These terms and conditions are a legal agreement between you (“you” or the “Merchant”) and APEXX Fintech Limited registered in England and Wales under company number 10131902 with its registered office at 5a Underwood Street, London, N1 7LY (“APEXX”) and describe your rights and responsibilities in respect of your use of the Products (“Agreement”).

 

By using the Products, you agree to be bound by the terms and conditions in this Agreement. 

 

If you do not have authority to enter this Agreement on behalf of the Merchant or do not agree to these terms and conditions, you must immediately stop using the Products.

 

AGREED TERMS

 

1. DEFINITIONS & INTERPRETATION

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1.1 The following definitions and rules of interpretation apply in this Agreement:

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APEXX Property

the Products, Documentation or any copies thereof and any and all other technology (including without limitation proprietary platforms, software, code, frameworks), materials, documents, data, know-how, methodologies, systems, programs, templates, tools, or other materials of APEXX, including without limitation any modifications, developments, updates, upgrades, enhancements and/or derivative works thereof, and all Intellectual Property Rights therein and thereto.

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Applicable Laws

all applicable laws, statutes, regulation and codes, governmental guidance and sanctions, from time to time in force (including, without limitation, the PCI-DSS and Data Protection Legislation).

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Appropriate technical measures

as defined in the Data Protection Legislation.

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Authorised Payment

has the meaning set out in clause 7.1.

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Business Day

a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

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Business Hours

means 09:00 - 17:30 UK local time on a Business Day.

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Card Scheme

the payment network linked to a payment card (for example Mastercard, Visa or American Express).

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Card Scheme Rules

the published merchant-facing rules and guidelines or other similar requirements of the relevant Card Schemes, as updated from time to time.

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Commencement Date

the date on which the Merchant starts using the Products.

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Control

shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

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Controller

as defined in the Data Protection Legislation.

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Data Protection Legislation

means all applicable laws relating to the processing of personal data including:

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a) Data Protection Act 2018 and any legislation relating to the processing of personal data effective in the United Kingdom (“UK”) that is intended to replicate or maintain some or all of the provisions, rights and obligations set out in the GDPR in circumstances where the GDPR is no longer applicable in the UK because the UK is no longer a member of the European Union;

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b) EC Directive 2002/58/EC on Privacy and Electronic Communications;

c) EC Regulation 2016/679 (the “GDPR”) on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;

d) all local laws or regulations implementing or supplementing the EU legislation mentioned in (b) and (c) above;

e) codes of practice and guidance issued by national supervisory authorities, regulators or EU or UK institutions relating to the laws, regulations and EU/UK legislation mentioned in (a)-(d) above and applicable to a Party. 

 

Data Subject

as defined in the Data Protection Legislation.

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Documentation

any and all written instructions, guidance and explanatory documentation relating to the Products made available to the Merchant.

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Due Diligence Checks

the know your customer (KYC) and anti-money laundering (AML) checks carried out by Platform Provider in respect of the merchant and the merchant’s affiliates (where applicable).

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End User

means the Merchant’s customer who makes a request to initiate a payment to purchase goods and/or services from the Merchant.

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Force Majeure Event

means any circumstance not within a Party's reasonable control including, without limitation: (i) acts of God, flood, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination or sonic boom; (v) any relevant law or any action taken by a government or public authority that significantly impacts performance under this Agreement; (vi) collapse of buildings, fire, explosion or accident; and (vii) interruption or failure of utility service.

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Hosted Payment Page

a checkout page hosted by APEXX to which an End User who wishes to complete a transaction with the Merchant is redirected to in order to effect a Payment. 

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Initial Term

twelve (12) months from the Commencement Date.

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Intellectual Property Rights

patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

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Model Clauses

set of contractual clauses for data transfers from controllers in the EU to processors established outside the EU or EEA, as adopted by the European Commission decision 2010/87/EU and amended by the European Commission decision 2016/2297.

