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Online Payment System Standard Terms of Business

  • 1 INTERPRETATION
    In these terms of business, the following words shall have the following meanings:
    • (a) “OPS” means Online Payment System provided by Vine Code Limited.
    • (b) “Client” means the company purchasing the Services.
    • (c) “Services” means the Online Payment System services to be provided by Vine Code Limited which are the subject of an order between Vine Code Limited and the Client.
    • (d) "Terms of Business" the standard Vine Code Limited Terms of Business will apply. See www.vinecode.uk for more details.
  • 2 ACCEPTANCE OF ORDER
    • 2.1 These Terms of Business are the only terms and conditions upon which OPS supplies the Services.
    • 2.2 Should the Services extend to website design, development and hosting then our 'Website Design & Development Agreement' and 'Support Agreement' or 'Website Development and Support Agreement' will take precedence over these Terms of Business.
    • 2.3 Where no 'Website Design & Development Agreement' and 'Support Agreement' or 'Website Development and Support Agreement' exists, then these Terms of Business shall prevail.
    • 2.4 No order or quotation is binding until confirmation of the order by OPS.
    • 2.5 To take account of the speed of response required by OPS to satisfy the instructions of the Client, the Client acknowledges that these Terms of Business may comprise an exchange of correspondence, approval of a schedule, facsimile or other written confirmation by OPS of telephone conversations, or notes of meetings or contact reports prepared and distributed by OPS, so long as the Client has not disputed the contents of such within 24 hours of receipt.
  • 3 INQUIRY
    • 3.1 Acceptance of an order by OPS is subject to its right to inquire within a reasonable time into the Client's financial or trade status and in the light of any report received to rescind a contract in which case OPS shall not be liable to make any payment to the Client by way of compensation or damages.
  • 4 PROVISION OF THE SERVICES
    • 4.1 OPS shall provide to the Client the Services; and perform the Services with a reasonable level of skill and care in accordance with a degree of skill, diligence, prudence and foresight which, as at the relevant time, would reasonably and ordinarily be expected from a skilled and experienced supplier of information technology services seeking in good faith to comply with its contractual obligations.
    • 4.2 OPS shall without the agreement of the Client be entitled to make operational changes to the Services that have no material adverse effect on the Services.
    • 4.3 OPS guarantees that the Services supplied by it shall comply with the specification contained in each contract and in the absence of any such specification shall comply with OPS's appropriate specification PROVIDED THAT OPS reserves the right to alter the specification for the Services without prior reference to the Client as long as the Services shall comply with all known requirements of the Client.
    • 4.4 OPS will, at its option, replace or repair defective materials included in the Services or refund the price thereof PROVIDED THAT notice is given to OPS by the Client within the provisions of Clause 7.4.
    • 4.5 Except as previously set out, all guaranteed terms and conditions as to the quality and conditions of services of fitness for any particular purpose or otherwise; or their compliance with any description and all such guaranteed terms and conditions which would otherwise arise by statute, implementation of law or in any other way are hereby excluded so far as may be permitted by law.
    • 4.6 OPS shall not be liable for any loss caused to Client's goods whilst in OPS's possession unless such loss may be caused by wilful recklessness of OPS's employees or agents in which case OPS shall account to the Client for any monies that it may receive under any insurance policy (OPS not being under any obligation to insure).
    • 4.7 Any illustrations, layouts, story boards, visuals, mock-ups, prototypes, etc. shall be registered as appropriate and are intended to represent a general idea of the Services only and shall not form part of any contract unless so specified.
  • 5 CLIENT RESPONSIBILITIES
    • 5.1 The Client acknowledges that OPS’s ability to provide the Services is dependent upon the full and prompt co-operation of the Client (which the Client agrees to provide) as well as the accuracy and completeness of any information and data the Client provides to OPS. Accordingly, the Client shall in a timely manner provide OPS with access to, and use of, all information, data and documentation reasonably required by OPS for the performance by OPS of its obligations under these Terms of Business.
    • 5.2 The Client agrees to follow OPS’s reasonable instructions and procedures with respect to the Services.
    • 5.3 In the event of a limited time scale for the provision of the Service, OPS shall have the authority of the Client to place orders and commit to expenditure within OPS's reasonable interpretation of the Client's initial instruction.
    • 5.4 OPS is under duty to ensure that any materials produced under a contract are legal, decent, honest and truthful. However OPS may not be an expert in respect of the subject matter of the contract and therefore the Client is responsible for the accuracy, completeness and for all descriptive, technical or proprietary aspects of the Services and shall indemnify OPS for any liability arising for a breach of this agreement.
