Terms & Conditions
FIDELITY PAYMENT PROCESSING LIMITED
Terms and Conditions (these “Terms and Conditions”)
1. Definitions and interpretation
1.1 In this Agreement unless the context otherwise, the following terms shall have the following meanings:
the financial institution to which the Merchant’s Transaction instructions are routed for authorisation and settlement, as notified to Fidelity by the Merchant;
the Fees payable by the Merchant to Fidelity in respect of the financial institution to which the Merchant’s Transaction instructions are routed for authorisation and settlement, in accordance with the Order Form;
the services provided by the Acquirer from time to time relating to the authorisation and settlement of Transactions;
the terms and conditions to which the Merchant has contractually agreed in respect of the Acquirer and the Acquirer Services from time to time;
these Terms and Conditions together with the relevant Order Form, the Schedules referred to in that Order Form and any document referred to in these Terms and Conditions, the Order Form or the Schedules;
“Breach of Duty”
the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business;
a current and valid credit, debit or charge card that Fidelity may accept for processing by the Services under the terms of this Agreement;
“Change Control Form”
the template form set out in the Order Form, which template must be used by the Parties if they wish to amend this Agreement;
the date on which this Agreement has been signed by each of the Parties;
any information in any form or medium obtained by or on behalf of either Party from or on behalf of the other Party in relation to this Agreement which is expressly marked as confidential or which a reasonable person would consider to be confidential, whether disclosed or obtained before, on or after the Commencement Date, together with any reproductions of such information or any part of it;
the person that holds a Card and orders products or services from the Merchant in respect of which payment shall be made using the Services;
has the meaning set out in GDPR;
has the meaning set out in GDPR;
“Data Protection Legislation”
in relation to any Personal Data which is Processed in the performance of this Agreement, the Data Protection Act 1998 and the EU Data Protection Directive 95 / 46 / EC (until 25 May
2018), GDPR (on and from 25 May 2018), the Investigatory Powers Act 2016, Telecommunications (Lawful Business Practice), the Privacy and Electronic Communications Directive 2002 / 58 / EC, the Privacy and Electronic Communications (ECDirective) Regulations 2003 (SI 2003 / 2426), in each case together with all laws implementing or supplementing the same and any other applicable or equivalent data protection or privacy laws, and all other applicable law, regulations and codes of conduct relating to the processing of personal data and privacy, including the guidance and codes of practice issued by a relevant Supervisory Authority;
“Data Sharing Annex”
the annex to the Order Form setting out the scope, nature and purpose of Processing for the purposes of GDPR;
has the meaning set out in GDPR;
“Event of Force Majeure”
has the meaning given to it in Clause 12.1;
the fees payable by the Merchant to Fidelity for the provision by Fidelity of the Services, as set out in this Agreement (including the Order Form and the Schedules);
the General Data Protection Regulation (EU 2016/679);
“Intellectual Property Rights”
copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-‐up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-‐how and trade secrets) and any other intellectual property rights, in each case whether
registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
liability in or for breach of contract, Breach of Duty, torts (including negligence and intentional torts), deliberate breach (including deliberate personal repudiatory breach), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and, for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract);
the recipient of services from Fidelity under this Agreement, as set out in the Order Form;
allocated to the Merchant by the Acquirer in order for the Merchant to receive the Acquirer Services and process Transactions using the Services;
“Normal Business Hours”
09.00 to 17.30 Monday to Thursday, 09.00 to 15.30 Friday, on Business Days;
the written document Fidelity provides to the Merchant containing specific information relating to the particular services supplied or to be arranged to be supplied by Fidelity to the Merchant;
Fidelity and the Merchant, and “Party” shall mean either of them;
has the meaning given to it by GDPR, and relates only to personal data, or any part of such personal data, of which the Merchant is the Data Controller and in relation to which Fidelity is the Data Processor and providing services under this Agreement;
“Personal Data Breach”
has the meaning given to it by GDPR;
“Process” and “Processing”
has the meaning given to it by GDPR;
Fidelity’s time and materials rates for providing services from time to time in force;
a schedule containing a further description of the services provided by Fidelity to the Merchant, including further rights and obligations for the Parties in relation to such services;
the services that Fidelity provides to the Merchant under this Agreement, as set out in the Order Form and the relevant Schedule(s);
“Special Categories of Personal Data”
those categories of data listed in Article 9(1) GDPR;
(a) an independent public authority which is established by a
Member State pursuant to Article 51 GDPR;
(b) any similar regulatory authority responsible for the enforcement of Data Protection Legislation;
has the meaning given to it in Clause 10.1; and
a Card transaction:
a) processed with the intention of a Customer incurring a liability resulting in monies being paid from the Card issuer to the relevant financial institution and credited to the Merchant’s bank account; or
b) which has been processed with the intention of monies being remitted to the Customer’s Card account;
1.3 references to “Clauses” are to clauses of this Agreement; references to “Paragraphs” are to paragraphs of a Schedule;
1.4 the headings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
1.5 a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.6 a reference to a Party includes its personal representatives, successors or permitted assigns;
1.7 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral;
1.8 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-‐enacted;
1.9 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative, shall not limit the sense of the words preceding or following those terms, and shall be deemed to be followed by the words “without limitation” unless the context requires otherwise; and
1.10 a reference to “writing” or “written” includes in electronic form and similar means of communication.
2.1 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Merchant in whatever form and at whatever time. These Terms and Conditions apply to all Services.
2.2 Save as expressly provided in this Agreement, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated in this Agreement except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each of the Parties acknowledges that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
2.3 This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter of this Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in this Agreement.
2.4 The Order Form shall be in the form that Fidelity requires from time to time. This Agreement shall be legally formed and the Parties shall be legally bound when Fidelity has received and signed the Order Form that has been signed by an authorised signatory of the Merchant and submitted by the Merchant to Fidelity. Submission to Fidelity by the Merchant of the Order Form as signed by the Merchant shall be deemed to be an offer by the Merchant to purchase Services (as specified in the Order Form) from Fidelity, subject to the provisions of this Agreement, and Fidelity’s counter-‐signature on the Order Form shall be considered acceptance of such offer, but the requirements for Fidelity to perform any of its obligations under this Agreement shall be conditional upon Fidelity’s receipt from the Merchant of any advance payment of Fees as required under this Agreement.
2.5 If the Merchant provide to Fidelity a purchase order for the Merchant’s receipt of Services other than as set out in Clause 2.4, that purchase order (and any terms and conditions attached or referred to in it) shall be purely for the Merchant’s administrative purposes and shall not form part of this Agreement.
2.6 In the event of a conflict between these Terms and Conditions, Schedules and the Order Form, then:
2.6.1 the Order Form shall prevail over
2.6.2 these Terms and Conditions, which shall prevail over
2.6.3 a Schedule.
3.1 Fidelity will provide the Services to the Merchant as set out in the Order Form.
3.2 Fidelity warrants that it shall provide the Services with reasonable skill, care and diligence using appropriately experienced and qualified personnel.
3.3 Fidelity shall ensure that it:
3.3.1 has all necessary consents, rights and permission to enter into, and perform its obligations under, this
3.3.2 shall comply with all applicable laws, statutes, regulations and bye-‐laws in relation to the exercise of its rights
and performance of its obligations under this Agreement.
3.4 Fidelity is not responsible for any people, equipment, deliverables or services that it is not expressly stipulated to provide in this Agreement. The Merchant is responsible for any people, equipment, deliverables and services that it needs to obtain from someone other than Fidelity. Except for any matter in relation to which Fidelity specifically agrees in writing to advise or do, it shall not be responsible, or have any Liability (subject to Clause 9.2) for advising on, or failing to advise on, or doing, or failing to do, anything else.
3.5 Subject to Clause 9.2, Fidelity shall not have any Liability for any delays or failures to accurately perform its obligations under this Agreement if caused by any failure or delay on the Merchant’s part or on the part of the Merchant’s employees, agents or subcontractors or by any breach by the Merchant of this Agreement or any other agreement. If there is any slippage in time, Fidelity shall use its reasonable endeavours to reschedule delayed tasks to a mutually convenient time.
