General Terms and Conditions of Business of ClickandBuy International Limited
1. PROVISION OF THE SERVICE
1.1 ClickandBuy will provide the Merchant with the Service on the terms of this Agreement.
1.2 ClickandBuy will provide the Service with the reasonable skill and care of a competent provider of such services.
1.3 Before the Service can be provided, the process detailed in the Merchant Manual must be followed to establish and test the system integration between ClickandBuy and the Merchant’s Website. An updated version of the Merchant Manual can at any time be obtained from the ClickandBuy Service Area.
1.4 ClickandBuy will use all reasonable endeavours to correct any reported faults 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.
1.5 Occasionally ClickandBuy may:
(a) for operational reasons, change the technical specification of the Service;
(b) require the Merchant to follow instructions which it believes are necessary for reasons of security or quality; or
(c) 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.
1.6 Each party will appoint a lead person and other persons as back up, as nominated representatives to be its central point of liaison with the other party in relation to the Service and this Agreement. Each party will notify the other of the details of its nominated representatives, and of any changes to the details. Due to money laundering prevention laws and other security regulations, ClickandBuy reserves the right to request additional Merchant information if the overall Offer Charges paid by the End User (as set out in Clause 2.6 (a) of this Agreement) amount to € 5.000 in any one month. The Merchant agrees to provide ClickandBuy with the requested information without delay.
1.7 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 anonymised data in accordance with the Data Protection Act 1998.
1.8 ClickandBuy will use reasonable endeavours to provide the Service by any date agreed with the Merchant but all dates are estimates.
1.2 ClickandBuy will provide the Service with the reasonable skill and care of a competent provider of such services.
1.3 Before the Service can be provided, the process detailed in the Merchant Manual must be followed to establish and test the system integration between ClickandBuy and the Merchant’s Website. An updated version of the Merchant Manual can at any time be obtained from the ClickandBuy Service Area.
1.4 ClickandBuy will use all reasonable endeavours to correct any reported faults 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.
1.5 Occasionally ClickandBuy may:
(a) for operational reasons, change the technical specification of the Service;
(b) require the Merchant to follow instructions which it believes are necessary for reasons of security or quality; or
(c) 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.
1.6 Each party will appoint a lead person and other persons as back up, as nominated representatives to be its central point of liaison with the other party in relation to the Service and this Agreement. Each party will notify the other of the details of its nominated representatives, and of any changes to the details. Due to money laundering prevention laws and other security regulations, ClickandBuy reserves the right to request additional Merchant information if the overall Offer Charges paid by the End User (as set out in Clause 2.6 (a) of this Agreement) amount to € 5.000 in any one month. The Merchant agrees to provide ClickandBuy with the requested information without delay.
1.7 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 anonymised data in accordance with the Data Protection Act 1998.
1.8 ClickandBuy will use reasonable endeavours to provide the Service by any date agreed with the Merchant but all dates are estimates.
2. COLLECTION OF OTHER 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 with all Offer Charges collected from End Users in the currency of the Merchant’s ClickandBuy Account in accordance with the Service. Payout and offset with Charges will be made in accordance with Clause 2.6 and 2.7 of this Agreement. 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 Merchant Manual.
2.3 The Merchant agrees to pay, without any set-off, restriction, condition, withholding or deduction, all Charges in accordance with this Agreement. ClickandBuy may revise the Charges on 28 days notice to the Merchant.
Applicable Charges can be obtained from the price list sent to the Merchant via email after conclusion of this agreement. If no such price list has been received by the Merchant, the Charges specified in the latest price list shall apply.
2.4 Once the Agreement has begun, ClickandBuy will invoice the Set-Up Fee in accordance with the price list (please see Clause 2.3) and the Merchant will make payment within 14 days of the date of ClickandBuy’s invoice.
