THIS IS AN AGREEMENT between Selfserve (UK) Ltd (“Shopcreator / PaymentSense”) and Merchant (“Merchant”, “You”, “Yourself”, “Your”).

RECITALS

Shopcreator / PaymentSense provides software and facilities to enable websites to be created, to enable access to such websites and to enable the goods and services available from such websites to be sold using the Internet.

Merchant sells or wishes to sell goods and/or services over the internet to Customers using the Shopcreator / PaymentSense Service.

DEFINITIONS

“Additional Services” means any software (other than the Software) or other facilities currently available from Shopcreator / PaymentSense for use by Merchant and/or which are in the future to be developed by and/or made available to Merchant by Shopcreator / PaymentSense;

“Charges” means the charges and fees published by Shopcreator / PaymentSense on its website from time to time payable by the Merchant for the provision of the Service and any Additional Services;

“Commencement Date” means the date one (1) month after the Merchant creates a Shopcreator / PaymentSense store or undertakes its first transaction whichever is the sooner;

“Confidential Information” means all knowledge and information relating to the trade, business activities, operations, organisation, finances, processes, dealings, specifications, methods, designs, formulae, computer software and technology of and specifically concerning any of the parties, their customers or suppliers;
“Customer” any customer of the Merchant using the Services;

“Data” means information about corporate entities or individuals who access a website being hosted by Shopcreator / PaymentSense under the terms of this Agreement;

“Intellectual Property” all and any intellectual property rights including without limitation patents, trademarks, service marks, trade names, rights in designs, copyrights, trade secrets and Know-how, whether or not registered, whether or not in existence on the date of this Agreement and including applications for any such right, matter or thing or registration thereof together with any related goodwill;

“Service” means organising and making available to Merchant the necessary hardware, software and network access to the website of Merchant created using the Software;

“Service Level” means providing the Service for 95% of the time in any Year of this Agreement;

“Software” means the software developed by Shopcreator / PaymentSense which enables Merchant to create and operate a website

“Usage” means making the Merchant’s website accessible using the Internet.

“Writing” includes e-mail,  facsimile transmission and comparable means of communication, such communications to be between authorised personnel of both the Agency and Client.

“Year of Agreement” means the twelve (12) months from the Commencement Date of this Agreement and each subsequent consecutive period of twelve (12) months during the term of this Agreement or if shorter the period from the date of this Agreement or an anniversary of that date and the date of termination of this Agreement

AGREEMENT

SERVICE

Shopcreator / PaymentSense will use its reasonable commercial endeavours to provide Merchant with the Service from the Commencement Date until this agreement is terminated and to make such Service available at the agreed Service Level.

Shopcreator / PaymentSense will provide Technical Support via telephone (0845 12 11 400), email (support@Shopcreator / PaymentSense.com) and the Shopcreator / PaymentSense forum. Telephone support is available between the hours of 9am and 5pm Monday to Friday.

Shopcreator / PaymentSense reserves the right to vary the technical specification of the Service provided that such variations do not materially adversely affect the nature or quality of such Service.

Shopcreator / PaymentSense may from time to time suspend provision of the Service to enable the repair, maintenance, or improvement of such Service. In doing so, Shopcreator / PaymentSense will use its reasonable endeavours to cause the minimum disruption. Any such suspension will not count as time in any Year of this Agreement during which the Service are not available when calculating whether or not Shopcreator / PaymentSense has met the Service Level in any Year of this Agreement.

Shopcreator / PaymentSense will provide the Service with reasonable care.

Shopcreator / PaymentSense may include a hyper link from its own website to Merchant’s website.

Shopcreator / PaymentSense is entitled to amend at any time in its absolute discretion the Services, the terms of this Agreement, the Fees charged for the service and  Policies by posting the same on its Website in amended form or in writing to the Merchant with a note of the date on which the relevant document was last amended and the date when such amendment shall take effect

Shopcreator / PaymentSense does not make any representations express or implied about the suitability of the Services for Your business.

USER LICENCE

Merchant has the non-exclusive non-transferable right to access and use the Service and in particular the Software and/or the Additional Services from the Commencement Date to the date this Agreement is terminated.

