Merchant Agreement for the Zapper Mobile Utility - USA
1.1 This Agreement governs the supply of the Services by the Service Provider to a Merchant. Capitalised terms not otherwise defined where they appear shall have the meaning given in Schedule 1 to this Agreement.
1.2 The Service Provider offers a smartphone application (the "Zapper Mobile Utility") that, amongst other things, allows users ("Zapper Users") to scan Zapper QR Codes placed on invoices, web pages, emails, posters or other media produced by the Merchant to enable the Zapper Users to quickly and easily (i) register with and/or log in to the Merchant's website; and/or (ii) make payments to the Merchant. To enable payment functionality, the Merchant must appoint the Service Provider as its agent for that purpose.
1.3 The Merchant is a vendor of goods and/or services and wishes to engage the Service Provider to enable Zapper Users to (i) register with and/or log in to the Merchant's website or online services by scanning a Zapper QR Code and/or (ii) facilitate the payment of money between Zapper Users and the Merchant using the Zapper Mobile Utility to allow the Zapper User to purchase goods and/or services from the Merchant.
1.4 The Merchant is required to register with the Service Provider to be able to receive the Services. The Merchant may not receive the Services (including processing any Transactions) until it has been so authorized by the Service Provider. By submitting to the Service Provider an application to receive the Services, the Merchant agrees that it has read and understood this Agreement (a copy of which may be downloaded and stored for inclusion in the Merchant's own records at any time).
1.5 The Service Provider reserves the right to change this Agreement (including, the level of the Monthly Subscription Fees) on one (1) month's notice at any time, without liability. If the Service Provider does this, the Merchant may terminate this Agreement immediately and, subject to clause 4.6, without charge before the proposed changes take effect, otherwise the Merchant shall be deemed to have accepted such changes when the one (1) month's notice expires.
2. The Services
2.1 Subject to clause 1.4, the Merchant may elect to receive one or more of the following Services (as each are more particularly described in Schedule 2):
- (A) the Scan-to-Login Services;
- (B) the Scan-to-Pay Scanning Services;
- (C) the Scan-to-Pay Acquiring Services; and
- (D) the CRM Services.
2.2 Unless otherwise stated, the terms and conditions set out in the main body of the Agreement apply to all of the Services. The additional terms set out in Schedule 3 apply if the Merchant receives the Scan-to-Pay Acquiring Services.
2.3 The Service Provider shall provide, or procure the provision of, the Services to the Merchant during the Term in accordance with the terms and conditions of this Agreement.
2.4 The Service Provider shall perform the Services with reasonable skill and care.
3. Service Providers Role - Commercial Agent
3.1 By executing this Agreement, the Merchant hereby appoints the Service Provider as its agent for purposes of accepting Payments from Zapper Users. In providing the Services (including the processing of Payments), for the limited purpose of receiving payments, the Service Provider is acting as the non-exclusive commercial agent of the Merchant to conclude the purchase of goods or services from the Merchant. The contract for the sale of goods or services will be between the Zapper User and the Merchant.
3.2 Payment authorizations received by the Service Provider acting on behalf of the Merchant are deemed to be authorizations obtained by the Merchant. Upon the Service Provider's receipt of funds from Zapper Users, the Merchant will consider such Zapper Users to have made final payment and Zapper Users will have no further obligation with respect to the amount of funds received by the Service Provider.
3.3 Once a Zapper User tenders payment through the Services, and authorization for the transaction has been obtained from the card issuer, the Zapper User will be deemed to have paid the Merchant and the Merchant shall have no recourse against the Zapper User as provided in clause 5.1.
3.4 Notwithstanding clause 3.2, except as expressly provided in this Agreement, the Merchant shall be solely responsible for all customer service issues relating to its supply of goods or services (including pricing, rebates, item information, availability, technical support, functionality, warranties, guarantees, order fulfilment, shipping, handling, order cancellation, returns, refunds, adjustments, feedback and product or service complaints). In performing customer service, the Merchant shall present itself to its customers and potential customers as a separate legal entity from the Service Provider. It is the responsibility of the Merchant and not the Service Provider to resolve any dispute or claim raised by a Zapper User relating to the purchase or sale of goods or services from the Merchant (a "Customer Claim").
4. Service Fees
4.1 The monthly subscription fees to be paid for the services as set out in the merchant agreement form. Subject to clause 1.5, the Service Provider reserves the right to amend the Monthly Subscription Fees at any time by providing the Merchant one (1) month's notice.
4.2 If the Merchant receives the Scan-to-Pay Acquiring Services, the Monthly Subscription Fees will be paid as part of the settlement process described in section 5 of Schedule 3. If the Merchant does not receive the Scan-to-Pay Acquiring Services, the Monthly Subscription Fees will be calculated and invoiced by the Service Provider on a monthly basis in arrears. The Merchant shall pay the Monthly Subscription Fees within thirty (30) days of receipt of the invoice.
4.3 The Merchant will be solely responsible for payment of, and agrees to pay, all sales taxes, use taxes or other taxes relating to any other taxes applicable to this Agreement (other than taxes, if any, on the Service Provider's income).
4.4 If the Merchant disputes any invoice or other request for payment, the Merchant shall as soon as possible notify the Service Provider in writing. The parties shall promptly refer the dispute to resolution under the procedure set out in clause 21. The Service Provider shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out in clause 4.2 above.
4.5 The Service Provider may charge interest at the annual rate equal to 4% above the ICE LIBOR - 1 month rate (such rate to the determined on the due date for payment), calculated on a daily basis in respect of any sum which is due and unpaid, that interest to run from the date on which that sum is due and payable until receipt by the Service Provider of the full amount, whether before or after judgment.