2.5 Other Charges will, unless otherwise agreed, be payable in accordance with Clauses 2.6 and 2.7 below.
2.6 Every Month ClickandBuy will provide the Merchant with the following information relating to the previous Month and will disburse all sums due:
(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 in relation to the Service;
(d) any irrecoverable amounts in accordance with Clause 2.9 below and any cancelled amounts in accordance with Clause 2.11 below;
(e) the amount which ClickandBuy proposes to retain in accordance with Clause 2.10 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 ClickandBuy will forward any sum due to the Merchant, as set out in accordance with Clause 2.6 (f) above, from the Merchant’s ClickandBuy Account to a bank account nominated by the Merchant. The Merchant will have no right to make redemptions 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 Direct Debit Instruction 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.
2.9 ClickandBuy may recover from the Merchant Offer Charges paid in accordance with Clause 2.6, which were billed to an End User, but for any reason not paid by the End User or the Merchant Acquirer.
2.10 ClickandBuy will be entitled to retain an amount of up to fifty per cent (50%) of the Offer Charges attributable to the Merchant in any one Month at the end of each relevant Month to cover any liability to End Users or other parties having a legitimate claim. Retentions made by ClickandBuy pursuant to this Clause can be kept for up to six (6) weeks and will be refunded to the Merchant in the following Month 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 12 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 In the event that the End User contacts ClickandBuy and rejects goods offered or services rendered by the merchant for being insufficient, incorrect or defective, ClickandBuy may cancel the transaction and refrain from billing any Offer Charges or refund the End User’s ClickandBuy account with the disputed amount. 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 the End User, despite of taking reasonable steps to pursue the 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 as set out in clause 2.3 of this Agreement shall be due for all Offer Charges, whether or not monies can 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.
2.15 The Merchant shall not be entitled to interest on the balance of monies collected by ClickandBuy that is stored ClickandBuy Account.
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 Merchant Manual.
2.3 The Merchant agrees to pay, without any set-off, restriction, condition, withholding or deduction, all Charges in accordance with this Agreement. ClickandBuy may revise the Charges on 28 days notice to the Merchant.
Applicable Charges can be obtained from the price list sent to the Merchant via email after conclusion of this agreement. If no such price list has been received by the Merchant, the Charges specified in the latest price list shall apply.
2.4 Once the Agreement has begun, ClickandBuy will invoice the Set-Up Fee in accordance with the price list (please see Clause 2.3) and the Merchant will make payment within 14 days of the date of ClickandBuy’s invoice.
2.5 Other Charges will, unless otherwise agreed, be payable in accordance with Clauses 2.6 and 2.7 below.
2.6 Every Month ClickandBuy will provide the Merchant with the following information relating to the previous Month and will disburse all sums due:
(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 in relation to the Service;
(d) any irrecoverable amounts in accordance with Clause 2.9 below and any cancelled amounts in accordance with Clause 2.11 below;
(e) the amount which ClickandBuy proposes to retain in accordance with Clause 2.10 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 ClickandBuy will forward any sum due to the Merchant, as set out in accordance with Clause 2.6 (f) above, from the Merchant’s ClickandBuy Account to a bank account nominated by the Merchant. The Merchant will have no right to make redemptions 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 Direct Debit Instruction 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.
2.9 ClickandBuy may recover from the Merchant Offer Charges paid in accordance with Clause 2.6, which were billed to an End User, but for any reason not paid by the End User or the Merchant Acquirer.
2.10 ClickandBuy will be entitled to retain an amount of up to fifty per cent (50%) of the Offer Charges attributable to the Merchant in any one Month at the end of each relevant Month to cover any liability to End Users or other parties having a legitimate claim. Retentions made by ClickandBuy pursuant to this Clause can be kept for up to six (6) weeks and will be refunded to the Merchant in the following Month 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 12 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 In the event that the End User contacts ClickandBuy and rejects goods offered or services rendered by the merchant for being insufficient, incorrect or defective, ClickandBuy may cancel the transaction and refrain from billing any Offer Charges or refund the End User’s ClickandBuy account with the disputed amount. 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 the End User, despite of taking reasonable steps to pursue the 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 as set out in clause 2.3 of this Agreement shall be due for all Offer Charges, whether or not monies can 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.
2.15 The Merchant shall not be entitled to interest on the balance of monies collected by ClickandBuy that is stored ClickandBuy Account.