The licence hereby granted and the Merchant’s rights to use the Software are subject to the following restrictions:-

• the Software shall be used only by the Merchant for the purposes of  this Agreement and in relation to the Merchant’s Website;
• the Merchant shall not assign sub-licence charge or otherwise dispose of or grant rights over the licence hereby granted or the Software and shall not attempt to do any such thing, without the prior written consent of Shopcreator / PaymentSense;
• the Merchant shall not attempt to ascertain or list the source programs or source code relating to the Software;
• the Merchant shall not decompile or translate the Software into any other computer language or attempt to do so;

After the termination of this Agreement, Merchant shall not have any right to use the Service or any part of thereof.

MERCHANT RESPONSIBILITIES

Merchant will at its own expense supply Shopcreator / PaymentSense with all necessary documents and/or other materials and all necessary data or other information as may be reasonably requested by Shopcreator / PaymentSense to enable the Service to be made available.

Merchant will do all such things as Shopcreator / PaymentSense may reasonably request to enable Shopcreator / PaymentSense to make the Service available.

• Merchant will not use the Service to receive, store, transmit, allow access to or otherwise communicate, or reproduce any material which in the reasonable opinion of Shopcreator / PaymentSense is illegal, unlawful, or in breach of applicable regulations or any recognised industry standards and/or codes of conduct. Such materials include, by way of illustration, and not by way of limitation:
• offensive, abusive, indecent, obscene, pornographic, defamatory, menacing or violent material the publication of which would be in breach of confidence and/or privacy;
• whose publication would be an infringement of copyright, trademarks or any other Intellectual Property rights of any person.

Shopcreator / PaymentSense may forthwith cease either temporarily or permanently providing the Service if Shopcreator / PaymentSense in its sole discretion considers with any material on Your website as in breach of this clause

Merchant agrees to display the Shopcreator / PaymentSense Logo and any associated text on its Website in which the Services are used and further agrees and undertakes to incorporate a hypertext link to the appropriate Shopcreator / PaymentSense Website page (Shopcreator / PaymentSense will provide the Merchant details of the relevant Website page).  Any link on the Merchant’s Website t o Shopcreator / PaymentSense’s Website will be in the form agreed between the parties.  The Merchant further agrees and undertakes to amend the Shopcreator / PaymentSense Logo, any associated text, and hypertext link within 28 days of a written request from Shopcreator / PaymentSense;

 

FAULT RESOLUTION

In the event that a defect, fault or impairment in the Services causes a Service Interruption and the Merchant gives notification of the relevant Service Interruption to Shopcreator / PaymentSense within 48 hours of such Service Interruption then Shopcreator / PaymentSense shall use its reasonable endeavours to resolve the cause of such Service Interruption.

If Shopcreator / PaymentSense determines in its reasonable opinion that such Service Interruption resulted directly or indirectly from:

• the negligence, act, omission or default of the Merchant;
• the Merchant’s breach of this Agreement;
• the operation failure or malfunction of any non Shopcreator / PaymentSense software, hardware or network equipment under lease or controlled by the Merchant;
• any Third Party action in response to an act or omission of the Merchant or any person given access to the Services by the Merchant; and/or
• failure to provide services by any Third Party

then Shopcreator / PaymentSense may recover in advance from Merchant all reasonable costs incurred by it or on its behalf in connection with the remedy of such Service Interruption.

 

INVOICING AND PAYMENT OF THE CHARGES

The Merchant agrees to put in place an automated billing mandate in order to allow Shopcreator / PaymentSense to debit the money directly from the Merchant’s account in accordance with the relevant regulations.  The Merchant agrees to keep such mandate in place until termination of this Agreement and all monies due to Shopcreator / PaymentSense have been paid in full.

Unless agreed in Writing with Shopcreator / PaymentSense, Charges for the Service will be applied in accordance with the schedule of fees and charges listed on the Shopcreator / PaymentSense website.

When payment of any invoice or direct debit is overdue, Shopcreator / PaymentSense may:

• suspend performance of the Services and/or terminate this Agreement at its discretion and;
• charge and recover interest from the Merchant on the sum of the outstanding invoice or direct debit calculated at a compound rate of two per cent per month from the due date until the date of full payment; and
• charge a reconnection fee of £50 plus VAT to resume the Service.