    • 5.5 The Client undertakes for a period of five years from the date of order to maintain confidentiality of all login names, passwords. The Client shall keep confidential at all times all other proprietary or sensitive information relating to the Client's access to the Services and all other proprietary or sensitive information provided to the Client by OPS (save where the Client was in possession of such information before its provision by OPS, or where the information enters the public domain through no fault of the Client, or where disclosure is necessary to comply with a binding order by a regulatory authority with in any jurisdiction).
  • 6 THIRD PARTY PRODUCTS
    • 6.1 Third party software products which are supplied and/or sub sublicensed by OPS as part of the Services will be supplied in accordance with the relevant licensor’s applicable terms. The Client agrees that it will at all times comply with the provisions of such standard terms, where notified in advance to the Client in writing.
  • 7 PRICES AND PAYMENT
    • 7.1OPS reserves the right to vary the price of the Services by any amount attributable to:
      • 7.1.1 An alteration to the Service by reason of a variation in or lack of Client's instructions;
      • 7.1.2 Any variation of the rates of taxation or costs, third party changes or fluctuation in foreign exchange rates or import duty between the date of a contract and the date of delivery of the Service or completion of the payment.
    • 7.2 The prices are inclusive of all labour and materials. The payments are exclusive of credit insurance charges and Value Added Tax, which OPS shall be entitled to charge to the Client, and the Client shall pay, in addition at the prevailing rate from time to time.
    • 7.3 If any payment is in arrears under any contract between OPS and the Client or if the Client becomes insolvent, or OPS has reason to believe that any payment is likely to be in arrears, or that the Client is likely to become insolvent OPS shall have the right without giving notice to the Client to suspend further delivery of the Services and under any contract any such payment any part thereof shall remain in arrears for seven days after written demand sent by OPS to the Client, OPS shall have the right to cancel any contract without prejudice to any rights and remedies to recover any monies then due and owing by the client.
    • 7.4 Time for payment is of the essence.
    • 7.5 Payment for the Services shall be made within 15 days of the date of invoice, where the Services include the use of third party services such as ecommerce services and transaction processing fees, payment shall be made within 5 days of the date of invoice.
    • 7.6 Without prejudice to any other rights OPS may have, in the event of late payment of any sum due under these Terms of Business, OPS may charge interest to the Client on such sum at the rate of interest specified under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998. Such interest will accrue from the day following that upon which payment was due until payment is made in full. In addition or in the alternative (at the option of OPS), OPS may suspend the provision of the Services and/or any part of them until such time as the payment is made if after giving 7 days prior written notice of its intention to do so, the Client has still failed to make payment without cause.
    • 7.7 If OPS takes any legal, or other steps, for the recovery of any overdue payment, then the reasonable costs of all such steps shall be payable by the Client upon demand.
    • 7.8 OPS's guarantees contained in Clause 11 below shall not apply to any contracts unless the client has paid for the Services in full.
    • 7.9 Without prejudice to OPS's right to receive payment when due, the Client shall promptly, and in any event within 7 days of receipt of any invoice, notify OPS if it disputes any amounts stated on such invoice. OPS shall within 7 days of receipt of such notification fully investigate any such disputed amounts and reply to the Client. The parties shall use best endeavours to solve such dispute as soon as possible. Nothing in this clause shall entitle the Client to withhold payment of sums which are properly due and payable and for the avoidance of doubt, failure to resolve such dispute shall not prevent the relevant sums becoming overdue (or prevent OPS being entitled to exercise any of all of its rights in respect of such overdue payments), but where any disputed amounts are paid to OPS prior to the resolution of the relevant dispute, any amount of such disputed sums which are subsequently decided to have not been properly payable (either by agreement of the parties or through dispute resolution) shall be repaid by OPS promptly with interest at the rate referred to in clause 7.6 for the time that OPS has held such sums to which it was not entitled.
  • 8 RESERVATION OF TITLE
    • 8.1Until the price (as amended by class 4 hereof) - and all sums owed by the Client to OPS arising from any goods or services supplied – is paid in full by the Client to OPS, the property in the Service including OPS copyright (if any) shall remain in OPS and the following conditions shall apply:
      • 8.1.1 The Client (if OPS so requires) shall hold the Services on OPS's behalf and shall store it in such a way that it is clearly the property of OPS;
      • 8.1.2 The Client hereby grants to OPS the right to enter upon the Clients land or buildings and agrees to procure a right of entry into anywhere else where the Services is stored, for purposes of repossessing the Services.
