Merchant Terms of Service

Last revised on 21/09/2017

APEXX Fintech Limited Merchant Terms of Service, and the Agreements, Policies, and Documents incorporated herein, (this “Agreement”), is entered into by and between APEXX Fintech Limited (“APEXX”, “We”, “Our”) and the entity or individual who enters into this Agreement (“Merchant”, “You”, “Your”). This Agreement sets out the terms and conditions under which you may utilise the APEXX Services.

This Agreement is effective as of the earliest date you do any of the following (the “Effective Date”):

  1. create an account with APEXX Merchant Services;

  2. sign the APEXX Merchant Agreement;

  3. accept this Agreement online;

  4. begin using the APEXX Services

This Agreement, as it may be amended from time to time as per clause 17, and will be available on the “Legal” tab on the APEXX website. In addition to the terms of this Agreement, you agree to be bound by the terms of our Data Protection Policy, Cookies Policy, APEXX Merchant Contract (collectively the “Agreement”) and any applicable Payment Processing Provider(s) or Bank Agreement(s), which are incorporated herein by this reference.

1. DEFINITIONS

1.1. Schedule 1 sets out the defined terms used in this Merchant Agreement, as well as rules on interpretation.

2. ROLES OF PARTIES

2.1. Merchant:

2.1.1. is the Data Controller for all Merchant Customer Data

2.1.2. is purchasing APEXX Merchant Services from APEXX

2.2. APEXX:

2.2.1. Is the Data Controller for all Merchant Data that is sourced by APEXX or provided by Merchant and received by APEXX

2.2.2. is the Data Processor for all Merchant Customer Data that is provided by Merchant and received by APEXX

2.2.3. is a provider of, among other things, transaction connectivity Services and ancillary Services (“Merchant Services”)

2.3. Merchant and APEXX desire to enter into this Agreement to provide for:

2.3.1. the delivery of APEXX Merchant Services to the Merchant,

2.3.2. such additional APEXX Services as agreed in writing from time to time, all subject to the terms and conditions set forth in this Agreement.

3. RELATIONSHIP SCOPE OF AGREEMENT

3.1. Nature of the Relationship

The Parties are entering into this Agreement to perform, and cooperate in the performance of, the following activities in accordance with the terms of this Agreement:  

3.1.1. the performance of APEXX Merchant Services by APEXX Entity for the Merchant, 
3.1.2. the interoperability between APEXX Merchant Services and Merchant to enable and effect such performance of APEXX Merchant Services for the Merchant, and
3.1.3. such additional services of APEXX Entity as agreed by the Parties in writing from time to time, all subject to the terms and conditions set forth in this Agreement.

3.2. Relationship Governance - Each Party, at its sole cost, shall designate:

3.2.1. one or more relationship managers (each a “Relationship Manager”) to oversee the relationship of the Parties under this Agreement and serve as the point of contact for the other Party, and
3.2.2. one or more executive sponsors of the relationship of the Parties under this Agreement (each an “Executive Sponsor”) to provide an escalation point for such Party’s Relationship Manager to resolve any issues between the Parties.  Each Party may replace any of its Relationship Managers or Executive Sponsors by providing notice of such replacement to the other Party.  In addition, each Relationship Manager, including any replacements thereof, must at all times be a person reasonably acceptable to the other Party, and each Relationship Manager shall be a full-time employee with sufficient skills and capabilities to diligently perform the obligations of Relationship Manager hereunder. Initial Executive Sponsors and Relationship Managers are specified in Schedule 2 of the Merchant Agreement.
3.2.3. At least on a quarterly basis, Merchant and APEXX shall make available for a conference call, or other mutually acceptable form of meeting, the Relationship Managers to

3.2.3. At least on a quarterly basis, Merchant and APEXX shall make available for a conference call, or other mutually acceptable form of meeting, the Relationship Managers to
3.2.3.1. review the progress of all development, interoperability, and other activities hereunder, and
3.2.3.2. review and assess each Party’s performance under this Agreement.  The Parties shall conduct the first meeting no later than fourteen (14) days after the Effective Date.  Unless otherwise agreed to in writing, each Party shall bear its own costs and expenses with respect to the meetings set forth in this Section.

