Supply of Services

SUPPLY OF SERVICES AGREEMENT

These Javelin Terms of Service constitute a binding legal agreement between Javelin (as defined below) and you or the entity that you represent (“Customer” or “you”) (this “Agreement”). You represent and warrant that you have the right, authority and capacity to enter into this Agreement, in each case, on behalf of yourself or the entity that you represent.

If the Customer’s principal place of business in the United Kingdom, you are agreeing to this Agreement with Javelin Payments UK Limited, incorporated and registered in United Kingdom with company number 13603763 and registered office at AMP Technology Centre, Rotherham, S60 5WG (“UK Customer”). If the Customer principal place of business in the Ireland, you are agreeing to this Agreement with Javelin Payments Limited incorporated and registered in Ireland with company number 659499 and registered office at 3 Bath Place, Dublin, A94 R3K7, Ireland (“Irish Customer”. “Javelin” shall mean Javelin Payments UK Limited if you are a UK Customer or Javelin Payments Limited if you are an Irish Customer.

This Agreement governs your use of any and all of the Javelin services provided by or on behalf of Javelin, including the provision of support and ancillary services to Customer to support their use of the Payment Services on the Marketplace Platform (both as defined below) (collectively, the “Javelin Services”), whether such Javelin Services are offered by Javelin, or any of its affiliates (each, a “Javelin Affiliate”). You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement.

Agreed Terms

interpretations

The following definitions and rules of interpretation apply in this Agreement.

1. Definitions

Agreement Term: The term of this Agreement shall be 45 days from acceptance of this Agreement (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for additional 45-day terms (each, a “Renewal Term” and together with the Initial Term, the “Agreement Term”).

Affiliates: any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity.

Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges: the sums payable for the Javelin Services and Payment Services, as set out in your Charges Term Sheet which forms part of this Agreement.

Chargeback: means where in certain circumstances stipulated by the Scheme Rules a Scheme Owner may refuse to settle a payment or may seek to obtain a reimbursement of a payment which has already been settled and charge a chargeback fee as stated in the Charges Term Sheet.

Confidential Information: any and all confidential information in whatever form (whether written, oral, visual, electronic, magnetic or other media), however conveyed or presented, disclosed by a party or its employees, officers, representatives, agents, contractors or advisers (Related Persons) to the other party and/or its Related Persons concerning the business, affairs, operations, customers, prospective customers, processes, budgets, pricing policies, products, strategies, opportunities, developments, trade secrets, know-how, designs, software, personnel and service providers of the disclosing party or any member of the disclosing Party’s group together with all information derived by the other party from any such information and any other information which ought reasonably be considered to be confidential or proprietary having regard to the nature of the information and the circumstances of the disclosure (whether or not it is marked "confidential").

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Processing and Appropriate Technical Measures: as defined in the Data Protection Laws.

Data Protection Laws: the General Data Protection Regulation 2016 (Regulation (EU) 2016/679) (GDPR)), the Data Protection Act 2018, the Regulation of Investigatory Powers Act 2000, the Network and Information Security Directive, the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and any laws that replace or amend any of these, together with the equivalent legislation of any other applicable jurisdiction and all other applicable law, regulations, guidance and codes of conduct in any relevant jurisdiction relating to the processing of personal data, data and cyber security and privacy including the guidance and codes of practice issued by the UK Information Commissioner or any relevant supervisory authority, the Article 29 Working Party, or the European Data Protection Board from time to time.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses: losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis).

Marketplace Platform: is an end-to-end payment solution for platforms and marketplaces that will onboard the Customer and accept payments on its behalf.

Payment Method Acquirer: means a financial institution that is authorised by a Scheme Owner to enable the use of a Payment Method by accepting transactions from Customers on behalf of the Scheme Owner and routing these transactions to the Scheme Owner.

Payment Method: means a type of payment method that the Payment Services Provider accepts as part of the Payment Services, such as credit card and debit card.

Payment Services Platform: The payment processing and acquiring platform used by Payment Services Provider to provide the Payment Services.

Payment Services: The making available by the Payment Services Provider of the use of agreed payment processing and acquiring services to the Customer.

