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Americas

United States
Puerto Rico

Europe

Denmark
Germany
Ireland
Norway
Poland
Sweden
United Kingdom
Spain

For customers who signed with Elavon prior to 26 April 2024 please see previous terms here.

Terms and Conditions for Opayo products

This Agreement sets out the terms and conditions between us and you for the provision of the Services and is made between Elavon (as further defined below) (“Elavon” or “our” or “we” or “us”) and you the individual or organisation which registers to use the Service (“Merchant” or “you” or “your”).

 

Please make sure you are happy with all the terms below before you indicate your acceptance. By entering into this Agreement we both acknowledge that we both intend to be bound by this Agreement and to follow its terms. In return for you doing this we agree to let you use the Services as described in this Agreement.

 

It is important that you regularly check our website as throughout this Agreement, we make reference to various items that may be notified to you on our website. Importantly, this includes any notifications of unavailability of the Services.

 

You can request additional services from us at any time. If you do, we will provide you with a quotation outlining the services we will be providing, the relevant fees for this and payment terms. Our delivery of any additional services during the Term will be on the terms and conditions set out in this Agreement.

 

DEFINITIONS AND RULES OF INTERPRETATION

(a) Unless otherwise stated, the definitions set out in the glossary at the end of these Opayo Merchant Terms and Conditions apply to the Agreement. 

(b) Singular terms shall include the plural, and vice versa, unless the context otherwise requires. 

(c) “Including” shall not be construed as exclusive or limiting and shall generally mean “including but not limited to.” 

(d) Any reference to a section shall be to the relevant section of these Opayo Merchant Terms and Conditions, and a part or Section shall be to the relevant part or Section of the relevant schedule unless otherwise stated. 

(e) References to a Person include a reference to that Person’s successors or assignees. 

(f) In the event of a conflict between the documents comprising the Agreement (excluding any Security Document), the following order of priority will apply, only to the extent of such conflict: (i) these Opayo Merchant Terms and Conditions; (ii) the Application; (iii) any other Agreement you have entered into with Elavon for similar or related services; (iv) any agreement entered into pursuant to Section 6 (Cardholder Present Solution) (if applicable); and (vi) any guides or manuals provided to you from time to time; provided, however, in the event of a conflict between the Agreement and any Card Scheme Rules, the Card Scheme Rules will prevail and the Agreement will be interpreted to give as full effect as is possible to both the Card Scheme Rules and the Agreement.

Where there is inconsistency between: (A) any other terms of this Agreement and Section 6 hereto, Section 6 will prevail; (B) the Regulated Terms (if applicable) and Section 6: the Regulated Terms will prevail; (C) any term other terms of this Agreement and Exhibit A hereto, Exhibit A will prevail.

(g) In this Agreement, references to any enactment shall be deemed to include references to such enactment as amended, re-enacted or extended and any subordinate legislation made from time to time under it.

 

1.    How you indicate that you accept this Agreement

1.1. You indicate that you accept this Agreement by placing an order through our website, or by ticking a box or clicking on a button (or something similar) when asked to confirm this during sign up to the Services at which time this Agreement is displayed to you, or by using the Services (or any part of them).

1.2. If you don't accept this Agreement, you may not use the Services.

1.3. If you place an order for the Services through our website, the steps you must take to conclude the Agreement with us are:

(a) You will need to create an account and log in with your allocated password.

(b) Select the Service you wish to purchase and enter the requested information.

(c) Check variable information like pricing - please note that your order is known as an “invitation to treat” and not a contractual offer from us which you may accept. This means that we reserve the right to correct any errors in information without any liability to you.

(d) Make sure you read and understand the terms of this Agreement – you will be asked to tick to accept these terms online.

(e) Review your order - you can identify and correct input errors before you place your order by using the “back” button on your browser and reviewing and correcting the information you have submitted as necessary.

(f) Place your order by clicking on the relevant button – a page will appear confirming that your order has been submitted.

(g) Wait for our acceptance of your order – we will accept orders either in writing or by commencing provision of the Service, depending on the Service selected. Please note that we are entitled to refuse to accept any order. If that happens, we will let you know as soon as we can.

 

2.    Our Agreement

2.1. We will not file the concluded Agreement between us online, so you should print out and keep a copy of the Agreement for your own record.

2.2. This Agreement may only be concluded online in the languages supported by our website which is currently English.

2.3. If you are dissatisfied with the Services, or have any other concern, please email our customer support team on opayosupport@elavon.com on or call 0191 313 0299.

 

3.    What are our obligations to you under this Agreement?

3.1. In consideration of you paying to us the Fees, we will provide the Services to you in an efficient and effective manner using due skill, care and attention and in accordance with the terms of this Agreement and applicable law and regulation.

3.2. Our ability to provide the Services to you may also be subject to the approval and acceptance of third parties, for example the bank, credit card acquirer or other third-party providing merchant acquiring and related services to you and with which you may have an independent agreement. Any services which are supplied to you by a third party are the responsibility of that third party and you acknowledge that our ability to perform the Services may be impacted by that third party. We are not liable for any delay in or non-performance of the Services which is caused by such a third party.

3.3. The Opayo Payment Gateway Service provides a payment gateway which communicates with the relevant parties to a Transaction, for example, we capture the payment details provided by your Cardholders, we send these to your Merchant Acquirer which sends the details to your Cardholder’s payment card issuer which authorises or declines the Transaction. Your Merchant Acquirer sends the Transaction results back to us and we send the results to you and your Cardholder to confirm the results of the Transaction. We do not calculate the Transaction amounts or approve, issue, receive, possess or manage any payments or money; these are matters for you, your Cardholder, your Merchant Acquirer and the relevant payment card issuer.

3.4. The Opayo Payment Gateway Service is Level 1 PCI DSS compliant, which sets out the industry standards for maintaining a secure environment. Further details about our security policy and our compliance certificate can be found on our website at https://www.elavon.co.uk/accept-payments/features/security or provided to you upon reasonable request. We are responsible for securing all Cardholder Data which is in our possession and under our control and in accordance with Section 16 below.

3.5. As part of the Services, we will provide you with standard technical and account support as described in our Documentation. We may also offer you the opportunity to purchase Priority Support Services for an additional Fee. Priority Support Services may be subject to a separate service level agreement.

3.6. During the Term, we grant to you a non-exclusive, non-transferable licence to:

3.6.1. access and use any relevant Documentation; and

3.6.2. if you have purchased the Opayo Payment Gateway Service, MyOpayo for the purpose of receiving the Services in accordance with this Agreement.

3.7. MyOpayo is provided to help you manage and verify your Transactions and other account information. If you wish to use MyOpayo, you are responsible for integrating with and maintaining your access to it. MyOpayo is provided to you on an “as is” basis for your information and you are responsible for maintaining your own records in connection with your activities as a Merchant. On termination of this Agreement, we will have no obligation to retain, store or make available to you any data or information in connection with any of the Services and/or Transactions.

3.8. You may purchase or subscribe to Additional Services but if you choose to do so you must agree to the separate applicable terms and conditions presented to you by us or the third party for those Additional Services. If there is a conflict between any of the terms of this Agreement and the Additional Services terms, the Additional Services terms will apply in relation to your use of the Additional Service in question. You acknowledge and agree that we may collect any fees due for any Additional Services on behalf of the third party providing the Additional Services to you. Except where Section 12.3 applies, we are not responsible for any issue with any third-party technology, information and/or services and will not be liable for those issues. We may withdraw access to such third party technology, information or services at any time without notifying you.

3.9. We may make integration kits or test environments and/or related advice available to you from time to time to assist you with integration to (and testing of) the Services. We are under no obligation to do this and provide these on an “as is” free of charge basis, so you agree that it is your responsibility to check their accuracy and suitability and to implement and maintain (in accordance with any updates or changes we notify on our website) your integration with the Services. You agree that any use is at your own risk and we are not liable for any omissions, errors or inaccuracies in any integration kits, protocols, test environments and/or related advice.

3.10. You should ensure that you use our most up to date protocols and algorithms when integrating with the Services. Without prejudice to our rights in Section 13.3, we may (in our absolute discretion) continue to make older protocols and algorithms available to you but these will not be supported by us and your continued use of any such protocols and algorithms is entirely at your own risk. We reserve the right to withdraw or to cease to permit integrations with the Services using any such older protocols and algorithms at any time. We suggest that you follow our then current integration guidance when integrating with our Services (including any recommended protocol settings or attributes) however, it is entirely your responsibility to assess and implement the most appropriate integration settings for your business.

3.11. As part of the Services, we may allow you to set up and use certain functionality, such as the processing of Recurring Transactions where you have an appropriate Merchant Services Account specifically for Recurring Transactions set up with your Merchant Acquirer (this is separate to your usual Merchant Services Account). Recurring Transactions can only be facilitated where you have a Recurring Transaction Authority from the Cardholder. You agree to provide us with any information we require to enable us to assist you in setting up and using any particular functionality we offer.

 

4.    What are your obligations to us under this Agreement?

4.1. You will at all times comply with this Agreement, the Card Scheme Rules, the PCI DSS, and any law or regulation applicable to your activities as a merchant and/or your use of the Services and/or Transactions, as well as our reasonable instructions from time to time in relation to your use of the Services.

4.2. During the Term and for such period as may be required afterwards for the purposes of this Agreement, you will open and maintain in your name a Merchant Services Account. You agree to provide us with accurate and up to date information in respect of your Merchant Services Account and your access and use of the Services. You acknowledge that we are entitled to rely on the information you provide to us or your Merchant Acquirer as accurate and up to date.

4.3. You will keep any log-in, account, passwords or other access information which we provide to you or which you create in respect of your access to or use of the Services and/or MyOpayo secure and confidential and will not disclose them to any third party. You are responsible for all losses resulting from any unauthorised activity in connection with your account with us or your access to the Services and/or MyOpayo.

