Merchant Terms & Conditions

To keep everyone using KodyPay in a safe, secure manner, we ask that you read and agree to these terms when using our service.

KodyPay Merchant terms & conditions

Please read these terms & conditions carefully
By clicking “Accept & Sign” you confirm that you are aged 18 years or over, an authorised signatory of the applying Merchant, and agree to be bound by these terms and conditions (“Agreement”). If you do not fulfil this criteria, or do not agree to be bound by this Agreement, simply close this webpage.

Who we are
The KodyPay Platform is owned and operated by KodyPay Ltd (company number 11532575) with registered office at Unit 42, 24-48 St Leonard Road, Windsor, Berkshire, England, SL4 3BB (“KodyPay”, “we”, “us” and “our”).

Contact us
If you want to learn more about the KodyPay Platform, or have any problems, questions or complaints, please refer to the support section of the KodyPay App. Alternatively, you may contact us using the KodyPay App, via kodypay.com, or by emailing support@kodypay.com. We will respond to you via the KodyPay App, by email or SMS, in accordance with our Privacy Policy.

RECITALS:

A. KodyPay has developed a proprietary mobile software application (“KodyPay App”) and web-hosted infrastructure (“Web App”) that supports customers’ purchases, and merchant retailers’ sale of goods.

B. You, an authorised signatory of the "Merchant", represent and agree to these terms on behalf of the Merchant, and wish to make available the KodyPay Platform to customers of the Merchant.

C. KodyPay agrees to provide the KodyPay Platform and services to the Merchant, and the Merchant agrees to pay fees and undertake relevant marketing and promotional activities, on the terms and conditions of this Agreement.

IT IS AGREED as follows:

1. Term & extension

1.1 This Agreement commences on the Effective Date and will continue in full force and effect until it is terminated in accordance with its terms.

1.2 Subject to Clause 1.3, and without limiting each Party’s other obligations which become effective from the Effective Date, the Parties acknowledge and agree that it is a condition precedent, which must be met before the provision of any of the Services can commence, that the Merchant must be approved to be a merchant, including being granted a merchant identification number by a merchant acquirer(s) and/or other payment service provider nominated by KodyPay.

1.3 KodyPay may, in its discretion, waive in whole or in part the condition precedent in Clause 1.2.

2.  Services

2.1 Subject to the Merchant’s payment of the Fees, and compliance with all of its obligations under this Agreement, KodyPay shall in accordance with Clause 5 provide the Services to the Merchant during the Term.

2.2 KodyPay may from time to time modify the Services, including by making new or changes to features, functionality, applications or tools available in respect of the Services, including the KodyPay Platform, or as contemplated by Clause 7.4.

3.  License

3.1 KodyPay grants to the Merchant a non-exclusive and non-transferable licence during the Term to permit Permitted Users to access and use the KodyPay Platform pursuant to the permissions and restrictions set out in Schedule 2: KodyPay Platform Services and Schedule 3: KodyPay Marketplace Service; and

3.2 KodyPay acknowledges and agrees that it has the necessary rights to grant the licence under Clause 3.1.

4.  License restrictions

4.1 The Merchant shall not, except to the extent expressly permitted under this Agreement, do or attempt to do any of the following:

4.1.1 copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the KodyPay Platform in any form or media or by any means;

4.1.2 reverse compile, disassemble, reverse engineer or otherwise reduce to human-readable form all of any part of the Services;

4.1.3 use all or any part of the Services in order to build a product or service which competes with the Services or KodyPay’s business;

4.1.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party, provided that the marketing and promotion of the KodyPay Platform to Permitted Users and End Users is permitted pursuant to Clause 6.1.1;

4.1.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than Permitted Users as permitted pursuant to Clause 3;

4.1.6 introduce, or permit the introduction of, any Virus into all or any part of the KodyPay Platform;

4.1.7 perform any vulnerability testing of the Services without KodyPay’s prior written approval, or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking or remote access testing of the Services.

5.  KodyPay's obligations

5.1 KodyPay shall during the Term:

5.1.1 exercise reasonable care and skill, and use reasonable endeavours to provide the Services substantially in accordance with the KodyPay Policies;

5.1.2 ensure that it has, and will maintain, all necessary licences, consents and permits to the extent necessary to provide the Services in accordance with this Agreement; and

6.  Merchant's obligations

6.1 The Merchant shall during the Term:

6.1.1 use its best endeavours to comply with, and procure that Permitted Users comply with, the KodyPay Policies. The Merchant shall promptly notify KodyPay upon becoming aware of any suspected or actual breach by the Merchant or any Permitted User of any KodyPay Policies, or any PCI-DSS standards;

6.1.2 use its best endeavours to perform its responsibilities described in Schedule 2: KodyPay Platform Services and Schedule 3: KodyPay Marketplace Service;

6.1.3 use its best endeavours to ensure its network and systems comply with the relevant specifications provided by KodyPay from time to time;

6.1.4 be solely responsible for: (i) procuring, maintaining and securing its network connections and telecommunications links from its systems to KodyPay’s systems (including any data centre); and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Merchant’s or any Permitted User’s network connections or telecommunications links or caused by the internet;

6.1.5 be solely responsible for configuring its information technology, computer programmes, servers, data, platform and other proprietary materials in order to access the Services and agree to use all accepted industry practice standards to safeguard information in connection with the Services;

6.1.6 ensure that it has, and will maintain, all necessary licences, consents and permits necessary for KodyPay, its contractors and agents to perform KodyPay’s obligations under this Agreement, including the provision of the Services;

6.1.7 ensure its compliance with PCI-DSS requirements, as outlined in Schedule 2;

6.1.8 if it receives any complaint, notice, request or communication from a Regulatory Authority, Data Subject or third party which relates to KodyPay’s Processing of Relevant Personal Data under this Agreement or a potential failure to comply with Data Protection Legislation, to the extent permitted by European Union or European Union member state law, without undue delay forward such complaint, notice, request or communication to KodyPay and provide KodyPay with reasonable cooperation and assistance in relation to the same;

6.1.9 upon becoming aware of a Personal Data Breach affecting Relevant Personal Data in connection with the provision or receipt of the Services:

(A) notify KodyPay without undue delay and provide KodyPay with a reasonable description of that breach promptly upon such information becoming available;

(B) work together with KodyPay acting reasonably and in good faith to mitigate any adverse effects of that breach;

(C) not release or publish any filing, communication, notice, press release or report concerning that breach without first consulting KodyPay with regards to the content of that notice and giving due regard to KodyPay’s reasonable comments, save that it may disclose a breach to the extent required by the Data Protection Legislation; and

6.1.10 comply with all Applicable Laws.

6.2 The Merchant must not misuse the Services and/or any part of them by introducing Viruses, trojans, worms, logic bombs or other materials which are malicious or technologically harmful.  The Merchant must not attempt to gain unauthorised access to KodyPay’s system, website, servers, computers or databases.  The Merchant must not attack KodyPay’s website with any type of denial or service attack.  KodyPay will report any such breach to the relevant law enforcement authorities and will co-operate with those authorities by disclosing the Merchant’s identity to them.

6.3 The Merchant must not use, or knowingly permit the use of, all or any part of the Services:

6.3.1 contrary to the KodyPay Prohibited Use Policy set out at Schedule 5 of this Agreement (and as may amended from time to time);

6.3.2 for any fraudulent, unlawful, deceptive, abusive or other illegal purposes, or in a manner that KodyPay reasonably determines is or may be harmful to, or intended to harm, KodyPay and/or any other third party;

6.3.3 to circumvent KodyPay’s intended controls or limitations for any part of the Services, or in any manner inconsistent with this Agreement.

7. Third-party content & third party providers

7.1 The Merchant acknowledges and agrees that the Services involve the use of services provided by third party providers, and may enable or assist the Merchant, any Permitted User or any End Users to access Third Party Content, correspond with, and purchase products and services from, third parties via Third Party Content and that the Merchant, Permitted Users and the End Users, do so solely at their own risk.