3.3. Nature of the Relationship - The Parties are entering into this Agreement to perform, and cooperate in the performance of, the following activities in accordance with the terms of this Agreement:  

3.3.1. the performance of APEXX Merchant Services by APEXX Entity for the Merchant, 
3.3.2. the interoperability between APEXX Merchant Services and Merchant to enable and effect such performance of APEXX Merchant Services for the Merchant, and
3.3.3. such additional services of APEXX Entity as agreed by the Parties in writing from time to time, all subject to the terms and conditions set forth in this Agreement.

4. APEXX MERCHANT SERVICES

4.1. Merchant Acceptance - APEXX has the right to decline Merchant of APEXX Services in accordance with 12.2.1. 

4.2. Readiness of APEXX Merchant Services

4.2.1. Readiness Activities - Merchant and APEXX will agree, as soon as reasonably possible after the Effective Date (such agreement not to be unreasonably withheld or delayed), on a mutually-acceptable written plan for the development and implementation activities necessary for APEXX Entity to perform the APEXX Merchant Services for Merchant in each Territory in accordance with the terms of this Agreement (the “Readiness Plan”), which Readiness Plan may be further modified from time to time upon the mutual written agreement of each Party.  APEXX, at its sole expense, will: 

4.2.1.1. perform the development and implementation activities described in the Readiness Plan and otherwise as necessary for APEXX Entity to perform the APEXX Merchant Services for Merchants in each Territory in accordance with the terms of this Agreement, 
4.2.1.2. use best efforts in good faith to make such APEXX Merchant Services ready for acceptance testing by the acceptance testing milestone dates set forth in the Readiness Plan for such Territory, and
4.2.1.3. promptly notify Merchant when such APEXX Merchant Services are ready for acceptance testing hereunder.

4.2.2. Acceptance Testing - Prior to actual non-test, commercial production use of APEXX Merchant Services in a given Territory, such APEXX Services shall be subject to a verification of acceptability by Merchant and APEXX to ensure that the APEXX Merchant Services to be performed in such Territory, once ready for such acceptance testing, are reasonably determined by Merchant and APEXX to be fully operational and ready for actual non-test, commercial production use by Merchant.  Each Party will, at its sole expense, reasonably assist the other Party with such acceptance testing.  If either Merchant or APEXX reasonably determines that the APEXX Merchant Services to be performed a given Territory are not fully operational and ready for actual non-test, commercial production use, then APEXX will, at its sole expense, promptly correct, remedy, repair or replace any non-conforming portion of such APEXX Merchant Services with reasonable cooperation by Merchant and resubmit the same to Merchant to repeat the acceptance testing thereof and such verification of acceptability shall be conducted promptly and without undue delays.  The Parties will mutually agree in writing when such acceptance testing is completed and when the APEXX Merchant Services to be performed in such Territory are determined by Merchant and APEXX to be operational and ready for actual non-test, commercial production use.  Each Party undertakes to conduct and conclude all acceptance testing promptly and without undue delay and in any event not to unduly delay the Production Readiness Date in each Territory.

4.2.3. Production Readiness Dates -   Subject to the terms of this Agreement, APEXX agrees to use commercially reasonable efforts in good faith to complete the development, implementation, and acceptance testing activities such that the actual Production Readiness Date of the APEXX Services in each Territory occurs by the corresponding target Production Readiness Date.