4.4. You are responsible for applying adequate security measures to protect any data or information you access via, download or print from MyOpayo. Except as expressly set out in this Agreement, you must not copy, download, disclose or make available to any third party any data from MyOpayo or any Documentation for any purpose.

4.5. You agree to act with reasonable skill and care in connection with your activities as a merchant and/or your use of the Services and/or Transactions and not to do anything (or omit to do anything) which may damage or bring our name or business into disrepute. You agree that we may (although we are not under any obligation to) refuse to provide (or to cease providing) all or part of the Services or suspend the processing of any Transactions at any time if we reasonably suspect that you have failed to comply with this Agreement or that there might be fraudulent or illegal activity in connection with your use of the Services or your account with us.

4.6. Notwithstanding any information we may provide to you (whether via MyOpayo or otherwise), you are responsible for maintaining your own records relating to the Services and Transactions and for reconciling these with your own bank account data and other accounting records.

4.7. You will obtain all necessary consents, authorisations and approvals from your Cardholders to enable us to provide the Services and perform our obligations to you under this Agreement.

4.8. You acknowledge and agree that you are solely responsible for the provision of all equipment, software, systems, and telecommunications facilities which are required to enable you to receive the Services.

4.9. You acknowledge that we are a company incorporated and registered in either the Republic of Ireland or England (as applicable to your location where you receive the Services) and that the Services are provided in compliance with applicable Irish or English law and regulation (as applicable). You are responsible for making your own assessment of the Services before choosing to receive them and for ensuring that the Services (and any specific functions or features we make available, for example, the functionality to apply surcharges) can be and are received and used by you in compliance with applicable law and regulation in the countries in which you operate. You are responsible for any fines or assessments that may result or other losses we may suffer from unauthorised or prohibited practices and/or Transactions as a result of your failure to comply with this Section 4.9.

4.10. You acknowledge the nature of the Opayo Payment Gateway Service and our role as described in Section 3.3 above and that we are entitled to rely on any Transaction information we receive as being accurate and error-free when performing the Services.

4.11. You are responsible for any Chargebacks or other charges made to you by third parties, such as a Merchant Acquirer, as a result of or in connection with your Transactions and merchant status. You acknowledge that unless Elavon is also your Merchant Acquirer (subject to additional terms of service) Elavon has no visibility of such Chargebacks or other charges and cannot offer advice or assistance in this respect.

4.12. If we receive any complaints from your Cardholders, we will direct the Cardholder to you. You are responsible for any complaints with your Cardholders and you will work in good faith to promptly resolve any such complaints. If a Cardholder continues to contact us regarding your service, we will make reasonable attempts to discuss this with you but we reserve the right to (i) suspend provision of all or part of the Services to you until such time as we reasonably consider that the complaint is being resolved; or (ii) terminate provision of all or part of the Services to you.

4.13. You are responsible for securing all Cardholder Data in your possession and/or under your control and in accordance with Section 16 below.

4.14. You will immediately notify us if at any time:

4.14.1. you become aware of or reasonably suspect that there has been or could be any breach of Cardholder Data security or the PCI DSS or other applicable law or regulation; or

4.14.2. you become aware of any matter which might reasonably be considered to affect our ability to provide the Services in accordance with this Agreement, or the Card Scheme Rules or applicable law or regulation; or

4.14.3. you become aware of any errors or inaccuracies affecting your account with us; or

4.14.4. if Elavon is not also your Merchant Acquirer, you are in dispute with your Merchant Acquirer.

 

5.    Fraud Screening Services and Token Service

Fraud Screening Services

5.1. All Fraud Screening Services are provided as described in our Documentation from time to time but include:

5.1.1. basic risk detection tools which you may configure to assist you in risk detection, for example, we offer AVS and CVV verification functionality. It is your responsibility to ensure these detection tools are properly configured for your own particular requirements and used;

5.1.2. basic information on Transaction risk scores provided via MyOpayo, where applicable; and

5.1.3. Premium Fraud Screening Services which may be purchased by you for an additional fee.

5.2. You should take note of fraud scores and in particular high risk Chargeable Transactions reported to you using the Fraud Detection System. Our Fraud Detection System gives an indication of risk only and does not give you any guarantees against fraud. You should regularly review whether you wish to initiate any additional fraud screening checks of your own.

5.3. Fraud Screening Services are provided by Fraud Detection Parties. It is important that you contribute information about suspected or actual fraudulent Transactions to the Fraud Detection Parties' database. You are responsible for ensuring your Cardholders understand this. If you do not contribute information, we reserve the right to withdraw your access to the Fraud Screening Services as it is essential that users of this Service make contributions to enable the Service to remain effective.

5.4. We can only provide Fraud Screening Services to you if you have a fixed IP address. It is your responsibility to maintain that fixed IP address.

5.5. In addition to any other rights that we have under this Agreement, we may suspend the provision of the Fraud Screening Services at any time where we believe it is reasonable to do so (or where the Fraud Detection Party considers it reasonable to do so) in the following circumstances:

5.5.1. to protect the systems, software and services that operate or otherwise facilitate the Fraud Screening Services or to otherwise prevent any perceived security breach;

5.5.2. to protect our own, your or the Fraud Detection Party’s legal, regulatory or contractual position or to otherwise prevent any unlawful activity; or

5.5.3. where we are required to do so by law, regulation or applicable rule and if suspension is required beyond a reasonable period or the cause of the suspension is not capable of being remedied then we may terminate the provision of the Fraud Screening Services.

5.6. The Fraud Screening Services are provided “as is” without any warranty of any kind.

5.7. You acknowledge that deploying any other risk management techniques may be detrimental to the performance of the Fraud Screening Services.

5.8. You acknowledge and agree that the Fraud Detection Party is not:

5.8.1. responsible for the security of Cardholder Transaction data or any other information stored on your servers or any other party's servers other than subcontractors of the Fraud Detection Party solely to the extent Fraud Detection Party is liable for its own actions in respect of the same;

5.8.2. a party to any Transaction between the Cardholder and you and the Fraud Detection Party assumes no liability with respect to amounts due and owing for any such Transaction;

5.8.3. a party to the Agreement and that it shall not be receiving Cardholder data directly from you, but rather that Cardholder data from you will be transmitted to the Fraud Detection Party by us. As such, the Fraud Detection Party shall not be liable for our or your actions or inactions which would cause the Cardholder data not to be transmitted and received by the Fraud Detection Party correctly.

5.9. It is your responsibility to obtain the Cardholder’s consent at the time and point that the Cardholder attempts to make a purchase from you for the Fraud Detection Party to use the data for the delivery of the Fraud Screening Services.

5.10. You acknowledge that if our relationship with the Fraud Detection Party ends for any reason, then the provision of the Fraud Screening Services will also end.

5.11. On at least ninety 90 days prior written notice to you, we may modify the Fraud Screening Services where the Fraud Detection Party mandates such modification.

5.12. This Section 5 is subordinate to any applicable Card Scheme Rules or rules of companies and financial institutions and to any applicable law. You will be bound to the terms and conditions to which the Fraud Detection Party is bound in its relations with any Payment Schemes and companies and financial institutions, should those terms and conditions affect the Fraud Screening Services. Accordingly, we reserve the right (at any time) to alter the terms and conditions of the Agreement to reflect any change(s) to the terms and conditions of the Card Schemes and companies and financial institutions (to the extent they affect the provision of the Fraud Screening Services) upon providing you with written notice of such change(s). In the event that such change(s) result in a material change to the Fraud Screening Services or otherwise adversely affect the contractual arrangements between us in a material manner then you will be entitled to terminate the Fraud Screening Services upon providing us with 90 days prior written notice at any time.

5.13. Either party may terminate the Fraud Screening Services in accordance with any other provision of the Agreement or by giving to the other at least 90 days’ written notice, such notice not to expire before the last day of the Initial Term.

 

Token Service

5.14. In consideration of payment of the applicable Fee, we will provide you with the Token Service. Additional services may be provided, which may be subject to additional fees. You are responsible for obtaining the appropriate consent from your Cardholder for us to retain their payment card data to enable us to provide you with the Token Service.

5.15. We will not retain sensitive authentication data and, subject to Section 5.16, we will not give you access to the payment card information (we will merely provide you with Token information).

5.16. If you or we discontinue the Token Service for any reason at our sole discretion we may, following your reasonable request and subject to:

5.16.1. the written authorisation of your Merchant Acquirer and/or the applicable Card Schemes as the case may be; and

5.16.2. you paying to us any outstanding Fees and any additional Fees we charge for this Service, transfer any payment card data to you or your new payment services provider that we have held on your behalf as part of the Token Service provided that you or your new payment services provider (as the case may be) hold applicable PCI DSS compliance validation from a PCI Security Standards Council certified Qualified Security Assessor and by making such a request you promise to us that you or your new payment services provider (as the case may be) holds the applicable PCI DSS compliance validation and you will provide us with that compliance validation certificate. You agree to fully indemnify us for any loss or damage that we may incur as a result of us transferring the payment card information to you under this Section 5.16. In the absence of any request by you under Section 5.16 within 21 days of your discontinuance of the Token Service we will have no further obligation to you in this respect.

5.17. If we agree to transfer data to you in accordance with Section 5.16, we will do so in a secure manner and in such format as we reasonably determine. You also agree to sign any additional documentation that we might require to confirm that we have transferred the payment card information to you and that confirms that from the point of transfer you are solely responsible for that card payment information.