7.2 KodyPay makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any Third Party Content, or any transactions completed, and any contract entered into by the Merchant, any Permitted User or any End User (as the case may be), with any third party. Any contract entered into and any transaction completed via any Third Party Content is between the Merchant, Permitted User or the relevant End User (as the case may be) and the relevant third party, and not KodyPay. Any Third Party Content that KodyPay makes accessible is provided on an ‘as-is’ and ‘as-available’ basis without any warranty of any kind. KodyPay has no responsibility nor any obligation to control, monitor or correct any Third Party Content.

7.3 KodyPay recommends that the Merchant, Permitted Users and End Users refer to the Third Party Content provider’s terms and conditions and privacy policy prior to accessing or using the relevant third party’s Third Party Content. KodyPay does not endorse or approve any Third Party Content made available via the Services.

7.4 The Merchant acknowledges and agrees that KodyPay may need to update, change or modify the Services under this Agreement as a result of a change in, or unavailability of, any Third Party Content, any third party service provider, or any application programming interface (API) of any third party provider. If any third party provider ceases to make its Third Party Content or API available, KodyPay may in its discretion and without any liability to the Merchant, Permitted Users or any End Users cease providing access to the affected Third Party Content, API or the Services.

7.5 The Merchant acknowledges and agrees that KodyPay cannot and does not guarantee that the Services and/or any part of them will be free from bugs or viruses and KodyPay will not be liable for any Damages caused by a virus or other technological attacks or harmful material that may infect your information technology, computer programmes, servers, data, systems, platforms or other proprietary materials.

8. Intellectual property rights

8.1 The Merchant acknowledges and agrees that KodyPay and its licensors own all Intellectual Property Rights in the Services (including any related documentation supplied or made available to the Merchant, any Permitted User or any End User), the KodyPay App, the Platform and the Web App (except in respect of any Merchant Marks incorporated in the App) (collectively the “KodyPay IP”). Nothing in this Agreement shall operate to transfer or assign to the Merchant, any Permitted User or any End User any Intellectual Property Rights in the KodyPay IP.

8.2 Unless otherwise expressly set out in this Agreement, no Intellectual Property Rights in Pre-existing IP of either Party is assigned or otherwise transferred.

8.3 The Merchant grants to KodyPay a non-exclusive and non-transferable licence (including the right to sublicense) for the Term to use the Intellectual Property Rights in the Merchant’s Pre-existing IP supplied by the Merchant to KodyPay, solely to the extent required for KodyPay to exercise its rights and perform its obligations under this Agreement.

8.4 The Merchant acknowledges and agrees that the enforcement and protection of KodyPay’s Intellectual Property Rights shall be in KodyPay’s sole discretion and control, and any and all recoveries resulting from such enforcement or protection actions shall be retained by KodyPay.

8.5 In the defence or settlement of any Claim, KodyPay may: (i) procure the right for the Merchant to continuing using the KodyPay IP; (ii) replace or modify the relevant item of KodyPay IP so that it is non-infringing; or (iii) if such remedies are not reasonably available (in KodyPay’s discretion), terminate this Agreement with 20 Business Days’ written notice to the Merchant without any additional liability or costs to the Merchant.

8.6 The foregoing and Clause 11.1 state the Merchant’s sole and exclusive rights and remedies, and KodyPay’s (including KodyPay’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any Intellectual Property Rights of any third party.

9. Fees

9.1 In consideration of the provision of the Services by KodyPay, the Merchant shall pay to KodyPay the Fees pursuant to the payment terms set out in Schedule 4: Fees.

9.2 KodyPay shall invoice the Merchant for the Fees pursuant to the payment terms set out in Schedule 4: Fees.

10. Warranties and exclusions

10.1 As at the Effective Date, each Party warrants to the other Party that:

10.1.1 it is duly constituted, organised and validly existing under the laws of the country of its incorporation;

10.1.2 it has the legal right and full power and authority to execute and deliver, and to exercise its rights and perform its obligations under, this Agreement and all the documents which are to be executed by it as envisaged by this Agreement;

10.1.3 nothing contained in this Agreement will result in a breach of any provisions of its constitutional documents or result in a breach of any agreement, licence or other instrument, order, judgment or decree of any court, governmental agency or Regulatory Authority to which it is bound; and

10.1.4 it has the authority to grant the licences under this Agreement.

10.2 The Merchant warrants and represents to KodyPay that:

10.2.1 all of the information it provides under this Agreement is and will remain accurate and complete, and that the Merchant (or its signing representative) is authorised to agree to this Agreement and the terms set forth in it;

10.2.2 it has obtained all necessary rights and consents under Applicable Law to disclose information required under this Agreement, and to allow KodyPay (and/or any service provider of KodyPay if applicable) to collect, use, retain and disclose any information that the Merchant provides to KodyPay (and/or any service provider of KodyPay if applicable) or authorise KodyPay to process or collect directly, whether through the use of cookies or similar means.

11. Liability and indemnity

11.1 The Merchant shall indemnify and hold harmless KodyPay and its respective employees, agents and representatives (each an “Indemnified Entity”) from against any Damages arising out of or in relation to:

11.1.1 any breach by the Merchant of this Agreement;

11.1.2 unless otherwise provided for in this Agreement, any disputes between the Merchant and an End User, including those arising from the use of End User Personal Data and any activity by the Merchant, its employees, agents or representatives;

11.1.3 the Merchant’s use of the Services in a manner that is illegal or inconsistent with the Services and the applicable terms and conditions governing all or any part of the Services;

11.1.4 unauthorised or illegal activity initiated by the Merchant or its employees, agents or representatives.

11.2 Subject to Clauses 11.3 and 11.4, each Party’s aggregate liability under this Agreement (whether under statute, in contract or in tort, including for negligence, or otherwise) shall not exceed £10000.

11.3 Nothing in this Agreement shall exclude or restrict either Party’s liability for fraud or fraudulent misrepresentation, death or personal injury caused by the other Party’s negligence or the other Party’s personnel’s negligence, or any other liability which cannot be lawfully excluded or restricted.

11.4 Nothing in this Agreement shall exclude or restrict the Merchant’s liability under the indemnities given by the Merchant to KodyPay under this Agreement.

11.5 To the fullest extent permitted under Applicable Law, in no event will KodyPay be liable for any loss of profits, or any indirect, punitive, incidental, special, consequential, or exemplary Damages arising out of, or in connection with, or relating to this Agreement or the Services, including the use of, inability to use, or unavailability of the Services.

11.6 KodyPay will have no liability for any: (i) damage or loss resulting from hacking, tampering, or other unauthorised access to, or use of, the Services, including any unauthorised access to or use of third-party servers used in connection with the Services and/or any Personal Data stored therein; (ii) interruption or cessation of the Services; (iii) software bugs, Viruses, trojan horses, or other harmful code that may be transmitted to or through the Services; (iv) errors, inaccuracies, or omissions of information, or any damages or losses incurred as a result of such errors, inaccuracies or omissions, resulting from the use of the Services; (v) information that is transmitted using the Services that is defamatory, offensive or illegal; and/or (vi) conduct of any third party.

11.7 KodyPay will not be liable to the Merchant, whether in contract, tort (including for negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any: losses that re not reasonably foreseeable; or loss of profit; or loss of goodwill or reputation; or loss of business; or loss of business opportunity; or loss of anticipated saving; or loss or corruption of data or information; or special, indirect or consequential damage or loss of any kind whatsoever, in each case that arises under or in connection with this Agreement.

