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General Terms and Conditions of ClickandBuy International Limited: Transaction system, Subscription, Sessionmanagement, Easy Collect TMI, Event Messaging Service
1. PROVISION OF THE SERVICE
1.1 ClickandBuy will provide the Merchant with the Service on the terms of this Agreement from the Effective Date.
1.2 The following clauses of this Agreement shall only apply to Merchants that are individual consumers, charities or Micro Enterprises:
(a) Clause 9.5(b) and (c) (relating to liability); and
(b) Clause 9.6 through to and including Clause 9.9 (relating to liability)
1.3 If the Merchant is not an individual consumer, charity or Micro-Enterprise, the time-period referred to in Clause 9.5 shall be one month, not thirteen months.
1.4 ClickandBuy will provide the Service with the reasonable skill and care of a competent provider of such services.
1.5 Before the Service can be provided, the process detailed in the Technical Documentation must be followed to establish and test the system integration between ClickandBuy and the Merchant’s Website. An updated version of the Technical Documentation can be obtained at any time from the ClickandBuy portal.
1.6 ClickandBuy will use all reasonable endeavours to correct any repor-ted technical faults in the Service as soon as reasonably practicable. However, ClickandBuy does not give any guarantees as to performance of the Service or any undertakings that the Service will be free of faults.
1.7 Occasionally ClickandBuy may:
(a) for operational reasons, update the technical specification of the Service; or
(b) require the Merchant to follow instructions which it believes are necessary for reasons of security or quality, provided that an update or requirement that represents a change to the terms of this Agreement shall be communicated in accordance with Clause 14.
1.8 ClickandBuy may suspend the Service for operational reasons such as maintenance, or because of an emergency. ClickandBuy will restore the suspended Service as soon as reasonably practicable. The Merchant is responsible for taking back-ups of pricing and other data prior to any suspension or maintenance work and for restoring any such data lost as a result of such suspension or maintenance work.
1.9 The language of this Agreement is English and any notifications or information to be given in connection with the Agreement shall be provided in English. If a document is translated into another language both parties agree that this is done for their own benefit and if there are any discrepancies between the translated version and the English language version the text of the English language version shall prevail.
1.10 All End User Details are and shall remain the property of ClickandBuy and will not be disclosed to the Merchant except as necessary pursuant to Clause 2.12. However, the Merchant will be provided with anonymous data in accordance with the Data Protection Act 1998.
1.11 ClickandBuy will use reasonable endeavours to provide the Service by any date agreed with the Merchant but all dates are estimates.
1.12 At the Merchant's request during the continuation of this Agreement ClickandBuy shall provide to the Merchant a copy of this Agreement and certain supporting information about the Service that ClickandBuy is required under the Payment Services Regulations to make available to the Merchant .
2. COLLECTION OF OFFER CHARGES DUE TO MERCHANTS
2.1 ClickandBuy will issue the Merchant with a ClickandBuy Account upon the Merchant entering into this Agreement. The Merchant will be forwarded all Offer Charges collected from End Users in the currency of the Merchant’s ClickandBuy Account in accordance with the Payment Order set out in Clause 2.7 of this Agreement, as offset in accordance with Clause 2.6 against ClickandBuy’s Charges. Detailed information on every transaction made by End Users may at any time be obtained in the ClickandBuy Service Area.
2.2 Changes to existing Offers or the addition of new Offers must be managed by the Merchant in accordance with the process set out in the Technical Documentation.
2.3 The Merchant agrees to pay, without any set-off, restriction, condition, withholding or deduction, all Charges in accordance with this Agreement and as set out in Schedule 2 of this Agreement.
2.4 Once the Agreement has begun, ClickandBuy will invoice the Set-Up Fee in accordance with Schedule 2, and the Merchant will make payment within 14 days of the date of ClickandBuy’s invoice.
2.5 Offer Charges will, unless otherwise agreed, be payable in accordance with Clauses 2.6 and 2.7 below.
2.6 ClickandBuy will, in accordance with the Payment Order set out in Clause 2.7, disburse all sums due and will provide the Merchant with the following information relating to the previous Billing Period:
(a) the Offer Charges paid by the End User, as well as all sums successfully retrieved from the End User in accordance with Clause 2.12 below;
(b) the Charges payable to ClickandBuy;
(c) any applicable VAT and any other taxes or duties payable by ClickandBuy on behalf of the Merchant in relation to the Service;
(d) any irrecoverable or cancelled amounts in accordance with Clauses 2.9 and 2.11 below;
(e) the amount which ClickandBuy proposes to retain in accordance with Clauses 2.9, 2.10 and 5.4 below; and
(f) the amount which ClickandBuy will forward to the Merchant in accordance with Clause 2.7 below, namely the amount stated in accordance with Clause 2.6(a) above less those stated in accordance with Clause 2.6(b) to (e) inclusive.
2.7 The Merchant requests and consents to ClickandBuy paying on the Payment Date from the Merchant’s ClickandBuy Account to a bank account nominated by the Merchant the sums due to the Merchant as calculated in accordance with Clause 2.6 (f) above. This Payment Order will be deemed as having been received on the Payment Date. The Merchant will not otherwise have rights to make withdrawals from its ClickandBuy Account. In the event that the calculation set out above results in a balance in favour of ClickandBuy, the Merchant agrees that any such sum is due to ClickandBuy and that ClickandBuy may deduct such sum from the balance of the Merchant’s ClickandBuy Account. Where the balance of the Merchant’s ClickandBuy Account is insufficient to cover the amount due, ClickandBuy may debit the amount of the shortfall using the payment details set up in accordance with Clause 2.8 below.
2.8 The Merchant will complete a Direct Debit Instruction to allow ClickandBuy to debit Charges and other sums due under this Agreement. In case a Direct Debit Instruction can not be given the Merchant agrees to provide valid Credit Card details and hereby authorizes ClickandBuy to debit Charges and other sums due under this agreement from this alternate payment method.
2.9 ClickandBuy will be entitled to retain for up to twelve (12) Months beyond the relevant Payment Date, Offer Charges which have been attributed to the Merchant and billed to an End User, but for whatever reason were not paid by the End User or the Merchant Acquirer. ClickandBuy may subsequently recover from these retained Offer Charges any Offer Charge that ClickandBuy is unable to collect from an End User.
2.10 ClickandBuy will be entitled to retain an amount of the Offer Charges which are attributable to the Merchant in any one Billing Period, at the end of each relevant Billing Period, to cover any liability to End Users or other parties having a legitimate claim. Retentions made by ClickandBuy pursuant to this Clause 2.10 will be determined by individual risk assessment and kept for up to six (6) weeks or as otherwise defined in Schedule 2 and will be refunded to the Merchant upon expiry of the agreed period of time net of any outstanding liabilities to End Users or other parties, except where either party terminates the Agreement. In this case ClickandBuy will retain the sum calculated in accordance with Clause 13 to cover liability to End Users or other parties having a legitimate claim. The Merchant shall not be entitled to any interest on such retained amounts.
2.11 Subject to Clause 9, in the event that ClickandBuy identifies a transaction as being fraudulent or caused through unauthorised use of a ClickandBuy Account, or where the End User contacts ClickandBuy and rejects goods offered or services rendered by the Merchant for being insufficient, incorrect or defective, ClickandBuy may, following reasonable attempts to resolve any End User dispute with the Merchant, cancel the transaction and refrain from paying any connected Offer Charges to the Merchant and may refund the End User’s ClickandBuy account with the amount of the fraudulent, unauthorised or rejected transaction. In such cases, the Merchant acknowledges and accepts that no sums will be forwarded to it by ClickandBuy in respect of the disputed amount.