 

6.    Cardholder Present Solution

6.1. This Section 6 applies if we have agreed to supply you with the Cardholder Present Solution, which for avoidance of doubt, includes applicable Opayo Payment Gateway Services. If you are a business located in the United Kingdom to which Consumer Credit Laws apply, then the Regulated Terms apply to you in addition to the terms and conditions set out in this Section 6.

6.2. In consideration of you paying to us the applicable Fees in accordance with Section 11, we will supply you with the Terminals for the Initial Hire Term (unless this Agreement is terminated earlier in accordance with its terms) and thereafter until this Agreement is terminated in accordance with its terms, such termination to take effect no earlier than the expiry of the Initial Hire Term. The Initial Hire Term will continue in force for a period of twelve (12) months and shall not exceed eighteen (18) months.

6.3. Following the commencement of the Initial Hire Term, we will dispatch the Terminals to your address noted at the beginning of this Agreement or such other of your premises agreed by us using first class post or such other delivery method we approve from time to time. If we quote any dates for the delivery of Terminals, you agree that they are for guidance only and whilst we will aim to meet those dates, we will not be liable if we do not achieve those dates. On delivery of the Terminals, it is your responsibility to install the Terminals for use at the agreed premises in accordance with the installation guide and other documentation or instructions that we provide to you. The placement of a Terminal on your locations shall be agreed between the parties. We reserve the right to withhold or withdraw its agreement or consent to the placement of the Terminals in the event of the locations being, or becoming, unsatisfactory for that purpose. You are responsible for ensuring that installation takes place promptly following delivery so that you are able to receive the full benefit of the Cardholder Present Solution during the Hire Term.

6.4. You agree only to use and operate the Terminals in accordance with any user guide and any other documentation or written instructions that we provide you with in relation to those Terminals from time to time whilst you continue to hire the Terminals and you will only use and store the Terminals in those premises you have previously notified to us in writing and which we have consented to.

6.5. The risk of loss, theft, damage or destruction of each of the Terminals passes to you on delivery to your premises. The Terminals remain at your sole risk for the full period during which the Terminals are in your possession, custody or control until such time as the Terminal is returned to us. During this period you must ensure that the Terminals are kept at all times safely and securely and maintained in good working order and that the Terminals, their components and component software are not altered, amended, disassembled, tampered or otherwise interfered with or otherwise accessed or used in any unauthorised way.

6.6. The Terminals at all times remain our or our licensors’ (as applicable) property and you have no right, title or interest in or to the Terminals (save the right to possession and use of the Terminals in accordance with this Agreement).

6.7. At your own expense, you will obtain and maintain comprehensive insurance for each of the Terminals to a value not less than their combined full replacement value against all usual risks of loss, damage or destruction by fire, theft or accident, and insurance against such other or further risks relating to the Terminals as may be required by law.

6.8. If any Terminal becomes stolen, lost, damaged or otherwise inoperable you will report it to us as soon as you become aware of it. Subject to Section 6.9, you will be responsible for paying to us our then current replacement or repair charges (as applicable) in respect of each Terminal which is stolen, lost, damaged or otherwise inoperable, and you will indemnify us from and against any loss, damage, costs and expenses and other liabilities we may incur as a consequence of us hiring the Terminals to you.

6.9. Where the Terminal fails as a result of any fault in its hardware or software and such failure is not as a result of your own or any third party’s (excluding the manufacturer’s) act or omission you should promptly return the faulty Terminal to us in accordance with our instructions and we will dispatch a replacement Terminal to you (new or refurbished). If, after we have received the Terminal we find that its failure was due to your own or any third party’s (excluding the manufacturer’s) act or omission, we reserve the right (at our discretion) to charge you for any repair of that Terminal or for the then current replacement cost. If you do not return the Terminal to us as instructed we will not be responsible to you in relation to your inability to use that Terminal and we also reserve the right to charge you the full replacement value of that Terminal.

6.10. It is your responsibility to have in place all necessary power and telecommunications devices, connections and third party equipment and other requirements for the proper use and performance of the Terminals and the Cardholder Present Solution (including, for example, ensuring you have appropriate systems and Internet access and any other appropriate equipment as we advise you of from time to time) (“Service Infrastructure”). If you do not have in place and maintain the necessary Service Infrastructure, we will not be responsible to you for your inability to obtain the full benefit of the Cardholder Present Solution, or any part of it, whilst any part of the Service Infrastructure is unavailable. You acknowledge that Terminals should be connected overnight in order to receive software and other technical updates. You shall not use, or permit to be used, the SIM card from any GPRS Terminal for any purpose other than the transmission and receipt of data in connection with the Services. If you do so in breach of this section, then you shall be liable for all additional voice call and/or data transmission charges incurred plus an administrative charge to cover all costs incurred by us in recovering those additional charges from you.

6.11. You acknowledge that the Terminals are manufactured by a third party and we do not warrant that the Terminals will be free from errors, faults or defects. Subject to your right to a replacement Terminal in Section 6.9 and as far as applicable law allows, the Terminals are provided to you “as is” without any condition or warranty of any kind, express or implied, including, any implied warranties of satisfactory quality, fitness for any particular purpose, compliance with description or sample and non-infringement of third party rights, provided that this does not exclude any implied warranties or conditions that (a) we have the right to hire the Terminals to you on the terms of this Agreement; and (b) you will enjoy quiet possession of the Terminals during the Hire Period (subject to our rights under this Agreement or applicable law).

6.12. We do not warrant that the Terminals will be capable of uninterrupted use. You acknowledge and agree that use of the Terminals is dependent on a number of third party reliances that are outside of our control (for example, the Service Infrastructure). You also acknowledge and agree that we will not actively notify you that your Terminal has lost connectivity to our payment processing system. Accordingly, we will not be responsible to you for your inability to use the Cardholder Present Solution and/or the Terminals as a result of: (i) the act or omission of any third party; or (ii) the Service Infrastructure; or (iii) for any other reason outside of our control.

6.13. You will permit us, or our authorised representatives, access to each of your premises where the Terminals are located to inspect, repair, maintain and/or remove those Terminals at all reasonable times. At our reasonable request you will promptly provide us with any assistance we require to benefit from this right.

6.14. If at any time you materially breach the terms of this Section 6 and/or fail to pay any Fees due to us for the Cardholder Present Solution, or any part of it, in accordance with Section 11, in addition to our other rights under this Agreement, we may:

6.14.1. suspend provision of the Cardholder Present Solution, or any part of it, until such time as the breach is remedied to our satisfaction and we will be entitled to charge you a reconnection fee for re-commencing provision of the Cardholder Present Solution, or any part of it, which you will pay in accordance with Section 11; or

6.14.2. terminate this Agreement in relation to the Cardholder Present Solution, or any part of it, immediately on written notice.

6.15. Where this Agreement expires or is terminated in relation to: (i) Cardholder Present Solution; or (ii) the Terminal Hire; or (iii) the hire of only a certain number of Terminals, you must deliver those Terminals (which are subject to the expiration or termination) to us in accordance with our instructions at such location as we notify to you. You must ensure that all Terminals are delivered to us in good condition and repair.

6.16. If you do not return the Terminals to us in accordance with Section 6.15, we will be entitled to enter any premises where the Terminals are located to recover them without incurring liability to you or any third party and to invoice you for any charges we incur as a result of such recovery, which you will pay in accordance with Section 11.

6.17. In addition to your obligations under Section 6.15, if the agreement between us for the Cardholder Present Solution ends (or if the hiring of one or more of the Terminals ends) before the expiration of the first six months of the Initial Hire Term or any Renewal Term (as defined at Section 13.1) then, without prejudice to our other rights and remedies, you will pay to us all sums that would have been due to us for the remainder of such Initial Hire Term or Renewal Term (as applicable) and all costs incurred by us in recovering the Terminals from you.

6.18. In addition to our other rights under this Agreement (and, in particular our rights under Sections 6.14 and 6.16 above), if:

6.18.1. we have not received from you the total number of Terminals due to be returned to us within 10 days of the date we stop providing the Cardholder Present Solution to you (or of the date the Hire Term ends in relation to each of those Terminals); or

6.18.2. we receive Terminals that are not in good repair or which are otherwise defective (otherwise due to the fault of the manufacturer),

then we will be entitled to invoice you and you will pay to us an amount equal to the then current replacement value of each of the Terminals:

(i) we have not received within 10 days of the date we stop providing the Cardholder Present Solution to you; or

(ii) we have not received within 10 days of the date the Hire Term ends for the applicable Terminals; or (iii) you do return to us but which are not in good repair or which are otherwise defective.

6.19. You acknowledge that discrepancies between payments taken via the Terminals and payments appearing in your Merchant Services Account may occur from time to time for a number of reasons, many of which are unrelated to the Cardholder Present Solution and/or the Terminals or are otherwise outside of our control. You should contact your Merchant Acquirer with any Transaction queries. It is also your responsibility to:

6.19.1. promptly verify that credit and debit card payments have appeared in your Merchant Services Account and to reconcile them with Transactions made via the Terminals; and

6.19.2. notify us of any potential discrepancy as soon as you become aware of it.

6.20. On notifying us of any potential discrepancy pursuant to Section 6.19.2, we will, where practicable, provide reasonable assistance to help you resolve the discrepancy in accordance with the standard support services we agree to provide to you under this Agreement. If you fail to notify us of a potential discrepancy within two weeks of its occurrence or if significant reconciliation efforts and/or ad hoc reports are required, we reserve the right to charge you additional professional services costs at our then current charge rates, which will be payable by you in accordance with Section 11.