3.6 If Fidelity is delayed or hindered in providing any Services as a result of any breach, delay or failure by the Merchant to perform any of its obligations under this Agreement or of any other agreement between the Parties, then Fidelity may charge the Merchant at the Rates for any time reasonably incurred as a result of the hindrance or breach.
3.7 The Merchant acknowledges that Fidelity’s ability to provide the Services may be subject to the approval and acceptance
of third parties with whom the Merchant may have an independent contractual relationship, including the Acquirer, that provide merchant-‐acquiring services to the Merchant. Any such third-‐party services are the responsibility and liability of the relevant third party and the Merchant acknowledges that the acts or omissions of any such third party may impact on Fidelity’s ability to perform the Services. Fidelity shall not have any Liability (subject to Clause 9.2) for any delay in or non-‐performance of the Services which is caused by any such third party.
3.8 Fidelity reserves the right to change the Services at any time, including making changes to the Services to comply with applicable laws and/or regulations, or changes which do not materially affect the functionality of the Services. In the event that such changes impact the way in which the Merchant uses the Services, Fidelity will inform the Merchant in advance of the change.
3.9 Fidelity shall not provide any training of personnel utilised by the Merchant as part of the Services.
3.10.1 does not warrant that the Merchant’s use of the Services will be uninterrupted or error-‐free; and
3.10.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of
data over communications networks and facilities, including the Internet, and the Merchant acknowledges that
the Services may be subject to limitations, delays and other problems inherent in the use of such
Whilst Fidelity use Fidelity’s reasonable endeavours to make the Services available, Fidelity shall not have any Liability (subject to Clause 9.2) if for any reason the Services are unavailable for any time or for any period.
3.11 Fidelity does not guarantee that the Services will be free from faults. Subject to any other support made available in respect of a specific Service as set out in the Order Form or any Schedule, Fidelity shall use its reasonable endeavours to:
3.11.1 provide technical support via a “Help Desk” telephone service available during Normal Business Hours; and
3.11.2 correct any errors or omissions in the Services as soon as practicable during Normal Business Hours after
receiving full and clear information on them from the Merchant via the Help Desk telephone service;
(“Support Services”). Fidelity shall respond to a request for Support Services within a reasonable time, but Fidelity cannot guarantee any particular result or outcome nor within any particular time. In particular, without limitation, Fidelity may need to obtain support in turn from a third party that assists Fidelity with the provision of the Support Services.
3.12 Third-‐party providers of a particular Service may from time to time offer independent support services to the Merchant in respect of that Service, for which the Merchant acknowledges that Fidelity has no Liability (subject to Clause 9.2); in such circumstances, the contact details for the Merchant to obtain such support shall be as set out in the Order Form, as notified to the Merchant by Fidelity from time to time, or as otherwise made available to the Merchant by the relevant third party.
3.13 The Support Services exclude the resolution of faults or defects that arise as a result of the Merchant’s failure to comply with this Agreement or any other agreement between the Parties, or due to the act or omission of any third party. Fidelity may provide those excluded services as part of the Support Services at its absolute discretion and at the Rates; subject to Clause 9.2, Fidelity shall not have any Liability for its provision of any of those excluded services to the Merchant.
3.14 Except as specifically stipulated in this Agreement, Fidelity:
3.14.1 shall not be responsible for providing or achieving any particular results or outcomes or within a particular time;
3.14.2 excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law
or otherwise, to the fullest extent permitted by law in respect of this Agreement and the Services.
- The Merchant’s obligations
4.1 The Merchant shall:
4.1.1 ensure that any instructions it provides to Fidelity for or in respect of the Services are complete, accurate and
4.1.2 ensure that Transaction information shared by the Merchant with Fidelity in respect of the Services is complete,
accurate and up-‐to-‐date;
4.1.3 comply with the Acquirer Terms;
4.1.4 during the term of this Agreement and for such period as may be required following termination or expiry of this
Agreement as may be reasonably necessary, open and maintain in its name a MID;
4.1.5 obtain the prior written authorisation of Fidelity prior to moving the relevant Acquirer Services away from an
Acquirer to another Acquirer;
4.1.6 provide Fidelity with accurate and up to date information in respect of the Merchant’s MID and the Merchant’s
access to and use of the Acquirer Services, on which information Fidelity shall be entitled to rely in order to
provide the Services;
4.1.7 promptly provide to Fidelity such data, information and assistance that will enable Fidelity to carry out fully,
accurately and promptly its obligations under this Agreement;
4.1.8 have all rights, permissions and consents to enter into, and perform its obligations under, this Agreement, and
to make use of the Services; and
4.1.9 comply with all applicable laws, statutes, regulations and bye-‐laws in relation to the exercise of its rights and
performance of its obligations under this Agreement.
4.2 The Merchant acknowledges that it requires a MID to access the Services, and that the Acquirer may at any time:
4.2.1 reject MID applications at its discretion; and/or
4.2.2 terminate the Merchant’s merchant services agreement with the Acquirer in accordance with the Acquirer
In the event that Clause 4.2.1 or Clause 4.2.2 applies to the Merchant, Fidelity may terminate this Agreement with immediate effect by giving notice to the Merchant; the Merchant shall be obligated to pay to Fidelity the Fees that would otherwise have been payable by the Merchant to Fidelity in respect of each Service, had this Agreement continued (and not terminated early) until the earliest date that each Service could otherwise have been terminated by the Merchant in accordance with this Agreement, together with the Acquirer Fees until the latest such date.
4.3 It is the Merchant’s responsibility to ensure that the Services are sufficient and suitable for its purposes and meet its individual requirements. This responsibility includes ensuring that the Services, and any deliverables or other materials Fidelity provides as part of the Services, are compliant with any regulatory regime to which the Merchant is subject. Fidelity shall not be responsible or, subject to Clause 9.2, have any Liability in the event that the Services are not suitable for the Merchant’s purposes or do not meet the Merchant’s individual requirements, including if they fail to comply with any laws or regulations to which the Merchant is subject.
4.4 The Merchant is responsible for ensuring that it provides Fidelity with the information and assistance required to enable Fidelity to properly provide the Services. Fidelity shall not be responsible or, subject to Clause 9.2, have any Liability for any failure to provide the Services to the extent caused by the Merchant’s failure to properly ensure the provision of the relevant information and/or assistance, including as set out in Clause 4.1.
4.5 The Merchant is responsible for any complaints made by Customers in respect of goods and services made available by the Merchant, or the Services. Fidelity will direct any such complaints it receives from Customers to the Merchant.
4.6 The Merchant shall notify Fidelity immediately in the event that the Merchant becomes aware of any:
4.6.1 breach of applicable laws and/or regulations in respect of use of the Services;
4.6.2 matter which may impact the ability of Fidelity to provide the Services in accordance with this Agreement and
applicable laws and/or regulations;
4.6.3 errors in the Services or the Merchant’s use of the Services, including in respect of Transactions; and/or
4.6.4 dispute between the Merchant and the Acquirer.
- Acquirer Services
5.1 For the avoidance of doubt, Fidelity accepts Liability in respect of the Services only. The Merchant’s access to, and the availability of, Acquirer Services is subject to the relevant Acquirer Terms. The Merchant warrants that it has read and accepted the Acquirer Terms. Fidelity shall not have any Liability (subject to Clause 9.2) in respect of any Acquirer Terms, including any failure by the Merchant or the Acquirer to comply with the relevant Acquirer Terms or to honour the terms of any Transaction.
5.2 The Merchant shall indemnify Fidelity against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Fidelity arising out of or in connection with:
5.2.1 any breach, negligent performance or non-‐performance by the Merchant or the Acquirer of any Acquirer Terms
or the Acquirer Services;
5.2.2 any claim made against Fidelity by any third party arising out of the Acquirer Services in respect of any
5.2.3 any failure by the Merchant to obtain, or maintain, a valid and current MID.