Scheme Owners: the party who regulates and provides a specific Payment Method, such as Visa, Mastercard, American Express.

Scheme Rules: the collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which merchants and payment service providers must comply with when using the relevant Payment Method.

Javelin IPR: the Intellectual Property Rights created as part of the Javelin Services.

Sub-Merchant Agreement: the agreement between Adyen (“Payment Services Provider”) and the Customer for the use of the Payment Services that is entered into by Customer by completing online the Sub-Merchant Onboarding Process and accepting the Payment Services Provider terms and conditions as part of that process. These terms and conditions are set out at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms

Sub-Merchant Onboarding Process: the onboarding process to be concluded by the Customer to qualify for the use of the Payment Services, which includes the submission of the registration details of the Customer for KYC check and the acceptance by the Customer of the Sub-Merchant Agreement when registering for the Payment Services with a Sub-Merchant Account.

1. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
3. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
7. This Agreement shall be binding on, and endure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
8. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
9. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
10. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
11. A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference of this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
12. References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
13. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
commencement and duration
1. This Agreement shall, unless terminated earlier in accordance with clause 14 (Termination), commence on the acceptance of this Agreement by pressing “ACCEPT” below and shall continue, for the Initial Term and, thereafter, this Agreement shall be automatically be renewed after each Renewal Period, unless:

either party notifies the other party of termination, in writing, at least 5 Business Days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
otherwise terminated in accordance with the provisions of this agreement.

The Initial Term together with any subsequent Renewal Periods shall constitute the Agreement Term.