4.6 All payments payable to the Service Provider under this Agreement shall become due immediately on its termination.
4.7 The Service Provider may at any time require the Merchant to maintain with the Merchant's bank an instruction to authorise the Service Provider to directly debit from the Merchant Bank Account all sums that become due and payable by the Merchant to the Service Provider under or in connection with this Agreement. In these circumstances, the Merchant will ensure that the Merchant Bank Account shall at all times have a credit balance sufficient to meet any sums due and payable to the Service Provider under or in connection with this Agreement. The Service Provider shall if practicable notify the Merchant in advance of any sums payable by the Merchant to the Service Provider which the Service Provider intends to debit by direct debit. This clause 4.7 shall not prejudice the Merchant's rights under Applicable Law to recover payments made to the Service Provider by direct debit.
5. The Merchant's Obligations in Respect of the Services
5.1 The Merchant shall:
- (A) cooperate with the Service Provider and provide to the Service Provider all information as the Service Provider shall reasonably require to enable it to provide the Services, including for the integration or display of the Zapper QR Code on the Merchant Materials;
- (B) display, on its website and other Merchant Materials, the ability to login or process Payments (as applicable) through the Zapper Mobile Utility in a manner consistent with the Service Provider's brand guidelines, as communicated to the Merchant from time to time;
- (C) comply with its legal, regulatory and contractual obligations to the Zapper Users in respect of all purchases of goods or services;
- (D) refrain from doing anything which the Service Provider reasonably believes to be disreputable or capable of damaging the reputation or goodwill of the Service Provider; and
- (E) have no recourse against Zapper Users for funds received by the Service Provider and Merchant shall refrain from pursuing actions directly with Zapper Users for funds received by the Service Provider.
5.2 If the Merchant breaches of any of its obligations in clause 5.1 above or in section 6 of Schedule 3, the Service Provider may, without liability, immediately suspend the provision of the Services to the Merchant until such time as the Service Provider determines in its sole discretion (acting reasonably) that such breach has been adequately remedied.
5.3 The Service Provider shall have no liability for any failure to provide or delay in providing the Services in accordance with the terms of this Agreement to the extent such failure or delay results from the failure of the Merchant to comply with clause 5.1 above or section 6 of Schedule 3 or the Merchant has otherwise caused or contributed to the failure (by act or omission).
5.4 Unless otherwise agreed by the Service Provider in writing, the Merchant acknowledges and agrees that it shall (at its own cost) be solely responsible throughout the Term for the provision of all equipment, software, systems and telecommunications facilities which are required to enable the Merchant to receive the Services.
6. Intellectual Property Rights
6.1 Subject to clause 6.3 below, all Intellectual Property Rights are and shall remain the exclusive property of the party owning them (or, where applicable, the third party from whom that party's right to use the Intellectual Property Rights has derived). The Intellectual Property Rights in all data relating to Payments held on the Merchant Systems shall be owned by the Merchant and the Intellectual Property Rights in all data relating to Payments held on the Service Provider Systems shall be owned by the Service Provider.
6.2 The Merchant hereby grants the Service Provider a royalty-free, non-exclusive, non-transferable, non-assignable licence to use the Intellectual Property Rights owned by the Merchant (and its Affiliates or its licensors) ("Merchant Content") to such extent as is necessary for the Service Provider to perform its obligations under this Agreement. In particular, the Merchant agrees that such licence includes the right for the Service Provider to publish the Merchants' name, artwork, branding, text and logo within the Zapper Mobile Utility, on the Service Providers' website and online services and on the website and online services of the Service Provider's Affiliates and advertising and distribution partners, in each case to acknowledge the Merchant as a participant in the Zapper Mobile Utility.
6.3 The Service Provider or its licensors shall own all rights and interest in and to the Foreground Intellectual Property Rights. The Service Provider hereby grants the Merchant a royalty-free, non-exclusive, non-transferable, non-assignable (except where permitted under clause 12) licence to use the Intellectual Property Rights owned by the Service Provider and used by the Merchant in receiving the Services (including the Foreground Intellectual Property Rights) ("Service Provider IPR") to such extent as is necessary to enable the Merchant to receive the Services during the Term.
6.4 The Merchant shall not, unless expressly authorized by the Service Provider in writing, rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display or modify the Service Provider IPR or any portion thereof, or use such Service Provider IPR as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. The Merchant shall not prepare any derivative work based on the Service Provider IPR, nor shall it translate, reverse engineer, decompile or disassemble the Service Provider IPR.
6.5 To the extent that the Service Provider IPR made available to the Merchant includes any software, computer program or code, including application programming interfaces or software development kits ("Service Provider Software"), the Merchant agrees:
- (A) not to copy or otherwise reproduce the Service Provider Software except where such copying is incidental to the use of the Service Provider Software in accordance with this Agreement, or where necessary for the purpose of back up or operational security;
- (B) not to sublicense, translate, merge, adapt, vary or modify the Service Provider Software, or any part of it;
- (C) not to make alterations to, or modifications of, Service Provider Software or any part of it, or permit the Service Provider Software or any part of it, to be combined with, or become incorporated in, any other materials, programs or software;
- (D) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Service Provider Software or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Zapper Mobile Utility with the Merchant Material, and provided that the information obtained by the Merchant during such activities;
- (1) is only used for the purpose of receiving the Services or processing Transactions;
- (2) is not unnecessarily disclosed or communicated without the Service Provider's prior written consent to any third party; and
- (3) is not used to create any software or other intellectual property that is substantially similar to the Service Provider Software nor used in any manner which would be restricted by copyright;
- (E) to keep all copies of the Service Provider Software secure and to maintain accurate and up-to-date records of the use of the Service Provider Software;
- (F) to replace the current version of the Service Provider Software, or any part of it, with the updated or upgraded version upon receipt of notification from the Service Provider of such update or upgrade;
- (G) to reproduce and include the copyright notice of the Service Provider on all and any copies whether in whole or in part, in any form, including partial copies or modifications, of the Service Provider Software;
- (H) not to provide or otherwise make available the Service Provider Software, in whole or in part, in any form to any third party without the prior written consent from the Service Provider; and
- (I) to comply with all technology control or export law and regulations that apply to the technology used or supported by the Service Provider Software.