This indemnity shall apply whether or not Fidelity have been negligent or at fault.
- Intellectual Property Rights
6.1 The Merchant acknowledges that all Intellectual Property Rights in the Services belong and shall belong to Fidelity or the relevant third-‐party owners (as the case may be), and the Merchant shall have no rights in or to the Services other than the right to use them in accordance with the terms of this Agreement.
6.2 Fidelity acknowledges that the Merchant shall own and retain all rights, title and interest in and to the Personal Data. Fidelity shall not have any rights to access, use or modify the Personal Data without the Merchant’s prior written consent, except to the extent necessary for the Merchant to access the Services or as otherwise required by applicable law.
- Data Protection
7.1 The Parties acknowledge that, for the purposes of Data Protection Legislation, the Merchant is the Data Controller and Fidelity is the Data Processor of any Personal Data, and that each Party is obligated to comply with the Data Sharing Annex in respect of Processing.
7.2 Each Party confirms that it holds, and during the term of this Agreement will maintain, all registrations and notifications required in terms of the Data Protection Legislation which are appropriate to its performance of the obligations under this Agreement.
7.3 Each Party confirms that, in the performance of this Agreement, it will comply with Data Protection Legislation.
7.4 Fidelity shall:
7.4.1 Process Personal Data only on documented instructions from the Merchant, unless required to do so by Data
Protection Legislation or any other applicable law to which Fidelity is subject; in such a case, Fidelity shall inform
the Merchant of that legal requirement before Processing, unless that law prohibits Fidelity to so inform the
7.4.2 ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or
are under an appropriate statutory obligation of confidentiality;
7.4.3 take all measures required pursuant to Article 32 of the GDPR in respect of security of Processing;
7.4.4 not commission any subcontractor in respect of Processing Personal Data without the Merchant’s prior written
consent (such consent not to be unreasonably withheld or delayed), and ensure that any such subcontractor
Fidelity commission complies with the provisions of this Clause 7 as if it was a Party; for the avoidance of doubt,
by entering into this Agreement the Merchant provides its consent to Fidelity using those subcontractors listed
in the Data Sharing Annex;
7.4.5 taking into account the nature of the Processing, assist the Merchant by putting in place appropriate technical
and organisational measures, insofar as this is possible, for the fulfilment of the Merchant’s obligation to respond
to requests for exercising the Data Subject’s rights laid down in Data Protection Legislation, to the extent that
such requests relate to this Agreement and Fidelity’s obligations under it;
7.4.6 assist the Merchant in ensuring compliance with the Merchant’s obligations pursuant to Articles 32 to 36 of the
GDPR taking into account the nature of Processing the Personal Data and the information available to Fidelity;
7.4.7 at the Merchant’s option, delete (to the extent practicable) or return all the Personal Data to the Merchant after
termination of this Agreement or otherwise on the Merchant’s request, and delete existing copies (to the extent
practicable) unless applicable law requires Fidelity’s ongoing storage of the Personal Data;
7.4.8 not share the Personal Data with any other processors of personal data that the Merchant commissions without
the Merchant’s prior written consent;
7.4.9 make available to the Merchant all information necessary to demonstrate Fidelity’s compliance with this Clause
7.4, and allow for and contribute to audits, including inspections, conducted by the Merchant or another auditor
mandated by the Merchant; and
7.4.10 inform the Merchant immediately if, in Fidelity’s opinion, an instruction from the Merchant infringes (or, if acted
upon, might cause the infringement of) Data Protection Legislation.
7.5 Each Party will notify the other Party as soon as is reasonably practicable if it becomes aware of a Personal Data Breach relating to either Party’s obligations under this Agreement.
7.6 The Merchant shall undertake appropriate data protection impact assessments to ensure that Processing of Personal Data complies with Data Protection Laws. Fidelity will provide the Merchant with reasonable assistance, where necessary and upon the Merchant’s request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.
7.7 It is the Merchant’s responsibility to ensure that Personal Data is dealt with in a way that is compliant with Article 5(1) of the GDPR.
7.8 The Merchant shall ensure that:
7.8.1 the Merchant is able to justify the Processing of Personal Data in accordance with Article 6(1) of the GDPR
(including, where applicable, obtaining any and all consents of Data Subjects required in order to commence the
Processing), and that the Merchant has recorded or documented this in accordance with the record keeping
requirements of the GDPR;
7.8.2 where Personal Data falls within the Special Categories of Personal Data, Article 9(2) of the GDPR applies to that
Personal Data before Processing takes place;
7.8.3 where Article 9(2) of the GDPR does not apply to any Personal Data falling within the Special Categories of
Personal Data, no such Personal Data will be sent to Fidelity; and
7.8.4 the Merchant has all necessary appropriate consents and notices in place to enable the lawful transfer of the
Personal Data to Fidelity for the Term for the purposes of this Agreement.
7.9 In the event that Fidelity:
7.9.1 complies with the Merchant’s instructions in respect of Processing, Fidelity shall not have any Liability (subject
to Clause 9.2) for any damage caused by Processing that Personal Data, or for any consequences in the event
that such Processing otherwise infringes Data Protection Legislation, to the extent that such damage or
consequences result from Fidelity’s compliance with such instructions; and/or
7.9.2 refuses to comply with the Merchant’s instructions in respect of Processing due to concerns that compliance will
cause a breach of Data Protection Legislation, Fidelity shall not have any Liability (subject to Clause 9.2) for any
failure to follow such instructions.
7.10 Each Party agrees to indemnify, and keep indemnified and defend at its own expense, the other Party, against all costs, claims, damages or expenses incurred by the other Party or for which the other Party may become liable, due to any failure by the first Party or its employees or agents to comply with this Clause 7.
8.1 In consideration of the Merchant obtaining the relevant Services from Fidelity pursuant to this Agreement, the Merchant shall pay to Fidelity the Fees.
8.2 Fidelity will issue invoices to the Merchant for the Fees on a monthly basis in accordance with the Order Form (and otherwise as set out in this Agreement). The Merchant shall pay the Fees to Fidelity within 30 days of the date of the invoice.
8.3 All sums due under this Agreement are exclusive of VAT or other sales, import or export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of any sums due.
8.4 The Merchant shall pay to Fidelity all sums due under this Agreement:
8.4.1 by any payment method that Fidelity may stipulate from time to time; no payment shall be considered paid until
Fidelity has received it in cleared funds in full;
8.4.2 in the currency in force in England from time to time; and
8.4.3 in full without any set-‐off, counterclaim, deduction or withholding (other than any deduction or withholding of
tax as required by law).
8.5 Fidelity reserves the right to increase the Fees by giving the Merchant not less than 30 days’ notice of such increase taking effect. If, following receipt of such notice from Fidelity, the Merchant intends to terminate this Agreement, the Merchant
may terminate this Agreement by the provision to Fidelity of 30 days’ notice, to be served on Fidelity no later than two Business Days following the Merchant’s receipt of Fidelity’s notice in respect of the Fee increase.
8.6 If the Merchant is late in paying any part of any monies due to Fidelity under this Agreement and such payment remains outstanding for seven days following Fidelity providing notice to the Merchant of such outstanding payment, Fidelity may (without prejudice to any other right or remedy available to Fidelity whether under this Agreement or by any statute, regulation or bye-‐law) do any or all of the following:
8.6.1 recover Fidelity’s costs and expenses and charges (including legal and debt collection fees and costs) in collecting
the late payment; and/or
8.6.2 suspend performance of this Agreement until payment in full has been made.
8.7 The Merchant acknowledges that Fidelity may use and share the Merchant’s information with third parties (including credit reference agencies, Fidelity’s associated companies, Fidelity’s funders and any person to whom Fidelity may assign its rights under this Agreement) to help Fidelity and those third parties assess financial and insurance risks, recover debt, develop customer relationships, services and systems, and prevent and detect crime. That information may include information about Transactions.