Services and Javelin obligations
1. Javelin will, with respect to the Customer, as part of the Javelin Services perform the following activities and assume the following responsibilities with respect to their procurement and use of the Payment Services:
  1. connecting the Marketplace Platform to the Payment Services Platform to enable the Customer to use the Payment Services via the Marketplace Platform;
  2. enabling the Customer to make automated payments to drivers via third party payment institutions;
  3. enabling the Customer to apply for the Payment Services via the Sub-Merchant Onboarding Process;
  4. setting up and managing the settings and configurations for the Customer on the Payment Services Platform via the Marketplace area made available for such purpose, including fraud tool settings;
  5. first line and second line support to the Customer in using the Payment Services including issues arising from the Payment Services Platform;
  6. invoicing the Customer for the Payment Services and Javelin Services on the basis of the pricing agreed between Javelin and the Customer in this Agreement;
  7. processing of repayments of refunds and chargebacks;
  8. enabling the secure entry and processing of payment transaction data on the Marketplace Platform in accordance with applicable PCI DSS requirements and the secure submission of these to the Payment Services Provider; and
  9. monitoring the use by the Customer of the Payment Services.
2. In order to be able to provide the Javelin Services, Javelin shall:
  1. instruct and train its support organisation to be able to provide the Javelin Services in an effective and customer friendly manner in accordance with the terms of this Agreement; and
  2. integrate the Marketplace Platform with the Payment Services Platform.
3. Javelin will liaise with the Payment Services Provider for further third line support to the Marketplace with respect to resolving issues and providing information to the Payment Services Provider to enable it to support the Customer in configuring and using the Payment Services.
4. Javelin will have access to the account of the Customer on the Payment Services Platform. This will enable Javelin to:
  1. setup and manage settings on the Payment Services Platform for the Customer to use the Payment Services;
  2. obtain reporting data to provide to the Customer;
  3. access Transaction level data enabling Javelin to provide support at the level of individual transactions;
  4. change user settings of the Customer’s with respect to the Payment Services on the Customer’s behalf (e.g. change fraud control settings); and
  5. gain access to documentation of the Payment Services and related Scheme Rules on behalf of the Customer.
customer obligations
1. If there is a change in the nature or volume of payments the Customer sends to Javelin, Javelin may think that fraud is taking place. The Customer must tell Javelin if there is a change in the nature or size of the Customer’s business so that Javelin does not think that fraud is taking place.
2. In order to comply with Applicable Laws and Scheme Rules, the Payment Services Provider will need to have a direct contractual relationship with the Customer to be able to make the Payment Services available to the Customer and will need to perform Know Your Customer (KYC) and Anti-Money Laundering and Anti-Terrorist Financing (AML) in accordance with Applicable Laws and Scheme Rules.
3. Each formal offer by Javelin to Customer to contract for the Javelin Services and Payment Services via the Marketplace Platform will follow the Sub-Merchant Onboarding Process and require the Customer to accept the Payment Services Provider MarketPay Terms and Conditions in accordance with the requirements set out in Schedule 1 (Sub-Merchant Onboarding Process). The Payment Services Provider may provide updates to Javelin of these requirements by providing at least 45 days prior written notice (or shorter if needed to comply with changes in Applicable Laws or Scheme Rules).
4. The Customer shall provide to Javelin all reasonably requested information, data and assistance necessary for Javelin to complete KYC preparation activities in accordance with clause 4.3.
5. Prior to submitting the Customer for approval by the Payment Services Provider as user for the Payment Services, Javelin will complete KYC preparation activities for the Customer as specified in Schedule 1) and Javelin will submit the KYC-data as specified in Schedule 1) via the API made available for such purpose by the Payment Services Provider. The Customer is responsible to ensure all information provided with respect to the Customer in the Sub-Merchant Onboarding Process is complete.
6. Applying its standard acceptance policies designed to ensure compliance with Applicable Laws and Scheme Rules, the Payment Services Provider will in its discretion approve or reject the Customer submitted for approval via the Sub-Merchant Onboarding Process and may require additional KYC information to be provided and may directly contact the Customer for such purpose (keeping Javelin involved and copied in on any such communication).
charges and payment
1. In consideration of the provision of the Javelin Services and the Payment Services by Javelin, the Customer shall pay the Charges.
2. The Charges are set out in full in your Charges Term Sheet which is incorporated into this Agreement.
3. Javelin may increase the Charges with immediate effect on written notice to the Customer and in line with the percentage increase in the charges applied by the Payment Services Provider and payable by Javelin.
4. The Payment Services Provider shall collect and settle the Charges on a daily basis. Javelin shall provide a reconciliation VAT invoice the Customer for the Charges at the end of each month for the Javelin Services and Payment Services performed during that month.
5. Javelin will debit the Customer’s Sub-Merchant Account for any Interchange or scheme fees incurred during a transaction that has not already been charged. These amounts will be debited from the Sub-Merchant Account by a transfer of funds to Javelin.
6. For all other charges which are not covered by clause 5.4 above the Customer shall pay each invoice submitted to it by Javelin within 30 days of receipt to a bank account nominated in writing by Javelin from time to time.
7. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Javelin any sum due under this Agreement on the due date:
