TERMS AND CONDITIONS
The following capitalised terms will have the meanings set forth below. Other terms may be defined elsewhere in this Agreement.
- 1.1. Agreement - the Referral Agreement executed between the Parties, including these Terms and Conditions, entered into between them, and any other document expressly specified by the Parties as part of the Agreement.
- 1.2. Applicable Laws – any legislation and any guidance, opinions, rules or requirements issued by any Regulator in any relevant jurisdiction which are applicable to a Party, its affairs and/or the activities contemplated by the Agreement, each as amended, re-enacted, implemented, superseded or replaced from time to time.
- 1.3. Approved Merchant - a Merchant referred to ECOMMPAY by the Company subject to all of the following conditions: (1) the Merchant that was referred to ECOMMPAY by the Company was not an existing customer of ECOMMPAY as of the date the Company referred such Merchant to ECOMMPAY; (2) the Merchant had not previously contacted or been contacted by ECOMMPAY concerning any of the Payment Services; (3) the Merchant has executed a Merchant Agreement. If an Approved Merchant terminates its services with ECOMMPAY and (i) later re-contracts with ECOMMPAY; or (ii) later obtains Payment Services by contracting through a separate sales channel (for example, a payment systems aggregator that offers the Payment Services), such Merchant will no longer be deemed an “Approved Merchant” according to this Agreement for which commissions would be calculated or owed.
- 1.4. Confidential Information – all confidential information (however recorded or preserved) of a Party, whether provided before or after the date of the Agreement, including (i) information which relates to the existence and terms of the Agreement or is described as confidential by the disclosing Party at the time of the relevant disclosure, (ii) information that would be regarded as confidential by a reasonable business person relating to the disclosing Party’s business, assets, affairs, customers, clients, suppliers, operations, processes, product information, know-how, designs, trade secrets or software and (iii) anything which by its nature, is clearly confidential, but excluding information which the Parties agree in writing is not confidential or may be disclosed or is developed by or for the receiving Party independently of the information disclosed by the disclosing Party.
- 1.5. Insolvency Event – any of the following events in respect of a Party: (i) the Party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (ii) any proposal or arrangement, howsoever described, is made with (or for the benefit of) the Party’s creditors as well as any procedure or order (including issued by any court of competence), whether voluntary or mandatory, is initiated, with respect to the rescheduling or re-arranging of its debts, its winding up, the appointment of an administrator or receiver over it, or attachment or sequestration or other forced execution on or against it or its assets; or (iii) any event which is the equivalent of or similar to (i) or (ii) in any jurisdiction to which the Party is subject.
- 1.6. Merchant – any entity regularly engaged in the sale of goods or services.
- 1.7. Merchant Agreement - payment services agreement for provision of Payment Services concluded between ECOMMPAY and an Approved Merchant.
- 1.8. Territory - countries and jurisdictions designated by ECOMMPAY for the Company’s Merchant referrals. ECOMMPAY may update the list of the countries and jurisdictions included in the Territory from time-to-time upon notice.
- 1.9. Payment Services - payment services provided to the Merchant by ECOMMPAY in accordance with the Merchant Agreement.
- 1.10. Regulator – any person which may exercise powers or functions, to enforce, supervise or monitor compliance by a Party with Applicable Laws and which has jurisdictional competence over a Party, its affairs and/or the Agreement.
2. ROLE AS REFERRER AND OBLIGATIONS
- 2.1. Appointment. ECOMMPAY is a licensed payment services provider, providing Payment Services to various Merchants. Subject to and in accordance with this Agreement, ECOMMPAY hereby appoints the Company as a nonexclusive referrer of Payment Services to Merchants, registered within the Territory. In connection with such appointment, the Company shall market and otherwise promote Payment Services to Merchants, solicit orders from interested Merchants for Payment Services, and refer such Merchants to ECOMMPAY for potential enrolment for Payment Services.
- 2.2. Sales and referral efforts. The Company shall use commercially reasonable efforts to refer Merchants to ECOMMPAY and solicit orders from the Merchants interested in purchasing any of the Payment Services. ECOMMPAY reserves the right to refuse provision of Payment Services to any Merchant referred by the Company for any reason, in ECOMMPAY’s sole discretion.