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Payment

a payment made to the Merchant by an End-User and facilitated or assisted (wholly or in part) by the Product(s).

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Payment Services Partner

means either of:

a) the third-party processors with whom the Merchant may have to contract directly in order to be able to receive and/or make use of the Products (and the associated Payment processing services) under this Agreement; and

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b) the third-party processors and sub-processors with whom APEXX has contracted in connection with its supply of the Products (and the associated Payment processing services) under this Agreement.

 

PCI-DSS

the Payment Card Industry Data Security Standards for transmitting, processing or storing card data/payment details, as administered by the Payment Card Industry Security Standards Council and required to be observed by the Card Scheme Rules, as updated from time to time.

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Personal Data, Personal Data Breach, Processing, Processor

as defined in the Data Protection Legislation.

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Platform

any platform (including without limitation a website) which offers to integrate the Products with its own services, or to support the provision of the Products in connection with the platform.

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Platform Provider

with respect to any Platform, the provider of the Platform.

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Prescribed Payment Data

has the meaning given to it in clause 5.1 and it includes any cardholder data, such as primary account number, cardholder name, expiration date, and any other data classified as cardholder data by the PCI Security Standards Council from time to time.

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Products

means the APEXX gateway and payment solutions platform (and associated information technology systems) which are proprietary to APEXX and to be provided by APEXX as a technical intermediary for the processing of e-commerce payment transactions.

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Restricted Transfer

means a transfer of Personal Data from an entity, who is established in the UK and/or European Union and/or whose processing of Personal Data is caught by the requirements of the GDPR and/or Data Protection Act 2018, to an entity located in a territory outside of the European Economic Area and/or UK not considered by the EU Commission and/or UK Government to offer an adequate level of protection in respect of the processing of personal data pursuant to Article 45(1) of the GDPR. If from 1 January 2021, the UK is not considered by the EU Commission to offer an adequate level of protection in respect of the processing of Personal Data pursuant to Article 45(1) of the GDPR, any transfer of Personal Data from an entity established in the European Union and/or who processing of personal data under this Agreement is caught by the requirements of the GDPR, to an entity located in the UK shall be considered a “Restricted Transfer” unless such entity receiving the personal data is subject to the GDPR in respect of its processing of personal data to which the transfer relates.

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1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

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1.3 Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.

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1.4 This Agreement shall be binding on, and enure to the benefit of, the Parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that Party's personal representatives, successors and permitted assigns.

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1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

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1.6 A reference to writing or written includes email.

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1.7 References to clauses are to the clauses of this Agreement.

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1.8 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

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2. COMMENCEMENT AND DURATION

2.1 This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 14 (Termination) for the Initial Term. At the expiry of the Initial Term, this Agreement will automatically renew for a further twelve (12) months, unless either Party gives the other notice of termination at least ninety (90) days prior to the end of the then relevant term.

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2.2 The Merchant acknowledges and agrees that this Agreement is entered into by APEXX on the condition that the applicable Due Diligence Checks are completed, and it is subject to the Merchant’s continued compliance with the terms of this Agreement and payment of the fees due to APEXX.

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3. USE OF THE PRODUCTS

3.1 APEXX grants the Merchant the right to use the Products, and access them through the Platform Provider Platform, for its own internal business purposes only, subject to and in accordance with this Agreement, the Documentation and/or any instructions APEXX provides to the Merchant.

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3.2 Except as expressly stated herein, the Merchant must not (nor permit any third party or End User to):

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(a) copy, modify, duplicate, create derivative works from, mirror, republish, download, display, transmit, or distribute all or any portion of the Products;

(b) decompile, translate, reverse engineer or otherwise reduce to derive source code, algorithms, tags, specification, architecture, structure or other elements of the Products, in whole or in part;

(c) access all or any part of the Products in order to build a product or service which competes with the Products; or

(d) remove any trade mark, logo, trade name, copyright notice and/or any other proprietary notice (as applicable) from the Products.