6.6 Each party shall, at its own cost, promptly do or procure the doing of all such acts and things and execute or procure the execution of all such documents as may from time to time be required to give effect to this clause 6. Except as expressly provided in this Agreement, no rights or obligations in respect of a party's Intellectual Property Rights are granted to the other party or to be implied from this Agreement.
7. Data Protection
Each party undertakes that it will, and will cause its employees, agents and sub-contractors to, utilize commercially reasonable data security measures in connection with the performance of its obligations under this Agreement.
8. Warranties and Indemnities
8.1 Each party warrants that it has the corporate power and capacity to enter into this Agreement and to perform its obligations under this Agreement.
8.2 The Merchant warrants and represents that all information provided to the Service Provider in the course of applying to use the Service is true and accurate in every respect and the Merchant will keep all such information up to date during the Term.
8.3 The Merchant represents and warrants that it has the right to license the Merchant Content to the Service Provider in accordance with clause 6.2, and that the use, copying, modification and publication of the Merchant Content by the Service Provider and by its Affiliates and advertising and distribution partners: (a) will not infringe, violate or misappropriate any third party Intellectual Property Rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or obscene or otherwise violate any Applicable Law.
8.4 The Merchant warrants that it is located in and conducts its business in the U.S. and that it will only use the Services and/or receive Payments within the U.S.
8.5 The Merchant warrants and represents that the sale and purchase of goods and services by Zapper Users and the integration of Zapper QR Codes on Merchant Materials meet all Applicable Law in the U.S. and the provision of the Services by the Service Provider will not infringe any such Applicable Law. If it is determined that such acts do infringe any Applicable Law, the Service Provider may terminate this Agreement immediately by notice in writing to the Merchant.
8.6 The Merchant shall indemnify and hold the Service Provider harmless from and against any and all claims brought against the Service Provider by a Zapper User or a financial institution or other third party, or which the Service Provider may suffer or incur, to the extent such claims arise out of or in consequence of or in connection with:
- (A) a Transaction;
- (B) any security breach in relation to compromise or theft of Payment data held by the Merchant or on the Merchant's behalf;
- (C) a breach of the warranties at clauses 8.3 and 8.5 and;
- (D) a failure by the Merchant to comply with the requirements of a regulatory authority or Applicable Law; and
except, if and to the extent such claim is caused by the Service Provider's negligence, breach of contract or wilful misconduct.
9. Limitation of Liability
9.1 This clause 9 sets out the entire liability of the parties (including any liability for the acts or omissions of their respective employees, agents and sub-contractors) to each other in respect of: any breach of this Agreement; any use made by the Merchant or its Affiliates of the Services or any part of them; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement. In particular, and except as expressly stated in this Agreement: the Service Provider makes no representations or warranties, express or implied, with respect to merchantability, fitness for a particular purpose or non-infringement; the Service Provider does not warrant or guarantee that Merchant will achieve any level of sales, revenue or profit; the Service Provider does not warrant or guarantee that the Zapper Mobile Utility or Services will always be available or operate error-free, or that any errors, omissions or misplacements in the software will be corrected.
9.3 Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury resulting from negligence; fraud or fraudulent misrepresentation; the indemnification obligations set out in clause 8.6; or any other liability that cannot be excluded by Applicable Law.
9.4 Without prejudice to clause 9.3:
- (A) the Service Provider's total liability arising under or in connection with this Agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to an amount equal the aggregate Monthly Subscription Fees paid by the Merchant in the six (6) months immediately prior to the date on which the cause of action for such liability arose; and
- (B) neither party shall be liable to the other, whether in contract, tort (including for negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any: losses that are not reasonably foreseeable; or loss of profit; or loss of goodwill or reputation; or loss of business; or loss of business opportunity; or loss of anticipated saving; or loss or corruption of data or information; or special, indirect or consequential damage or loss of any kind whatsoever, in each case that arises under or in connection with this Agreement.
10. Term and Termination
10.1 This Agreement shall start on the Commencement Date and shall continue unless terminated in accordance with the terms of this Agreement.
10.2 Either party may, at any time on a minimum of one (1) month's written notice to the other party, terminate this Agreement.
10.3 The Service Provider may terminate this Agreement (in whole or in part) immediately by notice in writing if:
- (A) the Merchant breaches clause 5.1(C);
- (B) the Service Provider determines, in its reasonable opinion, that there is an unreasonable level of Customer Claims or Refunds or return requests in relation to the Merchant; or
- (C) the Service Provider determines, in its reasonable opinion, that the Merchant's conduct or treatment of Zapper Users or the Merchant's relationship with the Service Provider is having a material adverse effect on the reputation of the Service Provider.
10.4 Either party may terminate this Agreement (in whole or in part) immediately by notice in writing if the other party is in material or continuing breach of any of its obligations under this Agreement and fails to remedy the breach (if capable of remedy) within a period of fourteen (14) days after receiving written notice of the breach.
10.5 Wherever this Agreement confers a right on the Service Provider to terminate this Agreement, it may also elect to suspend the Services (including blocking the ability for the Merchant to process Transactions) without prior notice to the Merchant. Such suspension shall not affect the Service Provider's ability to subsequently terminate the Agreement.
10.6 Termination of this Agreement shall not prejudice any of the parties' rights and remedies which have accrued as at termination.
10.7 Clause 11 and any clause reasonably intended to survive termination, shall survive termination of this Agreement.
11.1 Each party undertakes that it shall, during this Agreement and for a period of five years after expiry or termination, keep confidential and not at any time disclose to any person, any confidential information disclosed to it by, or obtained in relation to, the other party concerning the business or affairs of the other party or of any member of its Group, including but not limited to information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers ("Confidential Information"), except as permitted by clause 11.2 below.