3. SECURITY
3.1 The Merchant is responsible for the security and proper use of its user names, passwords, and security checkwords and other details used in connection with the Service and must take all necessary steps to ensure that they are kept confidential, used properly and not disclosed to unauthorised people or used in an unauthorised way. ClickandBuy may rely on and act in accordance with all instructions received by ClickandBuy and made using valid and current User security data.
3.2 The Merchant must promptly change its passwords and security checkwords if there is any reason to believe that a password or security checkwords has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
3.3 ClickandBuy reserves the right immediately to suspend the Service at any time if ClickandBuy considers that there is or is likely to be a breach of security.
3.4 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s details which the Merchant supplied when registering for the Services.
3.5 The Merchant will take all reasonable measures to prevent unauthorised access to or unauthorised use of the Service by any party.
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.
3.2 The Merchant must promptly change its passwords and security checkwords if there is any reason to believe that a password or security checkwords has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
3.3 ClickandBuy reserves the right immediately to suspend the Service at any time if ClickandBuy considers that there is or is likely to be a breach of security.
3.4 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s details which the Merchant supplied when registering for the Services.
3.5 The Merchant will take all reasonable measures to prevent unauthorised access to or unauthorised use of the Service by any party.
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 is 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 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.
4.5 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 (http://ClickandBuy.com/UK/en/about/acceptancepolicy.html);
(c) in any way that does not comply with any instructions given under Clause 1.5(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 clause 4.5.
4.6 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 signature of this Agreement and immediately inform ClickandBuy of any changes to these details.
4.7 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 Merchant Manual as amended from time to time. An updated version of the Merchant Manual can at any time be obtained from the ClickandBuy Service Area.
4.8 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).
4.9 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.
4.10 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.
4.11 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.
4.12 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.
4.13 In the event that the nature of the Merchant’s business activity changes significantly, then the Merchant will inform ClickandBuy promptly of the change.
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 is 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 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.
4.5 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 (http://ClickandBuy.com/UK/en/about/acceptancepolicy.html);
(c) in any way that does not comply with any instructions given under Clause 1.5(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 clause 4.5.
4.6 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 signature of this Agreement and immediately inform ClickandBuy of any changes to these details.
4.7 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 Merchant Manual as amended from time to time. An updated version of the Merchant Manual can at any time be obtained from the ClickandBuy Service Area.
4.8 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).
4.9 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.
4.10 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.
4.11 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.
4.12 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.
4.13 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. TRANSACTION ACCURACY AND TAXATION
5.1 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.
5.2 For the purpose of End User VAT invoicing, ClickandBuy will supply the End User with an invoice showing the applicable VAT. ClickandBuy will supply to the Merchant with details of the amounts of VAT invoiced to End Users on behalf of the Merchant. However, the Merchant acknowledges that the ClickandBuy-System does neither automatically detect if a product is subject to reduced VAT rates nor if the End User is entitled to deduction of input tax deduction. Should the End User have its residence outside the European Union, the VAT will be displayed with 0%. Upon Merchant’s request, ClickandBuy may also issue a receipt of payment without showing the applicable VAT rate.
5.3 Neither ClickandBuy nor its licensees provides any advisory services to the Merchant regarding taxation and any customs or other import/export duties. For the avoidance of doubt, the operation by ClickandBuy of any server having a taxation computation capability does not constitute the provision of such advice and all such computations are based solely on data supplied by the Merchant. The Merchant should not rely on the output from any such server and must check the validity and accuracy of such output accordingly.
5.4 Any information that ClickandBuy provides to the Merchants or End Users in respect of 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.
5.5 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s VAT registration number or if the Merchant ceases to be registered for VAT.
5.2 For the purpose of End User VAT invoicing, ClickandBuy will supply the End User with an invoice showing the applicable VAT. ClickandBuy will supply to the Merchant with details of the amounts of VAT invoiced to End Users on behalf of the Merchant. However, the Merchant acknowledges that the ClickandBuy-System does neither automatically detect if a product is subject to reduced VAT rates nor if the End User is entitled to deduction of input tax deduction. Should the End User have its residence outside the European Union, the VAT will be displayed with 0%. Upon Merchant’s request, ClickandBuy may also issue a receipt of payment without showing the applicable VAT rate.