12. Suspension

12.1 KodyPay will be entitled to suspend or withdraw the Merchant’s right to use all or any part of the Services, including suspending the processing of any transaction and the payment of any sums to the Nominated Account, where:

12.1.1 the Merchant is in breach of any of its obligations under this Agreement and has failed to remedy such breach within five (5) days of being notified of the breach, including any breach of the KodyPay Policies by the Merchant or any Permitted User;

12.1.2 the Merchant has failed to fulfil its role as KodyPay’s agent with respect to any Sale Contract to KodyPay’s reasonable satisfaction;

12.1.3 the Merchant suffers an Insolvency Event or KodyPay reasonably suspects the Merchant will do so;

12.1.4 the Merchant fails to pay to KodyPay when due any sums payable to KodyPay under this Agreement;

12.1.5 KodyPay believes in its discretion that the Merchant and/or any Permitted User has used the KodyPay Marketplace Service to commit any illegal act or in a manner which is unlawful;

12.1.6 there has been unauthorised, suspicious, fraudulent or illegal use of the KodyPay Platform and/or the Services or KodyPay has reasonable grounds to suspect such unauthorised, suspicious, fraudulent or illegal use;

12.1.7 KodyPay believes in its discretion that there is a significant threat to the functionality, security, integrity or availability of the Services or any content, data or other application;

12.1.8 KodyPay believes in its discretion that any act or omission of the Merchant or any Permitted User causes KodyPay to breach (or potentially breach) any of its agreements with any third party provider or any Applicable Law;

12.1.9 while KodyPay is conducting its know-your-customer or similar checks on the Merchant, and/or the PSP is conducting the PSP Due Diligence on the Merchant, until those checks are resolved to KodyPay’s and/or the PSP’s reasonable satisfaction;

12.1.10 KodyPay is instructed to do so by the Acquirer, the PSP and/or any APM provider;

12.1.11 KodyPay is instructed to do so by a Regulatory Authority;

12.1.12 the Acquirer, PSP and/or any APM Provider suspends their provision of services which enables all or part of the Services to operate;

12.1.13 KodyPay believes in its discretion that it is required to do so by Applicable Laws, or that it becomes illegal, impossible or impracticable to provide all or any part of the Services.

12.2 The Merchant acknowledges that where a feature or part of a feature of any of the Services are provided by a third party (including the Acquirer, the PSP or any APM provider), it may be necessary for KodyPay to suspend access to that feature (on a temporary or permanent basis), where that third party terminates or suspends the supply of its own services to KodyPay the receipt of which, by KodyPay, are necessary to deliver the applicable feature to the Merchant.

13. Termination

13.1 Either Party may terminate this Agreement by giving the other 1 month’s notice in writing.

13.2 Either Party may terminate this Agreement in whole or in part with immediate effect by written notice to the other Party if an Insolvency Event occurs in respect of that other Party.

13.3 Either Party may terminate this Agreement in whole or in part with immediate effect by written notice to the other Party if any Party commits a material breach of any of its obligations under this Agreement and, in the case of a material breach capable of remedy, fails to remedy such breach within 30 days of being given written notice to do so by the other Party.

13.4 KodyPay may terminate this Agreement by written notice to the Merchant if any Fees remain unpaid for a period in excess of 14 days following the due date for payment of such Fees.

13.5 This Agreement will automatically terminate (in whole or in part) without additional liability incurred by either Party if a Regulatory Authority withdraws any of the permissions granted to any of KodyPay’s third party providers which enable KodyPay to provide the Services, or imposes restrictions on them, with the effect that KodyPay is or will be unable to perform its obligations under this Agreement.

13.6 Termination or expiry of this Agreement for any reason shall not affect any rights or obligations which may have accrued or become due prior to the date of termination or expiry. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

13.7 Upon reasonable request by the Merchant following expiry or termination of this Agreement: (i) KodyPay shall return the Merchant’s data (but not Relevant Personal Data) in a reasonably acceptable industry standard format; and (ii) provide reasonable assistance with supporting the migration of the Merchant’s data into a system nominated by the Merchant subject to payment of additional charges to be agreed by the Parties.

14. Contract management

In the case of any issues or matters arising out of this Agreement or the performance of the Services, representatives of the Merchant may contact KodyPay using the KodyPay App, via kodypay.com, or by emailing support@kodypay.com. We will respond via the KodyPay App, by email or SMS, in accordance with our Privacy Policy.

15. Confidentiality

15.1 Subject to Clause 15.2, each Party shall keep the other Party’s Confidential Information confidential and not disclose it to any person at any time during this Agreement, and for a period of 3 years after termination of this Agreement.

15.2 Clause 15.1 shall not prohibit the disclosure of Confidential Information if and to the extent:

15.2.1 disclosed to officers, employees, agents or the professional advisors of the relevant Party (the "Disclosed Representatives and Advisors"), in each case, to the extent required to enable such Party to exercise its rights and carry out its obligations under this Agreement and provided that the Disclosed Representatives and Advisors are informed of the confidential nature of the Confidential Information before disclosure and required to comply with the provisions of this Clause 15 in respect of such information as if they were a Party to this Agreement;

15.2.2 in the case of KodyPay, disclosed to its investors or prospective investors for the purposes of their investment in KodyPay and provided that the investors or prospective investors are informed of the confidential nature of the Confidential Information before disclosure and required to comply with the provisions of this Clause 15 in respect of such information as if they were a Party to this Agreement;

15.2.3 required by applicable law or by the rules of any relevant stock exchange or Regulatory Authority or supervisory authority for the purpose of any judicial proceedings arising out of this Agreement or any other agreement entered into under or pursuant to this Agreement;

15.2.4 the Confidential Information becomes publicly available (other than as a result of a breach of an obligation of confidentiality);

15.2.5 the other Party has given its prior written consent to the disclosure;

15.2.6 the Confidential Information is obtained from a third party who is not in breach of any undertaking or duty as to confidentiality whether express or implied; or

15.2.7 the Confidential Information is developed independently of this Agreement.

15.3 Except where prohibited by any Applicable Law, prior to disclosure of any Confidential Information pursuant to Clause 15.2.3, the Party being required to make the disclosure shall promptly notify the other Party of such requirement with a view to providing the other Party with the opportunity to resist such disclosure or otherwise to agree the timing and content of such disclosure.

15.4 Reference to a "Party" in this Clause 15 shall include members of the Merchant's and KodyPay's Group, and the Merchant and KodyPay shall each procure compliance by their respective Group members with this Clause 15.

15.5 On termination or expiry of this Agreement each Party shall at the disclosing Party's request:

15.5.1 return to the disclosing Party all documents containing or based on Confidential Information relating to the disclosing Party provided that each Party may retain documents containing or based on such Confidential Information to the extent required by law, regulation or the rules of any applicable governmental, Regulatory Authority or supervisory authority or in order to comply with its internal compliance policies or insurance policies;

15.5.2 permanently remove any Confidential Information held on any computer, disk or other device, to the extent reasonably practicable, provided that it may retain such Confidential Information as is contained in an electronic record created as part of automated business continuity procedures operated by or on behalf of it, if such record is not accessible other than for disaster recovery or similar operations and subject always to the duties of confidentiality in respect of such Confidential Information contained in this Agreement; and

15.5.3 certify in writing to the other Party that it has complied with the requirements of this Clause 15.5.

16. Force majeure

KodyPay shall have no liability to the Merchant under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lockouts or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, pandemic, regulation or direction, national emergency, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, provided that the Merchant is notified of such an event and its expected duration.

17. Dispute resolution

17.1 The Parties shall resolve any Dispute in relation to any aspect of, or failure to agree any matter arising in relation to, this Agreement or any document agreed or contemplated as being agreed pursuant to this Agreement by first attempting to resolve such Dispute informally through discussion between KodyPay and the Merchant, who shall meet within 3 Business Days from the date the Dispute was raised (or such other period agreed by the Parties) with a view to resolving the Dispute.

