Terms & Conditions
Sage Pay Europe Ltd – Merchant Payment Processing Agreement
This Agreement sets out the terms and conditions between us and you for the provision of the Services and is made between Sage Pay Europe Limited (company registration number 07492608) whose registered office address is at North Park, Newcastle upon Tyne, NE13 9AA (“Sage Pay”, “we” or “us”) and you the individual or organisation which registers to use the Service (“Merchant” or “you”).
Please make sure you are happy with all the terms below before you indicate your acceptance. By entering into this Agreement we both acknowledge that we both intend to be bound by this Agreement and to follow its terms. In return for you doing this we agree to let you use the Service as described in this Agreement.
It is important that you regularly check our website as throughout this Agreement, we make reference to various items that may be notified to you on our website. Importantly, this includes any notifications of unavailability of the Service.
1. How you indicate that you accept this Agreement and when this Agreement starts
1.1 You indicate that you accept every term of this Agreement by ticking a box or clicking on a button (or something similar) when asked to confirm this during sign up to the Service at which time this Agreement is displayed to you.
1.2 If you don't accept this Agreement, you may not use the Services.
1.3 If you are dissatisfied with the Services, or have any other concern, please email our customer support team on support@sagepay.com or call 1800 222 123.
2. What do the defined terms in this Agreement mean?
2.1 “Acquiring Banks” means the financial institutions to which customers’ transactions are routed for authorisation, clearing and payment;
2.2 "Agreement" means this Agreement which starts from the date on which you indicate that you accept it in the way set out in paragraph 1.1 above;
2.3 “Bank” the Acquiring Bank which we work with to provide you with Sage Pay Merchant Services;
2.4 “Card Scheme Rules” means the relevant business rules that govern the issue of the payment cards that carry the scheme’s logo whether internationally or domestically. The schemes operate the clearing and settlement of payment card transactions. In applicable jurisdictions (including the UK), financial institutions must be members of the appropriate scheme to issue cards and acquire card transactions.
2.5 “Chargeable Transaction” means a Transaction authorised by your Acquiring Bank and then forwarded by us in a settlement file to your Acquiring Bank to enable the process of transferring the applicable funds from one entity to another, including payments from your Customer to you, and also refunds from your bank to Customers (and whether Qualifying Transactions or Non-Qualifying Transactions);
2.6 “Chargeback” means a Chargeable Transaction that is invalid or disputed by your Customer and is charged back by the Acquiring Bank;
2.7 "Customer" means an individual or company who makes online purchases of goods or services from your ecommerce website or via MOTO (mail order telephone order);
2.8 “Fees” means the fees payable by you to us for the provision of the Services as publicised on our website from time to time;
2.9 “Fraud Detection System” means a series of checks carried out by Acquiring Banks and Fraud Detection Parties;
2.10 “Fraud Detection Parties” means third parties selected by us to review the level of potential fraud risk associated with a Chargeable Transaction, for example the checking of the results of AVS (address verification) and CV2 (the 3 digit security code on the reverse of credit and debit cards); and
2.11 “Logo” our logo which can be found at http://www.sagepay.com/help/downloads or such other logo that we indicate (from time to time) that you may use in accordance with paragraph 7;
2.12 “Merchant Services Account” a merchant account with the Bank that enables you to accept credit and debit card payments electronically;
2.13 “Merchant Services Application Form” the application form made available by us to enable you to apply for a Merchant Services Account;
2.14 “Non-Qualifying Transaction” a Transaction made electronically and not using 3D Secure or made by mail order or over the telephone which does not include the CV2 value;
2.15 “Premium Fraud Screening Services” enhanced fraud detection services offered by us using selected Fraud Detection Parties (as described in our published documentation from time to time);
2.16 “Qualifying Transaction” a Transaction made electronically using 3D Secure or made by mail order or over the telephone which includes the CV2 value;
2.17 “Sage Pay Merchant Services” the services described in paragraph 16 below;
2.18 "Services" means electronic commerce payment processing services provided by us to you on a non-exclusive basis relating to the processing of credit card payment authorisations and/or credit card, debit card, or other payment transactions which are carried out in order to effect transfer of funds between you and your customers together with any related services we offer from time to time;
2.19 “Token” unique identification information provided by us to you in relation to payment card information that you have asked us to retain as part of the Token Service;
2.20 “Token Service” those Services as described under paragraphs 5.4 to 5.7, our website and in any other documentation that we provide to you;
2.21 “Transaction” an arrangement between you and your Customer to enter into a financial agreement in exchange for goods and/or services using a payment card.
