The terms and conditions below ("Payment Portal Terms and Conditions" or "PPTC") govern the services Create Internet Limited, a company registered in England and Wales under company number 03821624 and with its registered office at Unit 5 Westergate Business Centre, Westergate Road, Brighton, BN2 4QN (the "Company", "we" or "us") provide to you in relation to the provision of an online payment portal.
Please read these PPTC carefully before ordering any Services.
Throughout these PPTC where we refer to 'user', 'you' or 'your' we mean each registered subscriber who subscribes to the Services.
Create has entered into an agreement (the "Worldpay Terms" as defined in clause 1.1) with WorldPay (UK) Limited or WorldPay Limited ("Worldpay") for the provision of the Service. These PPTC are supplemental to the Worldpay Terms and our terms and conditions of business and terms of website use relating to www.create.net (the "Site") ("Related Terms"). By accepting these PPTC you are declaring that you have read and agree to the Worldpay Terms and Related Terms. The Related Terms can be found by visiting here or requesting a copy from Us via email by contacting: email@example.com.
You should print a copy of these PPTC for future reference.
The following definitions and rules of interpretation apply in this Agreement.
1.1 Buyer: means a person, company or any other legal entity who or which has ordered goods and/or services from you and initiated a transaction in respect of that order through the Services which are used by you;
Control: means shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Services: means the provision of an online payment portal;
Worldpay Terms: means the terms and conditions governing the use of the payment portal as applicable from time to time together with any supplemental regulations, policies or Scheme Rules (as defined in the Worldpay Terms) at Schedule 1.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Except as provided expressly in this clause 1 and Schedule 1 of this Agreement, terms as defined in the Worldpay Terms and Related Terms shall have the same meaning when used in this Agreement.
1.4 Except as provided expressly in this Agreement, the rules of interpretation in the Worldpay Terms shall apply to this Agreement.
1.5 For the purposes of this Agreement, and unless the context otherwise requires, references in the Worldpay Terms to "this Agreement" shall be to theWorldpay Terms as incorporated into this Agreement, with the alterations made for the purposes of this Agreement.
1.6 In this Agreement:
1.6.1 any reference to a "clause" or "Schedule" is, unless the context otherwise requires, a reference to a clause or Schedule in this Agreement, and does not include a reference to a clause or schedule in the Worldpay Terms or the Related Terms; and
1.6.2 any reference to a "WorldpayTerms clause" or "Worldpay Terms Schedule" is, unless the context otherwise requires, a reference to a clause or schedule in the Worldpay Terms.
1.7 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
1.8 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.9 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.10 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.11 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.12 A reference to any party shall include that party's personal representatives, successors and permitted assigns.
1.13 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.14 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time.
1.15 A reference to writing or written includes fax and e-mail.
1.16 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.17 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
1.18 A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
1.19 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.20 In the event that there is any inconsistency or conflict between these terms and the Worldpay Terms, the Worldpay Terms shall prevail to such extent as is absolutely necessary.
2.1 Subject to clause 2.2 below, this Agreement shall have legal effect from the date on which it is formally entered into by you via our online sign-up process and confirmed to you by Us or if earlier the date on which you begin to use the Services. ("Effective Date").
2.2 We shall use our reasonable endeavours to contact you within a reasonable time frame in the event that there are any issues, howsoever arising, surrounding your engagement for the Services. The Effective Date shall not commence until such issues, if capable of resolution, are resolved.
3.1 As soon as this Agreement becomes effective under clause 2 above, you shall adhere to and discharge in full all the applicable duties imposed in the Worldpay Terms and you shall have in full all the applicable rights, privileges, options and protections afforded in the Worldpay Terms except as further provided in this Agreement.
3.2 Upon commencement or at any other approved date we shall install and provide access to the Services. The Services are for the exclusive use by you for the taking of payments from your Buyers and shall not be used for any other purpose or on behalf of any other person.
4.1 You shall indemnify us against all losses, claims, demands, costs and expenses incurred or suffered by us including all claims for liquidated damages by Worldpay against us howsoever arising.
4.2 We shall use our reasonable endeavours to give you notice in writing as soon as possible after we become aware of any dispute between Us and Worldpay arising out of this Agreement and/or Worldpay Terms which may affect this Agreement.
4.3 You shall deal with any disputes that arise between Us and the Buyer arising out of the Worldpay Terms or through use of the Services and shall control and pay in full for any litigation, arbitration, mediation, adjudication, expert determination or other dispute settlement procedure in which we might be involved as a result of entering into this Agreement and the Worldpay Terms,whereupon you shall be deemed to have sole authority to manage and settle such dispute.
4.4 You shall on demand, pay to us the amount of all costs and expenses (including legal and out-of-pocket expenses) incurred by us in connection with enforcing or preserving any rights under, or monitoring the provisions of this Agreement, and any other document referred to in it.
4.5 You shall pay us any amounts due within 14 days of date of invoice or demand, unless otherwise stated in this Agreement.