  • 9 CONFIDENTIAL INFORMATION
    • 9.1 Each party shall treat as confidential all proprietary or sensitive information of the other party and shall not divulge such proprietary or sensitive information to any person (except to such party’s own employees, agents or sub-contractors who need to know the same) without the other party’s prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to acceptance of these Terms of Business, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is trivial or obvious. Each party shall ensure that its employees, agents or subcontractors are aware of and comply with the provisions of this clause 16. This clause shall survive termination of these Terms of Business.
  • 10 LIMITATION OF LIABILITY
    • 10.1 Notwithstanding any other provision in these Terms of Business, OPS’s liability for fraud or for death or personal injury resulting from its negligence or the negligence of its employees shall not be limited.
    • 10.2 Subject to clause 13.4, OPS’s liability to the Client in respect of damage caused to the physical property of the Client resulting from the tortious acts on omissions of OPS or its employees, agents or sub-contractors in the course of carrying out work for OPS in respect of the Services shall not exceed in aggregate, in respect of all such tortious acts or omissions occurring in any Contract Year, the sum of £10,000;
    • 10.3 Subject to clauses 13.1, 13.2 and 13.4 OPS’s aggregate liability under or arising out of or in connection with this Agreement whether in contract, tort (including but not limited to negligence) or otherwise shall not exceed, in respect of all breaches or other events, acts and/or omissions occurring, in aggregate, the total of all fees paid and payable to OPS under these Terms of Business
    • 10.4Subject to clause 13.1and 13.2 OPS shall not in any circumstances be liable to the Client in respect of any:
      • 10.4.1 loss of profits; or
      • 10.4.2 loss of contracts; or
      • 10.4.3 loss of revenue or goodwill; or
      • 10.4.4 type of special, indirect or consequential loss, business interruption or loss of or damage to business information or data
        whether in contract, tort (including but not limited to negligence) or otherwise and whether or not suffered as a result of an action brought by a third party, even if such loss was reasonably foreseeable or the Client had been advised at any time of the possibility of the Client incurring the same.
    • 10.5 For the avoidance of doubt, OPS shall not be liable to the Client or be deemed to be in breach of these Terms of Business by reason of any delay in performing, or any failure to perform, any of its obligations under these Terms of Business, if the delay or failure was due to any cause beyond OPS’s control, due to any instructions given by the Client or in any delay caused by the Client.
    • 10.6 OPS shall not be responsible in contract or in tort (including, but not limited to, negligence) or otherwise for the unauthorised access to, or alteration, theft or destruction of emails, files, programs, or information of the Client by any person (other than OPS) through accident or by fraudulent means or devices where OPS has exercised that degree of skill, diligence, prudence and foresight which, as at the relevant time, would reasonably and ordinarily be expected from a skilled and experienced supplier of information technology services seeking in good faith to comply with its contractual obligations in providing the Services to prevent such activities.
    • 10.7 OPS shall have no liability if Third Party Products breach, infringe or make unauthorised use of any third party rights, save to the extent that OPS knew, or should reasonably have known, of such infringement or unauthorised use at the time it sub-licensed such Third Party Products to the Client.
    • 10.8 Save as expressly set out herein all conditions, warranties, terms and undertakings express or implied statutory or otherwise (including, without limitation, as to fitness for purpose or satisfactory quality) in respect of the Services or any products provided pursuant to the Services are hereby excluded except to the extent to which it is unlawful to exclude such liability.
    • 10.9 Nothing in these Terms of Business shall confer any right or remedy upon the Client to which it would not otherwise be entitled.
    • 10.10 The limitations and exclusions of liability in these Terms of Business shall survive termination of these Terms of Business.
  • 11 INTELLECTUAL PROPERTY RIGHTS
    • 11.1 The ownership of, and sole right to, any intellectual property right in any materials produced by OPS under any contract with the Client shall be vested absolutely in OPS from the outset, and OPS shall be at liberty to effect and secure protection thereof by registration in a Registry or otherwise as it sees fit.
    • 11.2 If the parties agree, subject to the provisions of Clause 6, OPS may assign all or any intellectual property rights in such materials to the Client upon such terms as may be agreed but in no event before such times as all monies due under this contract between OPS and the Client are paid in full by the Client.
    • 11.3 All rights in Third Party Products shall remain vested in the licensors thereof and the Client agrees to comply with the licence terms relating to such software and/or services, where notified to the Client in writing.