If Shopcreator / PaymentSense is forced to take action against the Merchant to recover overdue payments, the Merchant shall be responsible for all costs and disbursements incurred by Shopcreator / PaymentSense on a full indemnity basis.

 

TRADE MARKS

Merchant will only use the registered trade mark SHOPCREATOR / PAYMENTSENSE and/or any other trade mark of Shopcreator / PaymentSense as part of the Service. You have no right and will acquire no right to use such trademarks other than as made available by Shopcreator / PaymentSense as part of the Service. All use of such trade marks by You will be for the benefit of Shopcreator / PaymentSense and the goodwill arising from the use of such trademarks will accrue to and belong to Shopcreator / PaymentSense and will be assigned to Shopcreator / PaymentSense at its request at any time whether during or after the term of this Agreement.

The Merchant hereby grants to Shopcreator / PaymentSense a non exclusive royalty free licence to use, display and reproduce the trade marks, service mark and logos of the Merchant solely in connection with Shopcreator / PaymentSense’s marketing of its services.

 

DATA PROTECTION AND PRIVACY

Shopcreator / PaymentSense provides the Service in virtual shopping malls. This has a number of benefits for all users of the Service..

Merchant acknowledges that one of those benefits is that Shopcreator / PaymentSense collects and organises the Data about persons accessing websites for which Shopcreator / PaymentSense provides Service. You agree that this Data is the property of Shopcreator / PaymentSense which owns all the Intellectual Property and other rights in and relating to it.

Merchant agrees to include on its website the data protection and privacy statements provided by Shopcreator / PaymentSense from time to time and relevant information about Merchant required in such statements as a condition of Shopcreator / PaymentSense providing the Service in respect of its website. Such statements form part of the facilities provided by Shopcreator / PaymentSense to enable websites to be created by Merchant and are also available from Shopcreator / PaymentSense on request.

 

CONFIDENTIALITY

Each of the parties hereto undertakes to the other to keep confidential all Confidential Information (written or oral) that it shall have obtained or received as a result of the discussions leading up to or during the Term of this agreement save that which is:

• trivial or obvious;
• already in its possession other than as a result of a breach of this clause; or
• in the public domain other than as a result of a breach of this clause

Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 0 above by its employees agents and sub-contractors.

 

LIMITATION OF LIABILITY

The following provisions set out Shopcreator / PaymentSense’s entire liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Merchant in respect of:

• any breach of its contractual obligations arising under this agreement; and
• any representation statement or tortuous act or omission including negligence arising under or in connection with this agreement (“Events of Default”)

Shopcreator / PaymentSense’s liability to the Merchant for death or injury resulting from its own negligence or that of its employees” agents” or sub-contractors” negligence shall not be limited.

Shopcreator / PaymentSense’s entire liability in respect of any Event of Default shall be limited to damages of an amount the fees paid in the three months preceding the Event of Default.Under no circumstances shall Shopcreator / PaymentSense be liable to Merchant in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Merchant as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Shopcreator / PaymentSense had been advised of the possibility of the Merchant incurring the same.

If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement

Merchant hereby agrees to afford Shopcreator / PaymentSense not less than 30 days (following notification thereof by the Merchant) in which to remedy any Event of Default hereunder. Except in the case of an Event of Default arising under clause 0 above Shopcreator / PaymentSense shall have no liability to Merchant in respect of any Event of Default unless Merchant shall have served notice of the same upon Shopcreator / PaymentSense within 1 month of the date it became aware of the circumstances giving rise to the Event of Default. Nothing in this clause shall confer any right or remedy upon Merchant to which it would not otherwise be legally entitled.

 

NOTICES

Any notice request instruction or other document to be given hereunder shall be in Writing to the address or e-mail address of the other party.

Merchant will notify in Writing to Shopcreator / PaymentSense on or before the Commencement Date the identity of the person(s) who shall act as the sole contact point and channe l of communication for the provision by Shopcreator / PaymentSense of the Service. Merchant will inform Shopcreator / PaymentSense of any change in the identity of any such person.