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3.3 The Merchant shall co-operate with APEXX in any relevant matters relating to the Products and comply with any instructions issued by APEXX from time to time, including without limitation in respect of security, confidentiality and data protection.

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3.4 The Merchant shall only use the Products to enable Payments to be processed for the Merchant’s own products and/or services. The Merchant must not use the Products to facilitate the payment for products and/or services sold by third parties and therefore may not resell the Products to third parties.

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3.5 The Merchant must not use the Products with the intent to engage in fraud, money laundering, or any other illegal or unlawful activity including without limitation for Payments for the Merchant products and or services where it is illegal to offer or provide those to or from the relevant country.

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3.6 The Merchant acknowledges that APEXX provides the Products and renders all further services under this Agreement to support the provision of payment services by the relevant Payment Services Partner and that APEXX is explicitly not itself deemed a payment service provider (under Applicable Law) but that APEXX is a technical services provider and is so deemed an intermediary for payment processing.

3.7 The Parties acknowledge and agree that the Products (as at the Commencement Date) fall outside the regulatory scope of the Financial Conduct Authority (FCA) and that the provision of the Products and any further services provided by APEXX under this Agreement will not be subject to regulation by the FCA.

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4. PCI-DSS COMPLIANCE BY THE MERCHANT

4.1 The Merchant shall ensure that it is and at all times remains PCI-DSS compliant throughout the term of this Agreement.

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4.2 As part of its PCI-DSS compliance, the Merchant will not under any circumstances copy, capture or intercept payment card numbers, security codes or other payment details, that are entered on the Hosted Payment Page.

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4.3 The Merchant shall:

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(a) ensure it is able to demonstrate its PCI-DSS compliance at all times consistent with the requirements under PCI-DSS based on the Merchant’s card payment processing environment and shall provide reasonable evidence of compliance upon APEXX’s request; and

(b) notify APEXX immediately upon becoming aware of any failure to maintain the Merchant’s PCI-DSS compliance.

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4.4 If, at any time, APEXX becomes aware or suspects that the Merchant is or may not be PCI-DSS compliant, or if the Merchant cannot provide proof of its PCI-DSS compliance on request, APEXX shall be entitled to immediately suspend its provision of the Products and all processing of Payments without notice and without being in breach of its obligations under this Agreement.

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4.5 APEXX shall, under no circumstances be liable for any failure by the Merchant to act in compliance with PCI-DSS and the Merchant shall indemnify APEXX against all liabilities, costs, expenses, damages, and losses suffered or incurred or paid by APEXX (including but not limited to any such liabilities arising in favour of a Payment Services Partner) arising out of or in connection with any such failure (save to the extent that such failure is directly attributable to an act or omission of APEXX in breach of this Agreement).

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5. PAYMENT DATA

The Merchant shall ensure that all data required by APEXX in accordance with the Documentation (the Prescribed Payment Data) for the processing of Payments and provision of the Products shall be submitted to APEXX for each Payment. APEXX may revise the required Prescribed Payment Data from time to time as may be needed to process Payments. The Merchant acknowledges that APEXX shall not be obliged to provide (and may be prevented from) providing the Products and/or processing Payments if any Prescribed Payment Data is missing or has been incorrectly submitted. In the event the Merchant fails to provide the Prescribed Payment Data, APEXX shall be entitled to suspend its provision of the Products and all processing of Payments without notice and without being in breach of its obligations under this Agreement.

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6. ACCESS AND SECURITY

6.1 The Merchant will maintain and procure a high standard of security and safety in respect of its premises and information technology infrastructure as utilised to access the Products. In the event of any actual or suspected breaches of security or unauthorised modifications or access to the Merchant’s technology infrastructure it shall immediately notify APEXX and APEXX shall be entitled to suspend access to the Products.

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6.2 The Merchant must not provide access (including sharing Merchant’s access credentials) to the Products to any third party. The Merchant is responsible for all actions and conduct, including without limitation the actions and conduct of any third parties occurring under the Merchant access credentials. 