5.3 Neither ClickandBuy nor its licensees provides any advisory services to the Merchant regarding taxation and any customs or other import/export duties. For the avoidance of doubt, the operation by ClickandBuy of any server having a taxation computation capability does not constitute the provision of such advice and all such computations are based solely on data supplied by the Merchant. The Merchant should not rely on the output from any such server and must check the validity and accuracy of such output accordingly.
5.4 Any information that ClickandBuy provides to the Merchants or End Users in respect of 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.
5.5 The Merchant must immediately inform ClickandBuy of any changes to the Merchant’s VAT registration number or if the Merchant ceases to be registered for VAT.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 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.
6.2 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.
6.3 Where any software, documentation or other materials are provided to enable the Merchant to use the Service, ClickandBuy grants the Merchant a non-exclusive, non-transferable licence to use the software, documentation or other materials for that purpose only and in accordance with this Agreement.
6.4 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.
6.5 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.
6.6 The Merchant may make one copy of the software, documentation and other materials supplied under this Agreement for backup purposes.
6.7 The Merchant shall grant to ClickandBuy a non-exclusive, non-transferable (other than in accordance with Clause 14) licence, for the duration of the Agreement, to use the Merchant's intellectual property rights in the course of providing the Service.
6.2 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.
6.3 Where any software, documentation or other materials are provided to enable the Merchant to use the Service, ClickandBuy grants the Merchant a non-exclusive, non-transferable licence to use the software, documentation or other materials for that purpose only and in accordance with this Agreement.
6.4 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.
6.5 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.
6.6 The Merchant may make one copy of the software, documentation and other materials supplied under this Agreement for backup purposes.
6.7 The Merchant shall grant to ClickandBuy a non-exclusive, non-transferable (other than in accordance with Clause 14) licence, for the duration of the Agreement, to use the Merchant's intellectual property rights in the course of providing the Service.
7. CONFIDENTIALITY
7.1 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.
7.2 This Clause 7 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.
7.3 The restrictions in this Clause will survive the termination or expiry of this Agreement for as long a period as permitted by applicable law.
7.2 This Clause 7 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.
7.3 The restrictions in this Clause will survive the termination or expiry of this Agreement for as long a period as permitted by applicable law.
8. LIABILITY
8.1 Each party accepts unlimited liability for death or personal injury resulting from its negligence and for fraud and Clauses 8.2, 8.3 and 8.4 do not apply to such liability.
8.2 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.
8.3 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) the use of the Merchant’s ClickandBuy Account by any person other than the Merchant;
(b) fraud;
(c) access or use of Offer Charges collected that are held in the Merchant’s ClickandBuy Account by any person other than the Merchant;
and
(d) malfunction or damage to ClickandBuy’s system’s which causes the Service to be suspended.
8.4 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 the Month in which the incident occurred for any one incident or series of related incidents, provided that this Clause shall not in any way limit the Merchant's obligations under Clause 2.
8.5 ClickandBuy shall not be liable for (1) the Offer and (2) transactions or transaction related instructions received by ClickandBuy and made using valid and current User ID and Password data.
8.6 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.
8.2 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.
8.3 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) the use of the Merchant’s ClickandBuy Account by any person other than the Merchant;
(b) fraud;
(c) access or use of Offer Charges collected that are held in the Merchant’s ClickandBuy Account by any person other than the Merchant;
and
(d) malfunction or damage to ClickandBuy’s system’s which causes the Service to be suspended.
8.4 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 the Month in which the incident occurred for any one incident or series of related incidents, provided that this Clause shall not in any way limit the Merchant's obligations under Clause 2.
8.5 ClickandBuy shall not be liable for (1) the Offer and (2) transactions or transaction related instructions received by ClickandBuy and made using valid and current User ID and Password data.
8.6 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.