- 2.3. Obligation to provide necessary information and documents. Upon ECOMMPAY’s request the Company shall provide information and documents necessary to assess the referred Merchant. If the Company fails to provide the required information and documents regarding the referred Merchant and/or Approved Merchant within one month from ECOMMPAY’s request, ECOMMPAY considers the respective Merchant and/ or Approved Merchant as never referred by the Company. If due to the Merchant’s delay or failure to provide information and documents necessary for enrolling of the Merchant, ECOMMPAY has not concluded a Merchant Agreement with the Merchant within two months from the date when the Company has referred the respective Merchant, ECOMMPAY considers the respective Merchant as never referred by the Company.
- 2.4. Limitations. Clause 2.1 sets forth the entirety of the Company’s right to market, promote, offer and distribute the Payment Services. The Company will not, directly or indirectly: (a) market, promote, offer or otherwise distribute any of the Payment Services except as specifically set forth in this Agreement; (b) remove, alter, distort, cover or otherwise modify any legal notices (including any notice of proprietary rights) appearing in or on, or that may be included with, any content, documentation, or other materials furnished or otherwise made available to the Company by ECOMMPAY; and (c) surcharge, bill or collect any fees from Approved Merchants for their enrolment in or use of the Payment Services. ECOMMPAY may at any time modify its grant of rights to the extent necessary to ensure compliance. The Company will refer to ECOMMPAY Merchants located and operating within the Territory.
- 2.5. No unauthorised warranties. The Company shall accurately describe ECOMMPAY and the Payment Services to each Merchant. The Company will make no representation, warranty or description regarding the performance, functional characteristics or other aspects of any Payment Service that is beyond those stated in ECOMMPAY’s then-current and approved marketing and promotional strategy for the applicable Payment Service.
- 2.6. Liability for losses, damages and costs incurred by ECOMMPAY. In the event if ECOMMPAY incurs any overdue amounts, loss, damage, cost (including all interest, penalties, fines and legal costs and all other professional costs and expenses) due to an Approved Merchant arising from or in connection with the Merchant Agreement, ECOMMPAY shall negotiate with the Approved Merchant and endeavour to recover any such losses, damages and costs from the Approved Merchant. In the event if the Approved Merchant does not pay the losses, damages and costs, ECOMMPAY shall be entitled to recover them from the Company. All losses, damages and costs recoverable from the Company under this Clause shall be limited to the amount of the commission received by the Company within the three last months before the losses, damages and costs were incurred by ECOMMPAY.
3. ECOMMPAY’S OBLIGATIONS
- 3.1. Payment Services. ECOMMPAY will provide Payment Services to Approved Merchants to the extent required by, and in accordance with the Merchant Agreement.
- 3.2. Merchant rejection; Service changes. Notwithstanding anything in this Agreement, ECOMMPAY reserves the right to reject any Merchant, refuse to provide Payment Services to any Merchant, or to cease providing Payment Services to any Merchant, each as determined in ECOMMPAY’s sole discretion. Further, ECOMMPAY may change the features, functionality, scope, and pricing of the Payment Services at any time and in its sole discretion.
4. COMMISSION PAYMENT TO THE COMPANY
- 4.1. Commission. As remuneration for the performance of the Company’s referrer services pursuant to this Agreement, the Company shall be entitled to receive a commission from ECOMMPAY in the amount and according to the calculation agreed in writing between the Parties for each Approved Merchant separately. ECOMMPAY shall pay the commission for a relevant Approved Merchant from the moment of the first processed bona fide Payment Service transaction and as long as the Merchant Agreement or this Agreement has not been terminated, except where the Agreement provides otherwise or it has been agreed otherwise between the Parties. Variables used for calculation of the commission shall include transaction fee solely and shall not include any other fees and/or charges paid by the Approved Merchant to ECOMMPAY (e.g., fee for opening or closing the Approved Merchant’s account; fee for technical integration etc.).
- 4.2. Payment. The Company's commission shall be paid upon written request of the Company. If total amount of the commission does not exceed twenty thousand euros (EUR 20 000) or its equivalent in other currency, ECOMMPAY’s expenses for the bank transfer are deducted from the amounts payable to the Company.