8.8 Fidelity reserves the right to:
8.8.1 share information it holds in respect of the Merchant with credit reference agencies; and
8.8.2 make periodic searches of and provide information (including how the Merchant manages its account and any
arrears) to credit reference agencies and fraud prevention agencies to manage and make decisions about the
Such information may be used by other credit providers to take decisions about the Merchant and its financial associates.
- Limitation of Liability
9.1 This Clause 9 prevails over all of this Agreement and sets forth the entire Liability of Fidelity, and the sole and exclusive remedies of the Merchant, in respect of:
9.1.1 performance, non-‐performance, purported performance, delay in performance or mis-‐performance of this
Agreement or any services in connection with this Agreement; or
9.1.2 otherwise in relation to this Agreement or entering into this Agreement.
9.2 Neither Party excludes or limits its Liability for:
9.2.1 its fraud; or
9.2.2 death or personal injury caused by its Breach of Duty; or
9.2.3 any breach of the obligations implied by Section 2 of the Supply of Goods and Services Act 1982; or
9.2.4 any other Liability which cannot be excluded or limited by applicable law.
9.3 Subject to Clause 9.2, and other than any Liability arising pursuant to this Agreement, Fidelity does not accept, and hereby excludes, any Liability for Breach of Duty.
9.4 Subject to Clause 9.2, Fidelity shall not have any Liability in respect of any:
9.4.1 indirect or consequential losses, damages, costs or expenses;
9.4.2 loss of actual or anticipated profits;
9.4.3 loss of contracts;
9.4.4 loss of use of money;
9.4.5 loss of anticipated savings;
9.4.6 loss of revenue;
9.4.7 loss of goodwill;
9.4.8 loss of reputation;
9.4.9 loss of business;
9.4.10 ex gratia payments;
9.4.11 loss of operation time;
9.4.12 loss of opportunity;
9.4.13 loss caused by the diminution in value of any asset; or
9.4.14 loss of, damage to, or corruption of, data;
whether or not such losses were reasonably foreseeable or Fidelity or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 9.4.2 to 9.4.14 (inclusive) of this Clause 9.4 apply whether such losses are direct, indirect, consequential or otherwise.
9.5 Subject to Clause 9.2, Fidelity’s total aggregate Liability arising out of or in connection with:
9.5.1 a particular Service shall be limited to the extent set out in each relevant Schedule;; and
9.5.2 all other claims in aggregate (including claims in respect of a Service for which a limit is not set out in that
relevant Schedule) shall be limited to 110% of all amounts paid and total other sums payable, in aggregate, by
the Merchant to Fidelity under this Agreement in the 12 months prior to the date on which the claim first arose.
9.6 The limitation of Liability under Clause 9.5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
9.7 The Merchant acknowledges and accepts that Fidelity only provides the Services on the express condition that Fidelity will not be responsible, nor, subject to Clause 9.2, shall Fidelity have any Liability, directly or indirectly, for any act or omission of the Merchant, the Merchant’s affiliates or its or their employees, agents, contractors or customers or any third party.
9.8 Nothing in this Agreement shall restrict or limit either Party’s general obligation at law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this Agreement.
- Term and termination
10.1 This Agreement shall commence on the Commencement Date and, unless terminated earlier in accordance with the termination provisions under this Agreement, shall continue in full force and effect until the latest of:
10.1.1 the completion of the provision of the Services under the last extant Schedule; or
10.1.2 the conclusion of payment of all Fees due under this Agreement;
10.2 Without prejudice to any of Fidelity’s rights or remedies, Fidelity may terminate this Agreement (or any Schedule) with immediate effect (or such other notice period as Fidelity sees fit at its absolute direction) by giving notice to the Merchant if:
10.2.1 the Merchant fails to pay any amount due under this Agreement on the due date for payment and such amount
remains in default not less than 14 days after being notified to make such payment;
10.2.2 in accordance with Clause 4.2; and/or
10.2.3 if the Acquirer requires Fidelity to do so.
10.3 Without affecting any other rights or remedies that it may be entitled to, either Party may give notice in writing to the other Party terminating this Agreement (or any Schedule) immediately if:
10.3.1 without prejudice to Clause 10.2, the other Party is in material breach of any of its obligations under this
Agreement (or in respect of that particular Schedule), and, where such material breach is capable of remedy,
the other Party fails to remedy such breach within a period of 10 Business Days of being notified of such breach
by the Party;
10.3.2 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it
shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is
made or a resolution is passed for the winding-‐up of the other Party or an administration order is made or an
administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or
manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking
or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or
administrative receiver or administrator or which entitle the court to make a winding-‐up or bankruptcy order or
the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction; and/or
10.3.3 the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its
10.4 Without prejudice to any of Fidelity’s rights or remedies, Fidelity may terminate this Agreement (or any Schedule) at any time by giving not less than one month’s notice to the Merchant.
10.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement (or in respect of the relevant terminated or expired Schedule) shall remain in full force and effect.
10.6 Termination or expiry of this Agreement (or any Schedule) shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement (or in respect of a Schedule) which existed at or before the date of termination or expiry.
10.7 On termination or expiry of this Agreement (or in respect of any Schedule) for any reason:
10.7.1 Fidelity shall cease to provide the Services under this Agreement (or that particular Schedule); and
10.7.2 the Merchant shall pay to Fidelity all amounts owing to Fidelity under this Agreement (or in respect of that
Schedule), whether invoiced or not.
11.1 Each Party must keep the other Party’s Confidential Information confidential and must not:
11.1.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations
under this Agreement; or
11.1.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by
this Clause 11.
Each Party must use adequate procedures and security measures to protect the other Party’s Confidential Information from inadvertent disclosure or release to unauthorised persons.
11.2 A Party may disclose the other Party’s Confidential Information to those of its employees, agents and subcontractors who need to know such Confidential Information provided that:
11.2.1 it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information
before disclosure; and
11.2.2 it does so subject to obligations equivalent to those set out in this Clause 11.
11.3 A Party may disclose the Confidential Information of the other Party to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 11.3, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
11.4 The obligations of confidentiality in this Clause 11 shall not extend to any matter which either Party can show:
11.4.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations
of this Agreement; or
11.4.2 was independently developed by it; or
11.4.3 was independently disclosed to it by a third party entitled to disclose the same; or
11.4.4 was in its written records prior to receipt.
11.5 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.
11.6 On termination of this Agreement, each Party must:
11.6.1 return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or
based on the other Party’s Confidential Information;
11.6.2 erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
11.6.3 certify in writing to the other Party that it has complied with the requirements of this Clause 11.6, provided that
a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other
Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory
authority, or to otherwise maintain reasonable business records. The provisions of this Clause 11 shall continue
to apply to any such documents and materials retained by a recipient Party following termination of this
Agreement for any reason.
11.7 The provisions of this Clause 11 shall continue to apply after termination of this Agreement.
11.8 Fidelity may identify the Merchant as Fidelity’s client and the type of services provided by Fidelity to the Merchant, including the use by Fidelity of the Merchant’s brand and/or logo from time to time for marketing and sales purposes, provided that, in doing so, Fidelity shall not reveal any of the Merchant’s Confidential Information (without the Merchant’s prior written consent).
- Force Majeure
12.1 Subject to Clause 9.2, Fidelity shall not have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen. An “Event of Force Majeure” means any cause outside of Fidelity’s reasonable control, including act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-‐governmental, supra-‐national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-‐out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), and/or shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation.
12.2 Fidelity agrees to inform the Merchant upon becoming aware of an Event of Force Majeure, such information to contain details of the circumstances giving rise to the Event of Force Majeure.
12.3 The performance of Fidelity’s obligations shall be suspended during the period that the circumstances persist and Fidelity shall be granted an extension of time for performance equal to the period of the delay.
12.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
12.5 If the performance of any obligations is delayed under this Clause 12, the Merchant shall nevertheless accept performance as and when Fidelity shall be able to perform.
12.6 If the breach, hindrance or delay caused by the Event of Force Majeure as set out in Clause 12.1 continues without a break for more than one month, Fidelity may terminate this Agreement immediately by notice to the Merchant, in which event neither Party shall have any Liability (subject to Clause 9.2) to the other Party by reason of such termination.
