1. Access to the Service
1.1 Any company or person (a User) accessing, receiving or otherwise using any of Wirecard’s services (the Services) is responsible for complying with all applicable laws, by-laws, regulations, rules or orders regarding such access, receipt or use of the Services.
2.1 Wirecard’s Fraud Module is provided as a tool to help flag or block a credit card transaction according to the fraud configuration enabled by the merchant.
2.2 If a transaction is configured to be blocked, the transaction will not be processed for authorization. If a transaction is configured to be flagged, the transaction will be processed for authorisation.
3. Delivery of Wirecard’s Fraud Module Services
3.1 Wirecard’s shall utilize its best endeavors to promptly comply with any supply of its Fraud Module services as designated and configured within the Fraud Module recorded in the order, but shall not be liable to the Subscriber in the event that such supply and/or delivery and/or is delayed or cancelled, for whatsoever reason. The Subscriber waives all and any claims from whatsoever cause arising against Wirecard’s or any other party arising out of the provision of these services.
3.2 The Subscriber hereby warrants and undertakes in favour of Wirecard that the Subscriber:
3.2.1 shall not use nor allow the Wirecard services to be used for any improper, immoral or unlawful purposes nor in any way which may cause injury or damage to persons or property or an impairment or interruption to the Wirecard services;
3.2.2 shall not use the Fraud Module service in any way that would be in breach of the Scheme Rules and or any applicable laws, regulatory controls or regulatory requirements;
3.2.3 shall not apply any criteria in relation to the application of the Fraud Rules, Territory Management, Blacklist or Whitelist, Fraud Scoring or any other Fraud Module function and or service that would be in breach of the Scheme Rules and or any applicable laws, regulatory controls, orders, restrictions or regulatory requirements;
3.2.4 recognize that no right, title or interest in the software, issued to the Subscriber vests in the Subscriber;
3.3 The availability of value added services, whether for free or in circumstances where a subscription fee or transaction fee is charged, is subject to the discretion of Wirecard and may be charged for or withdrawn with 30 days written notice by Wirecard and in their sole discretion. Wirecard shall be entitled, in its sole discretion with 30 days written notice to the Subscriber to vary pricing, discontinue or substitute any such value added services.
4. Consequences of termination
4.1. On termination of the Agreement for any reason each party shall cease to make use of the Intellectual Property belonging to the other party and the Merchant shall remove all references to Wirecard from its website or any other promotional material.
4.2. Termination of this Agreement shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after the date of such termination.
5. Limitation of Liability
5.1 Nothing in the Agreement shall exclude or limit the liability of either party:
5.1.1 for death or personal injury resulting from the negligence of that party or its directors, officers, employees, contractors or agents; or
5.1.2. in respect of fraud or of any statements made fraudulently by that party or its directors, officers, employees, contractors or agents.
5.2. Subject to clause 4.1 above, Wirecard shall not be liable to the Merchant whether in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise for any:
5.2.1. loss of profit;
5.2.2. loss of revenue;
5.2.3. loss of anticipated savings;
5.2.4. loss or corruption of data;
5.2.5. loss of contract or opportunity;
5.2.6. loss of goodwill; or
5.2.7. processing charges; or
5.2.8. borrowing costs; or
5.2.9. integration to Wirecard and or other systems or operational costs associated with the Merchant’s use of the Services;
5.2.10. expenses incurred by the Merchant in relation to or in connection with the Merchant’s website and or the content thereon;
5.2.11. costs associated with Cardholder disputes; or
5.2.12. indirect or consequential loss of whatever nature including any loss of a type described in sub-clauses 5.2.1 to 5.2.11 above which could be regarded as indirect or consequential and whether or not reasonably foreseeable, reasonably contemplatable, or actually contemplated by the parties at the time of execution of the Agreement.
5.3. Subject to clause 5.1 above the parties agree that:
5.3.1. in the event that Wirecard shall be liable to the Merchant in contract (including under any indemnity or warranty), in tort (including negligence), under statute or otherwise, the liability of Wirecard to the Merchant shall be limited, to the full extent permissible by the law, in respect of each event or series of connected events to an amount equal to the amount of Charges paid by the Merchant to Wirecard in the calendar year in which the claim is first notified to Wirecard; and
5.3.2. in no event shall the total cumulative liability of Wirecard to the Merchant under this Agreement (other than losses expressly included under clause 5.1) exceed an amount equal to the amount of Charges paid or payable by the Merchant for Fraud Services to Wirecard during the Term. These charges exclude fees related authorization and settlement.
5.3.3. This clause shall not limit the Merchant’s liability to pay Wirecard any amounts due under the Agreement.
5.4. Any action against Wirecard must be brought within 12 months after the cause of action arises.
5.5. The parties agree that the limitations on liability contained in the Agreement have been subject to commercial negotiation and are reasonable in all the circumstances.