2.12 If ClickandBuy is not able to retrieve Offer Charges owed by an End User, despite taking reasonable steps to pursue these Offer Charges, ClickandBuy may terminate the contract with the relevant End User. The Merchant acknowledges and accepts that ClickandBuy may, at ClickandBuy's expense, instruct a third party collection entity in this regard. Alternatively, the Merchant may, upon request, collect the Offer Charges himself. In this case, ClickandBuy will provide the Merchant with details of the uncollected Offer Charges and the End Users contact details, and the Merchant will assume responsibility for pursuing the debt further. ClickandBuy will have no liability to the Merchant in respect of any such uncollected Offer Charge.
2.13 The Merchant Commission charged by ClickandBuy according to Schedule 2 of this Agreement shall be due in respect of all Offer Charges that are credited to the Merchant's ClickandBuy Account, whether or not monies can subsequently be retrieved from the End User, whether the End User disputes the amount, or whether the amount will be refunded to the End User.
2.14 Each transaction made by an End User using their ClickandBuy Account may be checked by the ClickandBuy Fraud Server. This may lead to other designated means of fraud protection or to rejection of the transaction. If the transaction is rejected, the Merchant may not receive the Offer Charges into its ClickandBuy Account, and will therefore not incur a ClickandBuy commission charge.
2.15 The Merchant shall not be entitled to interest on the balance of monies collected by ClickandBuy that is stored in the Merchant's ClickandBuy Account.
3.1 The Merchant is responsible for the security and proper use of its user names, passwords, and security check words and other details used in connection with the Service including any reasonable security precautions notified to it by ClickandBuy pursuant to Clause 1.7 (b), and must take all reasonable steps to ensure that they are implemented, kept confidential, used properly and not disclosed to unauthorised people or used in an unauthorised way. The Merchant will take all reaso-nable steps to keep access to, and the security features of, the Service safe and to prevent unauthorised use of the Service by any party.
3.2 The Merchant must notify ClickandBuy without any undue delay as soon as it is aware that there may have been unauthorised use of the Service or where any security feature has been breached or compromised. Such notification should be given by contacting the 24/7 Customer Care Team, who’s contact details can be found on the ClickandBuy Website at www.clickandbuy.com. Furthermore, the Merchant must promptly change its passwords and security check words if there is any reason to believe that a password or security check words have or are likely to become known to someone not authorised to use them or are being or are likely to be used in an unauthorised way.
3.3 Where the Merchant has provided notification to ClickandBuy under Clause 3.2 ClickandBuy will suspend the Service.
3.4 ClickandBuy reserves the right to immediately suspend the Service at any time if ClickandBuy on reasonable grounds:
(a) considers that there is or is likely to be a breach of security in relation to the Merchant’s use of the Service
(b) suspects unauthorised or fraudulent use of the Service; or
(c) rejects a transaction pursuant to Clause 2.14 (in which case ClickandBuy's right to suspend the Service shall only apply in respect of that transaction). Where ClickandBuy exercises its right under this Clause 3.4 to suspend the Service, ClickandBuy will inform the Merchant beforehand and give reasons for so acting. If ClickandBuy is unable to notify the Merchant beforehand, it will do so as soon as it can afterwards. In either case ClickandBuy shall not be required to provide a notification where to do so would in ClickandBuy’s opinion compromise reasonable security measures or be unlawful.
3.5 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s details which the Merchant supplied when registering for the Services.
3.6 The Merchant undertakes not to use or install any software supplied by ClickandBuy in connection with the Service on any public access computer.
3.7 The Merchant acknowledges that any unencrypted data made available to ClickandBuy, via email or other means of communication, may be obtained by unauthorized third persons, and that ClickandBuy is not able to prevent this by technical means. Therefore, ClickandBuy has no obligation to take any measures to ensure the security or protection of any unencrypted data provided by the Merchant to ClickandBuy, and it is the sole responsibility of the Merchant to take any such measures.
4. MERCHANT’S USE OF THE SERVICE
4.1 The Merchant warrants and undertakes to comply with and ensure all Offers comply with all applicable laws, rules and regulations (including Codes of Practice and such guidelines as may be issued by regulatory authorities) of whatever jurisdiction relating to its activities, Merchant Website and the Offers and all commercial activities conducted on or via the Merchant Website including (without limitation) taxation, foreign exchange, currency and customs requirements and all advertising, consumer protection, product liability, data protection and privacy laws, or any laws relating to the protection of children or young persons, and all laws relating to lotteries, gambling, betting, gaming or similar activities.
4.2 The Merchant is and shall remain responsible for the creation, maintenance, design and control of all Offers. The Merchant warrants that the Offers will be consistent with the description appearing on the Merchant Website and of satisfactory quality (and, where the Offer consists of services, supplied with reasonable skill and care and in accordance with good industry practice).
4.3 The Merchant will use all reasonable endeavours to ensure that the Offers are and remain available for use with the Service. The Merchant shall immediately notify ClickandBuy of any recognisable faults or malfunctions in relation to the Offers or the Merchant’s Website.
4.4 The Merchant shall not charge End Users any additional fee or charge for purchasing Offers using the ClickandBuy Service without first notifying ClickandBuy and providing details at least 10 Business Days in advance of implementing such a charge. The Merchant is under an obligation pursuant to the Payment Services Regulations to inform End Users if it proposes to charge an additional or differential fee where Offers are paid for using the ClickandBuy Service.
4.5 The Merchant shall ensure that neither the Offers nor the Merchant’s Website contain any viruses or other faults liable to interfere with the Service or any software provided by ClickandBuy in connection with the Service or to affect any other ClickandBuy customers or end users.
4.6 The Service must not be used:
(a) fraudulently or in connection with a criminal offence;
(b) in an unlawful manner or in contravention of any applicable legislation, licence agreements and/or the ClickandBuy Acceptance Policy clickandbuy.com/UK/en/about/acceptancepolicy.html;
(c) in any way that does not comply with any instructions given under Clause 1.7 (b);
(d) to advertise, promote, sell or offer for sale, send or provide unlawful or unsolicited advertising or promotional material; or
(e) to attempt to use the Service for tampering, ‘hacking’, modifying or otherwise corrupting the security or functionality of the Service, and the Merchant must ensure that this does not happen. ClickandBuy may at any time suspend the Service immediately on notice, if the Merchant uses the Service in a way that is not permitted under this Clause 4.6.
4.7 The Merchant must ensure that its registered legal name, postal address, electronic mail address and telephone number are included in clear and legible form on all Merchant Websites for the receipt of any enquiries or complaints that may arise in relation to the Merchant or any Offer, and the Merchant shall respond to any such enquiries or complaints in a professional, prompt, and diligent manner. ClickandBuy reserves the right to disclose to any person with an enquiry or complaint about an Offer the Merchant’s contact name, telephone number, address and electronic mail address if such person cannot locate these details on the Merchant Website and the Merchant must supply such details to ClickandBuy on acceptance of this Agreement and immediately inform ClickandBuy of any changes to these details.