4.3. Provision of APEXX Merchant Services - During the Term and any applicable Transition Period, and subject to and in accordance with the terms and conditions of this Agreement, APEXX agrees to provide the APEXX Merchant Services solely within each Territory for each applicable Merchant that satisfies each of the following conditions: 

4.3.1. APEXX is directed by Merchant to receive APEXX Merchant Services
4.3.2.Merchant completes the enrolment process for APEXX Merchant Services and accepts the applicable Merchant Agreement, 
4.3.3. APEXX Accepted Merchant Requirements, and
4.3.4. Merchant has been accepted by APEXX in accordance with 4.1.  Upon satisfaction of such conditions for a given Merchant, APEXX agrees to promptly activate such Merchant for the applicable APEXX Merchant Services in accordance with the Agreement and Accepted Merchant Requirements.

4.4. Support of APEXX Services - During the Term and any applicable Transition Period, APEXX will provide the first level support with respect to the APEXX Merchant Services, subject to 4.2 and Service Level Objections (Schedule 4).

4.5. Service Corrections - APEXX will, at no additional charge to Merchant, promptly provide, implement, configure, install, support and maintain any and all corrections, bug fixes, and maintenance-level updates to the Provider Services (collectively, the “Corrections”), subject to 4.2.  APEXX will not, without Merchant’s prior written consent, install or implement any Corrections that

4.5.1. result in any APEXX Merchant Services to not conform to the Accepted Merchant Requirements or the Service Level Objectives (Schedule 4), as applicable, or
4.5.2. adversely affect or degrade the use, access, utility, operation, performance or availability of any APEXX Merchant Services and/or any Merchant’s access to or use of any APEXX Merchant Services. For the avoidance of doubt, the Parties agree that APEXX shall be entitled to install or implement any Corrections without Merchant´s prior written consent if any such Corrections that are required by Applicable Law.

4.6. Service Modifications - The Parties desire to engage in ongoing collaboration with respect to future enhancements, improvements, modifications, and expansion of APEXX Merchant Services, which activities, if pursued, will be performed in accordance with mutually agreed upon written amendment to this Agreement or other written agreement of the Parties entered into after the Effective Date.  For the avoidance of doubt, the Parties will not implement any modifications that impact any APEXX Merchant Services, except when the Parties mutually agree in writing.

5. APEXX MERCHANT SERVICE TERMS

5.1. By Merchant  - Merchant represents, warrants, and covenants for the duration of the Term and any Transition Period that:

5.1.1. It is validly existing and in good standing under the laws of its jurisdiction of incorporation, and it has full power and authority to carry on its business as it is now being conducted and to own and operate its properties and assets as currently used or proposed to be used;
5.1.2. In performing this Agreement, it has complied with, and shall continue to comply with, all Applicable Law, in this case the laws of England and Wales.

5.2. By APEXX - APEXX represents, warrants, and covenants for the duration of the Term and all Transition Periods that:

5.2.1. It is validly existing and in good standing under the laws of its jurisdiction of incorporation, and it has full power and authority to carry on its business as it is now being conducted and to own and operate its properties and assets as currently used or proposed to be used;
5.2.2. APEXX has taken all commercially reasonable steps in accordance with generally accepted industry standards

5.2.2. to secure its information technology systems used in connection with APEXX’s operations from unauthorised access or use by any Person, and
5.2.2.2. to ensure the continued and uninterrupted operation of such information technology systems, including employing adequate security, maintenance, disaster recovery, redundancy, backup, archiving and virus or malicious device scanning/protection measures

5.2.3. The APEXX Services shall perform in accordance with

5.2.3.1. the requirements set forth the Readiness Plan, and
5.2.3.2. the Accepted Merchant Requirements

5.2.4. In performing this Agreement, it has complied with, and shall continue to comply with, all Applicable Law; and
5.2.5. APEXX has full power and authority to cause all APEXX Entities to comply with the terms and conditions of this Agreement.

6. Software License

6.1. APEXX grants you a revocable, non-exclusive, non-transferable license to use APEXX’s APIs, developer’s toolkit, and other software applications (the “Software”) in accordance with the documentation accompanying the Software. This license grant includes all updates, upgrades, new versions and replacement software for your use in connection with the APEXX Services. If you do not comply with the documentation and any other requirements provided by APEXX, then you will be liable for all resulting damages suffered by you, APEXX and third parties. Unless otherwise provided by applicable law, you agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. Upon expiration or termination of this Agreement, you will immediately cease all use of any Software.