6.21. Subject to the terms of this Agreement, we will transmit to your Merchant Acquirer for settlement all eligible Transactions on a nightly basis or otherwise in accordance with any specific rules you have set up using the functionality within the Terminals (for example, you may, in accordance with the Terminal user guide and other documentation we provide to you, set shift markers via the Terminals to set a time during the day up to which Transactions for that day will be settled and any Transactions after that time are transferred to the next trading day). You acknowledge that where you set-up your own specific rules in relation to the settlement of Transactions, we will transmit to your Merchant Acquirer for settlement any eligible Transactions in accordance with those rules as soon as reasonably possible afterward. You understand that unless Elavon is your Merchant Acquirer (subject to other terms of service) it is your Merchant Acquirer and not us that is responsible for settlement of Transactions.

6.22. You will ensure that:

(i) only authorised and trained personnel use the Terminals and the Cardholder Present Solution;

(ii) receipts and cardholder information are stored, and subsequently destroyed, in a secure manner.

6.23. You are responsible for any unauthorised or fraudulent Transactions performed on the Terminals whilst the Terminals are in your possession or under your control.

6.24. You are responsible for your own PCI DSS self-assessment and any applicable legal, regulatory or other compliance requirements relevant to your own business activities and use of the Cardholder Present Solution (or any part of it).

6.25. We are responsible for ensuring the Terminals are compliant with applicable Merchant Acquirer standards and Card Scheme Rules.

6.26. From time to time, we will remotely make available software updates for the Terminals to ensure continued compliance with such rules and standards. You must download any relevant updates to the Terminals as they become available or as we otherwise notify you. We will not be responsible for your delay or failure to download and install such updates.

6.27. Subject to Sections 12.2 and 12.3 below, our maximum responsibility and liability to you in relation to the supply of the Terminals whether in contract, tort (including negligence), breach of statutory duty, or otherwise will be limited to paying you an amount equal to the total amount of Fees you paid to us for Terminal Hire in the 12 months prior to the incident for which we are responsible.

6.28. Each party acknowledges that the allocation of risk and responsibility in this Section 6 is reasonable because it reflects:

6.28.1 that it is not within our control how, and for what purposes, you use the Terminals;

6.28.2 that the Terminals have not been specifically developed for you;

6.28.3 that while we follow good industry practice, it is not economically possible for us to exhaustively test the Terminals;

6.28.4 the amount of the Fees paid by you for the Terminal Hire;

6.28.5 that there are a number of alternative payment methods available to you; and

6.28.6 that you had a choice to use one of a number of alternative payment suppliers that provide similar services.

 

7.    Opayo Introduced Merchant Services

7.1. This Section 7 applies only if we have agreed to supply you with Opayo Introduced Merchant Services. Merchant Services Accounts are provided and administered by the Introduced Merchant Acquirer as an authorised payments institution and not by us. We do however offer Opayo Introduced Merchant Services where we assist you in applying for a Merchant Services Account with the Introduced Merchant Acquirer and liaise with the Introduced Merchant Acquirer on your behalf.

7.2. If you complete the Merchant Service Application Form and submit it to the Introduced Merchant Acquirer (or do so via us), you make a formal application for a Merchant Services Account. You agree to provide accurate information in your application for a Merchant Services Account and that we may rely on this information as being accurate when providing the Opayo Introduced Merchant Services or any related Services. Any information that you submit on the Merchant Service Application Form will be used in accordance with Section 16 and in accordance with the Introduced Merchant Acquirer’s terms and conditions which you should read carefully.

7.3. By completing the Merchant Service Application Form, you acknowledge and agree that, should your application be successful, you will be entering into a direct contractual relationship with (and agreeing to pay applicable fees to) the Introduced Merchant Acquirer (or its agent) for your merchant services as well as a separate direct contractual relationship with us for our own Services. Accordingly, you agree to comply with this Agreement and all of the Introduced Merchant Acquirer’s terms and conditions.

7.4. You should ensure that your Merchant Service Application Form is fully completed before you submit it to the Introduced Merchant Acquirer. You must immediately inform the Introduced Merchant Acquirer directly if you wish to amend the details contained in your Merchant Service Application Form.

7.5. The Introduced Merchant Acquirer reserves the right to reject any applications and, if you subsequently enter into a merchant services agreement with the Introduced Merchant Acquirer, it may terminate your merchant services agreement at any time in accordance with its terms and conditions. You understand that the Introduced Merchant Acquirer (not us) decides whether or not to approve your application and may terminate your Merchant Services Account in accordance with its own terms and conditions. If your Merchant Services Account is terminated for any reason the Opayo Introduced Merchant Services will also terminate automatically and you must immediately pay to us all Fees due in relation to Opayo Introduced Merchant Services for the remainder of the Initial Term. Termination of any Opayo Introduced Merchant Services will not affect the delivery of any other Services under this Agreement (which will continue unaffected unless a party terminates those Services as otherwise provided under this Agreement).

7.6. Our ability to provide Opayo Introduced Merchant Services is conditional upon you obtaining a Merchant Services Account and retaining it throughout the duration of the Opayo Introduced Merchant Services.

7.7. If your application for a Merchant Services Account is successful, the Introduced Merchant Acquirer will, in accordance with its terms and conditions, provide you with a Merchant Services Account and settle all funds, manage all Chargebacks, risk, fraud and financial adjustments in accordance with its terms and conditions. The Introduced Merchant Acquirer will also administer your Merchant Services Account directly and invoice you for all fees associated with that Merchant Services Account. Accordingly, it will be necessary for you to complete a second direct debit mandate (available from the Introduced Merchant Acquirer) which will apply to the Introduced Merchant Acquirer’s own fees.

 

8.    Third party products or services

8.1. During the Term, we may from time to time introduce you to third party products or services which may be of interest to you, such as services allowing you to process Transactions with your Cardholders using additional payment methods. If we do this you agree that:

8.1.1. any third party products or services are the responsibility of that third party;

8.1.2. we do not endorse or recommend the third party’s products or services and you should check whether they are suitable for your needs;

8.1.3. you will enter into a direct contractual relationship with the third party for the product or service subject to the third party’s terms and conditions and you may be liable to pay fees directly to them; and

8.1.4 .we are not liable for the third party’s products or services or for any delay in or non-performance of the Services which is caused by such the third party or their products or services.

8.2. We may also from time to time use other organisations to help us provide all or part of the Services, including by subcontracting the provision of the Services to other organisations. Where we do this, we will take reasonable steps to ensure the suitability of those organisations.

 

9.    Confidentiality

9.1. Elavon’s Confidential Information. You shall keep in strict confidence all Confidential Information.

9.1.1. You may disclose such Confidential Information:

(i) to your employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out your obligations under the Agreement; and

(ii) as may be required by law, court order or any governmental or regulatory authority.

9.1.2. You shall ensure that your employees, officers, representatives, advisers, agents or subcontractors to whom you disclose Confidential Information comply with this section 9.

9.1.3. You shall not use any Confidential Information for any purpose other than to perform your obligations under the Agreement.

9.2. Your Confidential Information and Transaction Data. Without prejudice to section 16 and Exhibit A, Elavon and its affiliates may, as permitted by the Card Scheme Rules and the Laws, disclose to the Card Schemes:

(i) confidential information furnished by you; and

(ii) any information furnished by you;

that would enable the Card Schemes to determine an individual’s identity, including a Card account number. Elavon may where relevant, also disclose your Transaction data to third parties through which you were introduced to Elavon for the purpose of calculation and payment of applicable commission and other fees to such third parties and for the purpose of facilitating their services to you. Elavon may also make such disclosures of data as set out in these Terms and Conditions, any application form or Documentation to which these Terms and Conditions apply, and (in the case of personal data) in any other data privacy notices which we may provide to you from time to time.

 

10.    Copyright and related rights

10.1. We or our licensors reserve all copyright, intellectual property rights and other rights throughout the world in the Services and to any information, idea, design, computer program, database, textual, graphical or other material comprised in the Services, or otherwise provided by us in relation to this Agreement or developed by us or on our behalf and to our Logo. This material may not be reproduced or copied by any means whether electronically or not without our prior written permission.

10.2. We grant to you a non-exclusive non-transferable right to display our Logo on your website for the duration of this Agreement (but we reserve the right to end this licence earlier at any time for any reason) only for the purpose of informing your Cardholders that you process your payments using Elavon.

10.3. You must use our Logo in accordance with our guidelines (that we publish from time to time). You must not alter our Logo or do (or fail to do) anything that could adversely affect our rights in the Logo or its value and you agree to immediately enter into any document necessary for the recording, registration or safeguarding our rights in the Logo. You also agree to tell us as soon as possible if you become aware of any infringement of our rights in our Logo. You agree to fully reimburse us for any loss or damage that we suffer as a result of any use by you of our Logo which is not in accordance with this Agreement.

10.4. Unless you inform us otherwise in writing on the commencement of this Agreement, you grant to us a non-exclusive non-transferable right to use your name and logo on our website and in our marketing or promotional material for the Term for the purpose of identifying you as a Cardholder. 

 

11. What are the terms of payment?

11.1. You agree to pay the Fees (plus VAT and any other taxes where applicable) and any other sums payable by you in accordance with this Agreement to us without deduction, withholding or set-off monthly in arrears within 14 days of the date of invoice, except for any Fees relating to Terminal Hire which you agree to pay: (i) (in relation to the Terminal set-up and configuration fee) on accepting this Agreement or on the Commencement Date of the Initial Hire Term, as notified to you by us; and (ii) (in relation to the monthly Terminal Hire fee) monthly in advance on the payment date agreed with us or within 14 days of the date of invoice. Fees may be subject to amendment from time to time and we will provide details of such amendment to you on our website or directly with a minimum of 30 days written notice.

11.2. Your obligation to pay Fees commences on the Commencement Date or in respect of certain Services (which you may ask us to provide after the Commencement Date) from the date we tell you about prior to those Services commencing. Where this date falls part way through a calendar month, you acknowledge that you must pay the whole monthly fee for that calendar month. Where this Agreement terminates part way through any calendar month you acknowledge that you must pay the whole monthly fee for that calendar month.