 

ENTIRE AGREEMENT

Shopcreator / PaymentSense shall not be liable to Merchant for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this agreement other than those representations agreements statements or undertakings confirmed by a duly authorised representative of Shopcreator / PaymentSense in Writing or expressly incorporated or referred to in this agreement.

 

ASSIGNMENT AND SUB-LICENSING

Merchant shall not be entitled to assign or otherwise transfer this agreement nor any of its rights or obligations hereunder without the prior written consent of Shopcreator / PaymentSense.

Shopcreator / PaymentSense reserves the right to fulfil any of its duties and powers under this Agreement by using agents and sub-contractors.

 

INDEMNITY

The Merchant agrees and undertakes to fully indemnify and keep indemnified Shopcreator / PaymentSense from and against all losses, actions, costs, claims, demands and proceedings and all expenses including reasonable legal expenses incurred by Shopcreator / PaymentSense arising directly or indirectly from or relating to any:

• transaction between the Merchant and its Customer; and/or
• the Merchant’s breach and non-observance of this Agreement arising out of any action which may be brought as a result of any failure to perform any obligations; and/or
• breach of any procedures and instructions resulting in additional work for Shopcreator / PaymentSense;

Merchant agrees to take reasonable steps to assist Shopcreator / PaymentSense in handling a claim or alleged claim by a Customer against Shopcreator / PaymentSense.  Shopcreator / PaymentSense shall have complete discretion whether or not to defend any such claim or alleged claim or to negotiate any settlement with the Customer which settlement shall be binding on the Merchant.

The Merchant agrees that Shopcreator / PaymentSense shall be entitled in its entire discretion to accept, dispute, compromise or otherwise deal with any claim, alleged claim, loss or liability, which is made against it.

 

FORCE MAJEURE

Neither party hereto shall be liable for any breach of its obligations hereunder other than any obligation to pay any money resulting from causes beyond its reasonable control including but not limited to fires strikes (of its own or other employees) insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an ‘Event of Force Majeure’).

Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.

 

WAIVER

The waiver by either party of a breach or default of any of the provisions of this agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

 

VAT

All sums due under this Agreement are exclusive of any Value Added Tax which will be payable in addition on the rendering by Shopcreator / PaymentSense of any appropriate Value Added Tax invoice.

 

LAW

This agreement shall be governed by and construed in accordance with English law.

 

DISPUTE RESOLUTION

In the event of any dispute or difference arising between the parties in connection with this Agreement, senior representatives of the parties shall, within 30 days of a written request from either party to the other addressed in respect of Shopcreator / PaymentSense to the Customer Services Manager meet in a good faith in London in an effort to resolve the dispute without recourse to legal proceedings.

If the dispute or difference is not resolved as a result of such meeting, either party may (at such meeting or within 14 days from its conclusion) propose to the other in Writing that structured negotiations be entered into in London with the assistance of a neutral advisor and mediator (“Neutral Advisor”)

If the parties are unable to agree on a Neutral Advisor or if the Neutral Advisor agreed upon is unable or unwilling to act, either party shall within 14 days from the date of the proposal to appoint a Neutral Advisor or within 14 days of notice to either party that he or she is unable or unwilling to act, apply to the Centre for Dispute Resolution (“CEDR”) of 70 Fleet Street, London, EC4Y 1EU to appoint a Neutral Advisor.

 

DURATION OF AGREEMENT

This agreement shall continue until terminated.

 

TERMINATION

This agreement may be terminated:

 

After the first Year of Agreement by Merchant or Shopcreator / PaymentSense upon giving not less than one (1) month’s notice to Shopcreator / PaymentSense;

forthwith by Shopcreator / PaymentSense if Merchant fails to pay any of the Charges on the due date therefore;

• forthwith by either party if the other commits any material breach of any term of this agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 7 days of a written request to remedy the same;
• forthwith by Shopcreator / PaymentSense if Merchant shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of a solvent amalgamation or reconstruction).

Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

Copyright © 2011 PaymentSense Ltd. All rights reserved. PaymentSense, acting as an agent of FDR Limited, doing business as First Data Merchant Solutions, is registered with MasterCard / Visa as an Independent Sales Organisation and Member Service Provider of Bank of Scotland