7. INTELLECTUAL PROPERTY

7.1. Merchant Property - As between APEXX and Merchant, Merchant (or its licensors) does and will own, all right, title, and interest, including all Intellectual Property Rights, in the Merchant Property and Merchant Marks and APEXX shall have no ownership rights in any Merchant Property or Merchant Marks.
7.2. APEXX Property  - As between APEXX and Merchant, APEXX (or its licensors) does and will own all right, title, and interest, including all Intellectual Property Rights, in the APEXX Property and APEXX Marks and Merchant shall have no ownership rights in any APEXX Property or APEXX Marks.

8. GRANTS OF RIGHTS

8.1. Grant of Rights by Merchant - The rights granted under this Section with respect to Merchant Marks shall be limited to use thereof solely in connection with performing APEXX’s rights and obligations under this Agreement to: 

8.1.1. accurately refer to Merchant and its products and services; and
8.1.2. identify Merchant as an APEXX business partner; provided, that Merchant may revoke or modify such rights to APEXX in its reasonable discretion at any time upon written notice to APEXX.  With respect to such Merchant Marks, APEXX shall use such Merchant Marks only in compliance with Merchant’s trademark guidelines furnished to APEXX hereunder (which may be updated by Merchant from time to time by delivering an updated version of such guidelines to APEXX) and, shall be granted Rights to use Merchant Marks for marketing and sales materials.  APEXX acknowledges that it shall have no ownership rights in the Merchant Marks.  APEXX shall not at any time during or after the Term assert or claim any interest in or do anything that may adversely affect the validity, enforceability, or goodwill of any Merchant Mark. 

8.2. Grant of Rights by APEXX - APEXX grants you a revocable, non-exclusive, non-transferable license to use APEXX’s trademarks used to identify the APEXX Service (the “Trademarks”) solely in conjunction with the use of the APEXX Service. Merchant agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to APEXX (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks. The rights granted under this Section with respect to APEXX Marks shall be limited to use thereof solely in connection with performing Merchant’s rights and obligations under this Agreement to:

8.2.1. accurately refer to APEXX and APEXX Services; and
8.2.2. identify APEXX as a business partner.  With respect to such APEXX Marks, Merchant shall have the right to use such APEXX Marks at its discretion. Merchant acknowledges that it shall have no ownership rights in the APEXX Marks.  Merchant shall not at any time during or after the Term assert or claim any interest in or do anything that may adversely affect the validity, enforceability, or good will of any APEXX Mark. 

9. FEES

9.1. General

9.1.1. Except for the Service obligations expressly set forth in this Agreement, neither Party shall be obligated to pay any license fee, service fee, royalty, or any other form of Service in connection with this Agreement.
9.1.2. Except as otherwise expressly set forth in this Agreement, each Party shall bear all of its own costs and expenses arising from its performance of its obligations under this Agreement, including expenses for development, testing, marketing, and promotion activities and for facilities, work spaces, utilities, management, clerical and reproduction services, supplies, and the like.
9.1.3. Except as otherwise expressly set forth in the Merchant Agreement, all Services to be made under this Agreement shall be

9.1.3.1. in British Pound Sterling (GBP), and
9.1.3.2. paid within fourteen (14) days after receipt of a correct and properly issued invoice therefor.

9.2. Taxes - The fees specified in this Agreement do not include any governmental taxes, assessments, fees, or duties that may be applicable in connection with the transactions contemplated by this Agreement (collectively “Taxes”).  The Party who is obligated to pay a given fee under this Agreement will be responsible for paying all Taxes associated with such fee, excluding Taxes based on the other Party’s net income or its authority to do business within a given jurisdiction. 