- 4.3. Taxes. All commissions and any other payments to the Company include all applicable taxes. If the Company has not applied the necessary tax to the commission, the amount of the commission together with the tax shall not become higher than the initial amount of the commission and instead the initial amount of the commission shall be considered to have included the tax.
5. TERM AND TERMINATION
- 5.1. Term. The term of this Agreement commences on the date when both Parties have executed this Agreement, and will continue thereafter on a yearly basis until terminated by either Party as provided under this Agreement.
- 5.2. Termination by any of the Parties. Either Party shall be entitled to terminate the Agreement for convenience upon written notice of 30 (thirty) calendar days to the other Party. In the event if ECOMMPAY terminates the Agreement according to this Clause, ECOMMPAY shall continue to pay the commission to the Company for each Approved Merchant for three months after termination of the Agreement.
- 5.3. Termination by any of the Parties due to the breach. Either Party may terminate this Agreement with a prior written notice provided to the other Party (the breaching Party) in the event if the breaching Party materially breaches the Agreement and does not remedy the breach within 30 (thirty) days after receipt of such notice or if the breach cannot be remedied at the reasonable determination of the Party terminating the Agreement. The termination will be effective as of the expiry of the aforementioned time period.
- 5.4. Termination by ECOMMPAY due to non-performance of the obligations. In the event if the Company does not refer any new Merchants and shows no reasonable activity in referring Merchants for three years, ECOMMPAY has the right, in its sole discretion, to terminate the Agreement with immediate effect in its sole discretion.
- 5.5. Termination in an Insolvency Event. Either Party may terminate this Agreement with immediate effect if the other Party has become subject to an Insolvency Event.
- 5.6. Effect of termination; Survival. Upon expiration or termination of this Agreement for any reason and, where applicable, the expiry of ECOMMPAY’s obligation to pay the commission to the Company due in accordance with clause 5.2.: (i) ECOMMPAY may continue to provide Payment Services to any and all Approved Merchants; and (ii) all rights and obligations of the Parties under this Agreement shall be extinguished, except the rights and obligations of the Parties under this clause, sections 6 (Representations and warranties), 7 (Compliance), 8 (Warranty and disclaimer), 9 (Limitations of liability), and 10 (Confidentiality – in force for three years after termination of the Agreement) shall survive such expiration or termination.
6. REPRESENTATIONS AND WARRANTIES
- 6.1. Each Party represents and warrants on a continuous basis during the term of the Agreement that:
- 6.1.1. it has full power and authority as well as all necessary authorisation, licence, permission and approval (if required under any Applicable Laws), to enter into and perform the Agreement;
- 6.1.2. its entry into and performance of the Agreement does not, in any material aspect, breach or cause it to be in breach of any agreement, document or licence (including intellectual property licence) that is binding on it;
- 6.1.3. all information, data and materials provided by it under the Agreement are accurate and complete in all material respects;
- 6.1.4. no Insolvency Event exists or is threatened in relation to it; and
- 6.1.5. it is not in material breach of any Applicable Laws.
- 6.2. Except as expressly provided in the Agreement, there are no conditions, warranties or other terms binding on the Parties with respect to the actions contemplated by the Agreement and to the extent that it is lawful to do, any such condition, warranty or other terms that might otherwise be implied or incorporated herein, whether by statute, common law or otherwise, is excluded.
- 7.1. ECOMMPAY must adhere to legal requirements, including, but not limited to, legal requirements for the prevention of money laundering and terrorist financing and to monitor the Company in accordance with these requirements. Where ECOMMPAY endeavours to comply with these requirements and/or prevent fraud, ECOMMPAY shall be entitled to perform customer due diligence measures, perform compliance checks and request relevant information and documents from the Company (e.g., incumbency certificate, certificate of good standing or other documents confirming good standing of the Company, signatory rights to represent the Company), and Company shall provide the requested information and documents to ECOMMPAY within 15 (fifteen) working days upon such request. In exceptional circumstances, the requests may specify a shorter time-frame for the reply. Where possible, ECOMMPAY shall endeavour to specify a longer time-frame for the reply. In the event if the Company does not provide the requested documents within the term specified in this clause, ECOMMPAY shall withhold the payment of the commission referred to in clause 4.2 of the Agreement until the Company submits the documents requested pursuant to this 7.1. clause. In the event if the Company submits the documents after the Agreement is terminated, ECOMMPAY has the right to refuse to make the commission payment.