11.2 Each party may disclose the other party's Confidential Information:
- (A) to its employees, officers, agents, consultants or sub-contractors ("Representatives") as reasonably required for the purposes of carrying out the party's obligations under this Agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 11 as though they were a party to this Agreement. The disclosing party shall be responsible for its Representatives' compliance with the confidentiality obligations set out in this clause 11;
- (B) as may be required by law, court order or by any stock exchange or governmental or regulatory authority having applicable jurisdiction;
- (C) if the Confidential Information was lawfully in the possession of that party or its Representatives (in either case as evidence by written records) without any obligation of secrecy prior to its being received or held;
- (D) if the Confidential Information has previously become publicly available other than through the fault of the other party or their Representatives; and
- (E) if required for the purpose of any arbitral or judicial proceedings arising out of this Agreement.
12. Assignment and Sub-Contracting
12.1 Neither party may assign or transfer or sub-contract any of its rights, benefits or obligations under this Agreement without the prior written consent of the other party, except that:
- (A) either party may assign and transfer its rights and obligations under this Agreement to its Affiliate;
- (B) the Service Provider may assign and transfer its rights and obligations under this Agreement to any person to which it transfers that part of its business to which this Agreement relates; and
- (C) the Service Provider may sub-contract the performance of any of its obligations under this Agreement to any party.
12.2 If either party assigns or transfers any of its rights or obligations under this Agreement, it shall promptly notify the other party.
13. Force Majeure
Neither party shall be liable for any delay in or failure of performance hereunder due to any contingency beyond its reasonable control.
Save as otherwise provided in this Agreement, each party shall pay its own costs in connection with the negotiation, preparation, execution and performance of this Agreement, and all documents ancillary to it.
If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16. Further Assurances
Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution of documents and doing of such things as are required to give full effect to this Agreement and the transactions contemplated by it.
Any waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. No failure to exercise or delay in exercising any right or remedy provided under this Agreement or by law constitutes a waiver of such right or remedy nor shall it prevent any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy under this Agreement shall preclude or restrict the further exercise of any such right or remedy or other rights or remedies.
18.1 A notice given under this Agreement:
- (A) shall be in writing in the English language;
- (B) shall be sent for the attention of the person, and to the address given in this clause 18 (or such other physical address, email address, fax number or person as the relevant party may notify to the other parties in accordance with the provisions of this clause 18); and
- (C) shall be delivered by, email, fax, personally; or sent by pre-paid first-class post or recorded delivery; or (if the notice is to be served by post outside the country from which it is sent) sent by airmail requiring signature on delivery.
18.2 The addresses for service of notice are:
- (A) For the Service Provider:
- Address: Zapper Marketing (USA), Inc.
- 2711 Centerville Road, Suite 400
- Wilmington, DE 19808
- For the attention of: Mark Denton
- With a copy at all times by email to: firstname.lastname@example.org
- (B) For the Merchant, the name, address and other contact details provided to the Service Provider on registration for the Services. The Merchant acknowledges that it is its responsibility to provide the Service Provider with, and keep the Service Provider notified of, any changes to such contact details.
18.3 A notice is deemed to have been received:
- (A) if delivered personally or by e-mail, at the time of delivery; or
- (B) in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting; or
- (C) in the case of airmail, five days from the date of posting; or
- (D) if deemed receipt under the previous paragraphs of this clause 18.3 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on any Business Day), on the next Business Day in the place of receipt.
18.4 To prove service, it is sufficient to prove in the case of post that the envelope containing the notice was properly addressed and posted.
19. Entire Agreement
This Agreement constitutes the whole agreement and understanding of the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement, provided always that nothing in this clause shall limit or exclude any liability for fraud or fraudulent misrepresentation.
Each party shall at all times comply, and shall ensure that its personnel comply, with respect to the performance of this Agreement, with all Applicable Law and regulations concerning bribery and corruption. This Agreement may be terminated with immediate effect (or on such later date as determined by the terminating party) by written notice by either party if the other party commits any breach of this clause or by the Service Provider if the Service Provider reasonably considers that the Merchant has committed any breach of this clause.
21. Complaints and Dispute Resolution
21.1 If the Merchant wishes to make a complaint about the Service, the Merchant can email email@example.com, with brief details of the Merchant's complaint and the Merchant Account number. The Service Provider's customer service staff will acknowledge the Merchant's complaint by email within 1 business day. They will then investigate and send the Merchant an initial response, having had access to an officer with the authority to settle the complaint (including, where appropriate, an offer of redress). Where appropriate, the member of staff investigating the complaint will not be any staff member who was directly involved in the subject matter of the complaint. This should take no longer than five business days, but most complaints may well be resolved by close of business on the business day after the complaint is received. If the complaint is not resolved by close of business on the business day after the complaint is received, the Service Provider will send the Merchant a copy of this complaints handling procedure.
21.2 If the Merchant is not satisfied by the Service Provider's response, the Merchant must contact the Service Provider's Account Manager, who will respond by email within a further five business days.
21.3 If the Merchant is not satisfied with the response from the Account Manager, the Merchant can email firstname.lastname@example.org, enclosing the responses already given to it. That email will then be referred to the Service Provider's Chief Executive Officer, who will respond by email within a final five business days.
21.4 Within four weeks after receiving a complaint (the "Resolution Period"), the Service Provider will send the Merchant either a final response or a response which explains why the Service Provider is not in a position to resolve the complaint and indicates when the Service Provider will make further contact.
21.5 Neither party may bring any proceedings in relation to a dispute before the end of the Resolution Period, except to obtain urgent interlocutory relief.
21.6 If the parties have not resolved the complaint or dispute by the end of the Resolution Period, then clause 22 shall apply.
21.7 The existence of, and the content of all disputes under this Agreement shall be treated as Confidential Information and, accordingly, the terms of clause 11 shall apply.
22. Governing Law and Jurisdiction
This Agreement and any dispute or claim arising out of them (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the state of Delaware and the parties hereby submit to the jurisdiction of state and federal courts for Delaware.