11.3. Some Services are limited to a Transaction threshold or other use limit. You agree that if you exceed any Transaction threshold or other use limit for the pricing plan that you have signed up for, your account will automatically be upgraded to the next higher pricing plan and you must pay the Fees associated with that upgraded pricing plan as detailed on our website or otherwise notified to you from time to time.

11.4. Unless agreed in writing with us, you agree to sign a direct debit mandate to allow the Fees and any amount owed by you to us to be debited directly from your bank account in accordance with the regulations imposed under the BACS scheme. You agree to keep such mandate in place until termination of this Agreement and all monies due to us have been paid in full.

11.5. We reserve the right to charge an additional nominal administration fee to you if you do not sign a direct debit mandate where requested by us to do so as per Section 11.4.

11.6. All invoices will be issued in and all payments are due in British Pounds Sterling or such other currency we accept from time to time.

11.7. We may raise and issue invoices electronically to you and you hereby consent to receive electronic invoices from us and:

11.7.1 you are responsible for ensuring that any digital signatures or electronic certificates issued alongside our electronic invoices are valid from the date that the invoice is issued to you; and

11.7.2 you are responsible for ensuring that your systems, processes and controls are VAT compliant to allow the receipt of electronic invoices in your member state; and

11.7.3 you are not permitted to tamper with or amend any electronic invoices we issue to you in anyway; and

11.7.4 if you receive an invoice from us that is illegible or a signature or certificate that is invalid you are required to notify us immediately.

11.8. When payment of any invoice or direct debit is overdue, we may:

11.8.1 suspend performance of the Services (or any part of them);

11.8.2 (except where the invoice or direct debit is incorrect) charge and recover interest from you on the sum of the outstanding invoice or direct debit calculated at a compound rate of two per cent per month from the due date until the date of full payment; and

11.8.3 where we have suspended performance of the Services charge a reconnection fee of £50 (or equivalent sum in our invoice currency) plus VAT or other applicable taxes to resume the Services.

11.9. If we are forced to take legal action against you to recover overdue payments, you shall be responsible for all costs and disbursements incurred by us on a full indemnity basis.

 

12.    Our responsibility if something goes wrong

Your attention is specifically drawn to the following provisions.

12.1. Subject to Sections 6.27, 12.2 and 12.3 below, our maximum responsibility and liability to you in relation to this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to paying you an amount equal to the total amount of Fees you paid to us in the 12 months prior to the incident for which we are responsible.

12.2. Subject to Section 12.3, we will not be responsible for any of the following however caused and even if we knew or should have known there was a possibility you could experience the problem and in each case whether suffered by you directly or indirectly:

12.2.1. loss of profits, business, Cardholders, contracts, revenue, estimated savings, chargeable time or goodwill or wasted expenditure;

12.2.2. any interruption to your business (including interruption to Service) or loss of or damage to information or data, however that interruption, loss or damage is caused;

12.2.3. loss or damage suffered by you which we could not have reasonably known about at the time you entered into this Agreement;

12.2.4. loss or damage you suffer as a result of using any third party products or services;

12.2.5. loss or damage you suffer as a result of our suspension or termination of the Services (or any part of them) in accordance with the provisions of this Agreement; and

12.2.6. loss or damage you suffer as a result of using the Services other than as described in the relevant Documentation or as otherwise described on our website.

Except as set out in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement. We recommend that you consider obtaining insurance cover if you believe that you could experience anything that we have told you that we will not be responsible for.

12.3. Nothing in this Agreement will prevent or limit either your or our liability for:

12.3.1. a party’s own fraud or fraudulent misrepresentation;

12.3.2. death or personal injury arising out of your or our negligence (as applicable); or

12.3.3. any legally binding promise which is implied by law that we can provide the Service to you or that you can use the Service without interference which cannot be excluded or limited under applicable law.

12.4. Each party acknowledges that the allocation of risk and responsibility in this Agreement is reasonable in all circumstances because it reflects:

12.4.1. that it is not within our control how, and for what purposes, you use the Services;

12.4.2. that we have not developed the Services specifically for you;

12.4.3. that there are a number of alternative similar services available to you;

12.4.4. you had a choice to use one of any number of alternative payment suppliers that provide similar services;

12.4.5. that the processing of Transactions via the Internet involves specific risks which are insurable only to a limited extent and this may particularly be the case for loss/damage in connection with unavailability of service;

12.4.6. that while we follow good industry practice, it is not economically possible for us to exhaustively test the software that supports the Services; and

12.4.7. the amount of the Fees paid by you for the Services.

12.5. This Section 12 will remain in full force and effect notwithstanding termination of this Agreement for any reason.

 

13.    How long does this Agreement last and how can it be terminated?

13.1. This Agreement will commence on the Commencement Date and will continue in force for a period of twelve (12) months (the “Initial Term” and ”Initial Hire Term” where applicable) and thereafter unless terminated in accordance with any other provision of this Agreement or: (i) by you giving us at least 30 days’ written notice to terminate the Agreement, provided that the earliest that such notice will take effect is expiry of the Initial Term or Renewal Term (where applicable) unless you have agreed with us to take any applicable Services for a longer period, in which case you may not terminate the Agreement in respect of those particular Services until after the expiry of the relevant period by providing us with 30 days’ written notice of termination; or (ii) we giving you at least 60 days’ written notice to terminate the Agreement. In the event that any other agreement between you and us is terminate by us, including but not limited to an agreement for the hire of Terminals, we may at our reasonable discretion terminate this Agreement.

13.1.1. Without prejudice to anything contained in this Section 13, where you terminate the Agreement during the first 6 months of the Initial Term/Initial Hire Term or any Renewal Term only, a termination fee shall become payable and will be added to the final invoice/statement. The termination fee shall be the sum of the following fees insofar as they are applicable to you: for every remaining full month of the Initial Term/Initial Hire Term or Renewal Term (as applicable), any unpaid Terminal rental Fees (as well as the Terminal Recovery Fee), and /or any applicable Fees (including any applicable Minimum Charge). The structure of our termination fees may change from time to time. This Section 13.1.2 shall apply in addition to section 6.17 above relating to any early termination of the Card Present Solution provided hereunder. Subject to the aforementioned, termination of this Agreement by you shall be free of charge if the Agreement has been in force for more than 6 months. For purposes of this Section 13.1 “Renewal Term” shall mean the period of 12 months or other period agreed by you and us that commences after the expiry of the Initial Term.

13.2. Except where an application is made to court, or an order is made, for the appointment of an administrator or an administrator is appointed over the other party (or something similar happens), this Agreement will automatically (i.e. without either party having to tell the other) and immediately end without refund if either party (i) becomes bankrupt (or something similar happens); or (ii) is not able to pay its debts; or (iii) becomes insolvent (or something similar happens). In those circumstances neither party will have any further obligation to the other under this Agreement except that any monies due from either party to the other shall become immediately due and payable. For the avoidance of doubt, any transfer by us of our business and therefore, this Agreement in accordance with Section 18.3, shall not trigger any automatic termination under this Section 13.2.

13.3. Notwithstanding any other rights or remedies we may have, we may terminate this Agreement (or any part of it) or suspend the Services (or any part of them) with immediate effect following written notice to you if:

13.3.1. you fail to pay any Fees on the due date for payment and they remain unpaid at least 7 days after being notified by us to make such payment; or

13.3.2. the provision of the Services causes us or our affiliates to be in violation of any Card Scheme Rule, the PCI-DSS or any applicable law or regulation; or

13.3.3. you commit a material breach of this Agreement (which includes any breach of the provisions of Sections 9, 10 or 11), which if capable of remedy, has not been remedied to our reasonable satisfaction within 14 days of our written notice to do so, or you persistently breach any of the terms of this Agreement; or

13.3.4. you do (or omit to do) anything which does or may reasonably be expected to put us in breach of any Card Scheme Rules, the PCI-DSS or applicable law or regulation; or

13.3.5. you fail to adopt the most up to date protocols and algorithms or to comply with our current integration guidance (including any recommended protocol settings or attributes) in relation to your integration with the Service within any timescales that we notify to you from time to time; or

13.3.6. we reasonably suspect or have evidence that there might be fraudulent or illegal activity in connection with your use of the Services or your account with us; or

13.3.7. we consider such suspension or termination to be reasonably necessary to safeguard the security of the Services and/or its users; or

13.3.8. the Introduced Merchant Acquirer or any other bank, credit card acquirer or other third party with which you have a merchant agreement declines to offer or continue to provide merchant services for any reason or you are investigated by the Introduced Merchant Acquirer or any other bank, credit card issuer or other third party under its Card Scheme Rules or you have failed to comply with those Card Scheme Rules.

13.4. Notwithstanding any other rights or remedies you may have, you may terminate this Agreement (or any part of it) with immediate effect following written notice to us if we commit a material breach of this Agreement, which is capable of remedy, has not been remedied to your reasonable satisfaction within 14 days of your written notice to us to do so, or we persistently breach any of the terms of this Agreement.

13.5. Where we have stopped providing the Services pursuant to Section 13.3 we may at our sole discretion agree to recommence the Services at any time following your request and subject to such terms and conditions that we may specify from time to time.

13.6. On termination for any reason:

13.6.1. all outstanding Fees will become immediately due and payable by you;

13.6.2. all licences granted under this Agreement will immediately terminate;

13.6.3. you must stop use of our Logo and no longer refer to yourself as an Elavon merchant and you must return to us all information, sales, marketing and other materials and documents that we have provided to you;

13.6.4. we will stop using your logo and no longer refer to you as an Elavon merchant and we will return to you all information, sales, marketing and other materials and documents that you have provided to us and that is in our possession; and

13.6.5. we may agree to provide reasonable assistance to you in any handover to a new service provider, subject to your payment of our then current charges for such assistance.