4.8 The Merchant will use the ClickandBuy brand, the ClickandBuy logos and the logos of any applicable service, method or instrument in the manner described in the Technical Documentation as amended from time to time. An updated version of the Technical Documentation can be obtained at any time from the ClickandBuy Service Area.
4.9 The Merchant must ensure that the Offer Charges are accurate in all respects and are not misleading, and that the prices clearly specify all applicable taxes, duties and delivery charges (of whatever nature and for whatever jurisdiction).
4.10 The Service is provided solely for the Merchant’s own use and the Merchant must not resell or attempt to resell the Service (or any part or facility of it) to any third party.
4.11 The Merchant shall make clear to End Users that an agreement for Offers purchased through ClickandBuy's provision of the Service will be an agreement between the Merchant and the End User and the Merchant will make clear to the End User that ClickandBuy shall not be liable for any loss or damage arising out of such contract.
4.12 The Merchant shall ensure that neither an Offer nor the Merchant Website shall infringe any third party rights (including, but not limited to, defamation and all and any intellectual property rights). The Merchant shall indemnify ClickandBuy on demand against any loss suffered or incurred by ClickandBuy from time to time arising out of or in connection with any breach or purported breach of any provision of Clause 3 and this Clause 4.
4.13 When requested to do so by ClickandBuy, the Merchant must provide to ClickandBuy all information available to it regarding transactions, and parties to those transactions, as needed by ClickandBuy for the prevention or deterrence of crime, and to meet its legal obligations and risk management objectives in relation to money laundering, terrorist financing, fraud or any other undisclosed unlawful activities in connection with the Service. The Merchant should keep any such requests and any further action taken by ClickandBuy in respect of those requests, confidential. ClickandBuy may, where it considers appropriate pass on any information received from the Merchant to the relevant law enforcement agency.
4.14 In the event that the nature of the Merchant’s business activity changes significantly, then the Merchant will inform ClickandBuy promptly of the change.
5. PAYMENT TRANSACTIONS
5.1 The Merchant may only use their ClickandBuy Account to:
(a) receive Offer Charges from End Users;
(b) pay refunds, reimbursements or any other entitlements or sums due to End Users and relating to purchases made by them using the ClickandBuy Service; and
(c) initiate payment of sums due from the Merchant’s ClickandBuy account to the Merchant in accordance with Clause 2.7.
5.2 In order to enable ClickandBuy to process a payment on the Merchant’s order, the Merchant must give consent to the execution of a payment transaction for it to be authorised. The Merchant agrees that by submitting an electronic web services instruction from its own servers to ClickandBuy’s servers, or by uploading a bulk transaction CSV file and clicking the Send button, or by their clicking of the Credit, Charge or Cancel buttons at the time of the transaction when using the Transaction Manager web interface, it confirms that it consents for the payment transaction to be processed and for the relevant fees to be charged.
5.3 In requesting a Payment Order the Merchant must provide to ClickandBuy the Unique Identifier and any other details ClickandBuy asks the Merchant for such as the intended recipient’s name, so ClickandBuy can make the payment. ClickandBuy may rely on and act in accordance with a Unique Identifier provided to it by the Merchant and a Payment Order executed in accordance with a Unique Identifier is deemed to have been correctly executed in terms of making the payment to the payment account specified by the Unique Identifier. Notwithstanding that the Merchant may provide ClickandBuy with information additional to the Unique Identifier, ClickandBuy shall only be liable to execute Payment Orders in accordance with the Unique Identifier provided by the Merchant.
5.4 Should a Payment Order supplied by the Merchant relate to an End User who has not yet registered for a ClickandBuy account, the value of the Payment Order will be allocated within the Merchant’s ClickandBuy account for a period of time not exceeding 30 days. In this case, the Unique Identifier in respect of that End User will be the email address for that End User provided by the Merchant and the End User will receive an email from ClickandBuy inviting them to open a ClickandBuy account and providing instructions explaining how to proceed. If the End User does not follow the instructions and accept the transfer of funds from the Merchant within the time limit above, the allocation will be automatically cancelled, such funds will cease to be allocated to the End User and will be available again to the Merchant on their ClickandBuy account. In these circumstances the Payment Order from the Merchant in respect of that End User will not be treated as having been consented to or received until sufficient information is available to allow the funds to be transferred out of the Merchant’s ClickandBuy Account to the End User's ClickandBuy Account.
5.6 For the purposes of this Agreement the point of receipt by ClickandBuy of a Payment Order from the Merchant is the time at which consent is provided as per Clause 2.7 or 5.2.
5.7 Subject to Clause 5.8, ClickandBuy will credit a Payment Order initiated by the Merchant as payer to the payee's payment services provider (which in respect of an End User will be ClickandBuy) within the next three Business Days following the day on which ClickandBuy receives the Payment Order from the Merchant. Where a Payment Order is initiated by or through the Merchant as payee, ClickandBuy will transmit the Payment Order to the payer's payment services provider within three Business Days. ClickandBuy shall in practice within the ClickandBuy system endeavour to credit the Offer Charges paid by End Users to the Merchant’s ClickandBuy Account and payments to be made from Merchant’s ClickandBuy Account to End User's ClickandBuy Accounts immediately following receipt of the relevant Payment Order from the Merchant or End User.
5.8 Where a Payment Order does not relate to a payment in relation to which the payment service provider of both the payer and payee are located within the EEA and the payment transaction is to be carried out in Euro or where an EEA State has not yet adopted the Euro the currency of that EEA State, ClickandBuy shall endeavour to transfer the relevant funds to the relevant payment service provider within the next three (3) Business Days of receiving the Payment Order, but can not guarantee that it will do so. In these same circumstances ClickandBuy will however, in respect of such a payment being transferred to ClickandBuy: (i) credit the funds to the Merchant's ClickandBuy Account on the same Business Day on which the funds are received by ClickandBuy; and (ii) ensure that the funds so credited are then available for use by the Merchant for the purposes set out in Clause 5.1.
5.9 The Merchant will not be able to revoke Payment Orders once received by ClickandBuy. Should a Merchant need to revoke a Payment Order that ClickandBuy has received, it can contact ClickandBuy and ClickandBuy will use reasonable efforts to stop the order, but cannot guarantee it will be able to do so and ClickandBuy will not be able to revoke an order which has been acted on. If a Merchant revokes the regular Payment Order set out in Clause 2.7 (which under the Payment Services Regulations it is entitled to do up until the end of the Business Day before the Payment Date) ClickandBuy shall be entitled to suspend or terminate the Service.
5.10 ClickandBuy may on request make available a currency conversion service to the Merchant enabling it to make Offers in different currencies. For each such converted Offer the multicurrency conversion fee set out in Schedule 2 shall apply. Where a Merchant requests a payment to be made to an End User that requires currency conversion, ClickandBuy will specify the amount to be collected from the Merchant's ClickandBuy Account, based on the currency exchange rate at the time of the transaction available from a reputable currency exchange rate service provider used by ClickandBuy. The total amount to be collected from the Merchant's ClickandBuy Account including the exchange rate and the multicurrency conversion fee will be displayed at the time of the transaction if the Merchant is online, otherwise details of the transaction will be made available immediately to the Merchant through their Clickandbuy Service Area.