4.6 You undertake that:
4.6.1 You will use the Services in accordance with all applicable laws;
4.6.2 You shall not integrate or attempt to integrate the software operating the Services with any other third party products or any site which has not subscribed to the Services;
4.6.3 You have commercially and legally sound terms and conditions governing any Buyers use of the Services;
4.6.4 You have clearly displayed contact and merchant location information on your website, including your trading address, phone number and email address;
4.6.5 You install and maintain the necessary security measures required for the use of the Services;
4.6.6 Shall procure that any passwords provided for the use of the Services are kept confidential and secure.
4.7 You shall not and, in the event of a company, shall procure that your employee/s, sub- contractor/s, associate/s or authorised individual/s, do not, access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:
4.7.1 Is unlawful, fraudulent, harmful or threatening;
4.7.2 Facilitates illegal activity; or
4.7.3 is otherwise illegal or causes damage or injury to any person or property.
4.8 You shall not and shall procure that any authorised user of the Services does not:
4.8.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) and except to the extent expressly permitted under this Agreement, attempt to copy, alter, damage, disrupt, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and accompanying media or intellectual property contained in the use of the Services in any form of media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer, modify, decrypt, decompile, in any manner or otherwise reduce to human-perceivable form all or any part of the Services;
4.8.2 access all or any part of the software operating the Services in order to build a product or service which competes with the Services; or
4.8.3 use the Services to provide services to third parties; or
4.8.4 unless otherwise permitted by this Agreement, license, sell, rent, lease, lend, transfer, assign, distribute, display, disclose, re-brand, or otherwise commercially exploit, or otherwise make the Services available to any third party; and
4.8.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Agreement.
4.9 You shall promptly report to us in the event that you suspect that there is any wrong- doing, fraudulent activity, money laundering, or otherwise illegal activity operating through use of the Services:
4.10 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, shall promptly notify Us.
5.1 The fees payable to us for the Services are included in the consolidated fees payable to us under the Related Terms, and each party acknowledges and agrees that this is good and valuable consideration for the purposes of this Agreement. There may be additional fees payable directly to Worldpay in relation to the use of the Services which may vary from time to time in accordance with the Worldpay Terms.
5.2 We shall assist with the initial set-up of the Services but any issues or problems relating to the Services should be directed to Worldpay in accordance with the Worldpay Terms.
6.1 Nothing in this Agreement shall limit or exclude the liability of either party for:
6.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
6.1.2 fraud or fraudulent misrepresentation or wilful default; and
6.1.3 any matter for which it would be unlawful to exclude or restrict liability.
Subject to clause 6.1:
6.2.1 We shall not be liable under any circumstances whether in contract, tort (including negligence), equity (including restitution), breach of statutory duty, orotherwise, for:
(a) any loss of profit, loss of revenue, loss of use, loss of goodwill, loss of data, loss due to interruption of business, or loss of anticipated savings, whether direct or indirect, and even if you have been advised of the possibility of such losses or damages;
(b) any loss that is an indirect consequence of any act or omission of ours; and
(c) any failure, omission, malfunction or breach by Worldpay under the Worldpay Terms.
6.2.2 our total liability for damage to property caused by the negligence of our employees in connection with this Agreement shall be limited to the annual fees actually paid to Us by You for the provision of the Services in any 12 month period for any one event or series of connected events
6.3 We shall not be responsible to you for any failure to perform our obligations under this Agreement where there is a corresponding failure by You or any Buyer to perform its obligations under these Terms and the Worldpay Terms.
7.1 This Agreement shall be effective from the Effective Date and shall continue in force until the parties have discharged all their obligations under it unless:
7.1.1the Worldpay Terms are terminated for any reason, in which case this Agreement shall terminate immediately and automatically, without further action being necessary by the parties, and subject to all the rights of the parties accrued up to the date of termination; or
7.1.2 this Agreement is terminated by one of the parties under clause 8.1.
8.1 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, we may, at any time, suspend or terminate this Agreement with immediate effect in writing if:
8.1.1.you fail to pay any amount due under this Agreement on the due date for payment, which for the avoidance of doubt, includes money due pursuant to the Related Terms and that sum (whether in whole or part) remains in default not less than 5 days after being notified to make such payment;
8.1.2 you commit a breach of any term of this Agreement, the Related Terms or the Worldpay Terms; or
8.1.3 there is a change of Control of your company (within the meaning of section 1124 of the Corporation Tax Act 2010); or
8.1.4 you are investigated or there is reasonable suspicion that you or your employees or associates have or have attempted to commit or have committed to prevent the commission of any fraudulent activity or breach of any security policies notified to you from time to time; or
8.1.5 any warranty given by you is found to be untrue or misleading whether in relation to this Agreement, the Related Terms and the Worldpay Terms.
8.2 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may (at any time) terminate this Agreement with immediate effect by giving written notice to the other party if:
8.2.1 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986);
8.2.2 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
8.2.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company)other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
8.2.4 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
8.2.5 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
8.2.6 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
8.2.7 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
8.2.8 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1 to clause 8.2.7 inclusive;
8.2.9 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
8.3 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, we may, by giving 30 calendar days notice, suspend or terminate this Agreement for any reason.
In the event that this Agreement is terminated you shall immediately cease to use the Services and those terms expressly stated as continuing under the Worldpay Terms shall continue to have full force and effect.
At its own expense, each party shall use all reasonable endeavours to procure that any necessary third party shall execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
No one other than a party to this Agreement, shall have any right to enforce any of its terms.
12.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
12.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
The Jurisdiction provisions within the Related Terms shall apply to this Agreement