13.7. Termination of this Agreement will not prejudice any of the parties' rights and remedies which have accrued as at termination and any provisions which expressly or by implication survive termination will continue in full force and effect.

 

14.    Service adjustments

From time to time we may adjust the content and interfaces of the Services, make changes to the Services which are necessary to comply with any applicable law or regulation or Card Scheme Rule, or make changes which do not materially affect the nature and quality of the Services. If such adjustments or changes lead to a change in the software, interfaces or operating procedures, we will notify you as soon as reasonably practicable via our website or other notification method we consider appropriate given the nature of the changes.

 

15.    Service availability

15.1. Whilst we aim to provide continuous access to the Services unfortunately, given the nature of the Services, we cannot guarantee that they will be uninterrupted or error free.

15.2. Wherever possible, we will provide advance warning (for example, on our website) of any known or planned interruptions and we will try to ensure any interruption is kept as brief as possible.

15.3. If circumstances happen beyond our reasonable control, we will not be liable for any failure to perform our obligations under this Agreement because of those circumstances, and we will be excused from that failure for so long as those circumstances continue. Interruptions caused by factors outside our control may include: failure of our or your internet service provider, a distributed denial of service attack (where hackers overload networks with data in an effort to disable them) or an issue with your Merchant Acquirer.

 

16.    What we will do with Your Information and, Cardholder’s personal data

16.1. We will use any Your information in accordance with our Privacy Policy our website. We will to:

(i) provide the Services and manage and administer your use of the Services; 

(ii) fulfil our contractual obligations under this Agreement and our legal obligations; 

(iii) liaise with regulators, banks, Card Schemes, law enforcement agencies (including the police) and Fraud Detection Parties; 

(iv) (subject to your right to opt-out from marketing communication) contact you to see if you would like to take part in our customer research; 

(v) (subject to your right to opt-out from marketing communication) contact you about other products and services which we think you will be interested in; and

16.2. We may disclose Your information to other companies in the Elavon Financial Services DAC group of companies, our contractors, and other organisations for example, we may disclose information to:

(i) affiliates of Elavon Financial Services DAC; 

(ii) organisations which we use to help us send communications; 

(iii) law enforcement agencies and Fraud Detection Parties; 

(iv) third parties (if any) used by us to perform our obligations to you under this Agreement; 

(v) any other person in order to meet any legal obligations on us, including statutory or regulatory reporting; 

the Card Schemes; 

(vi) your Merchant Acquirer; and 

(vii) your Customer’s issuing bank.

16.3. To the extent that we process any Transaction-related Cardholder personal data, the terms of Exhibit A shall apply and the parties agree to comply with such terms.

 

17. Dispute resolution

17.1. Should a dispute or other disagreement arise between us and you, we each agree to promptly raise the matter internally to account managers for resolution. If the account managers are unable to resolve the matter within 14 days of being requested to do so, we will each escalate the matter to senior managers for resolution who will attempt to resolve the dispute within a further period of 30 days (or such longer period as they may agree). If the senior managers are unable to resolve the matter within of the aforementioned timescales having being requested to do so, we will each escalate the matter to a director (or their nominee). The directors (or their nominees) will then in good faith attempt to resolve the matter within a further period of 30 days (or such longer period as they may agree).

17.2. Where the matter has not been resolved following the procedure in Section 17.1, we each agree to seek to resolve the matter in good faith via a suitable alternative dispute resolution (“ADR”) procedure. If we are unable to mutually agree a suitable form of ADR after a period of 30 days from the date upon which either party sought to resolve the matter via ADR, either party is free to pursue alternative remedies.

17.3. No party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute in accordance with this Section 17, except where a party seeks interim injunctive relief or to issue a claim within an applicable limitation period.

Complaints

17.4. Elavon is committed to providing an excellent Cardholder experience; however, if you feel that we have not met your expectations, we would like to know. If you are not satisfied with any aspect of our service, please contact us by telephone at our Service Centre 0345 850 0195. Our lines are open 24 hours a day, 7 days a week. Alternatively, write to us at Elavon Merchant Services, Building F1, Cherrywood Business Park, Loughlinstown, Co. Dublin (if you or located in Ireland) or at 125 Old Broad Street, Fifth Floor, London, EC2N 1AR(if you are located in the United Kingdom) or send an email to complaints@elavon.com. If we can’t resolve the matter to your satisfaction informally we will send you a written acknowledgement within 5 business days of having received your complaint. You will be provided with one point of contact to handle any questions you may have, and we will ensure that you receive a full written response. Our aim is to resolve your concerns and respond to you as soon as possible and no later than 15 business days of first receiving your complaint. If, for reasons beyond our control, we are unable to issue a final response to you within 15 business days we will write to you to keep you updated, clearly outlining the reason for our delay and we will set out the timeline by which you will receive a full response. This deadline will be no longer than 35 business days from the receipt of your initial complaint. If you are not satisfied with our final response, you may be eligible to refer the complaint to the Financial Ombudsman Services (FOS) in for the jurisdiction in which you are located. We will provide you with the contact details. Please note that the FOS will only become involved after we have had the opportunity to research and address the complaint. In Ireland, the FOS can be contacted at: Financial Services & Pensions Ombudsman, Lincoln House, Lincoln Pl, Dublin 2, D02 VH29, Telephone: (01) 567 7000. In the United Kingdom, the applicable FOS can be contacted at: Financial Ombudsman Service, Exchange Tower, London E14 9SR Telephone: 0800 023 4567 Website: www.financialombudsman.org.uk. In the event that you are not eligible to refer your complaint to the FOS, Elavon does not subscribe to an alternative dispute resolution service.

 

18.    What else do you need to know?

18.1. In this Agreement:

18.1.1. a reference to a statute, statutory provision or subordinated legislation is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts;

18.1.2. any reference to the singular will include the plural and vice versa.

18.1.3. any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms; and

18.1.4. the headings are for convenience only and shall not affect the construction of these terms.

Assignment, novation and sub-contracting

18.2.1. You cannot assign, transfer or novate the Agreement or any of your rights or obligations under it, whether directly or by operation of law.

18.2.2. You may, subject to our prior written consent, use a subcontractor or agent in respect of the performance of your obligations under the Agreement (such consent may reasonably be withdrawn by us at any time). You will be responsible for ensuring that any such subcontractor or agent complies with the relevant terms of the Agreement.

18.2.3. You are liable for the acts or omissions of any agent, subcontractor, affiliate or employee of yours (whether or not we have provided consent to your use of such agent, subcontractor, affiliate or employee) in connection with the performance of your obligations under the Agreement or in relation to any Transaction or Chargeback.

18.3. Elavon can on written notice assign, novate or otherwise transfer, either in whole or in part the Agreement. You agree to enter into any documents as Elavon may require in order to evidence such assignment, novation or other transfer. Notwithstanding the foregoing, Elavon is entitled to: (A) assign any and all receivables arising out of the Agreement to a third party for financing or refinancing purposes; or (B) to transfer (e.g., by sub-participation) the economic risk of the receivables arising out of the Agreement to a third party. In case of such assignment or transfer, Elavon may, subject to Section 16 and Exhibit A, disclose and transmit to any such third party all information about you and the Agreement relevant for or required by the third party in connection with such assignment or transfer.

18.4. Any dates quoted for the provision of the Services are for guidance only and whilst we aim to meet those dates, we will not be liable if we don’t achieve them.

18.5. Any notice required to be given under this Agreement, will be in writing and will be sent by pre-paid first class post or email, to the party required to receive the notice at the address for that party above or as otherwise previously specified by that party by notice in writing to the other party. Any notice will be deemed to have been duly received if sent by: (i) pre-paid first class post or recorded delivery, 72 hours after posting; or (ii) email on actual receipt by the recipient party

Force Majeure

18.6. We will have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control.

Amendments

18.7. Elavon may make any changes to the Agreement at any time on two (2) months’ notice. You may terminate the Agreement prior to the date the changes come into effect without charge (other than any liabilities that you have or will have to Elavon under the terms of the Agreement). Upon expiry of the two (2) months’ notice period you will be deemed to have agreed to the changes.

Waiver

18.8. Neither the failure, nor the delay by Elavon to exercise, in whole or in part, any right or remedy under the Agreement or under the Laws shall operate as a waiver, release or estoppel of such right or remedy, nor shall it amend the Agreement. The single or partial use of a right or remedy under the Agreement or under the Laws shall neither restrict nor prevent the further exercise of such right or remedy in the future. Any waiver requested by you shall have no legal force or effect unless specifically agreed to in writing by Elavon, in its sole discretion.

Severability

18.9. Any provision of the Agreement found to be illegal or otherwise unenforceable, shall not affect any of the enforceability of the remaining provisions of the Agreement, which will further be construed as if the illegal or unenforceable provision was not contained in the Agreement.

Set-off

18.10. You irrevocably authorise us to set-off by whatever means any outstanding liabilities (including the Obligations) owed by you (in whole or in part) to us from time to time, without notice and both before and after demand (whether such liabilities are present, future, actual, contingent or potential) from: (i) any payments due pursuant to amounts we would otherwise be obliged to pay to you under this Agreement; or (ii) funds held by us pursuant to any other agreement between you and us. We shall inform you, as soon as reasonably practicable, upon exercising our rights under this Section 18.10. We will also be entitled to exercise our right of set-off as described above in relation to any of your affiliates as if reference to you in this Section 18.10 was a reference to such affiliate of yours. Any exercise by us of our rights under this Section 18.10 shall be without prejudice and in addition to any other rights and remedies under the Agreement or otherwise.