9. MATTERS BEYOND THE PARTIES’ REASONABLE CONTROL
9.1 If either party is unable to perform any obligation under this Agreement, or its performance is detrimentally affected because of a matter beyond that party’s reasonable control such as 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, that party will have no liability to the other party for that failure to perform. The delaying party shall promptly notify the other of the delay and the reasons for and likely duration of the delay.
9.2 In the event that ClickandBuy’s contract with the Merchant Acquirer is terminated or service under ClickandBuy’s contract with the Merchant Acquirer is suspended for any reason then ClickandBuy will have no liability to the Merchant for failure or limited supply of the Service.
9.3 If any of the events detailed in Clauses 9.1 or 9.2 continue for more than four weeks then either party may serve notice on the other terminating this Agreement.
9.2 In the event that ClickandBuy’s contract with the Merchant Acquirer is terminated or service under ClickandBuy’s contract with the Merchant Acquirer is suspended for any reason then ClickandBuy will have no liability to the Merchant for failure or limited supply of the Service.
9.3 If any of the events detailed in Clauses 9.1 or 9.2 continue for more than four weeks then either party may serve notice on the other terminating this Agreement.
10. TERMINATION BY NOTICE
10.1 After the initial period of twelve Months from signature of this Agreement either party can terminate this Agreement on giving 3 months' written notice to the other party.
10.2 Either party may terminate this Agreement at any time pursuant to Clause 9.3.
10.3 The Merchant may terminate this Agreement at any time by giving ClickandBuy 30 days notice if ClickandBuy increases the Charges pursuant to Clause 2.3 by an amount exceeding 10% per year.
10.4 ClickandBuy may terminate this Agreement immediately upon giving notice to the Merchant at any time if there is a Change of Control of the Merchant and the Merchant will promptly notify ClickandBuy of any such Change of Control.
10.5 ClickandBuy may terminate this Agreement immediately upon giving notice to the Merchant at any time if any investigation is commenced or appears to ClickandBuy to be likely to be commenced into the activities of the Merchant in relation to any gambling, gaming, betting, lottery or other similar law in any jurisdiction (and in this case 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).
10.6 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.
10.7 Termination does not avoid liability for Service already provided.
10.2 Either party may terminate this Agreement at any time pursuant to Clause 9.3.
10.3 The Merchant may terminate this Agreement at any time by giving ClickandBuy 30 days notice if ClickandBuy increases the Charges pursuant to Clause 2.3 by an amount exceeding 10% per year.
10.4 ClickandBuy may terminate this Agreement immediately upon giving notice to the Merchant at any time if there is a Change of Control of the Merchant and the Merchant will promptly notify ClickandBuy of any such Change of Control.
10.5 ClickandBuy may terminate this Agreement immediately upon giving notice to the Merchant at any time if any investigation is commenced or appears to ClickandBuy to be likely to be commenced into the activities of the Merchant in relation to any gambling, gaming, betting, lottery or other similar law in any jurisdiction (and in this case 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).
10.6 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.
10.7 Termination does not avoid liability for Service already provided.
11. BREACHES OF THE AGREEMENT
11.1 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.
11.2 ClickandBuy may at any time terminate this Agreement or the Service immediately on notice, if
(a) the Merchant uses the Service in a way that is not permitted under Clause 4.1 or 4.5.
(b) 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.
11.3 ClickandBuy shall have the right to serve notice to terminate this Agreement in the event that Chargeback levels exceed five per cent (5%) of overall Offer Charges in any calendar month.
11.4 If the Merchant commits any breach of this Agreement, whether remediable or not, or if any of the events set out in Clause 11.2 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.
11.5 On termination under this Clause the Merchant shall pay to ClickandBuy all Charges which 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.
11.6 The Merchant will remain liable to pay all Charges which are due for the Service during any period in which the Merchant does not comply with this Agreement.
11.7 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.
(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.
11.2 ClickandBuy may at any time terminate this Agreement or the Service immediately on notice, if
(a) the Merchant uses the Service in a way that is not permitted under Clause 4.1 or 4.5.
(b) 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.