17.2 If the individuals specified in Clause 17.1 cannot resolve the Dispute completely within 10 Business Days of the Dispute being referred to them, the dispute resolution process shall be deemed to have been exhausted in respect of the Dispute, and each Party shall be free to pursue the rights granted to it by this Agreement in respect of such Dispute without further reference to the dispute resolution process.

18. Monitoring and audit

18.1 The Merchant acknowledges and agrees that KodyPay may continuously monitor the Services to: (i) facilitate KodyPay’s operations; (ii) help resolve service requests; (iii) detect and address threats to the functionality, security, integrity and availability of the Services, as well as any content, data or other applications; and (iv) detect and address any illegal acts or breaches of the KodyPay Policies.

18.2 KodyPay’s monitoring tools do not collect or store any of the Merchant’s data residing in the Services, except as necessary to provide the Services under this Agreement. KodyPay does not monitor, and does not address issues with non-KodyPay software provided by the Merchant, Permitted Users, End Users or any other third party. Information collected by KodyPay’s monitoring tools (excluding the Merchant’s data) may also be used to assist in managing, developing or improving KodyPay’s products and services, to help KodyPay address deficiencies in its products and service offerings, and for licence management purposes. This Clause 18.2 shall not apply to Relevant Personal Data.

In signing the Merchant Agreement the Merchant hereby gives KodyPay the authority to complete and sign a PCI-DSS Self Assessment Questionnaire A on the Merchant’s behalf. KodyPay hereby excludes all liability of whatever nature (but only to the extent permitted by Applicable Laws) with respect to acting on the Merchant’s behalf completing and signing a PCI-DSS Self Assessment Questionnaire A on the Merchant’s behalf and binding the Merchant thereto.

Schedule 1: Definitions and Interpretation

1. Definitions

In this Agreement each of the following words and expressions shall have the following meanings:

"Agreement" means this App Agreement and its schedules;

"Applicable Laws" means any laws, regulations, regulatory constraints, obligations or rules applicable to the existence or operation of this Agreement or the provision of the Services from time to time;

"Application means the Merchant’s application to KodyPay to use the Services in accordance with the terms of this Agreement;

“Authorised Deductions” means: (a) any refunds to an End User processed by KodyPay at the Merchant’s request; (b) any Chargebacks and/or other indemnity claims made by an End User; (c) any Chargeback Costs; and/or (d) any other sum owed or owing by the Merchant to KodyPay under this Agreement.

"Business day" means a day other than a Saturday, Sunday or public holiday in England;

“Chargeback” means any claim by an End User which results in the reversal of a transaction relating to a Sale Contract such that KodyPay is required to reimburse the End User, Acquirer, PSP and/or APM provider for the amount of the Sale Contract.

Chargeback Costs” means any administrative costs incurred by KodyPay (itself or as a liability to the Acquirer, PSP and/or any APM provider) for processing a Chargeback and any costs, expenses or liabilities that KodyPay may incur as a result of or in connection with a Chargeback.

"Confidential information" means (i) any information concerning the business, finances, assets, liabilities, dealings, transactions, know how,  processes or affairs of the other Party; and (ii) any information which is expressly indicated to be confidential or is imparted by one Party to the other in circumstances importing an obligation of confidence, which either Party may from time to time receive or obtain (orally, visually, in writing, electronically or by any other means) as a result of entering into, or performing its obligations pursuant to, this Agreement or otherwise, including the existence and contents of this Agreement and any other agreement or arrangement contemplated by this Agreement;

"Damages” means all payments, costs, expenses, losses, claims, damages, awards, orders, liabilities, compensation, Chargebacks, Chargeback Costs and legal and regulatory proceedings of any nature whatsoever arising out of or in connection with the Services and/or this Agreement;

"Data protection legislation" means (i) Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (the “GDPR”); (ii) any legislation in force from time to time which implements or is related to the European Community’s Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, (iii) the UK Data Protection Act 2018 and (iv) any applicable legislation in force from time to time in any relevant jurisdiction (including the UK) relating to privacy or the processing of Personal Data, and “Controller”, “Processor”, “Joint Controller” and “Personal Data Breach” shall have the meanings given to them in the Data Protection Legislation;

"Dispute" means any dispute, claim, controversy or difference arising out of or in connection with this Agreement, including any question regarding its existence, validity, subject matter, interpretation, negotiation, termination or enforceability and any dispute, claim, controversy or difference regarding any non-contractual obligations arising out of or in connection with it;

"Effective Date" means , the date of this Agreement.

"End Users" means purchasers of goods who, when requested to do so by the Merchant, use the KodyPay Platform to pay for such goods;

"Fees" means the fees payable by the Merchant to KodyPay as set out in Schedule 4: Fees;

"Insolvency Event" means in relation to a Party, that the Party:

A. is unable or admits inability to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or suspends or threatens to suspend making payment on any of its debts;

B. has an order made against it or a resolution passed for its administration, winding-up or dissolution or any other corporate step or legal proceeding is taken with a view to the same (otherwise than for the purposes of a solvent amalgamation or reconstruction);

C. has an administrative receiver, receiver, manager, liquidator, administrator, trustee or similar officer appointed over all or any substantial part of its assets;

D. enters into or proposes any compromise, composition or arrangement with its creditors generally; or

E. suffers or carries out anything analogous to the foregoing in any applicable jurisdiction;

"Intellectual Property Rights" means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;

"KodyPay App" has the meaning given in Recital (A) and as more particularly described in Schedule 2: KodyPay Platform Services;

"KodyPay IP" has the meaning given in Clause 8.1;

"KodyPay Marketplace Service” means the Services described in Schedule 3: KodyPay MarketPlace Service;

KodyPay Platform” means all of the KodyPay App, the Web App and the Platform;

KodyPay Platform Services” means the Services described in Schedule 2: KodyPay Platform Services;

"KodyPay Policies" means any documentation, terms of use and policies published on the KodyPay website as amended from time to time;

Merchant”, “you”, “your” means the person entering into this Agreement, as detailed in the Application, and who is the user of the Services under this Agreement;

“Nominated Account” means the bank account nominated by the Merchant to which KodyPay shall instruct the PSP to pay sums due to the Merchant, being an account that is held in the name of the Merchant, the details of which are set out in the Application.

"Notice" has the meaning given in Paragraph 3.13 of this Schedule 1: Definitions and Interpretation;

"Party" or "Parties" means a party to this Agreement and includes the successors of that party or parties;

"Permitted Users" means any customers, staff and merchant retailers of the Merchant within the Merchant premises;

"Personal Data" has the meaning given in the Data Protection Legislation;

"Platform" means the technology platform comprising the KodyPay App and the Web App and the cloud/server infrastructure on which the KodyPay App and Web App is hosted and made available to the Merchant, Permitted Users and End Users;

"Pre-existing IP" means any intellectual property of a Party (whether belonging to that Party or a third party) which is supplied by that Party to the other Party in the course of performing this Agreement or, and which is either (i) existing prior to the Effective Date, or (ii) subsequently brought into existence other than in the course of performing this Agreement;

"Process" or "Processing" has the meaning given in the Data Protection Legislation;

PSP” means ShieldPay Limited, a regulated Electronic Money Institution with permission to provide payment services, authorised and regulated by the Financial Conduct Authority in the UK (FCA Register No: 770210) which collects and disburses funds for and on behalf of KodyPay Limited as part of the KodyPay Marketplace Service;

"Regulatory Authority" means any regulatory or governmental body, including the European Commission, responsible for enforcing Applicable Laws or otherwise having jurisdiction over the activities of either Party;

"Relevant Personal Data" means Personal Data collected from Permitted Users and/or End Users by KodyPay in the ordinary course of providing the Services, directly from such Permitted Users and/or End Users, with KodyPay subsequently processing such data as a Controller in its own right rather than as a Processor for and on behalf of the Merchant.