10. CONFIDENTIALITY

10.1. Terms of Agreement  - Each Party shall: 

10.1.1. keep the terms of this Agreement completely confidential, and
10.1.2. not disclose any terms of this Agreement to any Person other than such Party and any relevant taxing authorities, except as otherwise agreed to in writing by both Parties.

10.2. Delivery of Services - The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the APEXX Services and the know how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: 

10.2.1. is public knowledge at the time of disclosure by the disclosing party; 
10.2.2. becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; 
10.2.3. was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or
10.2.4. is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: 

10.2.4.1. not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; 
10.2.4.2. not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; 
10.2.4.3. disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; 
10.2.4.4. take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and
10.2.4.5. take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.

11. DATA SECURITY AND PROTECTION

11.1. General  - At all times during the Term and any Transition Period, and for so long as the APEXX Entity has possession of any Confidential Content on the Merchant or the Merchant’s Customers (hereby collectively referred to as “Confidential Content”), APEXX shall abide by APEXX Data Protection Policy and Security Policy to protect and secure the Confidential Content against unauthorised access, use and disclosure.  APEXX shall promptly notify Merchant of any breach of security which results in a compromise of the confidentiality or integrity of the Confidential Content, will perform an investigation to learn the cause of the breach, and will take appropriate measures to prevent such a breach in the future.
  
11.2. Security of your access - You agree to:

11.2.1. Not allow anyone else to have or use your password details and to comply with all reasonable instructions we may issue regarding account access and security. In the event you share your password details, APEXX will not be liable to you for losses or damages;
11.2.2. Keep your personal details up to date. We may be unable to respond to you if you contact us from an address, telephone number or email account that is not registered with us; and
11.2.3. Take all reasonable steps to protect the security of the personal electronic device through which you access the APEXX Services (including, without limitation, using PIN and/or password protected personally configured device functionality to access the APEXX Services and not sharing your device with other people).

11.3. Data Security Compliance - As of the Effective Date, APEXX and Merchant agree to comply with applicable data privacy and security requirements under the Payment Card Industry Data Security Standard (“Association PCI DSS Requirements”) with regards to Merchant’s use, access, and storage of certain credit card non-public personal information on behalf of APEXX. Additionally, Merchant agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information.

11.4. Further Actions to Comply with Applicable Law - Without limiting the generality of the foregoing, the administrative, technical, and physical measures designed to protect the Confidential Content shall include those measures required by Applicable Law with respect to the possession, access, or use of Confidential Content by APEXX.  Accordingly, from and after the Effective Date, APEXX shall reasonably cooperate with Merchant for the purpose of ensuring compliance with such Applicable Law, including causing to be executed and delivered such documents as Merchant may reasonably request.

12. TERM AND TERMINATION

12.1. Term  - This Agreement shall enter into force on the Effective Date and remain effective until three calendar years thereafter (the “Initial Term”).  Following the expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless

12.1.1. the Agreement is terminated by either Party as of the end of the Initial Term by giving the other Party written notice of termination at least ninety (90) days prior to the end of such term,
12.1.2. either Party notifies the other Party in writing of its decision not to renew this Agreement at least ninety (90) days prior to the beginning of the Renewal Term for which it elects not to renew, or
12.1.3. this Agreement is otherwise terminated in accordance with its terms.

12.2. Termination of Agreement - Either Party may terminate this Agreement at any time, with (90) days written termination notice to the other party.

12.3. Exclusions of Termination of Agreement

12.3.1. APEXX may immediately terminate this Agreement or suspend services to you via a written Executive Notice if any of the following occurs:

12.3.1.1. we are required by the Associations, the acquiring bank, or an order from a regulatory body to cease providing services to you; 
12.3.1.2. any other legal, reputational, or risk-based reason exists, in APEXX’s sole discretion. In the event that APEXX must terminate this Agreement, APEXX shall provide you with written notice as soon as reasonably practicable.

