products.
6.1 HCE warrants that it has the authority to offer the Merchant the Services pursuant to this Agreement.
6.2 The express obligations and warranties made by HCE in this Agreement are in lieu of and to the exclusion of any warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to the Products (or any modified version of the Products) or Services supplied or provided by HCE under or in connection with this Agreement including (without limitation) as to the condition, quality, performance, satisfactory quality or fitness for the purpose of the Products or the Services or any part thereof and the same are excluded to the maximum extent permitted by law. .
6.3 Except in respect of death or injury resulting from HCE’s negligence, HCE will not be liable, whether under contract, tort (including negligence) or otherwise, for loss of production, loss of or corruption to data, loss of profits or of contracts, loss of revenue, loss of operation time, loss of goodwill or anticipated savings, wasted management or staff time and/or any indirect loss or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused.
6.4 In all other cases not falling within clause 6.3, HCE’s total liability (whether in contract, tort, including negligence, or based on any claim for indemnity or contribution or otherwise) in respect of each event arising out of or in connection with this Agreement shall not exceed the total amount payable by the Merchant to HCE in respect of this Agreement.
6.5 The Merchant acknowledges and agrees that except as expressly provided in this clause 6 HCE shall not be under any liability of any kind whatsoever and howsoever caused arising directly or indirectly in connection with this Agreement.
6.6 The Merchant acknowledges and agrees that the allocation of risk contained in this clause 6 is reflected in the fees agreed by the parties.
7. CONFIDENTIALITY AND DATA PROTECTION
7.1 The Merchant will ensure that any confidential data it receives from HCE, including but not limited to the provision of the Services and Products including Service Charges, shall remain the confidential property of HCE. The Merchant shall not disclose in any form to any third party such confidential information without the prior written agreement of HCE. The Merchant acknowledges that HCE’s rights in and to the Services and Products are unique and that the financial remedies will be insufficient to compensate HCE for any infringement of such rights. In relation to all other information which is either marked as being confidential or which, due to the nature of such information and the circumstances under which it was disclosed, ought reasonably to be treated as confidential information of the party disclosing it, the receiving party agrees that it shall not use such information except for the performance of this Agreement, and further agrees not to disclose the other’s confidential information to any third party except to the extent required for the proper performance of any Specific Agreement or as may be required by law. The provisions of this clause shall survive the termination of this Agreement and shall not apply to any information which is in the public domain or enters it other than as a result of a breach of the provisions of this clause.
7.2 The Merchant’s personal data retrieved from the Merchant Registration Form will be held electronically within the IPOSUP.COM Merchant Service operational database in order that it may be used to provide the Services and Products to the Merchant.
7.3 Disclosure of the Merchant’s personal data may be made under the terms of this Agreement to assist in verifying the Merchant’s identity and credit rating. In addition, HCE may disclose information concerning the Merchant to Card Acquirers for use in fraud prevention programmes or for the purposes of identifying merchants involved in, amongst other things, fraud or suspected fraud, insolvency, or in any other effort to prevent fraud.
8.1 Subject to the terms of Clause 8.3 below, either party can terminate this Agreement at any time after expiry of the Minimum Period, by the giving of one month’s notice in writing to the other party.
8.2 HCE can terminate this Agreement immediately and stop providing the Services if any of the following happens:
8.2.1 the Merchant shall fail to pay any Service Charges or other sums due under this Agreement when due or break an important condition of this Agreement; or
8.2.2 the Merchant shall break any other condition of this Agreement and do not put it right within 7 days of a notice from HCE requiring it to be remedied; or
8.2.3 the Merchant shall become bankrupt or make any arrangement with its creditors or be liquidated or have an Administrator or receiver appointed or suffer any other form of insolvency event; or
8.2.4 the Merchant is otherwise unable to pay its debts as they fall due.
8.3 Upon termination of this Agreement for any reason, the Merchant must, pay to HCE forthwith:
8.3.1 any and all sums then due and owing; and
8.3.2 all Service Charges which would have been payable for the remainder of the Minimum Period but for the termination less such discount of 3% per annum for accelerated repayment; less
8.3.3 at the discretion of HCE, such sum as is reasonable in all the circumstances to reflect the return of the Products in good condition or any other costs that are saved by HCE as a consequence of the termination prior to expiry of the Minimum Period.
9. FORCE MAJEURE
Neither party hereto will be liable for delay or for failure to perform its obligations if and to the extent such delay or failure results from circumstances beyond its reasonable control, but any such circumstances shall not relieve the Merchant from its obligations to pay for any Service Charges relating to Products supplied or to Services supplied to it prior to such circumstances.
10.1 The Merchant may not transfer its account or any of its rights and responsibilities under this Agreement.
10.2 HCE may assign or transfer its rights under this Agreement to a third party (an “Assignee”) without consent of the Merchant. If HCE assigns or transfers all or any its rights under this Agreement the Merchant will pay all Service Charges to the Assignee without deduction, set-off or counterclaim irrespective of whether or not the Services or Products are being used by the Merchant or for any other reason whatsoever.
10.3 The Assignee will have no obligations to the Merchant under this Agreement whether in relation to the Products and/or the Services other than the quiet enjoyment of any Products provided by HCE to the Merchant.
Any notice or other communication to be given under this Agreement shall be in writing and shall be delivered by hand or post within the UK, by airmail if sent abroad, or by fax to the other party at its address contained herein (or such other address as shall have been notified to the other party) and shall be deemed to have been given in the case of a notice which is delivered by hand when it is deposited at the appropriate address, in the case of a notice sent by post (to and from destinations within the UK), 3 days after the date on which such notice is posted or 7 days if sent by airmail and in the case of a notice sent by fax when it is despatched (provided that in the case of a notice sent by fax, a confirmation copy shall also be sent by post).