5.11 ClickandBuy may refuse to execute an order from a Merchant to make a payment where the terms and conditions set out in this Agreement or the Technical Documentation governing the use of the Service have not been complied with, where it would be unlawful to execute the order, or where the Merchant has insufficient funds in their ClickandBuy account. Where ClickandBuy refuses to execute an order it will at the earliest opportunity notify the Merchant of that fact and where possible provide the reasons for the refusal and the procedure for rectifying any factual errors that led to the refusal. ClickandBuy may in accordance with Schedule 2 charge the Merchant for such notification where the refusal is reasonably justified. ClickandBuy shall not be required to provide such a notification where to do so would be unlawful.
5.12 Where the Merchant initiates a payment ClickandBuy will on request inform the Merchant of the maximum execution time, the Charges payable by the Merchant in respect of the payment and where applicable, a breakdown of the amount of such Charges.
5.13 ClickandBuy shall make available to the Merchant in the Merchant’s ClickandBuy Service Area on the ClickandBuy Website, information relating to the transactions (both credits and debits) occurring on the Merchant’s ClickandBuy Account immediately as they occur and shall in any event within three (3) Business Days of the end of each Billing Period make the following information available in the Merchant’s ClickandBuy Service Area:
(a) a reference enabling the Merchant to identify each payment transaction and, where appropriate, information relating to the End User;
(b) the amount of the payment transaction in the currency in which the Merchant’s ClickandBuy Account was debited or credited or in the currency used for the Payment Order;
(c) the amount of any Charges for the transactions and, where applicable, a breakdown of the amounts of such Charges;
(d) where applicable, the exchange rate used in a payment transaction and the amount of the payment transaction after that currency conversion; and
(e) the credit or debit value date (as appropriate) or the date of receipt of the Payment Order.
6. TRANSACTION ACCURACY AND TAXATION
6.1 The Merchant is solely responsible for the filing of appropriate returns and the payment of any and all taxes and duties of whatever nature levied or imposed by whatever jurisdiction in connection with the promotion, sale, licensing, supply or other exploitation of an Offer and shall indemnify ClickandBuy against liability for any such taxes and duties.
6.2 Neither ClickandBuy nor its licensees provides any advisory services to the Merchant regarding taxation and any customs or other import/export duties.
6.3 Any information that ClickandBuy provides to the Merchants or End Users in respect of tax or VAT shall merely represent the data that the Merchant has initially provided to ClickandBuy and does not remove the obligation from the Merchant to account correctly to Customs & Excise or other relevant bodies for the VAT or other applicable tax on the services the Merchant has supplied.
6.4 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s tax or VAT registration number or if the Merchant ceases to be registered for tax or VAT.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 ClickandBuy authorises the Merchant and the Merchant agrees only to use the ClickandBuy Marks in accordance with the conditions set out in this Agreement for the sole purpose of using the Service.
7.2 Intellectual property rights in (1) any software or documentation supplied by ClickandBuy to the Merchant for or in connection with the Service, and (2) any custom graphic interfaces, design elements, graphics or other applications or content which ClickandBuy may provide and which are placed on or incorporated into the Merchant Website, remain the property of ClickandBuy or its licensors.
7.3 Where any software, documentation or other materials are provided to enable the Merchant to use the Service, ClickandBuy grants the Merchant a nonexclusive, non-transferable licence to use the software, documentation or other materials for that purpose only and in accordance with this Agreement.
7.4 The Merchant will not, without ClickandBuy's prior written consent, copy or (except as permitted by law) decompile or modify the software, nor copy the manuals or documentation.
7.5 The right to use the ClickandBuy Marks and any software, documentation or other materials supplied under this Agreement shall last only for the duration of this Agreement and may not be assigned or sub-licensed in full or in part.
7.6 The Merchant may make one copy of the software, documentation and other materials supplied under this Agreement for backup purposes.
7.7 The Merchant shall grant to ClickandBuy a non-exclusive, non-transferable (other than in accordance with Clause 15) licence, for the duration of the Agreement, to use the Merchant's trade mark and trade names (collectively, the ”Merchant Marks”) in the course of providing the Service with respect to Offers but only to the limited extent necessary to allow ClickandBuy to provide the Service in connection with such Offers.
8.1 The parties will keep in confidence the terms of this Agreement and any information (whether written or oral) of a confidential nature (including without limitation documents, software, drawings and manuals) obtained under this Agreement and will not disclose that information to any person (other than their employees or professional advisers, or in the case of ClickandBuy the employees of a ClickandBuy Group Company or their suppliers, who need to know the information) without the written consent of the other party. The parties shall make the necessary contractual arrangements that their employees, professional advisors and suppliers are also bound by this confidentiality agreement.
8.2 This Clause 8 will not apply to:
(a) any information which has been published other than through a breach of this Agreement;
(b) information lawfully in the possession of the recipient before the disclosure under this Agreement took place;
(c) information obtained from a third party who is free to disclose it; and
(d) information which a party is requested to disclose and, if it did not, could be required by law to do so.
8.3 The restrictions in this Clause 8 will survive the termination or expiry of this Agreement for as long a period as permitted by applicable law.
9.1 Each party accepts unlimited liability for death or personal injury resulting from its negligence and for fraud and the remainder of this Clause 9 does not restrict such liability.
9.2 Neither party is liable to the other either in contract, tort (including negligence) or otherwise for loss (whether direct or indirect) of profits or business, destruction of data loss of or anticipated savings, or for any indirect or consequential loss or damage.
9.3 Other than in the case of gross negligence, fraud or wilful default by ClickandBuy, or its employees, directors, officers, and agents, ClickandBuy shall not be liable for any loss suffered by the Merchant as a result of:
(a) fraud; or
(b) malfunction or damage to ClickandBuy’s system’s which causes the Service to be suspended.
9.4 Where the Unique Identifier provided by the Merchant is incorrect, ClickandBuy is not liable for the incorrect execution or non-execution of a resulting payment transaction, but ClickandBuy will take reasonable efforts to recover the funds involved in such a payment transaction. ClickandBuy may in accordance with Schedule 2 charge the Merchant for any such recovery.
9.5 Subject to Clauses 3.2, 5.2, 9.2, 9.4, and 9.6 through to 9.10 and provided the Merchant has notified ClickandBuy without undue delay, and in any event and subject to Clause 1.3 no later than 13 months after the relevant payment date, on becoming aware of any unauthorised or incorrectly executed payment transaction, ClickandBuy shall, in respect of any:
(a) unauthorised payments (being for the purposes of this Clause 9, payments from the Merchant's ClickandBuy that have been executed but not authorised by the Merchant), without undue delay refund to the Merchant the amount of the unauthorised payment and where applicable, restore the Merchant’s ClickandBuy Account to the state in which it would have been had the relevant payment transaction not taken place;
(b) incorrectly executed Payment Orders initiated by the Merchant as payer, without undue delay refund to the Merchant the amount of the incorrectly executed payment and, where applicable, restore the Merchant’s ClickandBuy Account to the state in which it would have been had the relevant payment transaction not taken place; and
(c) incorrectly executed Payment Orders initiated by the Merchant as payee, ClickandBuy shall be liable to the Merchant for the correct transmission of the order in accordance with these terms and will retransmit the Payment Order in question.
9.6 In the case of either Clause 9.5(b) or (c), ClickandBuy will at the Merchant’s request make immediate efforts to trace the payment and notify the Merchant of the outcome and will also be liable to the Merchant for any charges or interest that the Merchant has had to pay as a consequence of the incorrectly executed Payment Order. ClickandBuy shall not be liable pursuant to Clause 9.5(b) or (c) where it can prove (if the Merchant initiated the transaction as payer) that the End User or its payment service provider received the amount of the payment transaction or (if the Merchant initiated the transaction as payee) that it was not liable for the incorrect transmission.