12.7 If Fidelity has contracted to provide identical or similar services to more than one client and Fidelity is prevented from fully meeting its obligations to the Merchant due to an Event of Force Majeure, Fidelity may decide at its absolute discretion which contracts it will perform and to what extent.
- Change control
13.1 Fidelity may, at any time, vary the terms of this Agreement by the provision of 30 days’ notice to the Merchant; in the event that the Merchant does not agree to the variation, it may terminate this Agreement on the provision to Fidelity of not less than 20 days’ notice to take effect at the end of the 30 day notice period in respect of the variation. No other change to this Agreement shall be binding unless it is agreed in writing signed by each of the Parties, expressed to be for the purpose of such amendments and in the format of a Change Control Form.
13.2 If Fidelity would like to make any change to this Agreement, it may recommend a proposal for the change.
13.3 If the Merchant would like to make any change to this Agreement, one of the Merchant’s authorised representatives may request that Fidelity makes a proposal for bringing about the change.
13.4 To the extent the change is feasible, Fidelity shall state within a reasonable time what would be the effects of the change, including on cost, Fees, timetable and any impact on the rest of the Services and this Agreement and any other agreement between the Parties.
13.5 Neither Party shall unreasonably withhold or delay agreement to a change reasonably requested by the other Party. Both
Parties shall use their respective reasonable endeavours to agree to the change and in a timely manner.
13.6 To the extent the change affects any timescales, the timescales shall be automatically extended accordingly.
13.7 The final agreed change shall be noted in an agreed Change Control Form and signed by each of the Parties. Change Control Forms shall be numbered sequentially by the Parties and a status log kept by each of the Parties.
13.8 Until a Change Control Form is signed by both Parties, no change shall come into effect.
- Freedom to contract
The Parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver and to exercise their rights and perform their obligations under this Agreement.
This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
16.1 Any notice given to either Party under or in connection with this Agreement shall be in writing, addressed to the relevant Party at its registered office or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-‐paid first-‐class post, recorded delivery, commercial courier or by email (provided that a confirmatory copy is given by hand, sent by pre-‐paid first-‐class post or recorded delivery, or by commercial courier, in accordance with this Clause 16.1 within one Business Day of transmission of such email).
16.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 16.1; if sent by pre-‐paid first-‐class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, at the time at which that email has been sent (where the confirmation of sending shall be conclusive evidence of proof that a notice was sent by email).
16.3 The provisions of this Clause 16 shall not apply to the service of any proceedings or other documents in any legal action.
17.1 The Merchant must not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer, novate or sub-‐contract any of its obligations under it, without the prior written consent of Fidelity (such consent not to be unreasonably withheld or delayed).
17.2 Fidelity may, from time to time, assign or subcontract any or all of its rights and obligations under this Agreement to a member of its Group, where, for such purposes, “Group” means, in relation to Fidelity, Fidelity, any subsidiary or holding company from time to time of Fidelity, and any subsidiary from time to time of a holding company of Fidelity.
1.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-‐provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
1.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
2.1 A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
2.2 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- Third party rights
A person who is not a Party shall not have any rights under or in connection with this Agreement.
- No partnership
Nothing in this Agreement shall constitute a partnership or employment or agency relationship between the Parties.
- Governing law and jurisdiction
5.1 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 laws of England.
5.2 The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim
that arises out of or in connection with this Agreement or its subject matter or formation.
Terminal Services Schedule
This is a Schedule to the Terms and Conditions of Fidelity Payment Processing Limited. This Schedule applies to the Terminal Services as stipulated in the Order Form (as amended by the Parties by a Change Control Form).
Unless the context otherwise requires, the definitions used in the Terms and Conditions apply to this Schedule. Any other terms defined in this Schedule have that meaning for this Schedule only.
In this Schedule, the following terms shall have the following meanings unless the context requires otherwise:
“Consumables” batteries, paper rolls, printer ink or cartridges, all power and other accessories required or desired for operation of the Terminal;
“Delivery” the transfer of physical possession of the Terminal to the Merchant at the Location;
“Hire Fees” the fees paid and payable by the Merchant for the provision by Fidelity of the Terminal Services, as set out in the Order Form;
“Hire Period” the Initial Hire Period together with all Renewed Hire Periods;
“Hire Start Date” has the meaning set out in the Order Form;
“Infrastructure” all necessary telecommunications devices, connections, third-‐ party equipment, utilities and other requirements necessary for the use and performance of the Terminal (including networks, systems and Internet access as appropriate);
“Initial Hire Period” has the meaning set out in the Order Form;
“Location” has the meaning set out in the Order Form;
“Network” the PSTN, Broadband or mobile telephone network upon which the Terminal will operate to process Transactions;
“Renewed Hire Period” has the meaning given to it in the Order Form;
“SIM Card” the card used with a Terminal which uses a Network to process Transactions;
“Terminal” the items of equipment listed in the Order Form, all substitutions, replacements or renewals of such equipment, and all related accessories, manuals and instructions provided for it; and
“Terminal Services” the hire to the Merchant by Fidelity of the Terminal, together with ancillary services provided by Fidelity (including processing Transactions through the Terminal), in accordance with this Agreement.
- Terminal hire
2.1 Fidelity shall hire the Terminal to the Merchant for use at the Location subject to this Agreement, for the purposes of Transactions.
2.2 Fidelity shall not, other than in the exercise of its rights under this Agreement or applicable law, interfere with the Merchant’s quiet possession of the Terminal.
- Hire Fees
The Merchant shall pay the Hire Fees to Fidelity in accordance with this Agreement.
4.1 Fidelity shall make Delivery of the Terminal, and shall use reasonable endeavours to effect Delivery by the date and time agreed between the Parties.
4.2 The Merchant shall procure that a duly authorised representative of the Merchant shall be present at the Delivery of the Terminal. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Merchant has examined the Terminal and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by Fidelity, the Merchant’s duly authorised representative shall sign a receipt confirming such acceptance.
4.3 If set out in the Order Form, Fidelity shall (at the Merchant’s expense) install and configure the Terminal at the Location. The Merchant shall procure that a duly authorised representative of the Merchant shall be present at installation and configuration of the Terminal. Acceptance by such representative of installation and configuration shall constitute conclusive evidence that the Merchant has examined the Terminal and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by Fidelity, the Merchant’s duly authorised representative shall sign a receipt confirming such acceptance.
4.4 To facilitate Delivery, installation and configuration, the Merchant shall (at its sole expense) provide all requisite materials, facilities, access and suitable working conditions to enable the same to be carried out safely and expeditiously by Fidelity at the Location.
4.5 The Terminal shall at all times remain the property of Fidelity or its third-‐party licensors, and the Merchant shall have no right, title or interest in or to the Terminal (save the right to possession and use of the Terminal subject to the terms and conditions of this Agreement).
4.6 The risk of loss, theft, damage or destruction of the Terminal shall pass to the Merchant on Delivery. The Terminal shall remain at the sole risk of the Merchant during the Hire Period and any further term during which the Terminal is in the possession, custody or control of the Merchant (“Risk Period”) until such time as the Terminal is redelivered to Fidelity. During the Hire Period and the Risk Period, the Merchant shall, at its own expense, obtain and maintain the following insurances:
(a) insurance of the Terminal to a value not less than its full replacement value comprehensively against all
usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as Fidelity may
from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the Terminal would insure for, or such
amount as Fidelity may from time to time reasonably require, to cover any third party or public liability
risks of whatever nature and however arising in connection with the Terminal; and
(c) insurance against such other or further risks relating to the Terminal as may be required by law, together
with such other insurance as Fidelity may from time to time consider reasonably necessary and advise
to the Merchant.
4.7 All insurance policies procured by the Merchant shall be endorsed to provide Fidelity with at least 20 Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon Fidelity’s request name Fidelity on the policies as a loss payee in relation to any claim relating to the Terminal. The Merchant shall be responsible for paying any deductibles due on any claims under such insurance policies.