- 7.2. Where the Company has provided information to ECOMMPAY in any application or within customer due diligence measures, the Company shall act in compliance with such information. The Company shall notify ECOMMPAY immediately in the event of any material changes that could affect the business relationship of the Parties within 5 (five) working days after such changes have become known to the Company. These are changes in the information included in any application submitted to ECOMMPAY, changes in the information provided to ECOMMPAY within customer due diligence measures, changes in the legal status of Company.
- 7.3. As part of ECOMMPAY’s efforts to ensure adherence to legal requirements for the prevention of money laundering and terrorist financing, upon prior notification to the Company, except where Applicable Laws prohibit such notification, ECOMMPAY shall be entitled to suspend the transfer of the relevant amount of funds due to the Company, if ECOMMPAY reasonably suspects that the Company or any of the Company’s beneficial owners, shareholders, officials or authorised persons are involved in money laundering or terrorist financing or other criminal activity, including if this may be implied from public information or ECOMMPAY is unable to apply customer due diligence measures. The suspension referred to in this clause shall cease immediately when the grounds for suspension have ceased.
8. WARRANTY AND DISCLAIMER
- 8.1. Warranty. ECOMMPAY gives no warranty to the Company regarding the Payment Services or related materials. Any warranty regarding the Payment Services by ECOMMPAY, if any, is given directly to Approved Merchants under the Merchant Agreement, and the Company may not give such warranties or any representations on ECOMMPAY’s behalf. ECOMMPAY does not represent or warrant to the Company that the Payment Services will always be available, accessible, uninterrupted, timely, secure, accurate, complete, or entirely error-free. If the Company is dissatisfied by the performance of the Payment Services, the Company’s sole and exclusive remedy is to cease its efforts to refer Merchants to ECOMMPAY and terminate this Agreement as provided in clause 5.2.
- 8.2. Disclaimer. Except as expressly set forth in this Agreement, ECOMMPAY specifically disclaims all representations, warranties, and conditions whether express or implied, arising by statute, operation of law, usage of trade, course of dealing, or otherwise, including but not limited to, warranties or conditions of merchantability, fitness for a particular purpose, non-infringement, or title with respect to the Payment Services, or any services, materials or goods provided under this Agreement.
9. LIMITATIONS OF LIABILITY
- 9.1. Each Party (“Indemnifying Party”) shall indemnify the other (“Indemnified Party”) and hold it harmless and indemnified against and in respect of all loss or damage (including all interest, penalties, fines and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Indemnified Party arising out of or in connection with (i) any claim made against the Indemnified Party by any third party as a result of any action or inaction by the Indemnifying Party in connection with the Agreement and/or (ii) any breach by the Indemnifying Party of the Agreement.
- 9.2. The Indemnifying Party shall not be liable to the Indemnified Party for:
- 9.2.1. special, punitive, incidental, indirect or consequential loss or damage, loss of, or damage to, data, profits, revenue, anticipated savings, goodwill, business, opportunity, contracts, loss arising from business interruption, whether in tort or contract, and even if such loss or damage was reasonably foreseeable or the Indemnifying Party had been advised of the possibility of the Indemnified Party incurring the same; and
- 9.2.2. loss or damage due to events beyond the Indemnifying Party’s reasonable control, i.e. force majeure events; and
- 9.2.3. all loss or damage referred to hereunder shall be limited to the amount of “out-of-pocket” loss or damage actually incurred by the Indemnified Party.
- 9.3. Notwithstanding anything to the contrary hereunder:
- 9.3.1. ECOMMPAY’s aggregate liability under the Agreement shall be limited to and shall not exceed the total commission paid to the Company before the event that gave rise to such liability; and
- 9.3.2. ECOMMPAY shall not be liable for any loss, damage, cost (including all interest, penalties, fines and legal costs and all other professional costs and expenses) suffered or incurred by the Company arising from or in connection with ECOMMPAY’s compliance with any Applicable Laws.