  1. the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.7.1 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and/or
  2. Javelin may suspend all or part of the Javelin Services and Payment Services until payment has been made in full.
8. All sums payable to Javelin under this Agreement:
  1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
  2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. The Customer agrees to defend, hold harmless and indemnify Javelin from and against any VAT, turnover and other taxes or levies including penalties, interests, surcharges (Taxes) due on any product or service of Marketplace or the Customer (including but not limited to the Javelin Services) and any costs or damages related to such Taxes. The Customer shall apply all reasonable efforts to ensure that Javelin cannot be held liable for any Taxes and costs or damages thereto, shall promptly inform Javelin of any such liability and shall provide Javelin with all relevant information and documentation in that respect.
Intellectual property rights
1. Javelin and its licensors shall retain ownership of all Intellectual Property Rights in Javelin IPR.
2. The Payment Services Provider and its licensors shall retain ownership of all Intellectual Property Rights in the Payment Services Platform.
3. The Customer may choose to, or Javelin may invite the Customer to submit comments or ideas about improvements to the Javelin Services, Marketplace Platform, or any other component of our products or services (Ideas). If the Customer submits an Idea to Javelin, Javelin will presume that the submission was voluntary, unsolicited and delivered to Javelin without any restrictions on Javelin’s use of the Idea. The Customer agrees that Javelin has no fiduciary or any other obligation to the Customer in connection with any Idea the Customer submits, and that Javelin is free to use Ideas without any attribution or compensation to the Customer.
trade mark
1. If the Customer requires Javelin to display its trade mark on the Marketplace Platform, the Customer must give Javelin an authorized copy of the trade mark. The Customer warrants that it owns the trade mark, or it is licensed or otherwise provided to the Customer on terms which allow the Customer its use on the Marketplace Platform and that the use will not infringe any Intellectual Property Rights of any other person.
2. The Customer shall ensure that the content of the Marketplace Platform pages do not contain:
  1. any materials which the Customer does not own or have the right to use; or
  2. any material or information which is unlawful or which is or may be potentially harmful, threatening, abusive, libellous, defamatory, pornographic or otherwise obscene, racially or ethnically or otherwise objectionable.
3. If Javelin infringes third party Intellectual Property Rights as a result of Javelin using the Customer’s trade mark or any other Intellectual Property Rights as requested by the Customer, or due to the Customer’s actions or failure to act, including customising the Marketplace Platform pages or the Customer’s use of a scheme’s trademarks or brands in an unauthorised way.
4. The Customer shall indemnify Javelin in full and hold harmless Javelin for and against all Losses whatsoever and howsoever arising incurred or suffered by Javelin including all legal expenses and other professional fees in connection to the Customer’s failure to comply with clause 7.3.
Confidentiality
1. Each party undertakes that it shall not at any time during this Agreement, and for a period of five (5) years after termination of this Agreement, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or Javelins of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 8.2.
2. Each party may disclose the other party's Confidential Information:
  1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 8; and
  2. as may be required by Scheme Rules, Applicable Law, a court of competent jurisdiction or any governmental or regulatory authority.
3. No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
fraud control tool
1. All payments processed can be screened using the Payment Services Provider fraud control tool, which carries out a number of checks on a payment and attaches a resulting total score to the payment. The resulting score represents the likelihood of the payment being fraudulent. The Customer must make sure that the fraud control tool (if used) and any related electronic notification tools are used at all times in line with the operating manuals. If the Customer does not use the fraud-control tool, the Customer acknowledges and agrees that it does so at its own risk.
2. The fraud control tool does not guarantee against fraudulent payments, nor against resulting Chargebacks or other Losses. As a result, no matter what any resulting total score might be, a payment may be fraudulent or non-fraudulent. The effectiveness of the fraud control tool depends on the Customer’s configuration of the parameters within the Payment Services Platform (which Javelin input as the Customer’s authorized representative) and also on the number of data points and payment details available to the Payment Services Provider.
3. The Customer shall indemnify Javelin in full and hold harmless Javelin for and against all Chargebacks issued by the Payment Services Provider.
4. The Payment Services Provider has the right to change and update the scoring values set in the fraud control tool and add new checks, controls and functions to the fraud control tool or change existing checks, controls or functions in the fraud control tool. Javelin will notify the Customer of such changes if notified of the same by the Payment Services Provider.
5. The Customer must make sure that the parameters of the fraud control tool are set to levels appropriate for its business by the Customer’s Authorised Representative. If the Customer fails to do so, it will be at the Customer’s own risk. Javelin will not be responsible or liable to the Customer for any Losses arising from or in connection with the Customer’s failure to use the fraud control tool or set the parameters to appropriate levels for its business. Javelin may take any action we reasonably consider necessary to deal with any failure on the Customer’s part to comply with this clause 9.5.