4.8 The Merchant shall give immediate written notice to Fidelity in the event of any theft, loss, accident or damage to the Terminal arising out of or in connection with the Merchant’s possession or use of the Terminal, or if the Terminal otherwise becomes inoperable for any reason. The Merchant will be responsible to pay Fidelity’s then current replacement or repair charges (as applicable, and charged at the Rates where relevant) in respect of each Terminal which is stolen, lost, damaged or otherwise inoperable, and the Merchant will indemnify Fidelity from and against any loss, damage, costs and expenses and other liabilities Fidelity may incur as a consequence of Fidelity hiring the Terminal to the Merchant.
4.9 If the Merchant fails to effect or maintain any of the insurances required under this Agreement, Fidelity shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Merchant.
4.10 The Merchant shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Fidelity and proof of premium payment to Fidelity to confirm the insurance arrangements.
- Merchant responsibilities
5.1 The Merchant shall during the Hire Period:
(a) ensure that the Terminal is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
(b) take such steps (including compliance with all safety and usage instructions provided by Fidelity) as may be necessary to ensure, so far as is reasonably practicable, that the Terminal is at all times safe and without risk to health when it is being set, used or maintained by a person at work;
(c) maintain at its own expense the Terminal in good and substantial repair in order to keep it in as good an operating condition as it was on the Hire Start Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, make good any damage to the Terminal, and keep the Terminal at all times safely and securely;
(d) make no alteration to the Terminal and shall not remove any existing component(s) from the Terminal;
(e) keep Fidelity fully informed of all material matters relating to the Terminal;
(f) keep the Terminal at all times at the Location and shall not move or attempt to move any part of the Terminal to any other location without Fidelity’s prior written consent;
(g) permit Fidelity or its duly authorised representative to inspect, repair, maintain and/or remove the Terminal at all reasonable times and for such purpose to enter upon the Location or any premises at which the Terminal may be located, and shall grant reasonable access and facilities for the same;
(h) maintain operating and maintenance records of the Terminal and make copies of such records readily available to Fidelity, together with such additional information as Fidelity may reasonably require;
(i) not, without the prior written consent of Fidelity, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Terminal or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(j) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Fidelity in the Terminal;
(k) not suffer or permit the Terminal to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Terminal is so confiscated, seized or taken, the Merchant shall notify Fidelity and the Merchant shall at its sole expense use its best endeavours to procure an immediate release of the Terminal and shall indemnify Fidelity on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(l) have in place all Infrastructure;
(m) monitor the connectivity of the Terminal, and the Merchant acknowledges that Fidelity will not monitor for, or inform the Merchant in respect of, any loss of connectivity;
(n) provide all Consumables necessary for the operation of the Terminal during the Hire Period;
(o) reconcile Card payments made using the Terminal in a timely way and inform Fidelity of any discrepancy immediately;
(p) store and, where appropriate, destroy receipts and Customer information securely;
(q) be responsible for any unauthorised or fraudulent transactions performed on the Terminal whilst in the Merchant’s possession or under the Merchant’s control;
(r) download and use any software updates in respect of the Terminal made available by Fidelity for remote download;
(s) not use the Terminal for any unlawful purpose;
(t) ensure that at all times the Terminal remains identifiable as being Fidelity’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Terminal;
(u) deliver up the Terminal at the end of the Rental Period or on earlier termination of this Agreement at such address as Fidelity requires, or if necessary allow Fidelity or its representatives access to the Location or any premises where the Terminal is located for the purpose of removing the Terminal; and
(v) not do or permit to be done anything which could invalidate the insurances referred to in Paragraph
5.2 The Merchant acknowledges that Fidelity shall not be responsible for any loss of or damage to the Terminal whilst the Terminal is within the Merchant’s control, or otherwise arising out of or in connection with any negligence, misuse, mishandling of the Terminal or otherwise caused by the Merchant or its officers, employees, agents and contractors, and the Merchant undertakes to indemnify Fidelity on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Merchant to comply with the terms of this Schedule.
6.1 Fidelity warrants that the Terminal shall substantially conform to its specification (as made available by Fidelity), be of satisfactory quality and fit for any purpose held out by Fidelity. Fidelity shall use all reasonable endeavours to remedy, free of charge, any material defect in the Terminal which manifests itself during the Hire Period, provided that:
(a) the Merchant notifies Fidelity of any defect, using the Support Services, within five Business Days of the
defect occurring or of becoming aware of the defect;
(b) Fidelity is permitted to make a full examination of the alleged defect (in respect of which the Merchant
shall give to Fidelity access to such premises and information as Fidelity may require);
(c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised
manipulation by any person other than Fidelity’s authorised personnel;
(d) the defect did not arise out of any information, design or any other assistance supplied or furnished by
the Merchant or on its behalf; and
(e) the defect is directly attributable to defective material, workmanship or design.
6.2 Insofar as the Terminal comprises or contains equipment or components which were not manufactured or produced by Fidelity, the Merchant shall be entitled only to such warranty or other benefit as Fidelity has received from the manufacturer. In the event that the Terminal is manufactured by a third party, Fidelity does not warrant that the Terminal will be free from defects or faults.
6.3 If Fidelity fails to remedy any material defect in the Terminal in accordance with Paragraph 6.1, Fidelity shall, at the Merchant’s request, accept the return of part or all of the Terminal and make an appropriate reduction (at Fidelity’s absolute discretion) to the Hire Fees payable during the remaining term of the Hire Period.
6.4 If the Merchant makes an invalid claim under the warranty set out in Paragraph 6.1, Fidelity may charge the Merchant for Fidelity’s fees and costs of dealing with that claim, including examining (and travelling in order to examine), storing, repairing or replacing the Terminal.
6.5 Fidelity does not warrant that use of the Terminal will be uninterrupted or error-‐free (including due to the dependency of the Terminal on third parties for operational use).
6.6 The Merchant acknowledges that:
(a) the Merchant’s use of the Terminal is not within Fidelity’s control;
(b) the Terminal is not designed to meet the Merchant’s individual requirements; and
(c) in the event of any failure in respect of the Terminal, the Merchant has access to alternative payment
6.7 Fidelity shall use its reasonable endeavours to make the Terminal Services available; the Merchant acknowledges that the Terminal Services may not be available at certain times, including during planned and emergency maintenance (in respect of which Fidelity shall use its reasonable endeavours to give to the Merchant such notice as Fidelity is reasonably able in the circumstances).
- Consequences of termination
7.1 On termination or expiry of the Terminal Services for any reason:
(a) Fidelity’s consent to the Merchant’s possession of the Terminal shall terminate and Fidelity may, by its
authorised representatives, without notice and at the Merchant’s expense, retake possession of the
Terminal and for this purpose may enter the Location or any premises at which the Terminal is located;
(b) in the event of any failure by the Merchant to comply with Paragraph 7.1(a) or Paragraph 5.1(c) of this
Schedule, the Merchant shall pay to Fidelity on demand the greater of:
(i) £200; and
(ii) such amount for the replacement of the Terminal as is Fidelity’s reasonable assessment of the market value of a similar model and age terminal on sale; and
(c) the Merchant shall pay to Fidelity on demand:
(i) all Hire Fees and other sums due but unpaid at the date of such demand together with any other sums accrued under this Agreement;
(ii) in the event of the Terminal Services coming to an end before the end of the Initial Hire Period or the relevant Renewed Hire Period, all sums that would have been due to Fidelity had the Terminal Services continued for the remainder of that relevant period; and
(iii) any costs and expenses incurred by Fidelity in recovering the Terminal and/or in collecting any sums due under this Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
For the purposes of Clause 9.5 of the Terms and Conditions, Fidelity’s total aggregate Liability arising out of or in connection with the Terminal Services shall be limited to the total amount of the Hire Fees paid and payable, in aggregate, by the Merchant to Fidelity under this Agreement in the 12 months prior to the date on which the claim first arose.