 

6.3 The Merchant must take all reasonable steps to protect the security of any personal electronic device through which the Merchant may access the Products from time to time (including, without limitation, by using personal identification number and/or password protected personally configured device functionality to access the Products and by not sharing its device with third parties).

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6.4 The Merchant shall at all times be fully compliant with the Card Scheme Rules. APEXX shall under no circumstances accept any liability for any failure by the Merchant or a Payment Services Partner to act in accordance with the Card Scheme Rules and the Merchant shall indemnify APEXX against all liabilities, costs, expenses, damages and losses suffered or incurred or paid by APEXX to the extent they result from any such failure by the Merchant (save to the extent that such failure is directly attributable to an act or omission of APEXX in breach of this Agreement).

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7. PAYMENT AUTHORISATION

7.1  The Merchant acknowledges that when a Payment is deemed ‘authorised’ by APEXX or within or by any of the Products (an Authorised Payment), the associated payment is not guaranteed by APEXX or any third party or that the Payment will be successfully facilitated by the relevant Payment Services Partner. An Authorised Payment may still fail for reasons including (without limitation):

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(a) it is subsequently deemed (or suspected of being) fraudulent by APEXX, the Payment Services Partner or another relevant third party;

(b)          the credit card or payment method may have expired or be declined;

(c)          insufficient funds; or

(d)          unauthorised use of the credit card or payment method.

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7.2 The Merchant acknowledges and agrees that the risk that an Authorised Payment does not succeed (whether or not for reasons set out at clause 7.1) is a commercial risk that shall be borne entirely by the Merchant.

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8. FEES AND PAYMENT

8.1  In consideration of the provision of the Products, the Merchant shall pay the fees for the Merchant’s use of the Products directly to the Platform Provider, in the manner agreed between the Merchant and the Platform Provider from time to time. 

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8.2 APEXX shall be entitled to suspend access to the Products and all processing of Payments without notice and without being in breach of its obligations under this Agreement in the event that any fees payable by the Merchant are overdue.

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9. INTELLECTUAL PROPERTY RIGHTS

The Merchant acknowledges that all Intellectual Property Rights in the Products and any other APEXX Property made available to the Merchant under the terms of this Agreement belong to APEXX and are licensed (not sold) to the Merchant, and that the Merchant has no rights in, or to, the Products or APEXX Property other than the limited right to use them in accordance with the terms of this Agreement.

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10. DATA PROTECTION

10.1  Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under the Data Protection Legislation.

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10.2 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Merchant is the controller, the Platform Provider is the processor and APEXX is the sub-processor. Appendix 1 sets out the scope, nature and purpose of sub-processing by APEXX, the duration of the sub-processing and the types of personal data and categories of data subject.

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10.3  Without prejudice to the generality of clause 10.1, the Merchant will ensure that it has all necessary consents and notices in place regarding the Platform Provider and APEXX’s processing of Personal Data in connection with this Agreement and to enable lawful transfer of the Personal Data to APEXX for the duration and purposes of this Agreement. The Merchant warrants that any transfer of Personal Data to APEXX is lawful and in compliance with Data Protection Legislation and shall indemnify APEXX against all liabilities, costs, expenses, damages and losses suffered or incurred by the APEXX as a result of any unlawful transfer or non-compliance.  