6. Javelin has the right to cancel a payment after it has been authorised. The final responsibility for accepting or rejecting any payment will be Javelin’s. Javelin has the right to cancel a payment that it believes is fraudulent or involves other criminal activity, even if the fraud control tool failed to block the payment. If Chargeback levels on a specific scheme are above acceptable levels for that scheme or expected to reach those levels, Javelin have the right to suspend the availability of payment acceptance under the relevant scheme.
compliance
1. Javelin agrees to meet (and will ensure all Affiliates and third parties it may engage in performing the Javelin Services meet) all Scheme Rules, regulatory and legal requirements applicable to the Marketplace Platform and the Javelin Services to be able to offer its services to the Customer in the relevant jurisdictions, including any registration or certification requirements.
2. The Customer shall ensure that its actions and or omissions shall not place Javelin in breach of Scheme Rules and/ or Applicable Laws.
3. The Customer shall provide Javelin with all reasonably requested information and shall provide such reasonable assistance as required by Javelin for registration and/or certification requirements under the Scheme Rules.
4. The Customer shall ensure that it complies with the Payment Services Provider Prohibited Products and Services List. The list of items and services that are restricted or prohibited from the Adyen Marketplace are set out at https://www.adyen.com/legal/list-restricted-prohibited. Please note that this list may be amended from time-to-time to comply with regulations in the payment industry and it is the responsibility of the Customer to ensure compliance.
5. The Customer shall ensure that it Scheme Rules including not using the Javelin Services and Payment Services:
  1. in violation of Applicable Laws;
  2. selling Products and Services for which the Scheme Owner explicitly prohibited its use (e.g. adult content, arms, drugs, counterfeit goods);
  3. for the benefit of a third party / reselling the use of the Javelin Services and/or Payment Services to a third party (the authorisation for the Customer to use a Services is strictly personal);
  4. in violation of the confidentiality obligations with respect to payment data and in particular details of credit cards used such as the CVC number or credit card number; or
  5. for fraudulent, misleading activities of which consumers making payments are the victim.
6. Where Javelin becomes aware of and/or received any notice of a potential exposure to a fine from the Scheme Owners related to any Marketplace or the Customer’s behaviour, the Customer shall provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation.
7. Notwithstanding all other rights and remedies of the Suppler in such situation as per this Agreement. If fines are applied for the Customer’s violations, these are invoiced by the Scheme Owners and/or the relevant Acquirer to the Payment Services Provider as their contracting party. The Payment Services Provider will recover such fines from Javelin. The Customer shall fully indemnify and hold Javelin harmless from any fines applied by the Scheme Owners as a result of the Customer’s breach of the terms of this Agreement and related incurred reasonable legal, professional and other costs.
8. If Javelin believes that a security breach, leak, loss or compromise of the Customer’s website, app, systems or data has occurred which may impact the Customer’s compliance with the terms of this Agreement, Javelin may require the Customer to permit a third party auditor approved by Javelin to conduct a full audit of the Customer’s systems and facilities. The Customer shall fully cooperate with any request for information or assistance that the auditor makes on behalf of Javelin and shall grant the auditor access to its premises and required information and data to conduct the audit during normal business hours. The auditor may issue a report to Javelin which may be shared with Scheme Owners.
Data protection
1. The parties acknowledge and agree that the Customer is the Controller and Javelin is a Processor in relation to Personal Data processed on the Customer’s behalf under this Agreement. If notwithstanding this Clause 11, a supervisory authority, court or other body having competent authority finds or declares that the parties have processing roles that are different to those set out in this Clause 11 (“Declared Roles”) then the provisions set out in this Clause 11 shall instead apply to personal data processed by the parties based on the Declared Roles.
2. The Controller acknowledges that the Processor may receive and Process Personal Data of the Controller’s employees, staff and/or contractors in connection with the Controller’s performance or either Party’s obligations under this Agreement. The Controller acknowledges that the Processor shall Process such Personal Data in connection with its business activities acting as an independent Controller determining the legal basis and conditions for which it Processes it as described in the Processor’s privacy policy or other notice required under Data Protection Laws as amended from time to time.
3. The Parties acknowledge and agree that the Processor may share Controller Personal Data with third parties (including any appropriate agency, government authority or service provider that the Processor engages to provide services to it) in order to fulfil its obligations to comply with the Controller’s instructions under this Agreement. All such processing shall be carried out only to the extent and duration necessary for those purposes.
4. The Processor shall:
  1. only Process the Controller Personal Data on the documented instructions of the Controller from time to time; and
  2. not transfer, or otherwise directly or indirectly disclose, any Controller Personal Data to countries outside the European Economic Area (EEA) and United Kingdom without the prior written consent of the Controller except where the Processor is required to transfer the Controller Personal Data by the laws of the member states of the European Union or the United Kingdom (and shall inform the Controller of that legal requirement before the transfer, unless those laws prevent it doing so).
5. Taking into account the state of technical development and the nature of Processing, the Processor shall implement appropriate technical and organisational measures to protect Controller Personal Data against accidental or unlawful destruction, loss, alteration and unauthorised disclosure or access.