Gateway Services Schedule
This is a Schedule to the Terms and Conditions of Fidelity Payment Processing Limited. This Schedule applies to the Gateway Services as stipulated in the Order Form (as amended by the Parties by a Change Control Form).
Unless the context otherwise requires, the definitions used in the Terms and Conditions apply to this Schedule. Any other terms defined in this Schedule have that meaning for this Schedule only.
In this Schedule, the following terms shall have the following meanings unless the context requires otherwise:
“Access Period” the Initial Access Period together with all Renewed Access Periods;
“Access Start Date” has the meaning given to it in the Order Form;
“Account” an account that Fidelity allocates to the Merchant in order to access and use the Gateway;
“Gateway” the management interface platform through which the Merchant is able to authorise and allow for payment of Transactions, as detailed in the Order Form;
“Gateway Fees” the fees paid and payable by the Merchant for use of the Gateway Services, as set out in the Order Form;
“Gateway Services” the services provided by Fidelity to the Merchant for the authorisation and payment of Transactions through a virtual gateway, together with the provision of the necessary interface platform through which authorisation and payment of Transactions takes place;
“Initial Access Period” has the meaning given to it in the Order Form;
“Material” material that the Merchant uploads (or permits to be uploaded) onto Fidelity’s (or any third party’s) servers as part of Fidelity’s provision of the Gateway Services;
“Minimum Volume” the minimum number of Transactions the Merchant is to process using the Gateway Services in any calendar month during the Access Period, as set out in the Order Form;
“MPTV” maximum permitted transaction volume, as communicated by Fidelity to the Merchant from time to time;
“Renewed Access Period” has the meaning given to it in the Order Form;
“Transaction Fees” the Fees payable by the Merchant to Fidelity for each Transaction processed using the Gateway Services, as set out in the Order Form; and
“Users” those of the Merchant’s employees and independent contractors who the Merchant authorises to access the Gateway Services through the Gateway under this Agreement.
10.1 This Schedule shall apply to all use of an Account, the Gateway and the Gateway Services.
10.2 Fidelity will allocate to the Merchant an Account to access information and functionality for use of the Gateway Services; in order for Fidelity to allocate such access, the Merchant must provide such information as Fidelity may require from time to time.
10.3 Fidelity will allocate to the Merchant a username and password to access the Account. The Merchant must keep the password confidential and immediately inform Fidelity if any unauthorised third party becomes aware of that password or if there is any unauthorised use of the Gateway or any breach of security known to the Merchant; in such a case, the Merchant must request a new password from Fidelity. The Merchant agrees that
any person to whom the Merchant’s username or password is disclosed is authorised to act as the Merchant’s agent for the purposes of using the Gateway. The Merchant is entirely responsible if it does not maintain the confidentiality of its password.
10.4 Fidelity recommends that the Merchant requests a new password from Fidelity if the Merchant removes authorisation for any of its personnel (or ex-‐personnel) to access the Gateway.
- Gateway Services
11.1 The Merchant may access the Gateway only with a browser that is compatible with the Gateway, including any security features that are part of the Gateway.
11.2 In relation to the Gateway Services:
(a) Fidelity hereby grants to the Merchant a non-‐exclusive, non-‐transferable licence to allow Users to use
the Gateway Services solely for the Merchant’s business purposes;
(b) the rights provided under this Agreement are granted to the Merchant only, and shall not be considered
granted to any subsidiary or holding company of the Merchant; and
(c) the Merchant shall not:
(i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion
of the Gateway Services except to the extent expressly set out in this Agreement or as may be
required by any applicable law;
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-‐
perceivable form all or any part of the Gateway Services, except as may be required by any
(iii) access all or any part of the Gateway Services in order to build a product or service which
competes with any part of the Gateway Services; or
(iv) use the Gateway Services to provide services to third parties other than Customers.
11.3 Fidelity is not responsible for any connections, deliverables or services that Fidelity is not expressly stipulated to provide in this Agreement.
11.4 Fidelity does not warrant that the Gateway Services, the Account and/or the Gateway will be secure from unauthorised access. Due to the nature of the Internet, this cannot be guaranteed.
11.5 Fidelity may, at Fidelity’s absolute discretion (subject always to Data Protection Legislation), from time to time either host the Gateway on Fidelity’s own servers or use third party suppliers to do so in whole or in part. The Merchant acknowledges that Fidelity may from time to time without prior notice and without the need for prior agreement provide reasonable additional obligations or requirements on users or reasonably restrict users’ rights due to the requirements of the third-‐party suppliers.
11.6 Fidelity reserves the right, at any time, to carry out repairs, maintenance or introduce new facilities and functions in respect of all or any part of the Gateway Services.
11.7 Fidelity does not warrant that the Gateway Services will be compatible with all Material.
11.8 Fidelity shall be entitled to suspend the Gateway Services (or any part thereof) at any time with immediate effect:
(a) for operational reasons such as repair, maintenance or improvement, provided that Fidelity shall
endeavour to give the Merchant as much as notice as is reasonably possible before doing so and shall
restore the Gateway Service as soon as reasonably practicable following any such suspension;
(b) where Fidelity reasonably believes that the continued access of the Gateway Services represents a
threat or potential threat to the operation, security or functionality of any or all of the following (or any
(i) the integrity of the Gateway Services, including any software or hardware with which it is
provided by Fidelity;
(ii) the system or operation of any third party; or
(iii) any aspect of services provided to a third party by Fidelity; and/or
(iv) where Fidelity identifies or reasonably suspects any out-‐of-‐character traffic profile attributable
or connected to the utilisation of the Gateway Services by the Merchant (including MPTV).
Fidelity will promptly inform the Merchant that the MPTV is being exceeded, ahead of
suspending the Gateway Services.
For the avoidance of doubt, the right to suspend is designed to protect the Gateway Services from risks such as denial of service attacks, and Fidelity will take reasonable steps to maintain the Gateway Services.
- Merchant obligations
12.1 In order to use the Gateway Services and process Transactions through the Gateway, the Merchant must provide to the Gateway such information as Fidelity may require from time to time. The Merchant must ensure that all information is complete and accurate.
12.2 The Merchant must:
(a) report any faults or suspected faults with or in the Gateway Services to Fidelity immediately upon
(b) be responsible (at its own cost) for providing the telecommunications services and correctly configured
hardware that is needed to connect to the Gateway Services;
(c) provide details of a systems administrator who, on behalf of the Merchant, will be familiar with the
Gateway Services and available to be contacted by Fidelity to provide details of any change to the
contact details of the system administrators;
(d) be responsible for configuration and management of access to the Gateway Services including
configuration of network, firewall, DNS, routers and any personal computers as well as any integration
of the Gateway Services into a website or call centre application as required by the Merchant;
(e) allow Fidelity to incorporate information of the Merchant (including Transaction information) into the
Fidelity databases solely for the purpose of providing the Gateway Services;
(f) process the Minimum Volume in any calendar month during the Access Period;
(g) not store Card details on its systems whether in plain text or encrypted form; where the Merchant, with
the agreement of the Acquirer, needs to store card details on its systems whether in plain text or
encrypted form, the Merchant agrees to notify Fidelity in order to be assessed for adherence to PCI:
DSS requirements. In such a case, the Merchant will be authorised by Fidelity to maintain a store of Card
numbers only provided that the Merchant is able to provide to Fidelity such information and proof of
certification as Fidelity may request in respect of such requirements in advance of such storage;
(h) apply adequate security measures to protect any information accessible through the Gateway. Such
information is available to the Merchant for the Merchant’s internal purposes only, and the Merchant
must not copy or download, or otherwise make available to any third party, any such information for
any purpose; and
(i) report to Fidelity any abuse of the Internet (including spam, hacking and phishing) that the Merchant
considers to have taken place through the use of the Gateway Services and/or the Gateway by any
person, and the Merchant must include in such report as much information as the Merchant is able to
provide to Fidelity relating to the type of abuse that the Merchant has witnessed.