12.3.2. Either Party may immediately terminate this Agreement via a written Executive Notice if such other Party materially breaches this Agreement, which breach is not cured by the breaching Party within forty-five (45) days from the breaching Party’s receipt of an Executive Notice sent by the non-breaching Party, except where an exclusive remedy is provided in this Agreement for such breach, and subject to the provisions set forth below.  If a Party desires to pursue termination of this Agreement under this Section, such Party shall first give the other Party written notice (the “Executive Notice”) of same in accordance with the notice provision of this Agreement and, in such event:

12.3.2.1.1. the Executive Sponsors of the Parties shall promptly meet in good faith to discuss the matter and consider alternatives to termination of the Agreement; and
12.3.2.1.2. if for any reason the Executive Sponsors are unable to agree on alternatives to termination of the Agreement within thirty (30) days following the date of the Executive Notice, then the Party who provided the Executive Notice may terminate this Agreement by delivery of a written notice of termination at any time thereafter to the other Party.  The above executive escalation procedure will not limit or otherwise affect the right of either Party to contest whether or not the other Party has the right to terminate this Agreement in accordance with its terms.

12.4. Duties Upon Termination - Except to the extent required or permitted for performance after the termination of this Agreement or in any separate written agreement between the Parties, Merchant shall do the following in the event of termination of this Agreement:

12.4.1. Promptly cease any and all use of APEXX Marks and APEXX Confidential Content; and
12.4.2. Except to the extent required or permitted for performance after the termination of this Agreement or in any separate written agreement between the Parties, APEXX shall do the following in the event of termination of this Agreement:

12.4.2.1. Promptly cease performance of APEXX Services to Merchant (for the avoidance of doubt, APEXX shall be entitled to complete APEXX Services in accordance with APEXX Service instructions received from Merchant prior to the date of termination of this Agreement). Any termination of this Agreement does not relieve Merchant of any obligations to pay any fees or costs, or any other amounts owed by you to us as provided under this Agreement, whether accrued prior to or after termination;
12.4.2.2. Promptly cease any and all use of Merchant Marks and all Merchant Confidential Content.

12.5. Data Portability - Upon any termination of this Agreement, APEXX agrees, upon written request from Merchant, to provide Merchant’s new payment service provider (“Data Recipient”) with any available credit card information relating to Merchant’s Customers (“Card Information”). In order to do so, Merchant must provide APEXX with all requested information including proof that the Data Recipient is in compliance with the Association PCI-DSS Requirements and is level 1 PCI compliant. APEXX agrees to transfer the Card Information to the Data Recipient so long as the following applies: 

12.5.1. the transfer of such information is compliant with the latest version of the Association PCI-DSS Requirements; 
12.5.2. the transfer of such information is allowed under the applicable Association Rules, and any applicable laws, rules or regulations; and
12.5.3. the transfer of such information is compliant with the GDPR

13. DISPUTE RESOLUTION

13.1. Informal Dispute Resolution  - Any and all disputes between the Parties arising out of or relating to this Agreement shall be resolved solely and exclusively pursuant to this Section.  The Parties shall first attempt to resolve any dispute informally, as follows: 

13.1.1. Upon a Party’s receipt of a written dispute notice from the other Party (“Dispute Notice”), APEXX’s Relationship Manager and Merchant’s Relationship Manager shall meet (either in person or telephonically) for the purpose of endeavouring to resolve such dispute.  During the course of the Relationship Managers’ discussion, all reasonable requests made by one Party to another for non-privileged information reasonably related to the dispute shall be honoured so that each of the Party may be fully advised of the other’s position.  The specific format for the discussions shall be left to the discretion of the Relationship Managers.
13.1.2. If for any reason the Relationship Managers do not issue a written dispute settlement for any particular dispute within fifteen (15) days after the date of the Dispute Notice, then APEXX’s Executive Sponsor and Merchant’s Executive Sponsor shall meet (either in person or telephonically) for the purpose of endeavouring to resolve such dispute.  During the course of the Executive Sponsors’ discussion, all reasonable requests made by one Party to another for non-privileged information reasonably related to the dispute shall be honoured so that each Party may be fully advised of the other’s position.  The specific format for the discussions shall be left to the discretion of the Executive Sponsors.
13.1.3. If for any reason the Executive Sponsors do not issue a written dispute settlement for any particular dispute within thirty (30) days after the date of the Dispute Notice (which period may be extended as mutually agreed to in writing by the Parties), either Party may proceed to resolve the dispute by litigation