Definitions and Interpretation
1. Capitalised terms used in this Agreement have the following meanings:
- "Account Manager" means the person appointed by each party to act as that party's representative in the management of the relationship between the parties.
- "Affiliates" in relation to a party, any Subsidiary or Parent Company of that party and any Subsidiary of any such Parent Company, in each case from time to time.
- "Agreement" means these terms and conditions including the schedules attached thereto and any documents incorporated by reference.
- "Applicable Law" means all applicable laws, enactments, orders, regulations, mandatory standards and other similar instruments that have legal effect.
- "Business Day" means a day other than a Saturday or Sunday or U.S. federal holiday.
- "Chargeback" means the return to a Zapper User of funds corresponding to Payment forcibly initiated by the issuing bank of the Zapper Users payment card.
- "Chargeback Handling Fee" means the Monthly Subscription Fee levied by the Service Provider for processing, administering, challenging or disputing Chargebacks.
- "CRM Data" has the meaning set out in section 4.2 of Schedule 2.
- "Commencement Date" the date on which the Service Provider notifies the Merchant that the Service Provider has approved the Merchant's application to receive the Services.
- "Confidential Information" has the meaning given in clause 11.1.
- "Customer Claim" has the meaning given in clause 3.4.
- "Dashboard" means an online portal that allows the Merchant to select the Services it requires, monitor activity (including Scans and Payments) and to reconcile Payments.
- "Floor Limit" means any monetary limit (of which the Service Provider notifies the Merchant from time to time) above which the Merchant must obtain the Service Provider's authorization prior to completing a Transaction.
- "Foreground Intellectual Property Rights" any Intellectual Property Rights that are created or developed after the Commencement Date by or on behalf of the Service Provider or its Affiliates in connection with the provision of the Services.
- "Group" in relation to a party, that party and its Affiliates from time to time.
- "Intellectual Property Rights" means patents, trademarks, service marks, logos, trade names, internet domain names, copyright (including rights in computer software) and moral rights, database rights, semi-conductor topography rights, utility models, rights in designs, rights in get-up, rights in inventions, rights in know-how and other intellectual property rights, in each case whether registered or unregistered, and all rights or forms of protection having equivalent or similar effect anywhere in the world and registered includes registrations and applications for registration.
- "Merchant" means a retailer of goods and/or services whose application to use the Services has been approved by the Service Provider.
- "Merchant Account" means the payment data account in the Service Provider's systems that records the amount of Payments made by, and Refunds issued to, Zapper Users, but not yet redeemed or transferred to the Merchant.
- "Merchant Bank Account" means the account maintained by the Merchant at a duly authorized bank in the U.S.
- "Merchant Account Balance" means the balance of money in the Merchant Account at any one time.
- "Merchant Content" has the meaning given in clause 6.2.
- "Merchant Materials" has the meaning given in section 2.2 of Schedule 2.
- "Merchant Systems" means any database, networks, interfaces, information technology or communication systems which are used by, owned by or licensed to the Merchant in connection with the Services, excluding the Service Provider's Systems.
- "Parent Company" means any company which holds a majority of the voting rights in another company, or which is a member of another company and has the right to appoint or remove a majority of its board of directors, or which is a member of another company and controls a majority of the voting rights in it under an agreement with other members, in each case whether directly or indirectly through one or more companies.
- "Passcodes" means usernames, passwords and any other security information or tokens required by the Merchant to access the Dashboard or Merchant Account.
- "Payment" means the payment by a Zapper User to the Merchant using the Scan-to-Pay Acquiring Services in consideration for the purchase of goods and/or services from the Merchant.
- "Profile Information" has the meaning set out in section 1.1 of Schedule 2.
- "QR Code" means a machine-readable code consisting of an array of black and white squares, typically used for storing URLs or other information for reading by the camera on a smartphone.
- "Refund" means the repayment by the Merchant to a Zapper User of all or part of a Payment made by that Zapper User where such repayment is made by way of the Zapper Mobile Utility.
- "Refund Fee" means the Monthly Subscription Fee levied by the Service Provider for processing Refunds requested by the Merchant.
- "Representatives" has the meaning given in clause 11.2(A).
- "Reserve" has the meaning given in section 2.2 of Schedule 3.
- "Resolution Period" has the meaning given in clause 21.4.
- "Scan" means the scanning of a Zapper QR Code on the Merchant Materials by a Zapper User using the Zapper Mobile Utility.
- "Scan Fee" means the Monthly Subscription Fee levied by the Service Provider for each Scan performed by a Zapper User.
- "Monthly Subscription Fees" means the fees to be paid for the Services as set out at http://zapper.com/servicefees.
- "Service Provider" means Zapper Marketing (USA), Inc., a corporation established under the laws of Delaware, with a registered corporate address at 2711 Centerville Road, Suite 400, Wilmington, Delaware, 19808.
- "Service Provider IPR" has the meaning given in clause 6.3.
- "Service Provider Systems" any database, information technology or communication systems used by the Service Provider or its Affiliates in the provision of the Services, including networks and interfaces.
- "Services" means the services described in Schedule 2.
- "Settlement Calculation Date" has the meaning given in section 5.1 of Schedule 3.
- "Settlement Fee" means the Monthly Subscription Fees (if any) levied by the Service Provider to process and transmit each Settlement Payment.
- "Settlement Payment" means the settlement payment made by the Service Provider to the Merchant in accordance with section 5 of Schedule 3.
- "Settlement Period" has the meaning given in section 5.1 of Schedule 3.
- "Subsidiary" and "Subsidiaries" any company in relation to which another company is its Parent Company.
- "Term" means the term of this Agreement, starting on the Commencement Date and ending on the date that this Agreement terminates in accordance with its terms.
- "Trading Limit" means the maximum total value of all Transactions in respect of any specified period of time.
- "Transaction" means a Payment or a Refund.
- "U.S." means the United States and any state, territory or possession of the United States.
- "Zapper Mobile Utility" has the meaning given in clause 1.2.