3. What are our obligations to you under this Agreement?
3.1 We shall provide the Services to you in an efficient and effective manner using due skill, care and attention. Our ability to provide the Services to you may also be subject to the approval and acceptance of the bank, credit card acquirer or other third party providing merchant acquiring services to you and with which you may have an independent agreement.
3.2 We are responsible for securing all customer data, including credit and debit card data, which is solely in our possession and under our control. We comply with PCI DSS, which sets out the industry standards for maintaining a secure environment. Further details about our security policy and our compliance certificate can be found on our website: http://www.sagepay.com/security or provided to you upon reasonable request.
4. What are your obligations to us under this Agreement?
4.1 Any Chargebacks or other charges made to you by third parties, such as your Acquiring Bank as a result of or in connection with your transactions and merchant status are your responsibility unless expressly stated in this Agreement.
4.2 If we receive any complaints from your Customers, we will direct the Customer to you. If a Customer continues to contact us regarding your service, we will make reasonable attempts to discuss this with you but we reserve the right to (i) suspend provision of the Services to you until such time as we reasonably consider that the complaint is being resolved; or (ii) terminate provision of all or part of the Services to you.
4.3 You are solely responsible for securing all data in your possession and/or under your control.
5. Fraud Detection and Token Service
Fraud Detection
5.1 You agree to take note of fraud scores and in particular high risk Chargeable Transactions reported to you as part of the Services as a result of our Fraud Detection System. Our Fraud Detection System gives an indication of risk only and does not give you any guarantees against fraud. You should regularly review whether you wish to initiate any additional fraud screening checks via a third party.
5.2 If we have agreed to provide you with Premium Fraud Screening Services then as part of this Service it is important that you contribute information about suspected or actual fraudulent Transactions to the Fraud Detection Parties’ database. If you do not contribute information, we reserve the right to withdraw your access to the Premium Fraud Screening Services as it is essential that users of this Service make contributions to enable the Service to remain effective.
5.3 We can only provide Premium Fraud Screening Services to you if you have a fixed IP address (and it is your responsibility to maintain that fixed IP address).
Token Service
5.4 If we have agreed to provide you with the Token Service, then, subject to you paying to us the applicable Fees and to the remainder of this Agreement (including the following paragraphs), we will retain your Customer’s payment card information on your behalf for the specific purpose of enabling you to re-use that information in subsequent Transactions with that specific Customer during the term of the Token Services.
5.5 We will not retain sensitive authentication data and, subject to paragraph 5.6.1 we will not give you access to the payment card information (we will merely provide you with Token information).
5.6 If you or we discontinue the Token Service for any reason, we will:
5.6.1 following your reasonable request and subject to you paying to us any outstanding Fees and any additional Fees we charge for this Service, transfer any payment card data to you or your new payment services provider that we have held on your behalf as part of the Token Service provided that you or your new payment services provider (as the case may be) hold applicable PCI DSS compliance validation from a PCI Security Standards Council certified Qualified Security Assessor and by making such a request you promise to us that you or your new payment services provider (as the case my be) holds the applicable PCI DSS compliance validation and you will provide us with that compliance validation certificate. You agree to fully indemnify us for any loss or damage that we may incur as a result of us transferring the payment card information to you under this paragraph 5.6.1.
5.6.2 in the absence of any request by you under paragraph 5.6.1 within 21 days of your discontinuance of the Token Service we will have no further obligation to you in respect of the same.
5.7 If we agree to transfer data to you in accordance with paragraph 5.6.1, we will do so in a secure manner and in such format as we reasonably determine. You also agree to sign any additional documentation that we might require to confirm that we have transferred the payment card information to you and that confirms that from the point of transfer you are solely responsible for that card payment information.
6. Conditions and warranties
6.1 We may make integration kits or protocols and/or related advice available to you from time to time to assist you with integration to Sage Pay. We are under no obligation to do this and so you agree to check the accuracy and suitability of them and agree that we shall not be liable for any omissions, errors or inaccuracies in them.