11.3 ClickandBuy shall have the right to serve notice to terminate this Agreement in the event that Chargeback levels exceed five per cent (5%) of overall Offer Charges in any calendar month.
11.4 If the Merchant commits any breach of this Agreement, whether remediable or not, or if any of the events set out in Clause 11.2 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.
11.5 On termination under this Clause the Merchant shall pay to ClickandBuy all Charges which 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.
11.6 The Merchant will remain liable to pay all Charges which are due for the Service during any period in which the Merchant does not comply with this Agreement.
11.7 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.
12. CONSEQUENCES OF TERMINATION
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.
(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. VARIATION OF TERMS AND CONDITIONS
Except as described in Clauses 1.5(a) and 2.3, this Agreement may only be amended or varied by agreement of the parties in writing.
14. TRANSFER OF RIGHTS AND OBLIGATIONS
14.1 Subject to Clauses 14.2 and 14.3, neither party may assign or transfer any of its rights or obligations under this Agreement without written consent of the other.
14.2 ClickandBuy may assign or transfer its rights or obligations (or both) to a ClickandBuy Group Company without consent.
14.3 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.
14.2 ClickandBuy may assign or transfer its rights or obligations (or both) to a ClickandBuy Group Company without consent.
14.3 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.
15. NO AGENCY
15.1 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.
15.2 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.
15.2 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.
16. NOTICES
Notices given under this Agreement must be in writing and delivered by hand, or sent by prepaid post or by fax as follows:
(a) to ClickandBuy: at the address above or any alternative address which ClickandBuy notifies to the Merchant at any time;
(B) to the merchant at the address to which the merchant has asked ClickandBuy to send invoices as stated in this agreement or, if the merchant is a limited company, its registered office.
(a) to ClickandBuy: at the address above or any alternative address which ClickandBuy notifies to the Merchant at any time;
(B) to the merchant at the address to which the merchant has asked ClickandBuy to send invoices as stated in this agreement or, if the merchant is a limited company, its registered office.
17. PUBLICITY
Neither party will issue any promotional or advertising material or press release relating to the other, without first obtaining the other’s prior consent (via email or in writing).
18. ENTIRE AGREEMENT
18.1 This Agreement contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
18.2 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.
18.3 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.
18.4 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.
18.5 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.
18.2 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.
18.3 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.
18.4 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.
18.5 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.
19. LAW AND LEGAL DISPUTES
19.1 This Agreement is governed by the laws of England and Wales, and both parties irrevocably submit to the exclusive jurisdiction of the English courts.
19.2 If you are not satisfied with any aspect of the Service you may contact your contact person of ClickandBuy as stated in this agreement, or the support department at the telephone number or email address stated on the ClickandBuy Website at http://clickandbuy.com/.
19.3 The Financial Ombudsman Service may apply to this Service for out of court dispute settlement where the Merchant is an eligible complainant under DISP 2.4.3R 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 account manager as notified to you from time to time, or the support department at the telephone number or email address stated on the ClickandBuy Website at http://clickandbuy.com/, shall be settled by 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 www.financial-ombudsman.org.uk.
19.4 Electronic Money is not covered by the Financial Services Compensation Scheme or any other compensation or insurance scheme.
19.2 If you are not satisfied with any aspect of the Service you may contact your contact person of ClickandBuy as stated in this agreement, or the support department at the telephone number or email address stated on the ClickandBuy Website at http://clickandbuy.com/.
19.3 The Financial Ombudsman Service may apply to this Service for out of court dispute settlement where the Merchant is an eligible complainant under DISP 2.4.3R 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 account manager as notified to you from time to time, or the support department at the telephone number or email address stated on the ClickandBuy Website at http://clickandbuy.com/, shall be settled by 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 www.financial-ombudsman.org.uk.
19.4 Electronic Money is not covered by the Financial Services Compensation Scheme or any other compensation or insurance scheme.
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.
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 you are not satisfied with any aspect of the Service you may contact your account manager as notified to you from time to time, or the support department at the telephone number or email address stated on the ClickandBuy Website at http://clickandbuy.com/.
