01. Nuapay Services
The Supplier shall host all aspects of the Nuapay service and will perform maintenance and support services related to the Nuapay services during the Term. In relation to the Nuapay Service;
(a) the Supplier hereby grants to the Client on and subject to the terms and conditions of this agreement a non-exclusive, non-transferable licence to allow authorised users to access the Nuapay services and to use the Nuapay solely for the Client’s business purposes.
(b) the rights provided under this clause are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client;
The Nuapay service will only support payments flowing through the Nuapay payment account supplied to the Client for this purpose.
02. Client Data
The Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
Both parties to this agreement will comply with all applicable EU legislation and regulations applying to the processing of personal data and take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage. Also both parties agree not transfer any personal data outside of the EU unless otherwise agreed between the parties on terms to be agreed [except where the entity outside the EU to whom the personal data is being transferred has (i) subscribed to a Safe Harbour Agreement in place between the EU and the relevant government authority in the country to which the data is being transferred or the entity has entered into an agreement with the Supplier or the Supplier’s subcontractor within the EU (as applicable) as prescribed by the EU Commission in its decision on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council].
If the Supplier processes any personal data relating to the Client itself (if any) when performing its obligations under this agreement, the parties record their intention that the Supplier shall be the data controller.
If the Supplier processes any personal data of the Customers of the Client on the Client’s behalf when performing its obligations under this agreement, the parties record their intention that the Client shall be the data controller and the Supplier shall be a data processor in any case.
The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data by any third party. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for the Supplier to use reasonable endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier.
03. Supplier Obligations
The Supplier undertakes that the Nuapay Services will perform substantially in accordance with the applicable SEPA scheme rulebooks and will be performed with reasonable skill and care.
04. Nuapay Payment Accounts
The Supplier will issue the Client with one or more Nuapay Payment Accounts. The Supplier will carry out a number of Customer Due Diligence checks on the information provided by the Client, possibly including credit checks, when creating these accounts as part of the Supplier’s regulatory commitment.
Based on the outcome of the Customer Due Diligence checks the Supplier reserves the right not to issue a payment account or impose operational limits. . The Supplier may withdraw access to the Client’s Nuapay account or modify any limits imposed on this account if any inappropriate use is detected for example, but not limited to, use of the account for money laundering, terrorist funding or the transfer of money to sanctioned parties.
05. Client Obligations
The Client shall:
a) provide the Supplier with; all necessary access to such information, personnel and necessary cooperation as may be required by the Supplier in order to render the Nuapay Service and for the Supplier to fulfil its regulatory and legal responsibilities including but not limited to Client Data and security access information.
b) comply with all applicable laws and regulations with respect to its activities under this agreement; and carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Supplier may adjust any timetable or delivery schedule set out in this agreement as reasonably necessary.
c) ensure that all of the customers of the Client, hereafter referred to as the Customer, paying by Direct Debit have signed physically or electronically a mandate using a Nuapay approved template, which informs the Customers in a clear and accessible way at the time the Customers supply their Customer Data of the purposes for which the Customer Data will be used by the Client and Supplier; Customer Data includes information provided by the Customer on a paper or electronic mandate, any amendments the Customer may make to this data and information related to payments or collections made using this data..
d) on the Supplier’s reasonable request, inform the Supplier of the method by which the Client intends to comply with its obligation at clause c) above and cooperate with any reasonable request of the Supplier in relation to supplying such information to the Customers of the Client.
e) consent to the Supplier using Customer Data: (i) to analyse the transaction history of the Customers of the Client for the purposes of providing payment method decision support services to the Client and other third parties; and (ii) for crime prevention and detection.
f) The Supplier shall be entitled to seek information on planned future business and financial forecasts.
g) adhere to and agree to be bound by and shall comply and observe in all respects with the rules, terms and standards of the SEPA scheme (“Scheme”) in force from time to time and which said obligations and business standards are set out in the SEPA Direct Debit and Credit Transfer Scheme Rulebooks (as defined and published by the European Payments Council, hereafter “Rulebooks”)) and hereby authorise the Supplier with or without notice to the Customer to debit the Customer’s accounts with all such sums so demanded.
h) keep the Supplier fully indemnified on first demand against all actions, claims, damages, costs and expenses (including legal fees and expenses on a full indemnity basis) and whether directly or indirectly, which the Supplier may suffer, sustain or incur with reference to or as a consequence of the Supplier acting on the Customer’s behalf as a participant in the Scheme. Any termination of sponsorship by the Supplier shall not affect the Customer’s continuing responsibility and liability as creditor to the Supplier in respect of claims arising in relation to direct debit transactions initiated by the Supplier for the Customer prior to the date of such termination and does not affect the Customer’s continuing liability in respect of past direct debit transactions.
i) effect all rejects, returns and refunds in relation to the Client’s collections presented through the Supplier as SEPA sponsoring
j) without delay, provide the Supplier with information relating to the Client’s collections and mandates, and a copy of any mandate, when requested by the Supplier
k) comply with any guidance for creditors issued from time to time in relation to risk mitigation
l) resolve any disputes concerning the underlying contract and the related payments directly with the debtor
06. Fees and Settlement
The Client shall pay the amounts for the followings:-
a. Each Direct Debit requested
b. Each unpaid collection
c. Monthly account maintenance
The Supplier will transfer the money collected to a bank account nominated by the Client on a weekly basis. The amount transferred will cover all collections up to the Friday of the previous week. Deducted from the amount transferred will be the value of Unpaid collections plus the Supplier’s fees as defined above (the monthly account maintenance fee will be deducted on the first collection of each month).