Return Policy” means the policy operated by the Merchant which sets out how the Merchant deals with the return of Goods by End Users after the conclusion a the Sale Contract.

"Sale Contract” has the meaning given in Paragraph 1.3 of Schedule 3;

"Services" means collectively the KodyPay Platform and the services described in Schedule 2: KodyPay Platform Services and Schedule 3: KodyPay Marketplace Service;

"Term" means the Initial Term and any Renewal Period(s);

"Third Party Content" means all software, websites, data, text, images, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of KodyPay that the Merchant, any Permitted User or any End User may access through, within, or in conjunction with, the use of the Services or all or any part of the KodyPay Platform;

"Virus" means any thing or device (including any software, code, file, programme, worm, Trojan horse, and other similar thing or device) which may:

A. prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;

B. prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or

C. adversely affect the user experience;

"VAT" means, within the European Union, such tax as may be levied in accordance with (but subject to derogations from) Directive 2006/112/EC and, outside the European Union, any similar tax levied by reference to added value or sales; and

"Web App” has the meaning given in Recital (A) and as more particularly described in Schedule 2: KodyPay Platform Services.

2. Interpretation

2.1 In this Agreement, except where the context otherwise requires:

2.1.1 references to a Clause or Schedule (other than to a schedule to a statutory provision) shall be a reference to a Clause or Schedule of this Agreement and reference to a paragraph shall be to a paragraph of the relevant Schedule;

2.1.2 the contents page and headings are for convenience only and shall not affect the interpretation of this Agreement; and

2.1.3 to the extent that a provision of a Schedule to this Agreement conflicts with a provision of the Agreement (excluding the Schedules), the relevant provision of this Agreement (excluding the Schedules) shall take precedence.

2.2 In this Agreement, except where the context otherwise requires, references to one gender include all genders and references to the singular include the plural and vice versa.

2.3 In this Agreement, except where the context otherwise requires:

2.3.1 references to a person include a reference to any individual, firm, company, government, state or agency of a state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality);

2.3.2 references to a company include any company, corporation or other body corporate wherever and however incorporated or established;

2.3.3 references to a company or firm include any company or firm in succession to all, or substantially all, of the business of that company or firm; and

2.3.4 references to an individual include that individual's estate and personal representatives.

2.4 In this Agreement, except where the context otherwise requires:

2.4.1 reference to an enactment or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment or statutory provision and is a reference to that enactment, statutory provision or subordinate legislation as from time to time amended, consolidated, modified, re-enacted or replaced;

2.4.2 references to a Regulatory Authority shall include any successor or replacement to that Regulatory Authority.

2.5 In this Agreement, except where the context otherwise requires:

2.5.1 a reference to a day (including within the defined term "Business Day") means a period of 24 hours ending at midnight;

2.5.2 a reference to a time of day is to London time;

2.5.3 if a period of time is specified as from or following a given day, or from the day of act or event, or within a number of days from the day of an act or event, it shall be calculated exclusive of that particular day;

2.5.4 the words and phrases "includes", "including", "in particular" (or any terms of similar effect) shall not be construed as implying any limitation;

2.5.5 general words shall not be given a restrictive meaning because they are preceded or followed by particular examples; and

2.5.6 a reference to the termination of this Agreement includes a reference to its expiry by effluxion of time.

3. General

3.1 This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and supersedes any previous agreement between the Parties with respect thereto.

3.2 Without prejudice to the generality of the foregoing and to the extent permitted by law, this Agreement excludes any warranty, condition or other undertaking implied at law or by custom, usage or course of dealing.

3.3 Each Party shall from time to time execute such documents and perform such acts and things as may reasonably be required to give full effect to the provisions of this Agreement and the transactions contemplated by it.

3.4 If any provision or part of any provision set out in this Agreement is or becomes invalid or unenforceable under the law of any relevant jurisdiction, the validity of the remainder of the Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make it consistent with Applicable Law.

3.5 The modified provision shall be enforceable and enforced, provided it does not impose on any party obligations or benefits that are materially greater than those provided under the original provision.

3.6 The Merchant may not assign, novate or otherwise transfer any of its rights or obligations under this Agreement to any person without the prior written consent of KodyPay.

3.7 KodyPay shall be entitled to assign, subcontract, novate or otherwise transfer any or all of its rights and obligations under this Agreement.

3.8 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement except for members of KodyPay’s Group in which case each such member may enforce and rely on this Agreement to the same extent as if each such member were a Party.

3.9 Unless otherwise specified in this Agreement, no amendment or variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the Parties to this Agreement. The expression "variation" includes any variation, supplement, deletion or replacement however effected.

3.10 No waiver of any right or remedy under this Agreement or provided by law shall be effective unless it is in writing (which for this purpose, does not include email) and signed by or on behalf of the Party granting it.

3.11 The failure to exercise, or delay in exercising, any right or remedy under this Agreement or provided by law does not:

3.11.1 constitute a waiver of that right or remedy;

3.11.2 restrict any further exercise of that right or remedy;

3.11.3 affect any other rights or remedies.

3.12 No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.

3.13 Unless expressly provided otherwise in this Agreement, any notice required to be given under this Agreement (each, a "Notice") shall be in writing:

3.13.1 signed in manuscript by or on behalf of the Party giving it, and delivered by hand, commercial courier or by pre-paid recorded delivery; or

3.13.2 by email to the applicable email address to either Party’s Principal Point of Contact.

3.14 In the absence of evidence of earlier receipt, a Notice shall be deemed to have been received, and shall take effect:

3.14.1 at the time of delivery, if delivered by hand;

3.14.2 in the case of a commercial courier, on the date and at the time of signature of the courier's delivery receipt;

3.14.3 in the case of pre-paid recorded delivery, on the date and at the time of signature of the courier's delivery receipt; or

3.14.4 in the case of a notice given by email, the notified Party acknowledges receipt by email within four hours after the time at which the email is sent, or the next Business Day if sent after 13:00,

3.15 Provided that, if deemed receipt occurs before 09:00 on a Business Day, the Notice shall be deemed to have been received at 09:00 on that day, and if deemed receipt occurs after 17:00 on a Business Day, or on a day which is not a Business Day, the Notice shall be deemed to have been received at 09:00 on the next Business Day.

3.16 Nothing in this Agreement or any document referred to in it or in any matter or any arrangement contemplated by it constitutes a partnership, association, joint venture, fiduciary relationship or other co-operative entity between the Parties for any purpose whatsoever.

3.17 Except as expressly provided in this Agreement, neither Party has any power or authority to bind the other Party or impose any obligations on it and neither Party shall purport to do so or hold itself out as capable of doing so.

3.18 This Agreement may be executed in any number of counterparts and by the Parties on separate counterparts, each of which when so executed and delivered shall be an original, but all the counterparts shall together constitute one and the same instrument.

3.19 This Agreement and any Dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.

3.20 The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

3.21 Each Party irrevocably waives any right that it may have to object to an action being brought in those Courts, to claim that the action has been brought in an inconvenient forum, or to claim that those Courts do not have jurisdiction.

3.22 Each Party shall bear its own costs and expenses incurred in connection with the negotiation and preparation of this Agreement and any other documents referred to in this Agreement and any other documents which are ancillary or incidental to it.

3.23 If any provision or part of any provision of this Agreement is or becomes invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision of this Agreement.

3.24 If any provision of this Agreement is or becomes invalid or unenforceable in any respect, but would be valid and enforceable if some part of the provision were deleted, the provision in question shall apply with such deletion as may be necessary to make it valid and enforceable.

Schedule 2: KodyPay Platform Services

1. Platform

1.1 Functional details of the KodyPay Platform

1.1.1 Payments for goods by End Users at Merchant outlets, retail and catering by using payment methods supported by the KodyPay Platform. Payments will be made at the counter, from dining tables at catering outlets and click-and-collect for retail outlets.