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10.4 Without prejudice to the generality of clause 10.1, APEXX shall, in relation to any personal data processed in connection with the performance by APEXX of its obligations under this Agreement:

(a) process that personal data only on the documented written instructions of the Merchant unless APEXX is required by Applicable Laws to otherwise process that personal data. Where APEXX is relying on the laws of a member of the European Union or European Union Law as the basis for processing personal data, APEXX shall promptly notify the Merchant of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit APEXX from so notifying the Merchant;

(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Merchant, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;

(d) not transfer any Personal Data outside of the European Economic Area unless the country of destination is a country, territory, specified sector or international organisation subject to a decision of adequacy by the Information Commissioner’s Office or the Party responsible for exporting the Personal Data and the Party responsible for importing Personal Data enter into (or procures that their Sub-Processor enters into) the applicable Model Clauses;

(e) assist the Merchant, at the Merchant's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify the Merchant without undue delay on becoming aware of a personal data breach;

(g) at the written direction of the Merchant, delete or return personal data and copies thereof to the Merchant on termination of the Agreement unless required by Applicable Law to store the personal data; and

(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and allow for audits by the Merchant or the Merchant's designated auditor and immediately inform the Merchant if, in the opinion of APEXX, an instruction infringes the Data Protection Legislation.

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10.5 The Merchant authorises APEXX to process Personal Data in accordance with the Data Protection Legislation in locations outside of the country where the Merchant is located and/or where the data subjects are located for the purposes set out in this Agreement.

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10.6  The Merchant authorises APEXX to use internal and external sub-processors in connection with the provision of the Products. APEXX will require its sub-processors by way of written agreement to comply with Data Protection Legislation and with similar obligations as are imposed on APEXX by this Agreement.

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10.7 The Merchant consents to APEXX appointing such third party processors as notified by APEXX to the Merchant in writing from time to time. APEXX confirms that it has entered or (as the case may be) will enter with each such third party processor a written agreement substantially on that third party's standard terms of business and in either case which APEXX confirms reflect and will continue to reflect the requirements of the Data Protection Legislation.

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10.8  Either Party may, at any time on not less than 30 days' notice, revise this clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

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10.9 The Parties acknowledge and agree that to the extent the transfer of Personal Data from the Merchant to APEXX under this Agreement is considered a Restricted Transfer, the parties shall rely on the Model Clauses to transfer the Personal Data from the Merchant to APEXX.

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11. CONFIDENTIALITY

11.1 Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, End Users, clients or suppliers of the other Party or of any member of the group of companies to which the other Party belongs, except as permitted by clause 11.2.

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11.2 Each Party may disclose the other Party's confidential information:

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(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Party's rights or carrying out its obligations under or in connection with this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party's confidential information comply with this clause 11; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

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11.3 No Party shall use the other Party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

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12. WARRANTIES

12.1  Each Party warrants that:

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(a) it has full power and authority to enter into this Agreement and carry out the actions contemplated under this Agreement and that execution and delivery of this agreement has been duly authorised; and

(b)  its entry into and performance under the terms of this Agreement will not infringe any Applicable Laws, nor Card Scheme Rules and it shall at all times ensure it is fully compliant with Applicable Laws and Card Scheme Rules.

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Disclaimer

Except as otherwise expressly set forth in this Agreement, the Products are provided on an “as is” basis without warranty of any kind and APEXX expressly disclaims all warranties whether express, implied or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non- infringement and any warranties arising out of the course of dealing, usage, or trade. Without limiting the generality of the foregoing, APEXX does not warrant the Products will meet the Merchant’s requirements or that the  Merchant’s use of the Products will be uninterrupted or error-free, or that the Products and/or the information obtained by the Merchant through the Products will meet the requirements of the  Merchant and APEXX is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the  Merchant acknowledges that the Products may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

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13. LIMITATION OF LIABILITY & INDEMNITY

13.1 Nothing in this Agreement limits any liability which cannot be limited under Applicable Laws, including liability for:

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(a) death or personal injury caused by negligence; and

(b)  fraud or fraudulent misrepresentation.

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13.2 APEXX shall only be liable for its own acts and omissions and not for the acts or omissions of third parties, including without limitation, Payment Services Partners and the Platform Provider.

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13.3 Subject to clause 13.1, APEXX's total aggregate liability to the Merchant shall not exceed the lesser of: (i) £2,000 (two thousand pounds sterling); or (ii) the sum of the fees paid or validly payable under this Agreement during the six (6) months immediately preceding the event giving rise to such liability.