6.2 Any dates quoted for the provision of the Services are for guidance only and whilst we will aim to meet such dates, we shall not be liable for any delay in completion of any Service howsoever caused.
6.3 We reserve the right to stop providing the Services with immediate effect if any bank or credit card acquirer or other third party with which you have a merchant agreement declines to offer or continue to provide merchant services for any reason whatsoever or if you are investigated by the Bank or any other bank, credit card issuer or other third party under its Card Scheme Rules of if you have failed to comply with those Card Scheme Rules. Where we have stopped providing the Services in accordance with this paragraph 6.3 we may at our sole discretion agree to recommence the Services at any time.
7. Copyright and related rights
7.1 We reserve all copyright and all intellectual property rights throughout the world to any information, idea, design, computer program, database, textual, graphical or other material comprised in the Service or otherwise developed by us or on our behalf and to our Logo. This material may not be reproduced or copied by any means whether electronically or not without our prior written permission.
7.2 We grant to you a non-exclusive right to display our Logo on your website for the duration of this Agreement (but we reserve the right to end this licence earlier at any time for any reason) for the purpose of informing your Customers that you process your electronic payments using Sage Pay.
7.3 You must use our Logo in accordance with our guidelines (that we publish from time to time). You must not alter our Logo or do (or fail to do) anything that could adversely affect our rights in the Logo or its value and you agree to immediately enter into any document necessary for the recording, registration or safeguarding our rights in the Logo. You also agree to tell us as soon as possible if you become aware of any infringement of our rights in our Logo. You agree to fully reimburse us for any loss or damage that we suffer as a result of any use by you of our Logo which is not in accordance with this Agreement.
8. What are the terms of payment?
8.1 You agree to pay the Fees (plus VAT where applicable) to us monthly in arrears within 14 days of the date of invoice. Fees may be subject to amendment from time to time and we will provide details of such amendment to you on our website or directly with a minimum of 30 days written notice.
8.2 Your obligation to pay Fees commences on the date that your merchant account number has been confirmed by your bank and is set up for use with Sage Pay or in respect of certain Services from the date we tell you about prior to those Services commencing. Where this date falls part way through a calendar month, you acknowledge that you must pay the whole monthly fee for that calendar month. Where this Agreement terminates part way through any calendar month you acknowledge that you must pay the whole monthly fee for that calendar month.
8.3 You agree that if you exceed the Transaction threshold for the pricing plan that you have signed up for, your account will automatically be upgraded to the next higher pricing plan and you must pay the Fees associated with that upgraded pricing plan as detailed on our website from time to time.
8.4 Unless agreed in writing with us, you agree to sign a direct debit mandate to allow the Fees and any amount owed by you to us to be debited directly from your bank account in accordance with the regulations imposed under the BACS scheme. You agree to keep such mandate in place until termination of this Agreement and all monies due to us have been paid in full.
8.5 We reserve the right to charge an additional nominal administration fee to you if you do not sign a direct debit mandate where requested by us to do so as per paragraph 8.4.
8.6 When payment of any invoice or direct debit is overdue, we may:
8.6.1 suspend performance of the Services;
8.6.2 (except where the invoice or direct debit is incorrect) charge and recover interest from you on the sum of the outstanding invoice or direct debit calculated at a compound rate of two per cent per month from the due date until the date of full payment; and
8.6.3 charge a reconnection fee of £50 plus VAT to resume the Services.
8.7 If we are forced to take legal action against you to recover overdue payments, you shall be responsible for all costs and disbursements incurred by us on a full indemnity basis.
9. Our responsibility if something goes wrong
9.1. Subject to paragraphs 9.2 and 9.3 below, our maximum responsibility and liability to you (including for negligence) in relation to this Agreement will be limited to paying you an amount equal to the total amount of Fees you paid to us in the 12 months prior to the incident for which we are responsible.
9.2. We will not be responsible for any of the following even if we knew or should have known there was a possibility you could experience the problem and in each case whether suffered by you directly or indirectly:
9.2.1. financial or similar loss of any kind, including, for example, loss of profits, business, estimated savings, chargeable time or goodwill;
9.2.2. any interruption to your business (including interruption to Service) or loss of or damage to information, however that interruption, loss or damage is caused;
9.2.3. loss or damage suffered by you which we could not have reasonably known about at the time you entered into this Agreement; and
9.2.4. losses you suffer as a result of using the Services other than as described in the relevant documents or as otherwise described on our website.