9.7 Subject to Clauses 9.8 and 9.9, the Merchant where it is the payer is liable for up to a maximum of £50 (or Euro equivalent) for any losses incurred in respect of an unauthorised payment arising due to the use of lost or stolen password or security check words or due to the Merchant failing to keep the personalised security features of the Service safe.
9.8 Subject to Clause 9.9, the Merchant shall be liable for all losses incurred in respect of an unauthorised payment where the Merchant has acted fraudulently or has with intent or gross negligence failed to use the Service in accordance with the terms and conditions set out in this Agreement governing its use or failed to give a notification to ClickandBuy in accordance with Clause 3.2.
9.9 Except where the Merchant has acted fraudulently, where it is the payer under a Payment Order the Merchant is not liable for any losses incurred in respect of an unauthorised payment made by the Merchant: (a) arising after the Merchant has provided a notice in accordance with clause 9.5 (or ClickandBuy has failed to make available to the Merchant the means to give such a notice); or (b) where the payment has been made by the Merchant in connection with a distance contract other than an excepted contract (with ”distance contract” and ”excepted contract” have the meanings given in the Consumer Protection (Distance Selling) Regulations 2000)
9.10 Either party's liability to the other either in contract, tort (including negligence) or otherwise in relation to this Agreement is limited to 125% of the Commission, Support Charges and Other Charges payable by the Merchant in any Month in which the incident occurred for any one incident or series of related incidents, provided that this Clause 9.10 shall not in any way limit the Merchant's obligations under Clause 2 or ClickandBuy's obligations under Clause 9.5 or 9.6.
9.11 ClickandBuy shall not be liable for Offer related instructions received by ClickandBuy from the Merchant and made using valid and current User ID and Password data.
9.12 Each provision of this Agreement, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
10. MATTERS BEYOND THE PARTIES’ REASONABLE CONTROL
10.1 If either party is unable to perform any obligation under this Agreement, or its performance is detrimentally affected, because of an abnormal and unforeseeable circumstance beyond that party’s control the consequences of which would have been unavoidable despite all efforts to the contrary, that party will have no liability to the other party for that failure to perform. Such a circumstances could include lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving its employees), or acts of local or central Government or other competent authorities, or the quality or speed of the Internet connection. The delaying party shall promptly notify the other of the delay and the reasons for and likely duration of the delay.
10.2 In the event that ClickandBuy’s contract with a Merchant Acquirer is terminated or service under ClickandBuy’s contract with a Merchant Acquirer is suspended for any reason then ClickandBuy will have no liability to the Merchant for failure or limited supply of the Service to the extent interrupted by that terminated or suspended service.
10.3 ClickandBuy shall not be liable to the Merchant for any contravention of a requirement imposed on it under Part 6 of the Payment Services Regulations where the contravention is due to the obligations of ClickandBuy under other provisions of Community or national law.
11. TERMINATION BY NOTICE
11.1 The Merchant may terminate this Agreement on giving 1 months' written notice to ClickandBuy.
11.2 ClickandBuy may terminate this Agreement on giving at least 2 months' written notice to the Merchant.
11.3 ClickandBuy may terminate this Agreement immediately upon giving notice to the Merchant at any time if:
(a) ClickandBuy reasonably considers the Merchant is:
(i) acting fraudulently or illegally (in any jurisdiction); or
(ii) subject to, or it appears to ClickandBuy is likely to be subject to, an investigation by a regulator or authority into the activities of the Merchant in relation to any gambling, gaming, betting, lottery or other similar law in any jurisdiction; or
(b) ClickandBuy reasonably considers that it will be in breach of Community or national law, Court order if it continues this Agreement.
11.4 The Merchant shall endeavour where practicable to notify ClickandBuy of any proposed Change of Control at least 2 months in advance of the Change of Control being effective. Where the Merchant is not able to so notify ClickandBuy in accordance with this timing requirement, it shall nonetheless notify ClickandBuy as soon as it becomes aware of a Change of Control being proposed or effected. The notification obligations imposed on the Merchant in this Clause 11.4 shall be subject to any unavoidable obligations of confidentiality.
11.5 Where an investigation is commenced or appears to ClickandBuy to be likely to be commenced by a regulator or authority into the activities of the Merchant, ClickandBuy shall be entitled to provide any assistance and information it deems appropriate to any investigatory or official body in relation to such investigation or activities.
11.6 If notice is given to terminate this Agreement or the Service for any reason the Merchant must immediately pay all Charges due for the Service up to the expiry of the notice. Where any regular Charges have been paid in advance and the period or service in respect of which they have been paid will not, due to the termination of this Agreement, be completed, such Charges shall to that extent be reimbursed to the Merchant proportionately.
11.7 Termination does not avoid ClickandBuy's liability for Services already provided.
12. BREACHES OF THE AGREEMENT
12.1 Either party may at any time terminate this Agreement or the Service immediately on notice, if the other:
(a) commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or
(b) commits a material breach of this Agreement which cannot be remedied; or
(c) is repeatedly in breach of this Agreement.
12.2 ClickandBuy may at any time terminate this Agreement or the Service immediately on notice if the Merchant is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or enters compulsory liquidation, or a receiver or administrator is appointed over their assets, or if the equivalent of any such events occurs under the laws of the jurisdiction in which the Merchant is located.
12.3 ClickandBuy shall have the right to serve notice to suspend this Agreement in the event that Chargeback levels exceed five per cent (5%) of overall Offer Charges in any Month. ClickandBuy can refuse to restore the Service until ClickandBuy receives what it considers to be an acceptable assurance or remedial action plan from the Merchant to the effect that Chargeback levels will be improved such that they do not exceed this level.
12.4 If the Merchant commits any breach of this Agreement, whether remediable or not, or if any of the events set out in Clause 12.2 shall occur in respect of the Merchant, ClickandBuy may suspend the Service without prejudice to its right to terminate this Agreement. ClickandBuy can refuse to restore the Service until ClickandBuy receives what it considers to be an acceptable assurance from the Merchant that there will be no further breach of this Agreement or (as the case may be) no further prohibited use.
12.5 On termination under this Clause 12.5 the Merchant shall pay to ClickandBuy all Charges that are due for the Service under this Agreement. Any outstanding sums due to the Merchant under this Agreement will be forwarded in accordance with the terms of this Agreement. Where any regular Charges have been paid in advance and the period or service in respect of which they have been paid will not, due to the termination of this Agreement, be completed, such Charges shall to that extent be reimbursed to the Merchant proportionately.
12.6 The Merchant will remain liable to pay all Charges that are due for the Service during any period in which the Merchant does not comply with this Agreement.
12.7 If either party delays in acting upon a breach of this Agreement that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Agreement by the other party, that waiver is limited to that particular breach.
13. CONSEQUENCES OF TERMINATION
13.1 Upon termination or expiry of this Agreement for any reason:
(a) any hardware, software, documentation, information or other materials provided to the Merchant under this Agreement must be returned immediately to ClickandBuy, and the Merchant must stop using the Service and the ClickandBuy identity which includes ceasing to use the ClickandBuy Marks;
(b) those provisions relating to confidentiality and those provisions which by their content or nature are intended to survive, shall survive the expiry or termination of this Agreement; and
(c) to cover any potential liability to End Users or other parties having legitimate claims, ClickandBuy shall be entitled to retain an amount equivalent to fifty per cent (50%) of all sums due to the Merchant under Clause 2.7 of this Agreement for a period of six (6) Months following termination.