- "Zapper QR Code" means a QR Code which allows a Zapper User to access the functionally of the Zapper Mobile Utility.
- "Zapper Users": has the meaning given in clause 1.2.
2. In this Agreement where appropriate, words denoting the masculine gender include the feminine and neuter genders and vice versa; words denoting a singular number include the plural and vice versa; references to the definite article shall include the indefinite article and vice versa; references to persons shall include firms, companies and other organizations and vice versa; headings shall not affect interpretation and words such as "include" or "including" are to be construed without limiting the generality of the preceding words.
3. This Agreement is concluded in the English language and all communications (including any notices or the information being transmitted) shall be in English. In the event that the Agreement is translated into any other language (whether for the Merchant's convenience or otherwise), the English language text of the Agreement shall prevail.
The Services offered by the Zapper Mobile Utility are described below. These Services are more particularly described at https://www.zapper.com
1. Scan-to-Login Services
1.1 The Zapper Mobile Utility allows Zapper Users to complete certain information (including, name, address, phone number, email address and payment card details) ("Profile Information") which is then encrypted and stored within the Zapper Mobile Utility on the Zapper Users smartphone or tablet.
1.2 The participating Merchant places a Zapper QR Code on the landing page of the Merchant's website. When a Zapper User scans this Zapper QR Code using the Zapper Mobile Utility, the Profile Information is securely transmitted to the Merchant and the Merchant can use this Profile Information to instantly register or login the Zapper User to the Merchant's website.
2. Scan-to-Pay Scanning Services
2.1 The Scan-to-Pay Scanning Services can only be provided to merchants who have their own acquiring relationship with a third party payment card processor.
2.2 The Scan-to-Pay Scanning Services allows one or more Zapper QR Codes to be generated and placed on invoices, web pages, emails, posters or other media produced by the Merchant ("Merchant Materials").
2.3 When a Zapper User scans this Zapper QR Code using the Zapper Mobile Utility, the Zapper User will be prompted to make a payment via the Zapper Mobile Utility. If the Zapper User elects to make a payment, the relevant Profile Information (including details of the Zapper Users payment card) will be securely transmitted to the Merchant and the Merchant can then transmit this information to its third party payment processor to process the payment.
2.4 The Scan-to-Pay Scanning Services consist only of the provision of certain Profile Information to the Merchant and the Service Provider is not responsible for, or a party to, the processing of payments or refunds between Zapper Users and the Merchant.
3. Scan-to-Pay Aquiring Services
3.1 The Scan-to-Pay Acquiring Services are similar to the Scan-to-Pay Scanning Services but also include the processing of payments and refunds between Zapper Users and the Merchant.
3.2 When a Zapper User scans a Zapper QR Code placed on any Merchant Materials using the Zapper Mobile Utility, the Zapper User will be prompted to make a Payment via the Zapper Mobile Utility. If the Zapper User elects to make a Payment, the Service Provider will process such Payment from the Zapper User.
3.3 A Refund may be made to a Zapper User if requested by the Merchant or as required by the Service Provider in accordance with section 3.1 of Schedule 3.
3.4 Payments made by Zapper Users (less any Refunds or applicable Monthly Subscription Fees) will be settled to the Merchant in accordance with section 5 of Schedule 3.
4. CRM Services
4.1 The CRM Services are only available to merchants who receive the Scan-to-Pay Acquiring Services and to which the Service Provider confirms in writing that the CRM Services can be provided. Where available, the CRM Services will be accessed by the Merchant through the Dashboard.
4.2 Subject to the on-going consent of the Zapper Users and Applicable Laws, the Service Provider will maintain records of Zapper Users' purchases of the Merchants goods or services through the Zapper Mobile Utility, including:
- (A) name of Zapper User;
- (B) details of the goods and services purchased by the Zapper User
- (C) location of purchase;
- (D) timing and frequency of purchases,
- (together the "CRM Data").
4.3 Subject to the on-going consent of the Zapper Users and Applicable Laws, the CRM Services allow the Merchant to access and interrogate the CRM Data. The Service Provider may offer the Merchant different levels of access to the CRM Data ranging from:
- (A) basic access to anonymised data on the number of Zapper Users and the number and amount of Transactions; to
- (B) full access to the CRM Data.
4.4 When made available by the Service Provider, and provided that the Merchant pays the corresponding Monthly Subscription Fess, the CRM Services shall allow the Merchant to send Zapper Users (via notifications or messages within the Zapper Mobile Utility only) advertisements, special offers or promotions.
5. Implementation of Zapper Services
5.1 The Service Provider shall provide such remote, web-based support as is reasonably necessary to implement the Services and to integrate the Zapper Mobile Utility functionality with the Merchant's website, systems and the Merchant Materials.
5.2 The Service Provider shall waive its usual fees for such implementation and integration. Each party, therefore, shall bear its own costs of such implementation and integration.
5.3 Unless otherwise agreed with the Merchant, the Services do not include the provision of any hardware required to be able to receive the Services or integrate the Zapper Mobile Utility functionality with the Merchant's website, systems and the Merchant Materials.
Additional Terms and Conditions for the Scan-to-Pay Acquiring Services
1. Merchant Account
1.1 The Merchant Account is a data account that includes Payment details (including amounts, dates and applicable Monthly Subscription Fees (where relevant)), certain details about the Merchant and information about the Services. The Merchant Account is not a bank account. Interest does not accrue on the balance in the Merchant Account, or on any funds corresponding to such balances.
1.2 To be eligible for a Merchant Account, the Merchant must be:
- (A) operated by an individual who is at least 18 years old, resident in the U.S. and lawfully acting in the course of a profession, business or trade;
- (B) a company incorporated in the U.S.; or
- (C) a partnership established in the U.S.