18.11. Only you and we can benefit from the rights in this Agreement.

18.12. In the provision by Elavon of products and services pursuant to this Agreement, Elavon relies on entities governed by the laws of the United States. In that role, such entities are unable to provide any products or services to Elavon, or to its Cardholders, that contravene the laws of the United States of America including without limitation the laws promulgated by the United States Department of the Treasury’s Office of Foreign Assets Control or any successor thereto.

18.13. Independent Contractors. The parties will be deemed independent contractors and nothing in the Agreement shall be construed as constituting an agency, joint venture, or partnership between the parties, unless and to the extent otherwise specifically provided for in the Agreement.

18.14. Counterparts. The Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same Agreement.

18.15. Remedies Cumulative. The rights conferred upon Elavon in the Agreement are not intended to be exclusive of each other or of any other rights and remedies of Elavon under the Agreement, at Law or in equity. Rather, each and every right of Elavon under the Agreement, at Law or in equity is cumulative and concurrent and in addition to every other right.

18.16. Entire agreement. The Agreement as amended from time to time, constitutes the entire agreement and understanding between the parties, and supersedes all prior representations, understandings and agreements (whether written or oral). On entering into the Agreement, neither party relies on any prior representation, statement or understanding, over and above those expressly provided for in the Agreement.

Applicable law and venue for proceedings

18.17. If you are located in the Republic of Ireland, the Agreement and the parties’ non-contractual obligations arising thereunder will be governed by and construed in accordance with the Laws of Ireland. The parties submit, subject as provided below, to the exclusive jurisdiction of the Irish courts to settle any claim, dispute or matter of difference which may arise out of or in connection with the Agreement or legal relationships established by the Agreement. If you are located in the United Kingdom, the Agreement and the parties’ non-contractual obligations arising thereunder will be governed by and construed in accordance with the Laws of England and Wales. The parties submit, subject as provided below, to the exclusive jurisdiction of the English courts to settle any claim, dispute or matter of difference which may arise out of or in connection with the Agreement or legal relationships established by the Agreement.

18.18. Nothing in this section limits Elavon’s right to bring proceedings arising out of or in connection with the Agreement (i) in any other court of competent jurisdiction, or (ii) concurrently in more than one court of competent jurisdiction. You waive any objection on the basis of venue or forum to any proceedings brought by Elavon pursuant to this section.

18.19. This Agreement is drafted in the English language. If this Agreement is translated into any other language, the English language text which can be found here: www.elavon.co.uk will prevail. Any notice given under or in connection with this Agreement will be in the English language. All other documents provided under or in connection with this Agreement will be in the English language. If such document is translated into any other language, the English language text will prevail.

 

If you are located in the United Kingdom, the following additional terms and conditions apply:

19. Notwithstanding and to the exclusion of any other term of the Agreement or any other agreements, arrangements, or understanding between Elavon and you, you acknowledge and accept that a BRRD Liability arising under the Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledge, accept, and agree to be bound by:

(a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of Elavon to you under the Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:

(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon including any accrued but unpaid interest, if any if due;

(ii) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or instruments of ownership of Elavon, and the issue to or conferral on the Customer of such shares, securities or instruments of ownership; 

(iii) the cancellation of the BRRD Liability;

(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;

(b) the variation of the terms of the Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.

20. Nothing in this Agreement will give anyone who is not a party to this Agreement any right or benefit under it pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise. 

 

Exhibit A

Data Protection

 

1. Interpretation

The Provision of Services

a. You shall, in relation to the provision of Services, comply with all applicable Data Protection Rules as they apply to you in your role as data controller. 

b. The terms “processing”, “controller”, “processor”, “sub processor”, “data breach” shall have the meaning ascribed to them by the Data Protection Rules. 

c. You are the controller, and we are the processor, in relation to processing of Transaction-related personal data in connection with the provision of Services. The data processing activities carried out by us are as follows:

Subject matter and duration of processing:

Personal Data is processed for the purpose of providing Services under this Agreement, during the term of Agreement.

Nature and purpose of processing:

obtaining, recording, storing and transmitting Personal Data for the purpose of enabling transactions.

Types of Personal Data:

Cardholder data that is necessary to process transactions in the course of providing the Services.

Categories of data subjects:

Cardholders who purchase goods or services.

Subject matter and duration of processing:

Personal Data is processed for the purpose of providing Services under this Agreement, during the term of Agreement.

Nature and purpose of processing:

obtaining, recording, storing and transmitting Personal Data for the purpose of enabling transactions.

Types of Personal Data:

Cardholder data that is necessary to process transactions in the course of providing the Services.

Categories of data subjects:

Cardholders who purchase goods or services.

When we process such personal data for any purpose other than in connection with the provision of Services (including, without limitation, carrying out fraud prevention checks, sanctions screening), we shall be a controller in respect of such processing.

 

d. Where we are acting as a processor on your behalf, we shall: 

i. subject to your compliance with section 2 (e) of this Exhibit A, only act on instructions from you regarding the processing 

ii. of personal data, including as permitted under this Agreement and for the purposes of providing the Services and to comply with legal requirements in connection with the provision of Services; 

iii. comply with our security policies and any other security procedures agreed between the parties from time to time which are intended to ensure that appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data having regard to the state of the technological development and the cost of implementing the measures, so as to ensure a level of security appropriate to the harm that may result from breach of such measures and the nature of the personal data to be protected; 

iv. maintain all applicable PCI DSS requirements to the extent Elavon possesses or otherwise stores, processes or transmits cardholder data on your behalf; 

v. be responsible for the reliability of any of our employees or sub-contractors who have access to the personal data provided by you and shall ensure that such employees and sub-contractors are subject to obligations of confidentiality in relation to the personal data processed in connection with the provision of the Services; 

vi. promptly notify you of any requests made by any data subjects under the Data Protection Rules or enforcement agencies in relation to the processing of personal data so that you may deal with any such request. 

vii. taking into account the nature of the processing undertaken by us, assist you, in so far as is reasonably and legally possible, in responding to requests from data subjects exercising their rights under the Data Protection Rules; and 

viii. taking into account the nature of the processing undertaken by us and the information available to us, assist you, in so far as is reasonably and legally possible, with notification of data breaches to regulators and individuals, with the conduct of data protection impact assessments and with prior consultation with data protection regulators, in each case to the extent that such assistance is legally required under the Data Protection Rules. 

e. You warrant and undertake that any instructions given by you to us in respect of the personal data where we are acting as a processor shall at all times be in accordance with the Data Protection Rules and that compliance with such instructions and the processing of the personal data as permitted by this Agreement shall not result in a breach of the Data Protection Rules by you or us. 

f. You agree that we may appoint our affiliates as sub-processors and that both we and our affiliates may appoint third party sub-processors in connection with the provision of the Services, provided in each case that equivalent obligations to those contained in this Exhibit A are included in a written contract with all sub- processors. 

g. You acknowledge and agree that we may transfer personal data to countries outside of the UK, the European Union and/or the European Economic Area including the United States of America in connection with the provision of the Services provided that proper precautions to safeguard the security and confidentiality of such data are taken, including e.g. conclusion of applicable version of standard contractual clauses, if necessary. 

h. Upon request and subject to section 9 of this Agreement (Confidentiality), we shall make available to you information regarding our compliance with this Exhibit A. Not more than once in any 12 month period you may request an audit to check our compliance with this Exhibit A. You shall be responsible for paying the costs of the audit at our standard rates. The scope and timing of the audit shall be agreed in advance and any information accessed as a result of the audit shall be subject to the obligations set out in section 9 of this Agreement (Confidentiality). 

i. Upon termination of this agreement to the extent that we hold any personal data on your behalf as a processor you agree that we shall delete such personal data unless we are required to retain the personal data to comply with applicable laws or is otherwise authorised by law to retain the personal data.

j. Sections 2(d) to (h) of this Exhibit A above only apply where we are acting as processor on your behalf and do not apply where we are acting as controller of personal data.

 

Exhibit B – Glossary

"Agreement" means this Agreement and any documents expressly incorporated by reference;

 

“Additional Services” means any third party complimentary products, software or services that integrate or work with the Services or any other products, services, technology or information not provided by us, including other Elavon products, services, technology information or services not provided by us;

 

Cardholder Present Solution” the solution made up of: (i) the Terminal Hire; and (ii) the provision to you of cardholder present payment processing services that enable you to process Transactions via the Terminals on a face to face or MOTO basis; and (where applicable) (iii) the Opayo Introduced Merchant Services;

 

Card Schemes” means those schemes that operate the clearing and settlement of payments, including payment card, transactions. In applicable jurisdictions (including the UK), financial institutions must be members of the appropriate scheme to acquire the applicable payment transactions (and issue payment cards and other instruments as applicable);

 

Card Scheme Rules” means the relevant business rules that govern the issue of payment instruments;

 

Chargeable Transaction” means a Transaction authorised by your Merchant Acquirer and then forwarded by us in a settlement file to your Merchant Acquirer to enable the process of transferring the applicable funds from one entity to another, including payments from your Cardholder to you, and also refunds from your Merchant Acquirer to Cardholders;

 

Chargeback” means a Chargeable Transaction that is invalid or disputed by your Cardholder and is charged back by the Merchant Acquirer;

 

Commencement Date” means the relevant date(s) on which the Services commence which is usually: the

(i) in respect of Opayo Payment Gateway Service, the date your Merchant Services Account number is notified to us and set-up for use; and (ii) in respect of the Cardholder Present Solution, the date we despatch the Terminals to you; and (iii) in respect of any other Service, the date we agree to provide that Service to you;

or as otherwise notified to you by us from time to time;

Confidential Information” means all information (of whatever nature) disclosed by one party (“discloser”) to the other (“recipient”) which (i) is indicated to be confidential; or (ii) derives value to a party from being confidential; or (iii) would be regarded as confidential by a reasonable business person;

 

“Consumer” (applicable only if you are located in the United Kingdom) means, for purposes of this Agreement, where you are: (i) an individual (including but not limited to an individual acting as a trustee); or (ii) a sole trader; or (iii) a partnership (where there are 3 or less partners); or (iv) an unincorporated body (including but not limited to a club or society, charity, trust or similar unincorporated body).