12.1 No variation modification or waiver of any provision of these General Terms within the Agreement shall in any event be of any force or effect, unless the same shall be agreed in writing between the parties and then such variation, modification, waiver or consent shall be effective only on the specific instance and for the purpose and to the extent for which made or given.
12.2 No failure, delay, or indulgence on the part of HCE or the Merchant in exercising any power or right conferred upon such party pursuant to these General Terms shall operate as a waiver of such power or right. Further, no single or partial exercise of any such power or right shall preclude any other or further exercise thereof or the exercise of any other such power or right arising or under the Agreement. Termination of this Agreement or the provision of any Service shall not affect the rights and obligations of either party prior to the termination.
12.3 In the event that any supply by HCE of any Product or Service shall fail fully to comply with the Agreement HCE shall be afforded a reasonable opportunity to correct such failure.
12.4 If any provision hereof shall be held by a court of competent jurisdiction to be invalid or voidable such provision shall be deleted and the remainder thereof shall remain in full force and effect.
12.5 The Merchant shall indemnify and keep HCE indemnified in respect of any claims by third parties which are caused by or arise out of or in connection with any act or omission of HCE carried out pursuant to instructions of the Merchant.
12.6 Clause headings are inserted for ease of reference only and shall be given no effect in the construction of these General Terms.
12.7 These General Terms (if and as varied and/or supplemented from time to time) shall be governed by and construed in accordance with the laws of England and both parties hereby submit to the exclusive jurisdiction of the English Courts.
12.8 HCE is free to provide Services or Products to any other person in relation to any matter covered by this agreement. Nothing in this agreement shall restrict HCE from doing so.
12.9 If the Merchant is more than one person, each person shall be jointly and severally liable under this Agreement.
USE OF YOUR INFORMATION
HCE may use and share your information with third parties (credit reference agencies, our associated companies, our funders and any person to whom we may assign our rights under this Agreement) to help us and them assess financial and insurance risks, recover debt, develop customer relationships, services and systems, prevent and detect crime. Your information includes information about your transactions. From time to time we may change the way we use your Information. Where we believe you may not reasonably expect such a change we shall write to you. If you would like a copy of the information we hold about you please write to us. A fee may be payable.
Credit Reference and fraud prevention agencies
A link between you and anyone with whom you have a joint account or similar financial association will be recorded at credit reference agencies, creating a “financial association”. All parties’ information will be taken into account in future applications until one of you successfully files a “notice of disassociation” at the credit reference agencies.
We may make periodic searches of and provide information (including how you manage your account and any arrears) to credit reference agencies and fraud prevention agencies to manage and make decisions about your account. Such information may be used by other credit providers to take decisions about you and your financial associates.
We and our assignees may send you information about our products or of other organisations which may be of interest to you or pass your information to selected third parties so that they may pass you information about their products or about products of other organisations by post or by telephone. Please tick the following box if you do not wish to receive such information by post or by telephone.
IN WITNESS whereof the parties have by their duly authorised representatives executed this Agreement as at the date first before written.
SIGNED on behalf of HCE and thereby duly authorised: SIGNED on behalf of the MERCHANT and thereby duly authorised:
SIGNATURE: Chandra Patni
FULL NAME: Chandra Patni
SIGNATURE: Signed Digitallyby Merchant when creating the Merchant End User SWIM ID
FULL NAME: Details in SWIM ID Account
POSITION: Director or Proprietor or Sole Trader
SCHEDULE 1 – THE PRODUCTS
SCHEDULE 2 – SERVICE CHARGES
The above initial charges may be made by the following means:
Payment by Direct Debit
(Please complete & sign attached DD Mandate)
Billing will commence at the end of the first calendar day of live operation. The above daily service fee will be collected Net of Merchant Transaction Value.
By creating your SWIM ID during Merchant Service Registration, you have auto-completed the Below Direct Debit Mandate and electronically returned to HCE Service Limited with this digitally Signed Agreement.
HCE Service Ltd, 8 The Drive, New Barnet, Hertfordshire, EN51DZ
Customer Name – [Registered Merchant Name during self-registration of SWIM ID]
Name(s) of Account Holder(s) – [Bank Account name provided during SWIM ID registration]
Bank / Building Society account number (Provided during SWIM ID registration)
Branch Sort Code (Provided during SWIM ID registration)
Name & address of your Bank / Building Society (Provided during SWIM ID registration)
Reference Number (HCE Service Ltd use – SWIM ID Number)
Instruction to your Bank or Building Society to pay by Direct Debit
Originator’s Identification Number
Instruction to your Bank / Building Society
Please pay HCE Service Ltd Direct Debits from the account detailed in this instruction subject to the safeguards assured by the Direct Debit Guarantee.
I understand that this instruction may remain with HCE Service Ltd and, if so, details will be passed electronically to my Bank / Building Society.
Signature: [Digitally signed when registering with SWIM ID]
Banks and Building Societies may not accept Direct Debit Instructions from some types of account.
This guarantee should be detached and retained by the Payer.
The Direct Debit Guarantee
This guarantee is offered by all Bank and Building Societies that take part in the Direct Debit Scheme. The efficiency and security of the Scheme is monitored and protected by your own Bank or Building Society
If the amounts to be paid or the payment dates change HCE Service Ltd will notify you 3 working days in advance of your account being debited or as otherwise agreed.
If an error is made by HCE Service Ltd or your Bank or Building Society, you are guaranteed a full and immediate refund from your branch or the amount paid.
You can cancel a Direct Debit at any time by writing to your Bank or Building Society. Please also send a copy of your letter to us – HCE Service Ltd, 8 The Drive, New Barnet, Hertfordshire, EN5 1DZ.