6. The Controller hereby consents to the appointment of the Payment Services Provider as a Sub-Processor. Javelin and Payment Services Provider have entered into a separate agreement which includes data protection obligations which are materially the same as those in this Agreement.
7. The Processor shall store the Personal Data of the Controller solely in data centers located in the EU, except on specific instruction of the Controller. Personal Data originated outside of the EU may also be Processed on local or regional servers. The Controller understands and agrees that for the fulfilment of this Agreement, the Personal Data may be accessed by employees of Processor and/or any Sub-Processor, which might be located outside of the European Union and United Kingdom. The parties shall ensure that appropriate measures under Data Protection Laws are in place and the Processor shall ensure that access to Controller Personal Data is limited to the Processor Personnel and authorised Sub-Processors who need access to it to supply the Services and who are subject to an enforceable obligation of confidence with regards to the Controller Personal Data.
8. The Controller provides Processor hereby with a general authorisation to engage Sub-Processors. The Processor will impose the same material data protection obligations on the Sub-Processors as set out in this Agreement, in particular in relation to the implementation of appropriate technical and organisational measures.
9. The Processor shall notify the Controller of any intended changes concerning the engagement or replacement of a Sub-Processor and the Controller shall be given thirty (30) days to object in writing, after receiving such notification.
10. The Processor shall taking into account the nature of the Processing, assist the Controller (by appropriate technical and organisational measures), insofar as this is possible, in relation to any request from any Data Subject for: access, rectification or erasure of Controller Personal Data, or any objection to Processing.
11. The Processor shall notify the Controller without undue delay and in writing if any Controller Personal Data has been disclosed.
12. The Processor shall notify the Controller promptly if it becomes aware of a breach of security of Controller Personal Data, such notices shall include full and complete details relating to such breach.
13. The Processor shall provide such assistance (at the Controller’s cost) as the Controller may reasonably require in relation to the need to undertake a data protection impact assessment in accordance with the Data Protection Laws.
14. The Processor shall provide such assistance (at the Controller’s cost) as the Controller may reasonably require in relation to any approval of the Information Commission or other data protection supervisory authority to any Processing of Controller Personal Data.
15. The Processor shall on the expiry or termination of this Agreement, at the Controller’s cost and its option either return all of the Controller Personal Data (and copies of it) or securely dispose of the Controller Personal Data except to the extent that any Applicable Laws requires the Processor to store such Controller Personal Data or the Controller orders the Processor’s retention service.
16. At the Controller’s cost, the Processor shall allow for an audit (no more than once per annum) by the Controller and any auditors appointed by it in order for the Processor to demonstrate its compliance with this clause 11. For the purposes of such audit, upon reasonable notice, the Processor shall make available to the Controller and any appointed auditors all information that the Controller deems necessary (acting reasonably) to demonstrate the Processor’s compliance with this clause.
17. In the Processor’s reasonable opinion, to the extent that it believes that any instruction received by it in accordance with clause 11.16 is likely to infringe Data Protection Laws or any other Applicable Laws, the Processor shall promptly inform the Controller and shall be entitled to withhold its permission for such audit and/or provide the relevant Javelin Services and Payment Services until the Controller amends its instruction so as not to be infringing. The Controller shall not rely on such notice and seek its own independent legal advice if it wishes to determine whether any instruction received by Processor and which Processor believes is infringing is in fact infringing or likely to be infringing.
18. To the extent that the Controller collects and passes Personal Data to the Processor pursuant to this Agreement, it represents, warrants and undertakes that it has obtained appropriate authority from all Data Subjects to whom it relates, or has provided them with the requisite information required under the Data Protection Laws, to pass their Personal Data to the Processor for the purposes for which the Controller intends to use it and/or as specified by the Controller in writing and it is accurate and up to date.
limitation of liability
1. The Customer shall indemnify Javelin and keep Javelin indemnified fully and effectively against any and all Losses which Javelin may sustain or incur or which may be brought or established against it in respect of any claim against Javelin by any person third party (Third Party Claim) and which in any case arises out of or in relation to or by reason of:
  1. the negligence or fraud or wilful default of or breach of this Agreement by the Customer or that of its agents, employees or sub-contractors;
  2. breach of the Scheme Rules; and
  3. breach of Applicable Laws.
2. Except in respect of death or personal injury resulting from its negligence or fraud (in respect of which no limit shall apply):
  1. neither party shall have any liability to the other party for any indirect or consequential loss or damage;
  2. neither party shall have any liability to the other party for any: (a) loss of goodwill; (b) loss of business; (c) losses and profits; or (d) loss of data;
  3. the total aggregate liability of Javelin and its Affiliates to the Customer shall not exceed one hundred per cent (100%) of the total Charges paid or payable by the Customer in the twelve (12) months preceding a claim;
  4. the total aggregate liability of the Customer and its Affiliates to Javelin shall not exceed one hundred per cent (100%) of the total Charges paid or payable by the Customer in the twelve (12) months preceding a claim;