12.3 The Merchant must not in any way use the Gateway, or submit to Fidelity or the Gateway, anything which in any respect:
(a) is in breach of any law, statute, regulation or byelaw of any applicable jurisdiction;
(b) is fraudulent, criminal or unlawful;
(c) is inaccurate or out-‐of-‐date;
(d) is obscene, indecent, vulgar, discriminatory, offensive, threatening, defamatory or untrue;
(e) is in contravention of any applicable law, nor allow or assist any third party in doing so;
(f) impersonates any other person or body or misrepresents a relationship with any person or body;
(g) may infringe or breach the copy or Intellectual Property Rights of any third party;
(h) may be contrary to Fidelity’s interests;
(i) is contrary to any specific rule or requirement that Fidelity may stipulate for the Gateway Services; or
(j) involves the Merchant’s use, delivery or transmission of any viruses, unsolicited communications,
Trojan horses, trap doors, cancelbots, back doors, worms, easter eggs, time bombs or computer
programming routines that are intended to damage, interfere with, surreptitiously intercept or
expropriate any data, personal information or system.
12.4 Access to the Gateway Services, the Account and/or the Gateway may be suspended or withdrawn to or from the Merchant or all Users temporarily or permanently at any time without notice. Fidelity may also impose restrictions on the length and manner of usage of any part of the Gateway and/or the Gateway Services or access for any reason. If Fidelity impose restrictions on the Merchant, the Merchant must not attempt to use the Gateway Services, the Account or the Gateway under any other name or user.
12.5 Fidelity provides the Merchant with access to the Gateway on an “as is” basis; the Merchant is responsible for maintaining appropriate records in connection with its business activities relating to the Gateway Services. Following termination of the Gateway Services, the Merchant acknowledges that Fidelity will not retain or store any information relating to the Gateway Services (including Transaction data), or make such information available to the Merchant.
13.1 In consideration of the provision by Fidelity to the Merchant of the Gateway Services and access to the Gateway, the Merchant shall pay to Fidelity:
(a) the Gateway Fees on a monthly basis in advance; and
(b) the Transaction Fees on a monthly basis in arrears.
13.2 If in any month the Merchant fails to process the Minimum Volume, the Merchant shall pay the Transaction Fees to Fidelity as if the Minimum Volume had been achieved.
In the event that the Gateway Services are terminated for any reason, the Merchant will cease to have access to the Gateway Services, the Account and the Gateway.
15.1 Fidelity shall endeavour to provide the Gateway Services with 99.5% availability. This availability refers to an access point on Fidelity’s hosting provider’s backbone network and the Gateway Services being available on the Internet at large; it does not apply to the portion of the circuit that does not transit the hosting provider’s backbone network, as the Merchant is responsible for its own Internet access. The following shall not be considered a lack of availability:
(a) scheduled service maintenance, of which Fidelity shall use its reasonable endeavours to give the
Merchant reasonable notice to ensure minimum disruption to the Merchant; it shall be the
responsibility of the Merchant to act in accordance with Fidelity’s reasonable instructions in such
(b) Merchant-‐caused or third party-‐caused outages or disruptions; and/or
(c) outages or disruptions attributable in whole or in part to Events of Force Majeure.
15.2 All measurements of availability are performed at five-‐minute intervals and measure the availability of an availability test page within the Gateway Services within 30 seconds. Availability measurement begins on the first day of the first calendar month of the Access Period. Availability measurement shall be carried out by Fidelity or its third-‐party supplier, and is based on the monthly average percentage availability, calculated at the end of each calendar month as the total actual uptime minutes divided by total possible uptime minutes in the month. Fidelity shall keep and shall send to the Merchant, on request, records of its availability measurement activities in respect of the Gateway Services.
15.3 In the event that Fidelity fails to make the Gateway Services available for 99.5% of the time within a given calendar month (with the Fidelity system log measurements being the conclusive record of this availability), Fidelity shall credit the Merchant’s account by an amount calculated as the product of the total cumulative downtime (expressed as a percentage of the total possible uptime minutes in the month concerned) and the total Gateway Fees owed for that month (“Service Credit”).
15.4 Fidelity shall not pay a Service Credit unless the Merchant requests it by notifying Fidelity within 10 days of the service-‐affecting event(s). The maximum Service Credit allowable in a given month is limited to an amount equal to the total Gateway Fees owed by the Merchant for that month.
15.5 The Merchant acknowledges and agrees that the Service Credit shall act as the Merchant sole and exclusive remedy in respect of, and constitutes a genuine pre-‐estimate of the loss or damage that the Merchant would suffer as a result of, the Gateway Services downtime.
15.6 For the purposes of Clause 9.5 of the Terms and Conditions, Fidelity’s total aggregate Liability arising out of or in connection with the Gateway Services shall be limited to the total amount of the Gateway Fees paid and payable, in aggregate, by the Merchant to Fidelity under this Agreement in the 12 months prior to the date on which the claim first arose.
MID Assistance Services Schedule
This is a Schedule to the Terms and Conditions of Fidelity Payment Processing Limited. This Schedule applies to the MID Assistance Services as stipulated in the Order Form (as amended by the Parties by a Change Control Form).
Unless the context otherwise requires, the definitions used in the Terms and Conditions apply to this Schedule. Any other terms defined in this Schedule have that meaning for this Schedule only.
- MID Assistance Services
16.1 MIDs are provided and administered by the Acquirer as an authorised payments institution.
16.2 Fidelity will provide the Services to:
(a) assist the Merchant in applying for a MID with the Acquirer;
(b) where required by the Merchant, submit the application for a MID to the Acquirer on the Merchant’s
(c) liaise with the Acquirer on the Merchant’s behalf in respect of the MID application and the maintenance
of the MID throughout the Term;
(“MID Assistance Services”).
16.3 The Merchant:
(a) warrants that any information it provides as part, or in respect, of its MID application shall be accurate
(b) acknowledges that Fidelity may rely on any such information in respect of providing the MID Assistance
(c) must inform Fidelity immediately on becoming aware that any such information in incorrect.
16.4 In the event that the Acquirer accepts the Merchant’s application for a MID, the Merchant will enter into a direct
contractual relationship with the Acquirer, in respect of which the Merchant shall be responsible for complying
with certain obligations (including in respect of the payment of fees to the Acquirer).
16.5 A MID will allow the Merchant to manage, process and settle all Transactions, manage any chargebacks, and
access any other functionality listed in the Acquirer Terms that is accessible to the Merchant.
16.6 The Acquirer will administer the MID directly with the Merchant and invoice the Merchant directly for all fees
associated with MID.
- Fees and Liability
17.1 Fidelity provides the MID Assistance Services as an ancillary Service to other Services performed under this
Agreement. No additional Fees shall be payable by the Merchant to Fidelity in respect of the MID Assistance
For the purposes of Clause 9.5 of the Terms and Conditions, Fidelity shall have no separate limit on its Liability in respect of MID Assistance Services, and Fidelity’s total aggregate Liability arising out of or in connection with the MID Assistance Services shall be limited under, and in accordance with, Clause 9.5.2. of the Terms and Conditions
Viewing, Changing or Removing Client Data:
- You may view all Client Data that we store about you;
- You may correct or update your Client Data; please send an email to firstname.lastname@example.org
- You may withdraw your consent (partial or complete) at any time;
- You may request that all Client Data held be removed or ported.
- Our emails will contain an unsubscribe link, which will enable you to opt out of receiving future mailings at any time, should you choose to do so.
- If you believe you received an email from us that is in violation of this policy, please report it to email@example.com.
How We Store Client Data:
- Your data will be stored securely in line with industry best practice at all times. The security measures in place are reviewed annually;
- Your data will be stored only on servers in a GDPR compliant location.
Keeping your information private and secure is very important to us. Please contact us via email if you have questions about this policy: firstname.lastname@example.org, call 0345 481 2178 or write to us at the following address:
Fidelity Payment Manchester Office:
First Floor, Grosvenor House
Agecroft Enterprise Park
For further information please refer to our Terms of Business as well as our Data Protection Policy.
Last updated 13 March 2018.