1.1.2 User guides for the Merchant will be made available in electronic format via https://kodypay.com/staff-training and https://intercom.help/kodypay.

1.2 Permitted Users

1.2.1 Staff of the Merchant

Permitted Users will gain access to the KodyPay Platform by downloading the KodyPay App from the Apple App Store or Google Play Store and self-registering via the KodyPay App.

1.2.2 Merchant retailers

Merchant Permitted Users accounts will be created on request by KodyPay and Merchant administrators via the KodyPay back-office CMS portal.  This will be subject to appropriate know-your-customer, anti-money laundering, and financial checks.

1.3 End Users

1.3.1 Permissions and restrictions

End Users will be able to make payments using the KodyPay Platform at Merchant retailers.  The use of the KodyPay Platform by End Users is subject to KodyPay’s approval at each Merchant retailer. Back-office user access will be controlled by the KodyPay Super CMS users.

2. Support

KodyPay will provide technical and operational support in line with the service levels in Paragraph 4 below.

3. Privacy

KodyPay will protect all Parties’ personal data in accordance with our Privacy Policy. Under Data Protection Legislation, we are required to provide you with certain information about who we are, how we process your personal data and for what purposes and your rights in relation to your personal data and how to exercise them. It is important that you read this information. We also recommend that you save and print a copy of our Privacy Policy for future reference.

4. Service levels

4.1 Availability

4.1.1 The KodyPay Platform is a hosted solution offering a 99.7% uptime for transaction availability. A management UI is available for operatives to manage their outlet, and KodyPay staff can connect to this on request to offer additional support where required.

4.1.2 The standard support hours are 08:00 through 20:00 every day. Premium support plans are available for extended availability. Self-help resources can be found at https://kodypay.com/staff-training and https://intercom.help/kodypay.

4.2 Incident and Severity, and Response and Resolution

Severity Level
Definition
Notification & Update Intervals
1
The complete unavailability or severe impact to a critical business or processing function, which causes major customer impact.
Within 60 minutes of identification. Updates to occur every 90 minutes unless otherwise mutually agreed.
2
The partial or sporadic unavailability which limits business function or processing and causes moderate customer impact.
Response within 3 hours of Customer identification. Updates to occur every 6 hours unless otherwise mutually agreed.
3
An issue having limited or no adverse customer impact.
Response within 1 business day of Customer identification. Updates provided as needed.

5. Merchant responsibilities

5.1 Implementation

5.1.1 The Merchant consents to, and shall procure that its Permitted Users consent to, KodyPay’s nominated third party service providers conducting know your customer, anti-money laundering, politically exposed persons, and other similar due diligence checks on the Merchant, and, if required, its Permitted Users.

5.1.2 The Merchant shall comply, and procure its Permitted Users comply, with the reasonable instructions of KodyPay and its nominated third party service providers, including providing information to KodyPay or its nominated third party service provider as reasonably requested in connection with Paragraph 5.1.1 and otherwise to enable KodyPay to provide the Services. The Merchant acknowledges and agrees that KodyPay (including its third party service providers) shall not be: (i) responsible for any Service deficiency, interruption or delay; or (ii) liable to the Merchant, its Permitted Users , under this Agreement due to any failure by the Merchant to perform its obligations under this Agreement and responsibilities described in this Schedule 2: Services or otherwise provide any such assistance to, and as requested by, KodyPay (including its third party service providers);

5.2 Enquiries and complaints

5.2.1 The Merchant will pass on to KodyPay as soon as reasonably practicable any enquiries, complaints or communications the Merchant receives from Permitted Users or End Users in relation to the Services, the KodyPay App, the Web App or the Platform.

5.3 PCI-DSS

The Merchant warrants their fulfilment of the following criteria in regard to PCI-DSS:

A. The Merchant maintains a list of service providers which includes KodyPay. KodyPay provides payment processing services to the Merchant, facilitating payment card transactions using an allocated third-party payment gateway and merchant acquirer. KodyPay additionally facilitates transactions using third-party Alternative Payment Methods. “Alternative Payment Methods” refers to organisations including but not limited to: Electronic Money Institutions, Authorised Payment Institutions, Consumer Credit Providers, and Banks.

B. The Merchant certifies that KodyPay has provided sufficient confirmation to the Merchant that it holds overall responsibility for the security of consumer card data pursuant to this Agreement. KodyPay is a self-assessed PCI Level 2-compliant provider, operating in partnership with Cybersource Limited, a Visa solution to cover the following PCI-DSS requirements on behalf of the Merchant: (1) Requirement 1 & sub-requirements; (2) Requirement 2 & sub-requirements; (3) Requirement 3 & sub-requirements; (4) Requirement 4 & sub-requirements; (5) Requirement 5 & sub-requirements; (6) Requirement 6 & sub-requirements; (7) Requirement 7 & sub-requirements; (8) Requirement 8 & sub-requirements; (9) Requirement 9 & sub-requirements; (10) Requirement 10 & sub-requirements; (11) Requirement 11 & sub-requirements; To see attestation of PCI compliance from KodyPay, please contact support@kodypay.com. For attestation of PCI compliance from Cybersource, please see Visa's Global Registry of Service Providers.

C. The Merchant maintains an established process for engaging service providers including but not limited to Kodypay, including proper due diligence prior to engagement.

D. The Merchant will cooperate with KodyPay to monitor KodyPay’s PCI-DSS compliance on an annual basis.

E. The Merchant has a cybersecurity incident response plan in place, containing relevant information for response in the event of a system breach, or any potential leakage of sensitive cardholder data.

In signing this Merchant Agreement, the Merchant hereby gives KodyPay the authority to make an application to KodyPay’s chosen Payment Partners: Elavon Financial Services DAC; Checkout Ltd; and Alipay (UK) Ltd; for the Payment Partner to provide its payment services direct to the Merchant. If the Payment Partner accepts the Merchant’s application made on the Merchant’s behalf by KodyPay, the Merchant further gives the authority to KodyPay to sign up to the Payment Partner terms and conditions - Elavon, Checkout Ltd, and Alipay (UK) Ltd - on the Merchant’s behalf. The Merchant acknowledges and agrees that in giving KodyPay the authority to sign the Payment Partner’s terms and conditions, such terms and conditions will become binding upon the Merchant once they have been signed by KodyPay. Upon signature of the Payment Partner’s terms and conditions by KodyPay on the Merchant’s behalf, the Merchant shall enter into a direct agreement with the Payment Partner and become subject to the rights and liabilities in those terms and conditions. KodyPay hereby excludes all liability of whatever nature (but only to the extent permitted by applicable law) with respect to acting on the Merchant’s behalf in applying to the Payment Provider and, if accepted by the Payment Provider, signing the Payment Partner’s terms and conditions and binding the Merchant thereto.

Schedule 3: KodyPay Marketplace Service

1. Description of the KodyPay Marketplace Service

1.1 The KodyPay Marketplace Service is a solution which enables End Users to pay for goods and services (“Goods”) using the KodyPay Platform through KodyPay acting as a reseller of the Merchant’s Goods.  

1.2 Upon a request by the End User to purchase Goods from a Merchant through the KodyPay Platform using the KodyPay Marketplace Service, KodyPay will purchase the respective Goods from the Merchant and, at such point, ownership of the Goods will pass from the Merchant to KodyPay.  KodyPay will then sell such Goods to the End User and ownership in the Goods will pass from KodyPay to the End User.  As the reseller of the Goods to the End User, KodyPay will be responsible and liable to the End User with respect to such Goods.

1.3 The operation of the KodyPay Marketplace Service involves two standalone transactions: (i) purchase by KodyPay of Goods from the Merchant; (ii) sale by KodyPay of Goods to the End User (“Sale Contract”).  If the End User requests to make a purchase, KodyPay will process the proposed transaction with the End User based on any authorisation required for the underlying payment method.  If the proposed transaction is accepted by KodyPay, KodyPay will then enter into a separate transaction with the Merchant to purchase the Goods.  Upon completion of this transaction between the Merchant and KodyPay, KodyPay will then complete the Sale Contract transaction with the End User to sell the Goods.