5.6. Wirecard does not accept any responsibility for the accuracy of Transaction Data or any liabilities to the Merchant or other third party for any inaccuracies or misrepresentations contained in the Transaction Data.
5.7. Wirecard does not represent or warrant that the Merchant’s use of the Service will be secure, timely, uninterrupted or error-free or that the Service will meet the Merchant’s requirements. For the avoidance of doubt, Wirecard does not give any representation or warranty that the Service will alert the Merchant to, avert or prevent occurrences of fraudulent use of Cards and the Merchant acknowledges that it should obtain insurance against such fraudulent behaviour. The Service is provided on an “as is” and “as available” basis and for commercial use only.
5.8. Except as expressly provided in these Terms of Business, all warranties, conditions, representations or other terms implied by statute or common law are excluded to the fullest extent possible by law.
5.9. Any typographical, clerical or other error or omission in any promotional material or other information issued by Wirecard (including information on Wirecard’s websites) shall be subject to correction without any liability on the part of Wirecard.
6.1. The parties to the Agreement will at all times keep confidential information acquired in consequence of the Agreement and relating to the other party, except for information which they may be entitled or bound by law to disclose or where requested by regulatory agencies, investigatory authorities or to their professional advisers where reasonably necessary.
6.2. No press release or other communication whatsoever to be published by or in the media concerning the subject matter of this Agreement shall be published without the prior written consent of each of the parties to this Agreement.
6.3. Confidential information includes but is not limited to pricing, systems, software and or Services provided by Wirecard to the Merchant
6.4. The obligations of confidentiality in this Agreement shall survive the termination of this Agreement and continue unless and until any of the relevant confidential information enters the public domain through no fault of the relevant Party, its officers, employees, agents or other representatives.
7. Data Protection and Confidentiality
7.1 The Merchant acknowledges and accepts that Wirecard may;
7.1.1. disclose information to the Schemes, Acquirers and or 3rd party systems as is required in connection with the processing of these transactions in order to perform fraud checks.
7.1.2 Refer to Wirecard’s Privacy Policies for information on data collection and use.
8. Force majeure
8.1. Neither party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform any of its obligations, if the delay or failure was due to any cause beyond the party’s reasonable control including (without limitation) flood, fire, acts of terrorism, civil disturbance, acts of any government or authority, revocation of any licence or consent, default of any supplier or sub-contractor, failure of any power supply, theft, malicious damage, strike lock-out or industrial action, or the failure of any machine computer data processing system or network failures or communication link or failure in manufacture, production or the act or omission of Government or supply by third parties of equipment or services or by any other circumstance whatever beyond its reasonable control. For the avoidance of doubt, this does not include the withdrawal of or failure to obtain facilities with an Acquirer, Scheme or an E-Money Issuer.
9. Notices and variation
9.1. From time to time Wirecard may modify this Agreement by giving not less than 30 days notice in writing to the Merchant by email and or by publication on the Wirecard website. If the Merchant does not agree with those modifications, the Merchant should contact Wirecard as soon as possible and no later than 15 working days from the date of the notification. By continuing to use the Service after such notifications take effect, the Merchant has indicated the Merchant’s acceptance of those modifications.
9.2. Wirecard may give less than 30 days notice if the modification is as a consequence of legal, regulatory, tax or Scheme changes and or other circumstances reasonably beyond Wirecard’s control.
9.3. Any written notice may be delivered in person or sent by email, post, airmail or by fax to:
9.3.1. the Merchant at the address shown in Wirecard’s records as notified by the Merchant from time to time; and
9.3.2. Wirecard at email@example.com or such other email address as may be notified to the Merchant from time to time.
9.4. Notices shall be deemed duly given 48 hours after posting by first class post (72 hours if second class and airmail), or immediately if delivered in person or if by email or fax then at the time of transmission if within normal business hours failing which the start of the next business day.
9.5. The Merchant agree that Wirecard may act on email notices or instructions which reasonably appear to emanate from the Merchant or the Merchant authorised employee or agent.
9.6. For the purposes of this clause 20, “notice” shall include any request, demand, instruction, communication or other document.
10. Entire Agreement
10.1. This Agreement and the Schedules hereto represents the entire agreement and understanding between the parties in relation to its subject matter and supersedes all prior agreements, understandings or arrangements made by either party whether oral or written.
10.2. Each party acknowledges that it is not entering into this Agreement in reliance on any representation of the other except those contained in this Agreement and in the event of misrepresentation (other than fraudulent misrepresentation) the only remedy available shall be a claim for a breach of contract.