  • 12 DATA PROTECTION
    • 12.1 The Client warrants that it shall process any Personal Data disclosed to it or in connection with these Terms of Business in accordance with the provisions of the Data Protection Act 1998 (“the Act”).
    • 12.2 OPS is a data processor as defined by the Act in relation to the Services and it agrees that it will only process (as necessary to carry out the Services) Personal Data to which it has access as a result of the Services and shall do so at all times in accordance with the provisions of the Act).
  • 13 TERMINATION
    • 13.1Where a contract is for the provision of the Services over a period of time, a contract may be terminated by either party giving to the other six months written notice PROVIDED ALWAYS that if the Client terminates the contract he shall:
      • 13.1.1 pay immediately all outstanding sums due to OPS;
      • 13.1.2 be responsible for all costs and expenses incurred by OPS in respect of any uncompleted Service;
      • 13.1.3 accept and pay invoices from OPS calculated at the contract rate in respect of any Services completed or partly completed;
      • 13.1.4 discharge any liability of OPS to third parties incurred in relation to any Services originally envisaged pursuant to the Client's initial instructions.
    • 13.2 Subject to the other provisions of this clause 5 these Terms of Business shall commence on the date of order.
  • 14 INDEMNITY
    • 14.1 The Client shall indemnify OPS in respect of all damage or injury occurring to any person, firm, company or property and against all actions, suits, claims, demands, charges or expenses in connection therewith for which OPS may become liable in respect of any breach of contract or in respect of the Services sold under any contract. In particular, it is stressed that the Client is responsible for all copy, slogans, words or methods supplied or suggested by it to OPS, and also such items approved by it after suggestion by OPS and therefore such indemnity shall extend to claims for copywriter or patent infringement, libel or other defamation.
  • 15 WAIVER OF REMEDIES
    • 15.1 No forbearance, delay or indulgence by either party in enforcing the provisions of these Terms of Business shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
  • 16 SET-OFF
    • 16.1 The Client shall not be entitled to set off or withhold any payments claimed or due to OPS under these Terms of Business or any other Agreement between the parties.
  • 17 ASSIGNMENT
    • 17.1 Neither these Terms of Business nor the benefit of the Services may be assigned or transferred by the Client whether voluntarily or involuntarily or by operation of law, in whole or in part, to any party without the prior written consent of OPS. No such assignment by the Client howsoever occurring shall relieve the Client of its obligations hereunder.
    • 17.2 OPS may assign all of its rights and obligations under this Agreement to a third party without prior consent of the Client, and the Client shall execute such novation agreements as OPS may reasonably request in order to effectively document the transfer such rights and obligations.
  • 18 NOTICES
    • 18.1 Any notice required or permitted under the terms of these Terms of Business or required by statute, law or regulation shall (unless otherwise provided) be in writing and shall be delivered in person, sent by registered mail or air mail as appropriate, properly posted and fully prepaid in an envelope properly addressed or sent by facsimile to such address, facsimile number or e-mail address as may from time to time be designated by notice hereunder.
    • 18.2 For the avoidance of doubt, any such notification to OPS must be made to OPS marked for the attention of the Managing Director. Any notification to any other employee or officer of OPS shall not be effective.
    • 18.3 Any such notice shall be in the English language and shall be considered to have been received on the next Business Day following delivery, facsimile or e-mailing or in any other event within 7 Business Days after it was mailed in the manner hereinbefore provided.
  • 19 PUBLICITY
    • 19.1 All media releases, public announcements and public disclosures by either party relating to these Terms of Business or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the party prior to release.
  • 20 ENTIRE AGREEMENT
    • 20.1 Unless expressly agreed in writing, these Terms of Business embody all the terms binding the parties in relation to the Services hereof and replace any previous representations or proposals not embodied. Any amendments shall not come into operation until written down and properly executed on behalf of both parties.
  • 21 SEVERABILITY
    • 21.1 In the event that any or any part of these Terms of Business contained herein shall be determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms and conditions of these Terms of Business which shall continue to be valid and enforceable to the fullest extent permitted by law.
  • 22 RIGHTS OF THIRD PARTIES
    • 22.1 A party who is not party to these Terms of Business has no right under the Contracts (Right of Third Parties) Act 1999 to enforce any term of these Terms of Business, but this does not affect any right or remedy of a third party that exists or is available apart from that Act.
  • 23 LAW AND JURISDICTION
    • 23.1 The parties hereby agree that these Terms of Business shall be construed in accordance with English law, and hereby submit to the exclusive jurisdiction of the English courts.