We recommend that you consider obtaining insurance cover if you believe that you could experience anything that we have told you that we will not be responsible for.
9.3. The following sentence is necessary under English law to help ensure that we benefit from the protection given by the rest of this paragraph 9. Nothing in this Agreement will prevent or limit either of our liability for:
9.3.1. fraud;
9.3.2. death or personal injury arising out of our negligence; or
9.3.3. any legally binding promise which is implied by law that we can provide the service to you or that you can use the Service without interference.
9.4. Each party acknowledges that the allocation of risk and responsibility in this Agreement is reasonable because it reflects:
9.4.1. that it is not within our control how, and for what purposes, you use the Services;
9.4.2. that we have not developed the Services specifically for you;
9.4.3. that while we follow good industry practice, it is not economically possible for us to exhaustively test the software that supports the Services; and
9.4.4. the amount of the Fees paid by you for the Services.
10. How can this Agreement be terminated?
10.1 This Agreement or any part of the Services can be terminated as set out elsewhere in this Agreement or by either of us providing to the other a minimum of 3 calendar months written notice of termination unless you have agreed with us to take applicable Services for a longer period, in which case you may not terminate those particular Services until after the expiry of the relevant period by providing us with 3 calendar months written notice of termination.
10.2 We may terminate this Agreement with immediate effect following written notice to you:
10.2.1. if you fail to pay any Fees on the due date for payment and they remain in unpaid at least seven days after being notified by us to make such payment;
10.2.2. if the provision of the Services becomes unlawful or otherwise cost prohibitive as a result of any change to the law.
10.3 On termination, all outstanding Fees will become immediately due and payable.
10.4 On termination for any reason, you shall stop using our Logo and no longer refer to yourself as a Sage Pay Merchant and shall return to us all information, sales, marketing and other materials and documents that we have provided to you.
11. Will you provide uninterrupted Service?
Whilst we aim to provide uninterrupted Service, unfortunately we can’t guarantee this as interruptions may be caused by factors beyond our reasonable control. If circumstances happen that are beyond our reasonable control, we will not be liable for any failure to perform our obligations in this Agreement because of those circumstances, and we will be excused from that failure for so long as those circumstances continue. Wherever possible, we will provide advance warning on our website of any known or planned interruptions and will try to ensure any interruption is kept as brief as possible. Interruptions caused by factors outside our control may include, but are not limited to: failure of our or your internet service provider, a distributed denial of service attack (where hackers overload networks with data in an effort to disable them) or an issue with your Acquiring Bank.
12. What we will do with your details
12.1. We will use any information you provide us under this Agreement to:
12.1.1. manage and administer your use of the Services;
12.1.2. fulfil our contractual obligations under this Agreement;
12.1.3. liaise with law enforcement agencies (including the police) & Fraud Detection Parties;
12.1.4. contact you (not your Customer) to see if you would like to take part in our customer research;
12.1.5. contact you (not your Customer) about other products and services which we think you will be interested in.
We will always try to speak to the relevant person in your organisation. We may contact you directly or use other organisations which we have hired to contact you for us.
12.2. We may disclose information to other companies in the Sage group of companies, our contractors, and other organisations for example, we may disclose information to:
12.2.1. The Sage Group plc (which owns us);
12.2.2. organisations which we use to help us send communications;
12.2.3. law enforcement agencies and Fraud Detection Parties;
12.2.4. your Acquiring Bank; and
12.2.5. your Customer’s issuing bank.
12.3. If you provide us with personal data (which in summary are data which enable a living individual to be identified – see www.ico.gov.uk for more details) we will process that data in accordance with applicable data protection legislation and you agree and authorise us to use it as described in paragraphs 12.1 and 12.2.
12.4. If at any time you do not want us to use your personal data in the manner described at paragraphs 12.1.4 (customer research) or 12.1.5 (information about other products or services), please call us on 1800 222 123 or email us at info@sagepay.com. For further information on how we use personal data, please see our privacy policy on our website at www.sagepay.com.
12.5. In relation to your account with us, we will liaise only with your named contact or an alternative contact provided by your named contact. It is your responsibility to let us know of any changes to your named contact.