 

Consumer Credit Laws” (only applicable if you are located in the United Kingdom) means the UK Consumer Credit Act 1974 as extended or re-enacted from time to time and all subordinate legislation made under it;

 

"Cardholder" means an individual, company or other entity which orders goods or services from you and where payment for such order is to be processed using the Services;

 

Data Protection Laws” - means collectively all data protection, data security and data privacy requirements imposed by law, including, the General Data Protection Regulation (“GDPR”) (Regulation 2016/679/EC), the Data Protection Acts 1988 to 2018 (Ireland), the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (SI 336/2011) (Ireland) the Data Protection (Amendment) Act 2003 or other national legislation implementing or replacing the EU Data Protection Directive 95/46/EC, Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, and the Data Protection Act 2018 (UK) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (UK), the General Data Protection Regulation and all legislation (applicable national or EU law) that implements or is enacted in connection with the General Data Protection Regulation GDPR and other data protection or privacy legislation in force from time to time in any relevant jurisdiction;

 

Documentation” means any technical and user guides or similar material we make available for use with the Services from time to time (including via our website) whether in hard copy or electronic form;

 

“Elavon” means:

(i) If you are located in the Republic of Ireland: Elavon Financial Services DAC, a designated activity company registered in Ireland (Registration number 418442), with its registered address at Block F1, Cherrywood Business Park, Dublin 18, D18 W2X7, Ireland. 

(ii) If you are located in the United Kingdom: Elavon Financial Services DAC (UK Branch), United Kingdom branch registered in England and Wales under the number BR022122 with its registered address at 125 Old Broad Street, Fifth Floor, London, EC2N 1AR . 

We have other trading addresses. If you would like details of our other trading addresses in the UK, please contact us.

 

Fees” means the fees payable by you to us for the provision of the Services as published on our website from time to time or as otherwise notified by us in accordance with this Agreement (including any Minimum Charges);

 

Fraud Detection Parties” means third parties selected by us to review the level of potential fraud risk associated with a Chargeable Transaction, for example the checking of the results of AVS (address verification) and CV2 (the 3 digit security code on the reverse of credit and debit cards);

 

Fraud Detection System” means a series of checks carried out by Merchant Acquirers and Fraud Detection Parties;

 

Fraud Screening Services” means risk or fraud detection and screening services (as described in our published documentation from time to time) including, where applicable, Premium Fraud Screening Services;

 

Hire Term” means the term of the provision of Terminal Hire (including the Initial Hire Term) determined in accordance with Section 6.1;

 

Initial Hire Term” will continue in force for a period of twelve (12) months and not to exceed eighteen (18) months, means the minimum fixed period of Terminal Hire which as published on our website from time to time or which you sign up for;

 

Initial Services Term” means the minimum fixed period of the relevant Services as published on our website from time to time or which you sign up for;

 

Initial Term” means the Initial Services Term and/or the Initial Hire Term (as applicable) of this Agreement;

 

Introduced Merchant Acquirer” means the Merchant Acquirer that we work with to source Opayo Introduced Merchant Services

 

"Logo” our logo which can be found at https://www.elavon.co.uk/resource-center/help-with-your-account/getting-started.html or such other logo that we indicate (from time to time) that you may use in accordance with Section 10.1;

 

Merchant Acquirers” means the financial institutions to which Chargeable Transactions are routed for authorisation, clearing and settlement;

 

Merchant Services Account” a merchant account with the Introduced Merchant Acquirer that enables you to accept payments electronically;

 

Merchant Services Application Form” the application form made available by us to enable you to apply for a Merchant Services Account;

 

Minimum Charge” means the minimum monthly charge payable by you under this Agreement (if any) as published on our website from time to time or which you sign up for;

 

MyOpayo” means a management portal containing data relating to your Transactions and such other information we make available from time to time;

 

Opayo European Payments” means (i) Opayo Introduced Merchant Services; and (ii) a facility to allow you to process Transactions via a specified European payment method (as described in our published documentation from time to time);

 

Opayo Introduced Merchant Services” the services described in Section 7 above;

 

Opayo Payment Gateway Service” electronic commerce and/or cardholder present and not present payment gateway processing services that transmit Transaction data through the Opayo payment solutions (as described in our published documentation from time to time);

 

PCI DSS” means the Payment Card Industry Data Security Standards published from time to time by the Payment Card Industry Security Standards Council and available at www.pcisecuritystandards.org;

 

Priority Support Services” means enhanced support services offered by us (as described in our published documentation from time to time). Other services (such as professional services) may be provided subject to separate terms and conditions;

 

Premium Fraud Screening Services” enhanced fraud detection services offered by us using selected Fraud Detection Parties (as described in our published Documentation from time to time);

 

Privacy Notice” – means Elavon’s privacy notice posted on https://www.elavon.ie/content/dam/elavon/en-ie/v2/documents/legal/opayo/Opayo-Privacy-Notice_2023.pdf (if you are located in Ireland) or https://www.elavon.co.uk/content/dam/elavon/en-gb/v2/documents/legal/opayo/Opayo-Privacy-Notice_2023.pdf (if you are located in the United Kingdom) (or such other URL(s) as Elavon may notify to you) and which may be amended by Elavon from time to time;

 

Recurring Transaction” means a repetitive periodic Transaction agreed in advance between you and your Cardholder;

 

Recurring Transaction Authority” means a Cardholder’s prior authority for you to process a Recurring Transaction;

 

Regulated Terms” (where you are located in the United Kingdom and fall within the definition of Consumer) means the agreement we issue to you which sets out details of the hire arrangement for the Terminal(s) in accordance with applicable Consumer Credit Laws;

 

Representatives” means employees, officers, sub-contractors and/or advisors;

 

"Services" means any services to be provided by us pursuant to this Agreement as described in any documentation that we issue from time to time describing such services together with any additional services we agree to provide to you pursuant to this Agreement (where applicable including the Opayo Payment Gateway Service, Opayo Introduced Merchant Services, Opayo European Payments, Token Service, Priority Support Services, Premium Fraud Screening Services and/or the Cardholder Present Solution);

 

Supervisory Authority” - means an independent public authority which is established under applicable Member State or UK law and which concerns itself with the Processing of Personal Data;

 

Term” means the term of this Agreement or the provision of the relevant Services (as applicable) determined in accordance with Section 13.1, including any Initial Term;

 

Terminals” means those payment card terminals and any related equipment manufactured by third parties that we have agreed to hire to you (including any replacement payment card terminals or components that we may provide to you in substitution of any originals) during the Hire Term;

 

Terminal Hire” means the hire to you of Terminal(s) by us in accordance with this Agreement;

 

Token” means unique identification information provided by us to you in relation to payment card information that you have asked us to retain as part of the Token Service;

 

Token Service” means the retention of Cardholder payment card information on your behalf for the specific purpose of enabling you to re-use that information in subsequent Transactions with that specific Cardholder (as described in our published documentation from time to time);

 

Transaction” an arrangement between you and your Cardholder to enter into a financial agreement in exchange for goods and/or services using a payment instrument; and

 

our website” means www.Elavon.co.uk, www.Elavon.ie or such other website we notify to you from time to time.

 

“Your Information” means the personal and financial information we obtain from you or from third parties (such as credit reference and fraud prevention agencies, joint account holders, your employees or officers of your business, other organisations who introduced us, or act on your or our behalf) which, where you are a sole trader or partnership, may relate to you and/or your business partners and guarantors and where you are a company or limited liability partnership, may relate to Your officers, shareholders, partners, owners and guarantors

 

If you are located in the United Kingdom, the following additional definitions apply:

 

“Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement;

 

“Bail-in Powers” means any write-down and conversion powers in respect of an entity in resolution as defined in the relevant Bail-In Legislation including; write-down or convert relevant capital instruments into shares or other instruments of ownership; taking control; exercise of all the rights and powers conferred upon the shareholders, other owners and the management body; transfer of shares or other instruments of ownership; transfer to another entity, with the consent of that entity, rights, assets or liabilities; reduce, including to reduce to zero, the principal amount of or outstanding amount due in respect of BRRD Liability; convert BRRD Liabilities into ordinary shares or other instruments of ownership; cancel debt instruments issued; reduce, including to reduce to zero, the nominal amount of shares or other instruments of ownership and to cancel such shares or other instruments of ownership; require the issue of new shares or other instruments of ownership or other capital instruments, including preference shares and contingent convertible instruments; to amend or alter the maturity of debt instruments and other eligible liabilities issued or amend the amount of interest payable under such instruments and other BRRD Liability, or the date on which the interest becomes payable, including by suspending payment for a temporary period; close out and terminate financial contracts or derivatives contracts for the purposes of applying Article 49 of BRRD;

 

“BRRD” means Directive 2014/59/EU, as amended, establishing a framework for the recovery and resolution of credit institutions and investment firms;

 

“BRRD Liability” means a liability in respect of which Bail-In Powers may be exercised;

 

“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to Elavon.

 

Elavon Financial Services DAC. Registered in Ireland – Number 418442. Registered Office: Block F1, Cherrywood Business Park, Dublin 18, D18 W2X7, Ireland.

Elavon Financial Services DAC. Registered in Ireland with Companies Registration Office. The liability of the member is limited. United Kingdom branch registered in England and Wales under the number BR022122.

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