- 10.1. Where the Agreement does not expressly provide otherwise, each Party shall:
- 10.1.1. use the other Party’s Confidential Information solely for the specific purposes for which it was disclosed;
- 10.1.2. subject to clauses 10.2 and 10.3, not publish or otherwise disclose to any third party the other Party’s Confidential Information without its prior written consent; and
- 10.1.3. take all action reasonably necessary to secure the other Party’s Confidential Information against unauthorised disclosure.
- 10.2. Each Party (“Disclosing Party”) may disclose the Confidential Information of the other Party if the Confidential Information:
- 10.2.1. is required to be disclosed by a court of competent jurisdiction or any Applicable Laws;
- 10.2.2. was lawfully in the possession of the Disclosing Party prior to disclosure to it by the other Party without an obligation restricting disclosure;
- 10.2.3. is already public knowledge or which becomes so at a future date other than due to an Agreement breach; or
- 10.2.4. is developed independently by the Disclosing Party without knowledge of the Confidential Information.
11. CHANGES TO THE AGREEMENT
- 11.1. Subject to clause 11.2, the Agreement may not be changed unless by an instrument agreed and executed by both Parties in writing.
- 11.2. ECOMMPAY may at its own discretion change the Agreement:
- 11.2.1. by giving the Company a written notice of not less than 60 (sixty) calendar days;
- 11.2.2. where such changes are reasonably required for ECOMMPAY’s compliance with any Applicable Laws or any applicable requirements, with immediate effect (in which case, ECOMMPAY shall endeavour to notify the Company as soon as practicable) or within the time as specified by any written notice to the Company.
- 12.1. This Agreement does not confer on either Party any rights that are exclusive. Each Party is free to contract with others with respect to the subject matter of this Agreement.
- 12.2. In connection with the services performed under this Agreement, the Parties agree to comply with all applicable anti-corruption and antibribery related laws, statutes, and regulations.
- 12.3. Communications between the Parties under the Agreement shall be in writing and delivered to a Party at its address, including e-mail address. Any communication sent from a Party’s e-mail shall be deemed authorised by that Party. For e-mail communication ECOMMPAY shall use the Company’s e-mail addresses set out in this Agreement or which have been otherwise notified to ECOMMPAY and the Company shall use the e-mail addresses notified to it by ECOMMPAY.
- 12.4. Communications are deemed received, if by hand, on signature of a delivery receipt; if by post, at 9.00 am on the working day after the day of post; or, if by email or other electronic means, at 9.00 am on the working day after the electronic transmission. References in this clause to time of day are to the time of day at the location of the recipient.
- 12.5. No waiver of any right or remedy under the Agreement shall be in effect unless executed in writing and shall not be deemed a waiver of any other right or remedy.
- 12.6. A Party may use the other Party’s trademarks or other Confidential Information for publicity purpose (including any announcement relating to the Agreement) only with prior written consent of the other Party and to the extent permitted by the other Party.
- 12.7. Neither Party shall assign the Agreement to a third party in whole or in part without the other Party’s written consent which shall not be unreasonably delayed or withheld.
- 12.8. In case any provision of the Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- 12.9. Unless otherwise specified:
- 12.9.1. clause and section headings shall not affect the interpretation of the Agreement;
- 12.9.2. words in the singular include a reference to the plural and vice versa and references to “person” include individuals and corporates;
- 12.9.3. a reference to any Party shall include that Party’s successors and permitted assigns;
- 12.9.4. a reference to any law or legal/regulatory provision is a reference to it as amended, extended or re-enacted from time to time, including all subordinate measures made from time to time thereunder;
- 12.9.5. a reference to writing or written includes e-mail or other electronic documentation;
- 12.9.6. any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- 12.10. The Parties do not intend any third party to have the right to enforce any provision of the Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise, except where such third party is an assignee of rights under the Agreement and such assignment is in accordance with the Agreement.
- 12.11. The Agreement and any non-contractual obligations arising from or in connection with it shall be governed by and construed in accordance with the laws of England and Wales.
- 12.12. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with the Agreement.