13. What happens if you become insolvent or go into bankruptcy?
This Agreement will automatically (i.e. without us having to tell you) and immediately end without refund if you become bankrupt (or something similar happens) or your business is not able to pay its debts, stops trading or becomes insolvent (or something similar happens). In those circumstances we shall have no further obligation to you under this Agreement and any monies due from you shall become immediately due and payable.
14. What else do you need to know?
14.1 It is important to us to have a direct relationship with you so you will not transfer this Agreement to anyone else. We may transfer this Agreement to another organisation which is part of the group of companies of which we are a member.
14.2 From time to time we may modify this Agreement by notifying you by email or on our website that it has been modified. If you do not agree with those modifications, please contact us as soon as possible. By continuing to use the Service after such notifications, you indicate your acceptance of those modifications.
14.3 If either of us fails or delays the exercise of any rights or remedies under this Agreement, we will not be deemed to have given up those rights or remedies in any way.
14.4 If a court or similar body decides that any wording in this Agreement is invalid or unenforceable, that decision will not affect the rest of this Agreement, which will remain binding on both of us. However, if the wording that is invalid or unenforceable can be made valid and enforceable by deleting part of it, we will both treat the wording as if it is deleted, so that the remainder of the wording in question becomes valid and enforceable.
14.5 Nothing in this Agreement will give anyone any right or benefit under the Contracts (Rights of Third Parties) Act 1999. This means that only you and we can benefit from the rights in this Agreement.
14.6 This Agreement is the entire agreement between you and us with respect to your use of the Service, and supersedes all documentation, information and other communications (in each case whether spoken or written) between us with respect to such access and use.
15. Which laws govern this Agreement?
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 English law. The parties agree that the English Courts 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 (including non-contractual disputes or claims).
16. Merchant Services
This paragraph 16 only applies if you apply for a Merchant Services Account as a part of the Services.
16.1. If you complete the Merchant Service Application Form and submit it to the Bank, you make a formal application for a Merchant Services Account. Any information that you submit on the Merchant Service Application Form will be used in accordance with paragraph 12 and in accordance with the Bank’s terms and conditions which you should read carefully.
16.2. By completing the Merchant Service Application Form, you acknowledge and agree that, should your application be successful, you will be entering into a direct contractual relationship with the Bank (or its agent) as well as a separate direct contractual relationship with us. Accordingly, you agree to fully comply with all of these terms and conditions and all of the Bank’s terms and conditions.
16.3. You should ensure that your Merchant Service Application Form is fully completed before you submit it to the Bank. You must immediately inform the Bank directly if you wish to amend the details contained in your Merchant Service Application Form.
16.4. The Bank reserves the right to reject any applications and, if you subsequently enter into a merchant services agreement with the Bank, it may terminate your merchant services agreement at any time in accordance with its terms and conditions. You understand that the Bank (not us) decides whether or not to approve your application and may terminate your Merchant Services Account in accordance with its own terms and conditions. If your Merchant Services Account is terminated for any reason the Sage Pay Merchant Services will also terminate automatically and you must immediately pay to us all Fees due in relation to Sage Pay Merchant Services for the remainder of the Initial Term. Termination of any Sage Pay Merchant Services will not affect the delivery of any other Services under this Agreement (which will continue unaffected unless a party terminates those Services as otherwise provided under this Agreement).
16.5. Our ability to provide Sage Pay Merchant Services is conditional upon you obtaining a Merchant Services Account and retaining it throughout the duration of the Sage Pay Merchant Services.
16.6. If your application for a Merchant Services Account is successful:
16.6.1. the Bank will, in accordance with its terms and conditions, provide you with a Merchant Services Account and settle all funds, manage all Chargebacks, risk, fraud and financial adjustments in accordance with its terms and conditions. The Bank will also administer your Merchant Services Account directly and invoice you for all fees associated with that Merchant Services Account. Accordingly, it will be necessary for you to complete a second direct debit mandate (available from the Bank) which will apply to the Bank’s own fees.
16.6.2. we will provide you with first line support in relation to your Merchant Services Account (as described on our website from time to time) and where appropriate liaise with the Bank on your behalf whilst you continue to pay to us the applicable Fees.
30 September 2011