1.4 In enabling the transactions to take place which form part of the KodyPay Marketplace Service, KodyPay will have contractual relationships in place with a Card transaction acquiring provider (“Acquirer”), the PSP and APM providers.  The Merchant will not be a direct party to such arrangements, although the Merchant will be subject to know-your-customer checks by KodyPay and/or the PSP and may be required to accept terms of use relating to such Acquirer, PSP or APM providers if required.  The provisions of section 5 of this Schedule 3 shall apply with respect to the PSP.  

2. Principal and agent roles of KodyPay and the Merchant

2.1 In the Sale Contract, KodyPay shall be acting as the principal.  KodyPay hereby appoints the Merchant as its agent to fulfil the Sale Contract entered into between KodyPay and the End User using the KodyPay Marketplace Service.

2.2 The Merchant shall, as KodyPay’s agent, be responsible for: (i) delivering the Goods to the End User; (ii) dealing with any returns; (iii) determining the appropriate action with respect to the Goods following conclusion of a Sale Contract in accordance with the Merchant’s Return Policy. In acting as KodyPay’s agent, the Merchant will act on all relevant instructions of KodyPay.

2.3 The Merchant agrees that in acting as KodyPay’s agent in fulfilment of the Sale Contract, including any subsequent issues that may arise with respect to the Sale Contract, the Merchant may follow its usual procedures with respect to providing the Goods to the End User in accordance with the Merchant’s Return Policy.

3. KodyPay responsibilities

3.1 KodyPay shall provide the KodyPay Marketplace Service in accordance with Applicable Laws.

3.2 KodyPay shall maintain the relationships with the Acquirer, the PSP and each APM provider in order to enable the operation of the KodyPay Marketplace Service.

3.3 KodyPay shall take any actions with respect to the reversal, refund, Chargeback or otherwise of a Sale Contract in accordance with instructions from the End User, Merchant, Acquirer, PSP and/or APM provider as applicable.

3.4 Notwithstanding the Merchant’s role as KodyPay’s agent with respect to the End User for each Sale Contract, KodyPay shall be responsible for managing any End User issues with respect to any Sale Contract where this is not effectively managed by the Merchant or for any other reason as may be required.

4. Merchant responsibilities

4.1 The Merchant acknowledges and agrees that:

4.1.1 there will be no contract in place between the Merchant and the End User with respect to the Goods purchased using the KodyPay Marketplace Service;

4.1.2 with respect to the purchase of Goods using the KodyPay Marketplace Service, KodyPay is the intended recipient of the funds paid for the Goods by the End User;

4.1.3 it has no rights or remedies against any End User who has purchased Goods using the Kodypay Marketplace Service;

4.1.4 it has no right to set specific payment terms with respect to any End User;

4.1.5 notwithstanding the terms in place between KodyPay and the End User with respect to the Sale Contract, the End User is likely to think it is purchasing the Goods from the Merchant.  Accordingly, the Merchant must ensure that, where necessary to do so, the Merchant is transparent around its role with respect to the Goods;

4.1.6 the methodology and timings for KodyPay settling funds to the Merchant for purchases made by KodyPay using the KodyPay Marketplace Service may differ depending on the transaction made between KodyPay and the End User.

4.2 The Merchant will comply at all times with Applicable Laws relating to the sale of Goods in its role as agent of KodyPay.

4.3 The Merchant will ensure that its Return Policy complies at all times with Applicable Laws.  The Merchant will ensure the Return Policy includes a provision which enables End Users to receive a full refund for Goods returned in a saleable condition within fourteen (14) days of the Sale Contract.  The Merchant will conform with any reasonable instructions of KodyPay with respect to its Return Policy, including making amendments to its Return Policy reasonably requested by KodyPay.

4.4 If there is a dispute between the Merchant (acting as KodyPay’s agent) and any End User with respect to any Sale Contract, and such dispute cannot be settled between the Merchant and the End User, the Merchant will refer the End User to KodyPay so that KodyPay can determine the dispute and settle the matter.

4.5 If an End User cancels any order or contract directly with the Merchant, the Merchant must: (i) ask KodyPay to process a refund to the End User; (ii) refund KodyPay the amount of the Sale Contract.  The Merchant hereby agrees that it is fully responsible and liable for and must account to KodyPay for the amount of any refund and any associated costs.

4.6 The Merchant acknowledges that KodyPay is not able to recover or challenge any Chargeback that relates to a Sale Contract that has, from an administrative perspective, been submitted correctly and if an End User initiates a Chargeback, KodyPay cannot challenge the Chargeback or recover the funds to which that Chargeback relates.

4.7 The Merchant will:

4.7.1 only enter into transactions with End Users as KodyPay’s agent in connection with Goods which KodyPay is reselling to the End User;

4.7.2 only undertake transactions with End Users as KodyPay’s agent in respect of Goods which commonly fall within the Merchant’s business or as identified to KodyPay and/or the PSP;

4.7.3 refrain from doing anything which KodyPay and/or the PSP reasonably believes to be disreputable or capable of damaging the reputation or goodwill of KodyPay and/or the PSP;

4.7.4 take reasonable steps to ensure that its representatives cannot procure, connive or be party to any fraud related to the KodyPay Marketplace Service;

4.7.5 notify KodyPay immediately if it becomes aware of or suspects any security breach relating to Transaction Data or any End User’s personal data and as soon as reasonably practicable (without prejudice to any other remedy KodyPay has in respect thereof) immediately identify and resolve the main cause of such security breach and take any steps that KodyPay may require, including to the procurement of forensic expertise from third parties recommended by KodyPay.

4.8 The Merchant will keep and maintain such records as may be necessary to enable KodyPay, the Acquirer, the PSP and/or any APM provider, their auditors and any Regulatory Authority to assess and satisfy themselves that there has been compliance with the matters referred to in this Agreement.

5. Role of the PSP

5.1 As a reseller of the Merchant’s Goods, KodyPay is not, and is not required to be, a licensed payment services provider.  In order to manage the flow of funds between the End User, Acquirer, APM provider(s), KodyPay and the Merchant, KodyPay uses the PSP who will facilitate and execute payments due to the Merchant.

5.2 The Merchant acknowledges and agrees that in order to use the KodyPay Marketplace Service and receive the benefit of payments made to it by KodyPay via the PSP that it:

5.2.1 will be subject to due diligence checks (“PSP Due Diligence”) before the Merchant can use the KodyPay Marketplace Service (including verification of the Merchant’s Nominated Account and screening against relevant sanctions lists);

5.2.2 will not be permitted to use the KodyPay Marketplace Service if it fails to satisfy the PSP Due Diligence;

5.2.3 consents to KodyPay providing any information it holds regarding the Merchant to the PSP to enable the PSP to process such information for the purpose of undertaking the PSP Due Diligence in accordance with KodyPay’s Privacy Policy;

5.2.4 will supply KodyPay with such information as may be reasonably requested from time to time, and within 24 hours of such request, to enable KodyPay and/or the PSP to monitor or review the operation and the Merchant’s use of the KodyPay Marketplace Service and the processing of transactions;

5.2.5 will permit, on 5 days’ notice by KodyPay, for any of KodyPay’s and/or the PSP’s duly authorised employees, agents or representatives, or any Regulatory Authority, to audit the Merchant’s relevant records, systems and procedures, for any of the following purposes: (i) to assess the Merchant’s compliance with Applicable Law and/or this Agreement; (ii) to enable KodyPay and/or the PSP or their relevant employee, agent or representative to carry out any right or duty conferred or imposed by Applicable Laws or a Regulatory Authority, or to carry out any request made by any Regulatory Authority; or (iii) to assess any sums payable or receivable by KodyPay or in respect of which the Merchant is otherwise accountable to KodyPay.