If the amount deducted exceeds the amount collected the outstanding balanced will be carried forward to the next transfer but the Supplier may, at its discretion, require the Client to lodge the outstanding amount to the Payment Account within 3 business days of such a request. The Client’s Nuapay Payment Account must never carry a negative value balance and the Supplier may therefore require a minimum balance to be held on the account to cover anticipated future failed payments or refund claims.
07. Proprietary Rights
The Client acknowledges and agrees that the Supplier and/or its licensors or sub-contractors own all intellectual property rights in the Nuapay services.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. Confidential Information shall mean any information provided by one party to the other that is either designated as confidential or which by its nature is clearly confidential information. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party. For the avoidance of doubt, nothing in this clause 8 shall prevent the Supplier using Customer Data in accordance with clause 5(e).
The Supplier shall defend the Client against any claim that the Nuapay Service infringes any copyright of any third party, provided that: the Supplier is given prompt notice of any such claim; the Client making no voluntary admission or disclosure without the Supplier’s consent; the Client provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and the Supplier or its sub-contractor is given sole authority to defend or settle the claim. The foregoing states the Client’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for copyright infringement.
10. Limitation of Liability
This clause sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client, in respect of this agreement. However, nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation or
(c) to the extent not permitted by law.
10.1 The Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
10.2 The Supplier’s total aggregate liability arising in connection with the performance or contemplated performance of this agreement in each year shall be limited to 110% of the Fees paid for the Nuapay services received by the Supplier from the Client in the previous 12 months.
10.3 Except as expressly and specifically provided in this agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Nuapay services by the Client, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Nuapay Service, or any actions taken by the Supplier at the Client’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
11. Term and Termination
11.1 This agreement shall commence on the Effective Date and shall continue for the period of 1 year, unless otherwise terminated as provided in this Agreement (“Term”). After that period, this agreement shall automatically renew for yearly periods, unless either party notifies the other, in writing, at least 90 days before the end of the then current term.
11.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if: the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or an administrator, receiver or liquidator is appointed in connection with the other party or any part of its business, or it is otherwise insolvent; or the other party ceases, or threatens to cease, to trade.
11.3 The Supplier shall be entitled by notice in writing, without prejudice to any of its rights herein, to terminate forthwith this agreement on 180 days’ notice to Client, or immediately if any sum or fee due to the Supplier remains due and unpaid for 30 days or more after the due date.
11.4 The Supplier shall be entitled to suspend the processing of any transaction, singularly or as a batch, if a transaction fails any Anti Money Laundering or sanction screening checks that the Supplier carries out as part of its regulatory commitments. Notwithstanding any other provisions in this agreement, the Supplier shall cease provision of any Services in the event that there are legitimate concerns surrounding the Customer, including but not limited to the security of the payment services.
11.5 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Client shall cease use of the Nuapay Service;
(b) all Nuapay payment accounts issued to the Client will be closed on the termination date;
(c) the Client’s Data relating specifically to its Customers will be available for retrieval for a period of 30 days. Thereafter, the Supplier may destroy these elements of the Client Data in its possession 30 days after the effective date of the termination of this agreement;
(d) the Supplier will retain information relating to the use of all Nuapay payment account issued to the Client for a period of sufficient time to meet all statutory requirements in this respect;
(e) the Client remains liable for a period of 13 months after the termination of the contract to compensate the Supplier in full for any claims made against the Client resulting from the return of any Direct Debit collection initiated by the Client for any reason or for a claim for the return of a credit transfer received into the Client’s Nuapay payment account so long as all claims are progressed inline with the SEPA scheme rules;
(f) the accrued rights of both parties as at termination shall not be affected or prejudiced, including, but not by way of limitation, the payment of Fees due but unpaid as at the date of termination.
12. Force Majeure
The Supplier shall have no liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, failure of, or the Supplier being denied access to, the channels used for the clearing and settlement of the funds of the Client.
No failure, delay, or indulgence on the part of either party in exercising any right of that party pursuant to this agreement shall operate as a waiver of that right. Further, no single or partial exercise of any such power or right shall preclude any other or further exercise thereof or the exercise of any other such power or right arising or under this agreement.
Where any provision in this agreement is held by a court of competent jurisdiction to be invalid or unenforceable then the provision shall be given effect to in such reduced form as may be agreed between the parties. Where that agreement is not made and so recorded in writing then this agreement shall continue as if the relevant provision did not exist.
15. Entire Agreement
This agreement shall be the complete and exclusive statement between the Parties governing the subject matter of this agreement, superseding all related proposals, statements and arrangements and any other written or other communication between the Parties. Neither Party may rely on any representation, warranty, collateral contract or other assurance (except those set out in this agreement or its Schedules) made by or on behalf of the other Party on or prior to the applicable Effective Date, and each of the Parties waives all rights and remedies which, but for this clause, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance, provided that nothing in this clause shall limit or exclude any liability to the extent not permitted by law. No amendment of this agreement shall be effective unless in writing, stated to be an amendment to this agreement or its Schedules and signed by an authorised signatory of each party.
The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
Any notice to be given hereunder shall be in writing delivered to the relevant party at its address contained herein (or such other address as shall have been notified to the other party) by registered or recorded delivery, post or facsimile. Notices sent by registered or recorded delivery post shall be deemed to have been delivered five days after the date on which the notice is posted, notices by facsimile shall be deemed to have been delivered 24 hours after a transmission report is printed and notices sent by international courier shall be deemed to have been delivered on the date of signature of the receiving Party.
18. Governing Law
This agreement shall be governed by and construed in accordance with the Laws of Ireland and the parties hereto submit to the jurisdiction of the Irish Courts.
All correspondence under and in connection with this agreement and all deliverables pursuant to a Schedule hereto shall be in the English language.
Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. Words in the singular shall include the plural and vice versa. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes faxes but not e-mail. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.