13.2 Following the end of the relevant retention period specified in Clause 13.1 (c) and in any case within five (5) working days of that period, ClickandBuy shall return to the Merchant any retained amounts which have not been used to cover liability to End Users or other parties having legitimate claims.
14. VARIATION OF TERMS AND CONDITIONS
14.1 ClickandBuy may amend this Agreement by providing the Merchant with at least 2 months notice of the proposed changes. The Merchant shall be deemed to have accepted the changes unless it notifies ClickandBuy to the contrary prior to the proposed effective date of the changes. The Merchant may before any notified changes become effective terminate this Agreement immediately and without charge by giving notice to ClickandBuy.
14.2 Any amendments to this Agreement proposed by the Merchant must be agreed to by the parties in writing.
15. TRANSFER OF RIGHTS AND OBLIGATIONS
15.1 Subject to Clauses 15.2 and 15.3, neither party may assign or transfer any of its rights or obligations under this Agreement without written consent of the other.
15.2 ClickandBuy may assign or transfer its rights or obligations (or both) to a ClickandBuy Group Company without consent.
15.3 ClickandBuy may engage a subcontractor to perform any part of the Service provided that ClickandBuy shall remain responsible to the Merchant for the performance of the Service.
16. NO AGENCY
16.1 ClickandBuy and the Merchant accept that they are independent contractors and that neither is acting as the agent of the other (and that ClickandBuy is not acting as agent for any End User). Neither party has any authority to bind or contract or negotiate on behalf of the other or to incur any debt or other obligation on behalf of the other or to create any liability against the other in any way or for any purpose.
16.2 The Merchant acknowledges and accepts that any contracts for the purchase or other acquisition of Offers appearing on the Merchant Website are strictly and solely between the Merchant and the End User.
17.1 Notices given under this Agreement must be in writing and delivered by hand, email, prepaid post or by fax as follows:
(a) to ClickandBuy: by utilising the address and contact details as specified on the imprint pages of the ClickandBuy Website at www.clickandbuy.com or any alternative address or contact details which ClickandBuy notifies to the Merchant at any time;
(b) to the Merchant: to the email and contact details which the Merchant has previously supplied to ClickandBuy for the sending of invoices or other communications or, if the Merchant is a limited company, its registered office.
Neither party will issue any promotional or advertising material or press release relating to the other, without first obtaining the other’s prior consent (in writing).
This Agreement may be executed in any number of counterparts by the parties each of which shall when executed and delivered constitute an original but all of which together constitute one and the same document.
20. ENTIRE AGREEMENT
20.1 This Agreement contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
20.2 The parties acknowledge and agree that:
(a) they have not been induced to enter into this Agreement by any representation, warranty or other assurances not expressly incorporated into it; and
(b) in connection with this Agreement, and except in the case of fraud, their only rights and remedies in relation to any representation, warranty or other assurance shall be for breach of the terms of this Agreement and that all other rights and remedies are excluded.
20.3 In the event that any provision of this Agreement is determined to be unlawful or otherwise unenforceable, such provision shall be deemed severed from this Agreement, but every other provision of this Agreement will remain in full force and effect.
20.4 In the circumstances of Clause 20.3 if any such provision is determined to be unlawful, there will be substituted a provision reflecting the original intent of the parties as closely as possible and to the extent permissible under applicable law. The parties shall negotiate promptly and in good faith to achieve this objective.
20.5 A person who is not a party to this contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
21. LAW AND LEGAL DISPUTES
21.1 This Agreement is governed by the laws of England and Wales, and both parties irrevocably submit to the exclusive jurisdiction of the English courts.
21.2 If the Merchant is not satisfied with any aspect of the Service it may contact its nominated contact person at ClickandBuy or the support department at the telephone number or email address stated on the ClickandBuy Website at www.clickandbuy.com. A copy of ClickandBuy's complaints handling policy is available on request or can be found under the Company Information section of the ClickandBuy Website.
21.3 The Financial Ombudsman Service may apply to this Service for out of court dispute settlement where the Merchant is an eligible complainant under DISP 2.7R of the rules of the Financial Services Authority. Any claim or dispute arising out of, or in relation to, this contract or the provision of the service by ClickandBuy that cannot be resolved by contacting your contact person as stated in this agreement or notified to you from time to time, or the support department at the telephone number or email address stated on the ClickandBuy Website at www.clickandbuy.com, could be referred to the Financial Ombudsman Service or the Courts of England and Wales, Scotland or Northern Ireland, depending on where you are resident. Information regarding the Financial Ombudsman Service is available at http://www.financialombudsman.org.uk.
21.4 Electronic Money or Payment Services are not covered by the Financial Services Compensation Scheme or any other government compensation or insurance scheme and accordingly Merchants will have no rights to claim under such a scheme.
22.1 In this Agreement, unless the context otherwise requires:
"Agreement" means these General Terms and Conditions and the Schedules.
"Billing Period" means the period of time agreed between the parties over which ClickandBuy will periodically calculate and distribute the Merchant’s Offer Charges in accordance with Clauses 2.6 & 2.7.
"Business Day" means Monday to Friday, 09:00 – 17:00 (UK local time), excluding public or bank holidays in the United Kingdom.
"Change of Control" means an event which has the effect that an undertaking which is not (a) the Ultimate Parent Undertaking of that party at the date that the Agreement has been signed, or (b) an undertaking which was immediately before such event a wholly owned subsidiary undertaking of that Ultimate Parent Undertaking, becomes the Ultimate Parent Undertaking of that party and, for this purpose, where the Ultimate Parent Undertaking consists of a partnership or group of individuals, the Ultimate Parent Undertaking shall not be treated as having changed unless a majority of the partners or a majority of the members of the group of individuals have changed.
"Chargeback" means where ClickandBuy is legally obliged to refund funds back to or does not receive funds from a card issuer, bank or any other payment service provider where the receipt of such funds had previously been authorised or expected, due to insufficient available funds, incorrect account details, End User disputes, fraud or for any other reason.
"Charges" means Commission, Set-up Fee, Support Charges and any Other Charges.
"ClickandBuy" means ClickandBuy International Limited, a company registered in England and Wales under number 5661160, whose registered and head office is located at 6-9 Cynthia Street, London N1 9JF, United Kingdom. ClickandBuy International Limited is authorised and regulated as an Electronic Money Institution by the Financial Services Authority (FSA) and is entered into the FSA register under register number 454127. The FSA register can be found at http://www.fsa.gov.uk/Pages/register/
"ClickandBuy Acceptance Policy" means a document describing ClickandBuy’s corporate policy and setting out for which offers and services the ClickandBuy Service may not be used. A current version may be obtained from www.clickandbuy.com/WW_en/about-us/acceptance-policy.html
"ClickandBuy Account" means an Electronic Money account held by an End User or a Merchant which is required as part of the Service.
"ClickandBuy Group Company" means a ClickandBuy subsidiary or holding company, or subsidiary of that holding company, as defined by Section 736 of the Companies Act 1985, as amended by the Companies Act 1989.
"ClickandBuy Marks" means the "ClickandBuy" logo, the Firstgate trade marks and the ”ClickandBuy” identity as more particularly set out in the ClickandBuy Brand Guidelines.