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13.4 As the Merchant elects to use a Platform to access the Products, the Merchant acknowledges that APEXX will not be liable to the Merchant in any manner whatsoever, for any losses, costs, fees, charges, liability and/or expenses that the Merchant has incurred or may incur in connection with any failure, non-availability, suspension of or other issue or circumstances affecting the Platform, including without limitation: (i) inability to use, or issues with using the Products; and (ii) failure of or a defect in the security of the Platform.

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13.5  The limitation of liability under this clause 13 includes liability in contract, tort (including negligence), breach of warranty, breach of statutory duty, or otherwise, arising under or in connection with this Agreement (including in respect of any indemnity offered by APEXX hereunder).

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13.6  Subject to clause 13.1, the following types of loss are wholly excluded by the Parties: (a) loss of profits; (b) loss of revenue; (c) loss of actual or anticipated profits; (d) Loss of sales or business; (e) loss of use; (f) loss of use of money; (g) loss of agreements or contracts; (h) loss of anticipated savings; (i) loss of use or corruption of software, data or information; (j) loss of or damage to goodwill; (k) loss of opportunity; (l) Indirect or consequential loss; (m) loss of ex gratia payments; and (n) loss caused by diminution in value of any asset.

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13.7 The Merchant shall indemnify, defend and hold APEXX harmless, from and against any and all liabilities, losses, damages, claims, causes of action and expenses (including reasonable legal fees), whether or not covered by insurance, arising out of or in connection with:

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(a)          APEXX’s use of any materials provided by the Merchant; and/or

(b)          the Merchant’s failure to be fully compliant with the terms of this Agreement and Applicable Laws.

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14. TERMINATION

14.1 Without affecting any other right or remedy available to it, APEXX may terminate this Agreement with immediate effect by giving written notice to the Merchant if:

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(a)  the Merchant commits a material breach of any term of this Agreement and such breach is irremediable or (if such breach is remediable) it fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(b) the Merchant repeatedly breaches any of the terms of this Agreement;

(c) the Merchant ceases to carry on business, or suffers or allows any execution, whether legal or equitable, to be levied on its assets or obtained against it, or goes into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purposes of bona fide reconstruction or amalgamation, or has a receiver, manager, administrator or administrative receiver appointed in respect of all or any of its assets, or is the subject of a court resolution or petition for its winding up, or takes or is subject to any steps (including the making of an application or the giving of any notice) for the appointment of an administrator in respect of the other party, or is subject to any other proceedings or similar action relating to its insolvency or possible insolvency;

(d) any event occurs, or proceeding is taken, with respect to the Merchant in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(c);

(e) there is a change of control of the Merchant; or

(f) APEXX is required by Applicable Law or a regulatory body to cease providing the Products (or any other products or services).

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14.2  Without affecting any right or remedy available to APEXX, this Agreement will automatically terminate if APEXX ceases to provide the Products via the relevant Platform, in which case the Merchant may request to APEXX in writing to directly integrate the Products to the Merchant’s payment portal or platform subject and pursuant to a new agreement being entered into between the Merchant and APEXX.

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15. CONSEQUENCES OF TERMINATION

15.1 On termination or expiry of this Agreement:

(a) all licences granted hereunder shall automatically be revoked;

(b) the Merchant must immediately cease all activities authorised by this Agreement; and

(c) the following clauses shall continue in full force and effect: clause 1 (Definition & Interpretation) clause 9 (Intellectual property rights), clause 11 (Confidentiality), clause 13 (Limitation of liability), clause 15 (Consequences of termination), clause 20.2 (Waiver), clause 20.4 (Severance), clause 20.8 (Governing Law & Jurisdiction) in addition to any other provisions which are expressly or by implication intended to continue or come into force on or after the termination of this Agreement.

