Terms and Conditions for referral partners
1. DEFINITIONS
1.1. Affiliate – with respect to any person, regardless of its legal form, a person which, directly or indirectly, (i) controls that person, (ii) is controlled by that person, (iii) shares a common control with that person; “control” for this purpose means direct or indirect ownership of more than 50% voting power.
1.2. Agreement – the Referral Agreement executed between the Parties, including the Fee Schedule, entered into between them, these Terms and Conditions, and any other document expressly specified by the Parties as part of the Agreement.
1.3. Approved Merchant – a merchant that (i) was Referred to Ecommpay by the PARTNER via a dedicated form provided by Ecommpay, (ii) was not an existing customer of Ecommpay as of the date of Referral, (iii) has not been in correspondence with Ecommpay concerning any of its services, and (iv) has executed a merchant agreement with Ecommpay; Ecommpay may include Affiliates.
1.4. Commission – the commission to be paid to the PARTNER by Ecommpay as set out in the Agreement.
1.5. Compliance Requirements – the requirements set out in section 4.
1.6. 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.
1.7. Effective Date – the date on which the Agreement has been signed by all parties hereto.
1.8. 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.
1.9. Referral – means (i) marketing and otherwise promoting the payment services of Ecommpay to merchants as part of negotiations to find the suitable payment service provider for them, (ii) soliciting orders from interested merchants for payment services and referring such merchants to Ecommpay for potential enrolment for payment services, including by sending relevant orders of merchants to Ecommpay prior to Ecommpay being in correspondence with such merchants, and (iii) to the extent applicable to the PARTNER, performing the necessary due diligence on merchants and performing the activities that are necessary to enable the merchant to contract with Ecommpay and receive the payment services.
1.10. Working Day – means working days in England and Wales, and in relation to be payments made by Ecommpay, working days at the locations of Ecommpay that process the payment.
2. SERVICES
2.1. The PARTNER shall promote the services of Ecommpay and solicit merchants for these services. For this purpose, the PARTNER shall (i) use only such materials as provided or authorised by Ecommpay, and (ii) Refer Merchants who are in line with the business and compliance policy standards as communicated to the PARTNER by Ecommpay from time to time.
2.2. The PARTNER acknowledges that (i) Ecommpay is entitled to reject any Referred merchant at its sole discretion or terminate an Approved Merchant at any time, (ii) nothing in this Agreement prevents Ecommpay from promoting their services, recruiting merchants directly or entering into similar agreements with third parties, and (iii) Ecommpay may at its sole discretion agree on any provisions, including pricing, with merchants and this Agreement shall not impose any obligations thereon. Ecommpay gives no warranty to the PARTNER regarding its services or any related materials.
2.3. Nothing in this Agreement is intended to authorise the PARTNER to act as an agent of Ecommpay and the PARTNER does not have authority to act on behalf of, or otherwise to bind, Ecommpay in any way.
2.4. To the extent the services of Ecommpay refer to services provided by an Affiliate of Ecommpay, any reference to Ecommpay may imply a reference to an Affiliate where necessary for the purpose of the relevant provision. For the avoidance of doubt, this Agreement does not create a contractual relationship between the PARTNER and Affiliates of Ecommpay.
2.5. During the term of the Agreement and the 12 calendar months immediately after its expiry, the PARTNER shall not solicit any entity that is known by the PARTNER to be, or to have been during the immediately preceding 12 calendar months, a merchant of Ecommpay, with a view to introducing such merchant to third parties who provide services which are the same as, or similar to, the services provided by Ecommpay.
3. FEES AND SETTLEMENT
3.1. In consideration of the PARTNER Referring merchants to Ecommpay, Ecommpay will during the term of the Agreement pay the Commission to the PARTNER in accordance with Fee Schedule of this Agreement. The Commission payment may be subject to minimum settlement amounts as set out in Fee Schedule, meaning that no Commission is settled to the PARTNER, if the amount is below the minimum on the date of payment, unless the payment is for the final settlement.
3.2. The Commission shall accrue only in relation to Approved Merchants and only from the moment set out in the Fee Schedule. If a merchant agreement with an Approved Merchant is terminated and this merchant re-contracts with Ecommpay afterwards without a new Referral by the PARTNER, such merchant will not be deemed an Approved Merchant.
3.3. The PARTNER shall not surcharge, bill or collect any fees from merchants, including Approved Merchants, for their enrolment in or use of Ecommpay’s services, unless specified in the Fee Schedule.
3.4. Any Commission amount shall only become payable where and to the extent (i) a corresponding amount is received by Ecommpay in full, (ii) no amounts are outstanding under the relevant agreement between Ecommpay and the Approved Merchant, and (iv) such settlement will not constitute a breach of anti-money laundering and sanctions requirements applicable to Ecommpay.