"ClickandBuy Service Area" means a personalised area on the ClickandBuy Internet Platform accessible for the Merchant at any time. The ClickandBuy Service Area contains, inter alia, updated information on transactions and the ClickandBuy system.
"ClickandBuy Website" means the ClickandBuy website at the URL notified by ClickandBuy from time to time.
"Commission" means the amount of Offer Charges which ClickandBuy retains as set out in Schedule 2.
"Effective Date" means the date on which the Merchant accepts these terms electronically by indicating its acceptance as required on the ClickandBuy website, or if manually the date recorded upon the order form.
"Electronic Money" means the investment, specified in article 74A of the Regulated Activities Order (Electronic money), which is monetary value, as represented by a claim on the issuer, which is:
a) Stored on an electronic device;
b) Issued on receipt of funds;
c) Accepted as consideration or a means of satisfying a debt by persons other than the issuer; and
d) The virtual currency which is stored in the ClickandBuy Account. For the Merchant, Electronic Money refers to Offer Charges collected by ClickandBuy and stored in the ClickandBuy Account. For an End User, Electronic Money refers to electronic value loaded to the ClickandBuy Account with a view to purchasing goods or services from Merchants.
"End User" means a person or entity who holds a ClickandBuy account or who is invited to open a ClickandBuy account for the purpose of purchasing Offers using the Service.
"End User Details" means the information about End Users which ClickandBuy collects and processes in connection with the Service.
"including" means including without limitation and does not limit any matter to which it refers.
"Merchant" means the person so named on this Agreement and anyone reasonably appearing to ClickandBuy to be acting with the Merchant’s authority or permission. "Merchant Acquirer" means that party that stands between ClickandBuy and a credit/debit card issuer.
"Merchant Website" means the World Wide Web site(s) on which the Offers are hosted.
"Micro-Enterprise" means any enterprise engaged in an economic activity, irrespective of its legal form, including self-employed persons and family businesses engaged in craft or other activities, and partnerships or associations regularly engaged in an economic activity, where, as at the Effective Date, that enterprise:
(a) employs fewer than 10 persons; and
(b) has an annual turnover and/or annual balance sheet total of less than 2 million Euros (or GBP Sterling equivalent), and for the purposes of these calculations the Merchant should take account of any 'linked' or 'partner' enterprises on the basis set out in the European Commission's SME Recommendation (2003)/361/EC).
"Month" means 00:00:00 (coordinated universal time) on the first day of a calendar month until 23:59:59 (coordinated universal time) on the last day of that calendar month.
"Offer" means all products, services and information including text, words, names, graphics, (including logos), software (including all software applications), video, audio or other offers appearing on the Merchant Website.
"Offer Charges" means the sums payable by the End User for the Offers, including VAT.
"Other Charges" means any other fees due to ClickandBuy in respect of the Service which are either set out in Schedule 2 or as may be agreed between the parties.
"Payment Date" means the Business Day agreed between ClickandBuy and the Merchant following the end of each Billing Period on which payment of the Offer Charges to the Merchant’s bank account will be initiated.
"Payment Order" means an instruction supplied to ClickandBuy by an End User or the Merchant for the placing, transferring or withdrawing of funds to or from a ClickandBuy Account.
"Payment Services Regulations" means the Financial Services and Markets Act 2000 (Payment Services Regulations) 2009, as amended from time to time. "Service" means the service known as "ClickandBuy", as more particularly set out in Schedule 1.
"Set-up Fee" means the amount set out in Schedule 2.
"Support Charges" means the support charges, if applicable, as set out in Schedule 2.
"Technical Documentation" means the documents provided by ClickandBuy to the Merchant. For the latest version of these documents please contact your commercial or technical contact at ClickandBuy. Alternatively an updated version of all Technical Documentation can be obtained from the ClickandBuy portal at any time.
"Ultimate Parent Undertaking" means, in relation to an undertaking, its parent undertaking or, if it has more than one parent undertaking, that one of its parent undertakings which does not itself have a parent undertaking.
"Unique Identifier" means the combination of numbers, letters or symbols used to identify an End User account on the ClickandBuy system or to identify an account with another bank or other financial institution (and includes an End User's email address in accordance with clause 5.4). An existing End User account on the ClickandBuy system will be commonly referred to by the unique Customer Reference Number issued by ClickandBuy.
SCHEDULE 1 SERVICES
ClickandBuy has developed an electronic facility which enables End Users to make purchases of Offers from participating Merchants online or with a mobile device without disclosing their financial details. Each End User and participating Merchant will be provided with a ClickandBuy Account. When an End User visits the website of a participating Merchant, the End User will have the option of purchasing the Offer using their ClickandBuy Account. If the End User chooses to do so, they will log in to their ClickandBuy Account via the Merchant Website to make the purchase. If a person who is not registered with the Service visits the Merchant Website of a participating Merchant, that person will be able to use a link from the Merchant Website to register as an End User.
The complete and current scope of functions constituting the Service provided by ClickandBuy can be viewed at any time on the ClickandBuy Website.
Support Service and Reporting Malfunctions: ClickandBuy shall make available to the Merchant a hotline based on telephone, e-mail or fax. The opening times shall be posted on the ClickandBuy Website. Malfunctions can be reported around the clock to the contact email address for Merchants as published on the ClickandBuy website at www.clickandbuy.com.
Statistics: ClickandBuy shall make available to the Merchant statistical data in digital form, for instance the turnover effected by ClickandBuy. This data can be accessed on the Internet by means of a password.
Security: All server and system components of the ClickandBuy system are operated in a redundant computer network. The data configured by Merchants shall be securely stored using up-to-date technology. ClickandBuy shall generally perform scheduled maintenance at regular intervals on the ClickandBuy system at night. In the unlikely event of data loss the Merchant shall be responsible for setting up and pricing its offers afresh.
Conduct towards End Users: The Merchant shall make available its priced offers to End Users via the ClickandBuy system. Defects in the offers made available can be reported by the End User to the ClickandBuy call centre on the telephone number, fax number or email address posted on the ClickandBuy Website. ClickandBuy shall inform the Merchant of this and shall pass on the data necessary to follow up a complaint to the Merchant for the purpose of clarification. ClickandBuy may exclude the End User from using the service until the issue has been resolved.
Set-up Fee: € 19.95 excl. VAT
The Fee includes:
- Supply of the System
- Set-up of a ClickandBuy Merchant’s Account which enables the Merchant to set-up the billing module of their choice for processing transactions chosen, e.g. Shopping Cart, (automatically renewing) subscription.
The calculation of the Commission Fee is based on the total amount of Offer Charges and payments made by the Merchant (the Total Payment Volume) in a specific Billing Period. The commission fee applicable to the Merchant for payments made by End Users using ClickandBuy is:
2.9% of Total Payment Volume + € 0.35 per transaction
Commission accrues from each transaction made by End Users or Merchants of ClickandBuy. The Commission shall not be affected by any potential non-payment of bills by the End User or possible reimbursements by ClickandBuy to the End User for complaints, objections or exceptions by the End User directed towards the Merchant.
This commission fee does not apply to merchants from donation, dating, adult and online games industries.
Multicurrency enables the Merchant to make its Offer in different currencies.
‘End User Currency’ is the operational currency of the End User ClickandBuy Account.
‘Merchant Currency’ is the operational currency of the Merchant’s ClickandBuy Account, being the account from which ClickandBuy settles all Offer Charges in accordance with Clause 2.7.