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15.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

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16. ANTI BRIBERY

16.1 The Merchant agrees to:

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(a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption (“Relevant Requirements”), including but not limited to the Bribery Act 2010 (“Bribery Act”);

(b) not engage in any activity, practice or conduct outside the UK which would constitute an offence under sections 1, 2 or 6 of the Bribery Act if such activity, practice or conduct had been carried out inside the UK;

(c) maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act, to ensure compliance with the Relevant Requirements and clause 16.1(b) and will enforce them where appropriate; and

(d) promptly report to APEXX any request or demand for any undue financial or other advantage of any kind received by the Merchant in connection with the performance of this Agreement.

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17. FORCE MAJEURE

17.1  Provided it has complied with clause 17.2, if APEXX is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event it shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

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17.2  APEXX shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

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17.3  If the Force Majeure Event prevents, hinders or delays APEXX’s performance of its obligations for a continuous period of more than 6 weeks, the Merchant may terminate this Agreement by giving written notice.

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17.4   If APEXX is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by failure or default on the part of a Payment Services Partner, APEXX shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.

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18. VARIATION

18.1 APEXX may update this Agreement to the extent legally necessary to ensure continuing compliance with Applicable Laws. The Merchant acknowledges that APEXX may make updates arising from legal requirements without Merchant’s specific agreement or consent. 

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18.2  APEXX may also update this Agreement to accommodate changes to the way that its business operates. If any such updates substantially adversely impact Merchant’s rights or Merchant’s ability to use the Products, APEXX will provide Merchant with advance written notice of those changes. By continuing to use the Products following such written notice Merchant will be deemed to have accepted the update. If Merchant does not accept the proposed update, it must immediately cease using the Products and shall notify APEXX in writing provided that such written notice must be received by APEXX within ten (10) days of the date the proposed update is sent to Merchant.

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19. NOTICES

19.1  If APEXX has to contact the Merchant, it will do so by email or by pre-paid first-class post to the address provided to the Platform Provider and Merchant acknowledges and agrees that contact information may be shared on this basis.

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19.2 Any notice to be given to APEXX shall be sent by email to: legal@apexx.global.

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19.3  Any notice shall be deemed to have been received:

(a)          if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b)          if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the Business Day after posting or at the time recorded by the delivery service; and

(c)          if sent by email, at the time of transmission, provided no automated message is received or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 19.3(c), business hours means 9.00am to 5.30pm Monday to Friday on a day that is not a public holiday in the place of receipt.

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20. GENERAL

20.1 Assignment and Other Dealings. The Merchant shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over nor deal in any other manner with any of its rights and obligations under this Agreement, without the prior written consent of APEXX. 

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20.2 Waiver. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

 

20.3 Rights and Remedies. The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

 

20.4 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

 

If any provision or part-provision of this Agreement is deemed deleted under this clause 20.4 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

20.5 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

 

20.6 No Partnership or Agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

 

20.7 Third Party Rights. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other person, including without limitation, the Platform Provider.

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20.8 Governing Law & Jurisdiction. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

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APPENDIX 1 DATA PROCESSING

 

DETAILS OF THE SUB-PROCESSING

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SUB-PROCESSING BY APEXX

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Scope

Provision of Products in accordance with this Agreement.

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Nature

Data sub-processing operations may include (without limitation): collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data.

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Purpose of sub-processing

Provision of Products in accordance with this Agreement.

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Duration of sub-processing

The term of this Agreement.

Types of personal data

a. The Merchant employee data

• Personal details (name, date of birth etc.)

• Contact information (address, email addresses, phone)

• Employment (current role)

 

b. End User data

• Personal details (name, date of birth, marital status, etc.)

• Contact information (address, email addresses, phone)

• Financial information (bank or credit/debit card details)

• Transactional information (purchase history)

• Unique Identifiers (ID number, transaction reference, IP or another online identifier)

• Pseudonymous data

• Anonymous data

• Statistical data and information

• Location data

 

Categories of data subject

• The Merchant employees

• The Merchant End Users

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