21.3 The Financial Ombudsman Service may apply to this Service where the Merchant is an eligible complainant under DISP 2.4.3R 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 account manager as notified to you from time to time, or the support department at the telephone number or email address stated on the ClickandBuy Website at http://clickandbuy.com/, shall be settled by 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 www.financial-ombudsman.org.uk.
21.4 Electronic Money is not covered by the Financial Services Compensation Scheme or any other compensation or insurance scheme.
21.2 If you are not satisfied with any aspect of the Service you may contact your account manager as notified to you from time to time, or the support department at the telephone number or email address stated on the ClickandBuy Website at http://clickandbuy.com/.
21.3 The Financial Ombudsman Service may apply to this Service where the Merchant is an eligible complainant under DISP 2.4.3R 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 account manager as notified to you from time to time, or the support department at the telephone number or email address stated on the ClickandBuy Website at http://clickandbuy.com/, shall be settled by 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 www.financial-ombudsman.org.uk.
21.4 Electronic Money is not covered by the Financial Services Compensation Scheme or any other compensation or insurance scheme.
22. DEFINITIONS
In this Agreement, unless the context otherwise requires:
"Agreement" means these General Terms and Conditions.
"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 does not receive funds from a card issuer, bank or any other payment provider 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 office is at Lincoln House, 137 –143 Hammersmith Road, London W14 0QL. ClickandBuy International Limited is authorised and regulated as an Electronic Money Issuer by the Financial Services Authority (FSA) and entered into the FSA register. (Insert link to the register)
”ClickandBuy Acceptance Policy” is 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 under http://clickandbuy.com/UK/en/about/acceptancepolicy.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 Rate Card" means the rate card attached at as set out in clause 2.3.
”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 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 clause 2.3.
”Electronic Money” 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 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 the Merchants.
"End User" means a person who purchases an Offer using the Service. ClickandBuy shall notify the Merchant from time to time if the service is extended to any new territories.
"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 the Project Description 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 issuers.
"Merchant Manual" means the documents provided by ClickandBuy to Merchant. For the latest version of these documents please contact your commercial or technical contact at ClickandBuy.
"Merchant Website" means the World Wide Web site(s) on which the Offers are hosted.
"Month" means 00:00:00 (coordinated universal time) on the first day of a calendar month until 23:59:59 (coordinated universal time) 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 charges due to ClickandBuy in respect of the Service which are either set out in clause 2.3.
"Service" means the service known as "ClickandBuy".
"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.
"Working Day" means any day other than Saturdays, Sundays, public or bank holiday in the United Kingdom.
05.09.2007
"Agreement" means these General Terms and Conditions.
"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 does not receive funds from a card issuer, bank or any other payment provider 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 office is at Lincoln House, 137 –143 Hammersmith Road, London W14 0QL. ClickandBuy International Limited is authorised and regulated as an Electronic Money Issuer by the Financial Services Authority (FSA) and entered into the FSA register. (Insert link to the register)
”ClickandBuy Acceptance Policy” is 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 under http://clickandbuy.com/UK/en/about/acceptancepolicy.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 Rate Card" means the rate card attached at as set out in clause 2.3.
”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 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 clause 2.3.
”Electronic Money” 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 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 the Merchants.
"End User" means a person who purchases an Offer using the Service. ClickandBuy shall notify the Merchant from time to time if the service is extended to any new territories.
"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 the Project Description 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 issuers.
"Merchant Manual" means the documents provided by ClickandBuy to Merchant. For the latest version of these documents please contact your commercial or technical contact at ClickandBuy.
"Merchant Website" means the World Wide Web site(s) on which the Offers are hosted.
"Month" means 00:00:00 (coordinated universal time) on the first day of a calendar month until 23:59:59 (coordinated universal time) 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 charges due to ClickandBuy in respect of the Service which are either set out in clause 2.3.
"Service" means the service known as "ClickandBuy".
"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.
"Working Day" means any day other than Saturdays, Sundays, public or bank holiday in the United Kingdom.
05.09.2007