6. KodyPay Fees and payments to the Merchant  

6.1 The Merchant will pay the Fees for the KodyPay Marketplace Service as set out in and in accordance with Schedule 4: Fees.

6.2 The Merchant is solely responsible and liable for all Authorised Deductions.

6.3 KodyPay will pay funds due to the Merchants for Goods purchased by KodyPay from the Merchant using the KodyPay Marketplace Service to the Nominated Account.  The Merchant acknowledges and agrees that KodyPay may instruct the PSP to make the payments to the Merchant on KodyPay’s behalf and where it does so such payments will be made in accordance with the timings determined by the PSP.  The Merchant understands and agrees that the PSP may stop payouts at any time and in its discretion and, if the PSP does so, KodyPay will have no responsibility or liability of any nature to the Merchant with respect to such action taken by the PSP, except that KodyPay will use its reasonable endeavours to work with the PSP to address any issues which have resulted in the PSP’s action.

6.4 The Merchant authorises KodyPay  to deduct: (i) the Authorised Deductions from any sums payable by KodyPay to the Merchant under the terms of this Agreement at all times; and (ii) the Fees, from any sums payable by KodyPay to the Merchant under this Agreement.  If the amount of any Authorised Deductions exceeds the amount of any sums payable by KodyPay to the Merchant, KodyPay may invoice the Merchant for the difference and the amount set out in such invoice will be paid by the Merchant within ten (10) Business Days of the date of the invoice.

6.5 It is the Merchant’s responsibility to ensure the details of the Nominated Account are accurate and up to date.  The Merchant must notify KodyPay as soon as possible if it becomes aware that such information is incorrect or where there has been a change to any information previously provided.  By providing the details of the Nominated Account, the Merchant will be deemed to have consented to KodyPay making payments to that Nominated Account in accordance with the provisions of this Agreement.

6.6 KodyPay may suspend payments to the Nominated Account or otherwise amend the usual timing cycles for payments to the Merchant if, in KodyPay’s reasonable opinion, it thinks such suspension or amendment is required, for example, as a result of excessive or anticipated excessive Chargebacks or refunds, pending disputes, deterioration of the Merchant’s financial situation or credit standing, other suspected fraudulent or otherwise suspicious activity related to the Merchant’s use of the KodyPay Marketplace Service.  KodyPay will notify the Merchant of such suspension unless to do so would be unlawful or KodyPay has grounds to suspect fraudulent or any other form of criminal use by the Merchant of the KodyPay Marketplace Service.

7. KodyPay Fees and payments to the Merchant  

7.1 If there is a failure with respect to a transaction made using the KodyPay Marketplace Service, such that the End User (or some other third party) has a claim with respect to the Sale Contract, such claim shall be against KodyPay.  Notwithstanding this, the Merchant acknowledges and agrees that, if such claim arises due to any act, omission or other issue with respect to the Merchant’s fulfilment of the Sale Contract acting as KodyPay’s agent, then KodyPay shall be entitled to claim the value of the Sale Contract and any additional costs back from the Merchant, and the Merchant hereby indemnifies KodyPay under this clause 7.1 for the value of each Sale Contract and additional costs.

7.2 The Merchant hereby indemnifies KodyPay for and against any Damages suffered or incurred by KodyPay as a result of or in connection with any failure by the Merchant to fulfil Sale Contracts and perform its role as KodyPay’s agent with respect to each Sale Contract in accordance with Applicable Laws and/or the provisions of this Agreement.

7.3 The Merchant hereby indemnifies KodyPay for and against any Damages incurred as a result of any Chargeback, claim or refund initiated by an End User and that KodyPay is obliged to make under Applicable Laws, its relationship with the Acquirer, the PSP or APM providers, or otherwise.  For the avoidance of doubt, KodyPay may not claim under this indemnity where any amounts or costs incurred arise directly from KodyPay’s negligence, default, or mistake.

Schedule 4: Fees

1. Payment terms

1.1 KodyPay may increase the Fees on a semi-annual basis with effect from each anniversary of the Effective Date pursuant to Schedule 4: Fees, and the first such increase shall take effect six months from the Effective Date.

1.2 KodyPay shall invoice the Merchant for the Fees at the intervals specified in Paragraph 2 of this Schedule 4: Fees. If no intervals are so specified, KodyPay shall invoice the Merchant at the end of each month for Services provided during that month.

1.3 Unless otherwise agreed, the Merchant shall pay each invoice submitted to it by KodyPay within 30 days of the date of the invoice.  For the avoidance of doubt, KodyPay shall be entitled to deduct any Fees (and any other sums) due and payable to it with respect to the Services from amounts payable to Merchants under this Agreement, in accordance with section 6 of Schedule 3 of this Agreement.

1.4 Without prejudice to any other right or remedy that KodyPay may have, if the Merchant fails to pay KodyPay any sum due under this Agreement by the due date: (i) the Merchant shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Paragraph 1.4 will accrue each day at 4% per annum above the Bank of England’s base rate from time to time, but at 4% per annum for any period when that base rate is below 0%; and (ii) KodyPay may suspend all or part of the Services until payment has been made in full.

1.5 All sums payable to KodyPay under this Agreement: (i) are exclusive of VAT, and the Merchant shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and (ii) shall be paid in full without any setoff, counterclaim, deduction or withholding (other than any deduction or withholding of tax required by Applicable Law).

1.6 Without prejudice to any other right or remedy that KodyPay may have, if the Merchant fails to pay KodyPay any sum due under this Agreement by the due date: (i) the Merchant shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Paragraph 1.4 will accrue each day at 4% per annum above the Bank of England’s base rate from time to time, but at 4% per annum for any period when that base rate is below 0%; and (ii) KodyPay may suspend all or part of the Services until payment has been made in full.

1.7 KodyPay will not be responsible for any taxes and the Merchant will have sole responsibility for determining what, if any, taxes apply to it.  The Merchant is responsible for assessing, collecting, reporting and remitting taxes to the appropriate tax and revenue authorities.

1.8 If KodyPay (or any service provider of KodyPay involved in the provision of the Services) is required to withhold any taxes, KodyPay may deduct such taxes from amounts otherwise owed to the Merchant and pay them to the appropriate taxing authority.

2. Fees

2.1 Monthly Fee: A monthly fee charged in accordance with your KodyPay Plan. A full schedule of fees is made available as part of your original Merchant Agreement.

2.2 Transaction Fee: A percentage of the total cost of any and all transactions made via KodyPay's Services. Dependent on transaction volume, this fee may decrease. A full schedule of fees is made available as part of your original Merchant Agreement.

As the Merchant already has a pre-existing commercial relationship with one of our Payment Partners, Elavon Inc, the Parties will each work with the Payment Partner to obtain a schedule of transaction fees from the Payment Partner.

2.2.1 Percentages outlined are an average percentage fee based on the Merchant's quoted average transaction value. All percentages quoted are calculated inclusive of a card authorisation fee. As a result, actual percentages may vary for each transaction.

2.2.2 All transactions are subject to a minimum transaction fee. A full schedule of fees is made available as part of your original Merchant Agreement.

2.2.3 Visa Commercial cards include: Visa Business Credit, Visa Business Debit, Visa Purchasing and Visa Corporate.

2.2.4 Mastercard Commercial cards include: Mastercard Business, Mastercard Purchasing/Fleet, Mastercard Corporate and Mastercard Prepaid Commercial.

2.2.5 EEA countries are as follows: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Republic of Ireland, Italy, Latvia, Liechenstein, Lithuania, Luxembourg, Malta, The Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom. Any country not listed is a non-EEA country.

2.3 Standard Charges: A full schedule of fees is made available as part of your original Merchant Agreement.