1.3 The Merchant may access the Merchant Account through the Dashboard. Each time the Merchant seeks to access the Merchant Account, the Service Provider will check the Merchant's identity by asking for Passcodes. As long as the correct Passcodes are entered, the Service Provider will assume that the Merchant is the person giving instructions and making Transactions and the Merchant will be liable for them, except to the extent provided for in section 1.6 below. The Merchant must therefore keep the Passcodes secret and make sure that they are not stored on the Merchant's workstation in a way that enables others to impersonate the Merchant. In addition, for the avoidance of doubt, if the Merchant discloses the Passcodes to any person or entity whom the Merchant employs or otherwise retains, appoints or authorises to access the Merchant Account, the Merchant is also responsible and liable for any access, use or misuse or disclosure of the Merchant's Passcodes or Merchant Account by such person or entity.
1.4 The Service Provider can refuse to act on any instruction that the Service Provider believes: (i) was unclear; (ii) was not given by the Merchant; or (iii) might cause the Service Provider to breach a legal or other duty; or if the Service Provider believes the Service is being used for an illegal purpose.
1.5 Unless and until the Merchant notifies the Service Provider by email to email@example.com that the Merchant believes that someone else knows the Passcodes or can use the Service by impersonating the Merchant:>
- (A) the Merchant will be responsible for any instruction which the Service Provider receives and acts on, even if it was not given by the Merchant; and
- (B) the Service Provider will not be responsible for any unauthorized access to confidential information about the Merchant in the Merchant Account.
1.6 The Service Provider will do all that the Service Provider reasonably can to prevent unauthorized access to Merchant Account. As long as the Merchant has not breached the other terms contained in this section 1, the Service Provider will accept liability for any loss or damage to the Merchant resulting directly from any unauthorized access to Merchant Account (see clause 9 for limits on the Service Provider's liability).
1.7 Amounts shown in the Merchant Account are denominated in the currency in which Transactions are made.
2. Merchant Bank Account
2.1 The Merchant shall open and maintain in the Merchant's name a bank account (the "Merchant Bank Account") throughout the Term and for such period as may be required thereafter for the purposes of any applicable provisions of the Agreement. Settlement Payments (as described in section 5 below) shall be paid by the Service Provider into the Merchant Bank Account. The Merchant shall notify the Service Provider in writing in advance of any changes to the Merchant Bank Account.
2.2 The Service Provider may at any time require the Merchant to maintain a minimum balance in the Merchant Account (a "Reserve") to secure the performance of the Merchant's obligations under this Agreement. The Reserve will be an amount reasonably determined by the Service Provider to cover anticipated Refunds or Customer Claims. Notwithstanding the provisions of section 5 below, the Reserve may be funded by the balance in the Merchant Account or, if the Merchant does not have sufficient money in the Merchant Account, from funds deposited by the Merchant at the Service Provider's request, or from funds due to the Merchant under this Agreement.
2.3 The Service Provider may at any time require that the Merchant procure within 30 days after receiving the Service Provider's written request that a person or entity reasonably satisfactory to the Service Provider, provide the Service Provider with a guarantee, indemnity or other security (including the replacement of any existing security) in such form and over such assets as the Service Provider may reasonably require (including the Merchant Bank Account) to secure to the Service Provider's reasonable satisfaction the performance of the Merchant's obligations (including contingent or potential obligations) from time to time under the Agreement.
3. Payments and Refunds
3.1 The Scan-to-Pay Acquiring Services enable the Merchant to receive Payments from Zapper Users who authorise and initiate those Payments via the Zapper Mobile Utility. When a Zapper User initiates a Payment the Service Provider will process the Payment and, provided that the Zapper User's issuing bank authorises the payment, the Service Provider will, as agent of the Merchant, credit the Merchant Account for the amount of the Payment less any applicable Monthly Subscription Fees.
3.2 The Service Provider may suspend the processing of any Transaction where the Service Provider reasonably believes that the Transaction may be fraudulent or involves any criminal activity, until the satisfactory completion of the Service Provider's investigation or that of any third party under Applicable Law.
3.3 In circumstances where the Merchant agrees to refund all or part of a Payment in connection with a purchase made by a Zapper User (other than by issuing a credit note or directly exchange goods or resupplying services), the Merchant must initiate a Refund to that Zapper User via the Scan-to-Pay Acquiring Services.
3.4 When the Merchant wishes to make a Refund to a Zapper User, the Merchant must request the Refund by email to firstname.lastname@example.org, providing details of the Zapper User and the amount to be refunded. The Service Provider will debit the Merchant Account for the amount of the Refund plus the applicable Refund Fee and immediately credit the relevant Zapper User for the amount of the Refund. For the avoidance of doubt, if the funds to which the Refund relate have already been settled to the Merchant in accordance with section 5 below, the balance of the Merchant Account shall be reduced so as to reduce the level of future Settlement Payments made to the Merchant.
3.5 Even though the Service Provider is an agent of the Merchant for receiving payments to the Merchant, the Service Provider may refuse to execute a Refund if it does not meet the conditions in this Agreement or is prohibited by law. If the Service Provider does refuse to execute a Refund, within the time for processing the Refund, it will notify the Merchant (unless prohibited by law) of the refusal and, if possible, the reasons for it and the procedure for correcting any factual mistakes that led to the refusal. Any Refund that is refused will not be deemed to have been received for purposes of execution times and liability for non-execution or defective execution.
3.6 Subject to the provisions of clause 9, in order to reclaim an unauthorized or incorrectly executed Refund on the Merchant Account, the Merchant must notify the Service Provider without undue delay after becoming aware of the unauthorized or incorrect Refund and in any event no later than sixty (60) days after the debit date of the Refund.
3.7 The Service Provider may initiate a Refund if (a) a Payment is reversed by a court, regulatory authority or other third party acting in accordance with Applicable Law, (b) the Service Provider, in its sole and absolute discretion, accepts or has reason to believe that a Payment was not authorized by the relevant Zapper User, or (c) a Payment is allegedly fraudulent, unlawful, suspicious, or in breach of this Agreement.