3.5. Ecommpay may withhold the Commission payments attributable to a particular Approved Merchant for a period of no more than six (6) months where as a result of the following it may be reasonably expected that Ecommpay may receive a significant amount of chargebacks: (i) the Approved Merchant becomes subject to strike-off, dissolution or an Insolvency Event, (ii) the Approved Merchant suspends their operations, (iii) the Approved Merchant’s regulator has published a statement that the Approved Merchant has failed, or (iv) the Approved Merchant has used the payment solution of Ecommpay to process illegal transactions or transactions for such websites, applications, goods or services that had not been approved by Ecommpay.
3.6. Any withholding shall be notified to the PARTNER by Ecommpay, except where such notification would be in breach of the applicable laws.
3.7. The Commission shall be deemed inclusive of any tax that the PARTNER may be required to apply.
3.8. The PARTNER acknowledges that Ecommpay may need to perform currency exchange to calculate the Commission, the turnover of an Approved Merchant and other components that determine the Commission. Where currency exchange is necessary, Ecommpay will determine the relevant currency into which other currencies are converted, and will use a reference exchange rate from a reputable source selected by Ecommpay that may be changed from time to time.
3.9. Where the final amount to be settled to the PARTNER by Ecommpay upon termination is less than the agreed Minimum Settlement Amount per transfer, Ecommpay will charge the PARTNER with the actual bank fees for such transfer.
4. COMPLIANCE
4.1. Upon the request of Ecommpay, the PARTNER shall provide any appropriate legal documents and information to Ecommpay where: (i) mandated by card schemes or regulators, or (ii) reasonably necessary to be requested from the PARTNER by Ecommpay to comply with the requirements related to the prevention of money laundering and terrorist financing, and sanctions that are imposed on Ecommpay in relation to its business relationship with the PARTNER. Where the PARTNER has provided information about itself to Ecommpay in any application or within due diligence measures, the PARTNER shall act in compliance with that information and notify Ecommpay in the event of any material changes to that information within 5 (five) Working Days after such changes have become known to the PARTNER. The PARTNER shall notify changes in their bank account details at least 7 (seven) wording days prior to the payment date.
4.2. So far as the PARTNER provides Ecommpay with any information and documents related to third parties, including merchants and their Affiliates, the PARTNER warrants that it is duly authorised to provide such information and documents to Ecommpay.
4.3. The Parties acknowledge that each Party acts as a data controller for the personal data it collects and shares with the other Party. The terms ‘data controller’ and ‘personal data’ shall have the meaning as set out in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR), the UK’s Data Protection Act 2018 and the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (UK GDPR), whichever is applicable to a Party.
4.4. Both Parties shall (i) comply with applicable laws relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010, and (ii) promptly report to each other any request or demand for any undue financial or other advantage of any kind received by either Party in connection with the performance of this Agreement. The Parties warrant that neither Party nor any other persons acting on their behalf (i) have made or given or will make or give any payments or inducements, directly or indirectly, to any government officials or any other personnel in any jurisdictions in which a Party conducts business in connection with their business, (ii) have used, or shall use any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (iii) have made, or will make any direct or indirect unlawful payment to any government official or employee or any other personnel, or (iv) have made, or will make any bribe, unlawful rebate, pay off, influence payment, kickback or other unlawful payment in connection with their business relating to this Agreement.
5. TERM AND TERMINATION
5.1 The Agreement shall commence on the Effective Date and (i) continue for a one (1) year period, and (ii) automatically renew for successive one (1) year periods, unless either Party gives written notice of non-renewal at least one (1) month prior to the expiration of the then-current term.
5.2. Either Party may terminate this Agreement at any time with immediate effect, if the other Party commits a breach of this Agreement, which is not resolved having given reasonable time to do so or which is uncapable of remedy at the reasonable opinion of the terminating Party.
5.3. Ecommpay may terminate this Agreement with immediate effect, if (i) the PARTNER fails to adhere to the Compliance Requirements to the reasonable satisfaction of Ecommpay or Ecommpay reasonably suspects that the PARTNER is in breach of the Compliance Requirements, (ii) the PARTNER fails to Refer an Approved Merchant in any twelve-month period, or (iii) upon strike-off, dissolution or commencement of an Insolvency Event of the PARTNER.
5.4. Termination of this Agreement shall not affect any rights or liabilities of either Party that may have accrued before termination or any provisions of this Agreement that are expressly or by implication intended to continue in force after termination.