whether arising from negligence, breach of this Agreement or otherwise, and whether or not it has been made aware of the likelihood of any such loss or damage. This clause 12.2 is strictly without prejudice to clause 12.4, Javelin’s obligation to settle the fees to the Payment Services Provider and the Customer’s obligation to pay the charges to Javelin in accordance with the terms of this Agreement (which for the avoidance of doubt, will not be limited or capped under the provisions of this clause 12).

1. Each party agrees that the limitations and exclusions set out in this Agreement are reasonable having regard to the circumstances. If any provision of this clause 12 shall be or shall be found by the Court or otherwise held to be unlawful or invalid then, to the extent of such unlawfulness or invalidity, such provision shall not apply but the remainder of such provision shall remain enforceable to the greatest extent permissible by law.
2. No provisions of this clause 12 will limit Javelin's right to recover for any:
  1. regulatory losses, fines, expenses or other losses arising from a breach by the Customer of this Agreement or any law or regulation;
  2. any amount payable by the Customer pursuant to clause 5.6 of this Agreement;
  3. any Chargeback; and/or
  4. Fine, fee or penalty levied by the Scheme Rules.
suspension
1. Javelin shall have the right at its absolute discretion to suspend or end all or any part of the Javelin Services and/or Payment Services at any time and hold payments due to the Customer, with immediate effect and without telling the Customer first, if the Customer has:
  1. failed to keep to, or Javelin reasonably suspect the Customer has failed to comply with the terms of this Agreement;
  2. failed to settle Chargebacks;
  3. failed to pay Javelin in accordance with clause 5;
  4. acted or failed to act, any of the Customer’s nominated users or any other person acting on the Customer’s behalf threatens the security or integrity of account holders or cardholders or our software or systems;
  5. extraordinary circumstances arise which affect our ability to provide the Javelin Services and/or Payment Services; or
  6. failed to comply the security standards Javelin specifies;
termination
1. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice (including email) to the other party if the other party commits a material breach of any term of this Agreement. which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so.
2. Without affecting any other right or remedy available to it, Javelin may terminate this Agreement with immediate effect by giving written notice to the Customer if:
  1. the Customer is rejected by the Payment Services Provider during the Sub-Merchant Onboarding Process;
  2. the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
  3. there is a change of Control of the Customer.
3. Without affecting any other right or remedy available to it, Javelin may terminate this Agreement with immediate effect by giving written notice to the Customer if instructed to do so by the Scheme Owner.
4. Without affecting any other right or remedy available to it, Javelin may terminate this Agreement with immediate effect by giving written notice to the Customer if the Sub-Merchant Agreement is terminated by the Payment Services Provider.
5. Without affecting any other right or remedy available to it, Javelin may terminate this Agreement with immediate effect by giving written notice to the Customer if Javelin’s contract with the Payment Services Provider expires or is terminated.
6. Without affecting any other right or remedy available to it, Javelin may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer is in breach of clauses 6, 10, or 11.
consequences of termination
1. On termination or expiry of this Agreement:
  1. the Customer shall immediately pay to Javelin all of Javelin's outstanding unpaid invoices and interest and, in respect of the Javelin Services and/or Payment Services supplied but for which no invoice has been submitted, Javelin may submit an invoice, which shall be payable immediately on receipt;
  2. the following clauses shall continue in force: clause 1 (Interpretation), clause 6 (Intellectual property rights), clause 8 (Confidentiality), clause 12 (Limitation of liability), clause 15 (Consequences of termination), clause 19 (Waiver), clause 21 (Severance), clause 23 (Conflict), clause 27 (Dispute resolution procedure), clause 28 (Governing law and Jurisdiction).
2. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
variation
1. Javelin may change all or any part of this Agreement on notice at any time in line with changes in Applicable Laws and/or changes to Scheme Rules.
2. Javelin may update this Agreement from time to time. If Javelin believes that the changes are material, Javelin will inform you by posting the changes through the Services and/or sending you an email or message about the changes. That way you can decide whether you want to continue using the Services. Changes will be effective upon the posting of the changes and/or upon acceptance by the Customer, unless otherwise specified. You are responsible for reviewing and becoming familiar with any changes. Your use of the Services following the changes constitutes your acceptance of the updated Agreement.
Assignment
1. This Agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any rights and obligations under this Agreement.
2. Javelin may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
force majeure
1. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks the party not affected may terminate this Agreement by giving 14 days' written notice to the affected party.
waiver
1. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
2. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
rights and remedies

