You can accept and sign these terms at the bottom of this page.
By clicking “Accept & Sign” you confirm that you are aged 18 years or over, an authorised signature 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.
The KodyPay App 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 (“we”, “us” and “our”).
Merchant Terms & Conditions
1. KodyPay Ltd, a company incorporated in England with registered number 11532575 and whose registered office is located at Unit 42, 24-28 St Leonard Road, Windsor, Berkshire, England, SL4 3BB ("KodyPay"); and
A. KodyPay has developed a proprietary mobile software application that supports customers’ purchases, and merchant retailers’ sale of goods (“KodyPay App”).
B. The Merchant wishes to make available the KodyPay App to customers of the Merchant.
C. KodyPay agrees to provide the App 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.
1.1 This Agreement commences on the Effective Date and unless terminated earlier in accordance with its terms, continues for 1 month (the “Initial Term”).
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 the Services can commence, that the Merchant must be approved to be a merchant, including being granted a merchant identification number, by merchant acquirer(s) nominated by KodyPay.
1.3 KodyPay may, in its discretion, waive in whole or in part the condition precedent in Clause 1.2.
1.4 This Agreement automatically renews following expiry of the Initial Term for successive periods of 1 month each (“Renewal Period”), unless either Party provides written notice to the other Party of non-renewal at least 1 month prior to the expiry of the Initial Term or Renewal Period (as applicable).
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, or as contemplated by Clause 7.4.
3.1 KodyPay grants to the Merchant a non-exclusive and non-transferable licence during the Term to permit End Users to access and use the KodyPay App and the Platform pursuant to the permissions and restrictions set out in Schedule 2: Services; and
3.2 KodyPay acknowledges and agrees that it has the necessary rights to grant the licence under Clause 3.1.
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 App 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 App to Permitted 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 End Users as permitted pursuant to Clause 3;
4.1.6 introduce, or permit the introduction of, any Virus into the 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.
5.1 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
5.1.3 provide the Services in accordance with Schedule 6: Data Protection and Applicable Laws.
6.1 The Merchant shall during the Term:
6.1.1 use its best endeavours to comply with, and procure that End 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 End 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: Services;
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 it 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 End Users’ network connections or telecommunications links or caused by the internet;
6.1.5 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;
6.1.6 ensure its compliance with PCI-DSS requirements, as outlined in Schedule 2;
6.1.7 if it receives any complaint, notice, request or communication from a regulator, Data Subject or third party which relates to the 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 the other Party and provide that other Party with reasonable cooperation and assistance in relation to the same; and
6.1.8 upon becoming aware of a Personal Data Breach affecting Relevant Personal Data in connection with the provision or receipt of the Services:
(A) notify the other Party without undue delay and provide the other Party with a reasonable description of that breach promptly upon such information becoming available;
(B) work together with the other Party 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 the other Party with regards to the content of that notice and giving due regard to each other Party's reasonable comments, save that it may disclose a breach to the extent required by the Data Protection Legislation.
6.1.9 comply with all Applicable Laws.
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 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, and the End Users do, so solely at its 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 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 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.
7.4 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 or any End Users cease providing access to the affected Third Party Content, API or the Services.
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 or any End User), the KodyPay 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 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 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.
9.1 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 3: Fees.
9.2 KodyPay shall invoice the Merchant for the Fees pursuant to the payment terms set out in Schedule 3: Fees.
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.
11.1 Subject to Clause 11.2, 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.
11.2 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.
12.1 KodyPay may suspend the Services if KodyPay believes in its discretion that:
12.1.1 there is a significant threat to the functionality, security, integrity or availability of the Services or any content, data or other application;
12.1.2 the Merchant’s or any End User’s access and use of the Services is being used to commit any illegal act;
12.1.3 there is any breach of the KodyPay Policies by the Merchant or any End User; or
12.1.4 any act or omission by the Merchant causes KodyPay to breach (or potentially breach) any of its agreements with any third party provider or any Applicable Law.
12.2 KodyPay may suspend the Services if directed to do so by a Regulatory Authority.
13.1 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.
13.2 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.
13.3 KodyPay may terminate this Agreement by written notice to Merchant if any Fees remain unpaid for a period in excess of 14 days following the due date for payment of such Fees.
13.4 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.
13.5 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.
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 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.
17.1 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 18.1 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.