‘Purchase Currency’ is the currency used to display the Merchant’s Offer Charges, which may be different from Merchant Currency. A Merchant may display its Offer Charges in multiple Purchase Currencies.
If the End User Currency differs from the Purchase Currency used, ClickandBuy automatically calculates the conversion and includes a currency conversion fee and will display to the End User the relevant payment amounts both in the Purchase Currency and the End User Currency and including any relevant conversion fee.
If the Purchase Currency used differs from the Merchant Currency, ClickandBuy automatically calculates the conversion and includes a currency conversion fee of 3% per conversion, and will display to the Merchant the relevant payment amounts both in the Purchase Currency and the Merchant Currency. This currency conversion will be processed in accordance with Clause 5.10.
The Billing Period over which ClickandBuy will calculate the Merchant’s Offer Charges in accordance with Clauses 2.6 & 2.7 shall be Monthly.
ClickandBuy will initiate payment of all due Offer Charges calculated during the Billing Period in accordance with Clauses 2.6 & 2.7 on the 29th calendar day following the Billing Period (21st calendar day for accounts denominated in GBP).
The Merchant will pay ClickandBuy a standing fee of € 19.95 per Billing Period, which will be deducted from the Merchant’s ClickandBuy account.
A rolling security deposit will be held in the Merchant’s Clickandbuy Account and will be retained within the Merchant’s ClickandBuy Account for one (1) Billing Period.
OTHER EXPENSE-ORIENTED FEES
ClickandBuy shall charge a fixed € 6 processing fee for each End User Offer Charge that is (for whatever reason) cancelled or reversed. Where ClickandBuy has taken such reasonable measures as ClickandBuy regard as appropriate to retrieve Offer Charges from an End User and ClickandBuy have been unable to retrieve the Offer Charges, this will result in the deregistration of the End User for which the Merchant will be charged a fee of € 6 to cover in part the administrative costs incurred by ClickandBuy in performing its debt collection process.
In order to cover its service, support, registration and call centre costs, ClickandBuy shall charge the Merchant € 0.10 per annum for each of their purchasing End Users. This charge will be applied annually per transacting End User at the end of the next Billing Period following an End User’s first transaction with the Merchant.
ClickandBuy has the right to, but does not currently intend to charge for notifying the Merchant where ClickandBuy reasonably refuses a Payment Order under Clause 5.11 or recovers funds under Clause 9.4. Where ClickandBuy elects to apply these charges it will notify the Merchant of them in accordance with Clause 14.1.
All prices stated are net prices plus VAT at the current rate.
Version 2.0 EN EURO (16/11/09)
ClickandBuy publishes its Acceptance Policy in order to maintain compliance with applicable legislation as well as policies which may – if violated - affect our ability to supply a quality payment service to its customers.
ClickandBuy must not be used to send, receive, upload, download, use, re-use, offer or supply any offer or other message, information or material or to advertise, promote, sell or offer for sale any information, material or product which can be assigned to one of the categories below. Any transaction appearing on ClickandBuy which does appear to fall onto one of these categories may be reversed and any ClickandBuy account not adhering to this policy may be suspended or terminated to prevent further breach of our guidelines as per the Terms and Conditions of service.
Some of the guidelines require detailed knowledge of laws in different countries. As ClickandBuy does not always have that detailed knowledge of all business sectors in all jurisdictions around the world, it is ultimately the account holder's responsibility to trade only where and when it is legal to do so. Any customer who is unsure of their legality, or disregards this guidance, is deemed to be in breach of these guidelines.
1. Illegal Adult Content or Services
ClickandBuy will not process transactions which are related to goods or services, including an image, which is partly offensive and lacks serious artistic value such as:
- Mutilation of a person or body parts
- Scenes depicting acts of bestiality, incest, rape, non-consensual sexual behaviour, or sexual exploitation of a minor (or a person who may appear to be a minor)
- Escort Services
- Or any material considered to be “extreme” or “violent” pornography as per Section 63 of the UK Criminal Justice and Immigration Act 2008
Or any other material that ClickandBuy, at its sole discretion, deems unacceptable for sale in connection with its brand.
2. Firearms, Weapons and Knives
ClickandBuy may not be used in the purchase or sale of any physical firearm. This includes all rifles, shotguns, and handguns, whether for use in sporting, as collectables, or curio and relic firearms, and regardless of their present working order.
Also, ClickandBuy may not be used to buy or sell ammunition or gunpowder. The term "ammunition" means ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.
ClickandBuy may also not be used in the purchase or sale of knives unless the website provides an age restriction clause and verify their customers’ date of birth in line with the Violent Crime Reduction Bill (2006) in the UK. The current age restriction is 18 years.
This guideline does not extend to advertisements for such items. Advertisements would be permitted to be charged for using ClickandBuy.
3. Illegal Drugs & Paraphernalia
ClickandBuy may not be used to fund, in any way, the purchase of illegal drugs, or materials, utilities or paraphernalia (equipment used to administer or produce drugs) which could be construed to be for the use of administering illegal drugs.
This guideline is designed to provide clarification regarding illegal drugs. It is accepted that some drugs are classified differently from country to country, and therefore may not be illegal. Queries relating to specific cases should be directed to the ClickandBuy Compliance department.
4. Unauthorized Copies (infringement of copyright)
ClickandBuy will not accept transactions which trade (or appear to trade) in unauthorized copies (pirated, duplicated, backup, etc.) of software programs, video games, music, movies, television programs, photographs or any other products which could be in breach of copyright law in any territory.
5. Pyramid Selling vs. Multi-Level Marketing, “get rich quick” and Ponzi schemes
ClickandBuy will not accept transactions which follow the Pyramid Selling model.
There could be confusion between an acceptable multi-level marketing scheme and a pyramid selling scheme. In such cases, clarification should be sought from ClickandBuy’s Compliance department.
6. Remote IT Support Services
As of August 2011, ClickandBuy will generally not accept merchants which provide remote IT support, (for example PC troubleshooting and problem diagnosis). Further clarification should be sought from ClickandBuy’s Compliance department.
7. Off-Shore Bank Account Services
ClickandBuy will not accept merchants who provide advice on setting up off-shore bank accounts.
8. Third Parties’ Rights
ClickandBuy will not process transactions which are related to goods or services, including images, which are offensive, abusive, defamatory, otherwise obscene or menacing, in breach of confidence, privacy or any other rights of third parties, or which will cause annoyance, inconvenience or needless anxiety.
9. Further Restrictions
Some transactions may be supported by ClickandBuy, however with specific restrictions. Examples of such transaction types are listed below, and clarification on acceptability can be obtained from the ClickandBuy Compliance department.
- Alcoholic Beverages and Tobacco
- Pharmacy – Nutriceuticals
- Stored Value Cards & Pre-Paid Debit Cards
- Adult Content
- Gambling (including Casinos, Lotteries & Skill Games)
- Foreign Currency Exchange
- Content Aggregators
- Dating Sites
- Virtual Currency
- Unregulated Insurance Firms
The contents of this policy are not exhaustive, and may be updated at any time in order to satisfy ClickandBuy’s own corporate risk management processes. Any uncertainty over accepting transactions via ClickandBuy should be clarified by contacting the ClickandBuy Compliance department via compliance(at)clickandbuy.com
Version 1.11 EN – 30.07.2012
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