3.8 The Service Provider may from time to time notify the Merchant of a Trading Limit and/or a Floor Limit. The Merchant shall not exceed the Trading Limit or complete a Transaction in excess of the Floor Limit without the Service Provider's prior written approval (to be given in the Service Provider's sole and absolute discretion). For the purposes of this section 3.8, the Service Provider may give such written approval via an electronic authorization that the Merchant may not be able to store. Such Trading Limit or Floor Limit shall continue to apply save if and to the extent that the Service Provider otherwise notifies the Merchant in writing.
4.1 The Merchant shall bear the risk of Chargebacks initiated in respect of Zapper Users. If a Chargeback is initiated, the Service Provider will deduct from the Merchant Account the amount of the Chargeback plus the applicable Chargeback Handling Fee.
4.2 For the avoidance of doubt, if the funds to which the Chargeback relate have already been settled to the Merchant in accordance with section 5 below, the balance of the Merchant Account shall be reduced by the amount of the Chargeback plus the Chargeback Handling Fee so as to reduce the level of future Settlement Payments made to the Merchant.
4.3 The Merchant will provide such information and assistance as is reasonably requested by the Service Provider to process, administer, challenge or dispute Chargebacks. If the Chargeback is successfully challenged and reversed, the Service Provider shall credit the Merchant the amount of such reversal. For the avoidance of doubt, in this circumstance, the applicable Chargeback Handling Fee shall not be credited back to the Merchant Account.
5.1 The Settlement Payment (calculated in accordance with section 5.2 below) shall be calculated:
- (A) on each Business Day; or
- (B) later if deferred by the Service Provider in accordance with section 5.5 below,
- (in each case, the "Settlement Calculation Date" and the period between subsequent Settlement Calculation Dates shall be the "Settlement Period").
5.2 Subject to the Service Provider's rights under section 5.6 below, the amount of the Settlement Payment for any Settlement Period shall be the aggregate amount of the Payments made by the Zapper Users in such Settlement Period less the following amounts:
- (A) the aggregate Scan Fees applicable to such Settlement Period;
- (B) the aggregate amount of Refunds made during such Settlement Period plus the aggregate Refund Fees applicable to such Refunds;
- (C) the aggregate amount of Chargebacks (plus the applicable Chargeback Handling Fees) made in such Settlement Period;
- (D) the Settlement Fee (if any) owed by the Merchant for such Settlement Payment; and
- (E) any other relevant Monthly Subscription Fees relating to such Settlement Period.
5.3 The Scan-to-Pay Acquiring Services will process Transactions in U.S. dollars.
5.4 Provided that the calculation for the Settlement Payment results in a positive number, the Service Provider shall pay the Settlement Payment by bank transfer into the Merchant's Bank Account on the third Business Day following the Settlement Calculation Date. If the calculation for the Settlement Payment results in a negative number, the Merchant shall delay settlement until the calculation for the Settlement Payment results in a positive number.
5.5 Notwithstanding the other provisions in this Agreement, the Service Provider may defer any Settlement Payment:
- (A) if the amount of such Settlement Payment is less than the minimum Settlement Payment threshold that the Service Provider reasonably determines in the Service Provider's sole and absolute discretion (of which the Service Provider will notify the Merchant from time to time), until the total Settlement Payment payable reaches that threshold;
- (B) where the Service Provider reasonably believes that a Transaction may be fraudulent or involves other criminal activity, until the satisfactory completion of the Service Provider's investigation or that of any third party; or
- (C) without limit in amount or time, if the Service Provider becomes aware or reasonably believes that the Merchant is in breach of or likely to be in breach of the Merchant's obligations under this Agreement.
5.6 Notwithstanding the other provisions in this Agreement, in respect of any sums specified in section 5.7 below, the Service Provider may at the Service Provider's option (which the Service Provider may exercise in the Service Provider's sole and absolute discretion):
- (A) deduct or withhold such sums from, or set-off such sums against, any Settlement Payment; and/or
- (B) send the Merchant an invoice for any or all such sums, which invoice shall be payable in accordance with its terms.
5.7 The sums referred to in section 5.6 above are:
- (A) any Refunds or Chargebacks processed since the previous Settlement Calculation Date (or, in the case of the first Settlement Calculation Date, since the Commencement Date);
- (B) any costs the Service Provider reasonably incurs in respect of Customer Claims; and/or
- (C) any amounts reasonably required to cover any sum due under any of the indemnities referred to in clause 8.6.
6. Merchant Obligations
6.1 The Merchant shall:
- (A) only accept Payments from and/or make Refunds to Zapper Users in connection with goods and/or services which the Merchant has sold and supplied to those Zapper Users;
- (B) only accept Payments and/or make Refunds in respect of goods and services the sale and supply of which commonly falls within the Merchant's business as identified to the Service Provider; and
- (C) only accept payments and submit data to the Service Provider in respect of Transactions which a Zapper User has authorized in accordance with Applicable Law, the Agreement and any other information or instructions provided by the Service Provider to the Merchant from time to time.
7. Liability for Anauthorised Refunds
was incorrectly executed due to an error by the Service Provider, the Service Provider shall at the Merchant's request immediately credit to the Merchant Account the refunded amount including all related Monthly Subscription Fees deducted therefrom.
7.2 The provisions of section 7.1 shall not apply:
- (A) where the unauthorized Refund arises from:
- (1) the Merchant's failure to keep the personalised security features of the Merchant's Merchant Account safe in accordance section 1.3 above; or
- (2) any breach of this Agreement by the Merchant, or the Merchant's negligence or wilful misconduct;
- (B) if the Merchant fails to notify the Service Provider without undue delay of any loss of the Merchant's Passcodes or other event that could reasonably be expected to have compromised the security of the Merchant Account after the Merchant has gained knowledge of such event; or
- (C) the Merchant fails to dispute and bring the unauthorized or incorrectly executed transaction to the Service Provider's attention within 60 days from the date of the transaction.