13.2. Jurisdiction and Venue - If any dispute is not resolved, then either party may pursue judicial relief as it deems appropriate in the courts of competent jurisdiction in this case England and Wales, which shall serve as the sole jurisdiction for any actions relating to the subject matter of this Agreement.  All Parties consent to the jurisdiction of such courts and agree that process may be served in the manner allowed by the laws of England and Wales.

14. LIMITATION OF LIABILITY 

14.1. EXCEPT FOR AMOUNTS DUE UNDER THIS AGREEMENT OR FOR CLAIMS, DAMAGES, OBLIGATIONS, OR LIABILITY ARISING OR DERIVED FROM FRAUD OR WILLFUL MISCONDUCT, WHICH SHALL NOT BE SUBJECT TO THIS SECTION, 
14.2. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE, AND
14.3. THE AGGREGATE LIABILITY OF A PARTY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THAN THE TOTAL AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR OMISSION GIVING RISE TO THE RELEVANT CLAIM, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE).
14.4. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.

15. DISCLAIMER OF WARRANTIES

15.1. THE APEXX SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. APEXX DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APEXX OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF APEXX’S OBLIGATIONS.
15.2. The Parties acknowledge that the APEXX Service is inclusive of a computer network based service which may be subject to outages and delay occurrences. As such, APEXX does not guarantee continuous or uninterrupted access to the APEXX Services. Merchant further acknowledges that access to the APEXX website or to the APEXX Services may be restricted for maintenance. APEXX will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, APEXX will not be liable for any interruption, outage, or failure to provide the APEXX Services.

16. ACCEPTABLE USE

16.1. You are independently responsible for complying with all applicable laws in all of your actions related to your use of APEXX’s services, regardless of the purpose of the use.

17. AMENDMENT

17.1. We may amend this Merchant Terms of Service at any time by posting a revised version of it on our website under the “Legal” section of our website. The revised version will be effective at the time we post it. In addition, if the revised version includes a substantial change, we will provide you with 30 days’ prior notice of any substantial change by posting notice under the “Policy Updates” section contained in the “Legal” section of our website. If you do not agree to the updated terms, you can terminate your Agreement by providing us with notice in the manner indicated in Section 12. If you provide us with termination notice within 30 days of the date of update, then your current terms and conditions shall apply during this notice period.

 

SCHEDULES

 

Schedule 1 - Definitions and Interpretations

Schedule 2 - Initial Executive Sponsors and Relationship Managers

Schedule 3 - APEXX Services Fees and Service Terms

Schedule 4 - Service Level Objectives

 

SCHEDULE 1

Definitions and interpretation

All defined terms in this Agreement shall have the meaning assigned to them as defined here or elsewhere in this Agreement and shall apply both to the plural and singular forms of each term, as the context may require. “I/including” means “including without limitation.”  “Days” refers to calendar days unless otherwise specified.  “H/herein,” “hereof,” “hereunder” or similar expressions refer to this Agreement.  

 

SCHEDULE 2

Initial Executive Sponsors and Relationship Managers

Initial Executive Sponsor and Relationship Managers are as defined in your Merchant Agreement.

 

SCHEDULE 3

APEXX Services Fees and Service Terms

APEXX Services Fees and Service Terms are as defined in your Merchant Agreement.

 

Schedule 4

Service Level Objectives


All Service Level Objectives are as defined here.