18.1 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, 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 19.2 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 law) 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
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;
"Business day" means a day other than a Saturday, Sunday or public holiday in England;
"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;
"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;
"End Users" means the Permitted Users who have downloaded, and have access to use, the KodyPay App;
"Fees" means the fees payable by the Merchant as set out in Schedule 3: Fees;
"Initial Term" has the meaning given in Clause 1.1;
"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);
"KodyPay IP" has the meaning given in Clause 8.1;
"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;
"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;
"Platform" means the payment services platform comprising the KodyPay App and the cloud/server infrastructure on which the KodyPay App is hosted and made available to End Users;
"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 End Users by KodyPay in the ordinary course of providing the Services, directly from such 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.
"Renewal Period" has the meaning given in Clause 1.2;
"Services" means collectively the KodyPay App, the Platform and the services described in Schedule 2: Services;
"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 or any End User may access through, within, or in conjunction with, the use of the Services or the 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
"KodyPay App" has the meaning given in Recital (C) and as more particularly described in Schedule 2: Services.
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.
3.1 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,
provided that, if deemed receipt occurs before 9am on a Business Day, the Notice shall be deemed to have been received at 9am on that day, and if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the Notice shall be deemed to have been received at 9am 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: Services
1.1 Functional details of the KodyPay Platform
1.1.1 Payments for goods at Merchant outlets, retail and catering by using payment methods supported by the KodyPay App. 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 End Users
2.2.1 Customers and staff of the Merchant
End 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.
2.2.2 Merchant retailers
Merchant End 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.
2.2.3 Permissions and restrictions
End Users will be able to make payments using KodyPay at Merchant merchant retailers with the KodyPay App. The use of the KodyPay App is subject to KodyPay’s approval at each merchant retailer. Back-office user access will be controlled by the KodyPay Super CMS users.
KodyPay will provide technical and operational support in line with the service levels in Paragraph 4 below.
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
Notification & Update Intervals
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.
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.
An issue having limited or no adverse customer impact.
Response within 1 business day of Customer identification. Updates provided as needed.
5.1.1 The Merchant consents to, and shall procure that its personnel and merchant retailers 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, its personnel and merchant retailers.
5.1.2 The Merchant shall comply, and procure its personnel and merchant retailers 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 providers) shall not be: (i) responsible for any Service deficiency, interruption or delay; or (ii) liable to the Merchant, its personnel or merchant retailers, 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 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 or the Platform.
The Merchant warrants their fulfilment of the following criteria in regard to PCI-DSS:
A. They maintain a list of service providers which includes KodyPay. KodyPay provides payment services to the Merchant, facilitating payment card transactions using an allocated third-party payment gateway and acquiring bank. 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. They certify 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 email@example.com. For attestation of PCI compliance from Cybersource, please see Visa's Global Registry of Service Providers.
C. They maintain an established process for engaging service providers including but not limited to Kodypay, including proper due diligence prior to engagement.
D. They will cooperate with KodyPay to monitor KodyPay’s PCI-DSS compliance on an annual basis.
E. They have 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.
Schedule 3: Fees
1.1 KodyPay may increase the Fees on a semi-annual basis with effect from each anniversary of the Effective Date pursuant to Schedule 3: 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 3: 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 The Merchant shall pay each invoice submitted to it by KodyPay within 30 days of the date of the invoice.
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).
2.2 Transaction Fee: A percentage of the total cost of any and all transactions made via KodyPay's Services outlined below dependent on card type used by Customers of the Merchant. Following mutual agreement between both parties, the transaction fee can change. The percentage outlined below is an average percentage fee based on the Merchant's quoted average transaction value. This percentage is calculated inclusive of a 1.4p card authorisation fee. As a result, actual percentages may vary for each transaction.
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 All transactions are subject to a minimum transaction fee of 3p per transaction.
2.2.2 Visa Commercial cards include: Visa Business Credit, Visa Business Debit, Visa Purchasing and Visa Corporate.
2.2.3 Mastercard Commercial cards include: Mastercard Business, Mastercard Purchasing/Fleet, Mastercard Corporate and Mastercard Prepaid Commercial.
2.2.4 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.
Visa Commercial Cards
Mastercard Commercial Cards
All non-EEA Visa
All non-EEA Mastercard
2.3 Standard Charges: The below charges apply from time to time.
Late Payment/Returned Direct Debit Fee
£5 per item
Faster Payments Fee (Upon request from The Merchant, settlement of funds can be accelerated from 72hrs to 24hrs)
£0.30 per day OR free if you choose to disperse funds to a Santander Business Current Account
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.