6. CONFIDENTIALITY
6.1. Where the Agreement does not expressly provide otherwise, each Party shall:
6.1.1. use the other Party’s Confidential Information solely for the specific purposes for which it was disclosed;
6.1.2. subject to clause 6.2, not publish or otherwise disclose to any third party the other Party’s Confidential Information without its prior written consent; and
6.1.3. take all action reasonably necessary to secure the other Party’s Confidential Information against unauthorised disclosure.
6.2. Each Party (“Disclosing Party”) may disclose the Confidential Information of the other Party if the Confidential Information:
6.2.1. is required to be disclosed by a court of competent jurisdiction, Regulator, by applicable laws or rules of a Payment Method Provider;
6.2.3. was lawfully in the possession of the Disclosing Party prior to disclosure to it by the other Party without an obligation restricting disclosure;
6.2.3. is already public knowledge or which becomes so at a future date other than due to a breach of the Agreement; or
6.2.4. is developed independently by the Disclosing Party without knowledge of the Confidential Information.
7. INDEMNIFICATION AND LIABILITY
7.1. 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.
7.2. The Indemnifying Party shall not be liable to the Indemnified Party for:
7.2.1. 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
7.2.2. loss or damage due to events beyond the Indemnifying Party’s reasonable control, i.e. force majeure events.
7.3. 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.
7.4. Notwithstanding anything to the contrary hereunder:
7.4.1. Each Party’s aggregate liability under the Agreement shall be limited to and shall not exceed the total Commission paid to the PARTNER by Ecommpay before the event that gave rise to such liability; and
7.4.2. 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 PARTNER arising from or in connection with Ecommpay’s efforts to comply with any applicable laws.
8. MISCELLANEOUS
8.1. Unless otherwise specified:
8.1.1. clause and section headings shall not affect the interpretation of the Agreement;
8.1.2. words in the singular include a reference to the plural and vice versa and references to “person” include individuals and corporates;
8.1.3. a reference to any Party shall include that Party’s successors and permitted assigns;
8.1.4. 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;
8.1.5. a reference to writing or written includes e-mail or other electronic documentation;
8.1.6. 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.
8.2. 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 PARTNER’s e-mail addresses notified to Ecommpay and the PARTNER shall use the e-mail addresses notified to it by Ecommpay. Within formal notifications to Ecommpay the PARTNER shall add the e-mail legal@ecommpay.com.
8.3. 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 8.3 to time of day are to the time of day at the location of the recipient.
8.4. Ecommpay may at its own discretion change the Agreement:
8.4.1. by giving the PARTNER a written notice of not less than 60 (sixty) calendar days;
8.4.2. where and to the extent a card scheme or a regulator mandate that Ecommpay have certain arrangements in place with the PARTNER, with immediate effect (in which case, Ecommpay shall endeavour to notify the PARTNER as soon as practicable) or within the time as specified by any written notice to the PARTNER.
8.5. If the PARTNER does not agree to any changes made under clause 8.4., the PARTNER may terminate the Agreement by written notice to Ecommpay and such termination shall take effect upon the expiry date of the relevant notice period under clause 8.4. or, where there is no notice period under clause 8.4., immediately upon the delivery of the PARTNER’s written notice to Ecommpay under this clause 8.5.
8.6. Subject to instructions of Ecommpay and during the term of the Agreement, Ecommpay grants to the PARTNER a royalty-free, non-exclusive, non-transferable and revocable licence to use the name and trademark of Ecommpay solely to identify Ecommpay as the provider of the relevant services.
8.7. Each Party represents and warrants on a continuous basis during the term of the Agreement that:
8.7.1. 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;
8.7.2. 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;
8.7.3. all information, data and materials provided by it under the Agreement are accurate and complete in all material respects;
8.7.4. no Insolvency Event exists or is threatened in relation to it; and
8.7.5. it is not in material breach of any applicable laws.
8.8. The PARTNER warrants on a continuous basis during the term of the Agreement that it is not an employee of Ecommpay, it does not act on behalf of or to the benefit of an employee of Ecommpay, and, where the PARTNER is an undertaking, no employee of Ecommpay has direct or indirect ownership or control over the PARTNER. ‘Employee of Ecommpay’ shall include employees who have had an existing employment relationship with Ecommpay or its Affiliates during the term of, or within six (6) months prior to, the relationship between Ecommpay and the PARTNER, or have received any payments from Ecommpay or its Affiliates during this period due to sales activity carried out within former employment. If the PARTNER is found to be in breach of this warranty, no further fees shall accrue, any and all fees paid by Ecommpay to the PARTNER shall be refunded by the PARTNER.
8.9. Each Party shall bear its own costs incurred in the negotiations leading up to and in the preparation of this Agreement and of matters incidental to this Agreement.
8.10. 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.
8.11. 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.
8.12. 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.
8.13. 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.
8.14. 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.
8.15. 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.