The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

severance
1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
2. If any provision or part-provision of this Agreement is deemed deleted under clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
entire agreement
1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
conflict

If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Schedules, the provisions of this Agreement shall prevail.

no partnership or agency
1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
third party rights
1. Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
2. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
notices

Any notice given to a party under or in connection with this Agreement shall be in writing (including email, if sent to a party via a known point of contact for that party).

dispute resolution
1. If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this Agreement, the parties shall follow the procedure set out in this clause:
  1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Manager of the Customer and Manager of Javelin shall attempt in good faith to resolve the Dispute;
  2. if the Manager of the Customer and Manager of Javelin are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Director of the Customer and Director of Javelin who shall attempt in good faith to resolve it; and
  3. if the Director of the Customer and Director of Javelin are for any reason unable to resolve the Dispute within 14 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure (CEDR). Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 14 days after the date of the ADR notice.
2. The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 28 (Governing Law and Jurisdiction) which clause shall apply at all times.
governing law and jurisdiction
1. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

Schedule 1 – Sub-Merchant Onboarding Process

Know Your Customer

As required by payment industry regulations, the Customer will complete a Know Your Customer (KYC) identification process which include, but not limited to, the verification of:

Contracting corporate entity
Registered address and principal place of business
Identity of directors
Identity of the ultimate beneficial owner (UBO)
VAT/taxation number
Bank account details

Javelin reserves the right to amend KYC requirements as needed to comply with relevant payment industry regulations.

SCHEDULE 2 – DATA PROCESSING

The processing is made for the following purposes:

To deliver the services under the Marketplace Agreement, which include:

Processing of payment transactions and support related services
Fraud detection
Defending charge-backs
Reporting and Customer Area
Nature of processing
Collection
Recording
Structuring
Modification
Storage
Retrieval
Consultation
Disclosure by transfer
Dissemination
Comparison
Restriction
Erasure & Destruction

As in accordance with this Agreement

Data subjects

The personal data concern the following categories of data subjects (please specify):

The personal data processed concern the following categories of data subjects:

Shoppers of Marketplace/consumers
Employees of Controller

Purposes of the Processing

The processing is necessary for the following purposes (please specify):

To deliver the Javelin Services and Payment Services under this Agreement, which include:

- Processing of payment transactions and support related services

- Fraud detection

- Defending charge-backs

- Reporting and Customer Area

Categories of data

The personal data processed fall within the following categories of data (please specify):

Strongly depends on which payment methods the Customer wishes to offer and the services purchased from Payment Service Provider.

Categories of data; name, billing address, delivery address, e-mail address, IP address and payment details.

Payment requests could include the following:

☒ Credit/debit cards

☒ Card details such as CVC, expiry month, expiry year, cardholder name, card number issue number

☒ Bank transfer

☐ Bank account number, BIC, Bank Name, Bank Location ID, Bank Name, Country Code etc.

☒ Fraud detection

Sensitive data (if appropriate)

The personal data processed fall within the following categories of sensitive data (please specify):

N/A

Instructions with regards to the processing of personal data:

The Processor shall process the Personal Data only in accordance with the instructions of the Controller.

Supply of Services

SUPPLY OF SERVICES AGREEMENT

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