Terms and Conditions – Merchant Fill ATMs
Deploying YourCash & Hanco branded ATMs
1. DEFINITIONS AND INTERPRETATION
In this Agreement, the following words will have the following meanings, unless the context otherwise requires:
“Advertising Display” means any advertising, marketing and/or promotional materials, logos or designs or representations that may be displayed on screen as part of the ATM system from time to time during the Term or on receipts, print outs and/or advisory notes to be printed by the ATM, and wrap material for the ATM;
“Agreed Location” shall have the meaning set out in clause 2.4.3;
“Agreement” means the terms of this Agreement together with the terms set out in the Application Form
“Application Form” means the form used by the Customer to apply for a YourCash ATM.
“ATM” means the automated teller machine(s) detailed in the Application Form to be supplied to the Customer by YourCash and/or in respect of which YourCash agrees to provide the Processing Services;
“ATM Scheme” means the ATM Schemes to which YourCash belongs either directly or indirectly, as a means of acquiring ATM transactions (including the LINK, Visa and MasterCard Schemes);
“Bank Account” is the Customer’s UK business bank account in the name of the Customer’s business. “Business Day” means a day (excluding Saturdays or Sundays or a day which is a public or bank holiday in England and/or Wales) on which banks generally are open in the City of London for the transaction of normal banking business;
“Card” means a current credit, debit or charge card issued by a Card Issuer;
“Card Issuer” means a financial institution that issues Cards under the authority of the relevant CardScheme;
“Cardholder” means any person that uses or attempts to use an ATM;
“Card Scheme” means Visa International, MasterCard International, Maestro Payment Services and/or such other schemes governing the issue and use of Cards, as notified by YourCash to the Customer from time to time;
“Change of Control” means that there has been a direct or indirect change of ownership of the Customer resulting overall in more than fifty percent (50%) of the total voting rights conferred by all shares in the Customer being held directly or indirectly by a person who did not hold 50% of the voting rights as at the Commencement Date and “Control” shall be construed accordingly;
“Claim” means a claim by a Cardholder that an ATM has dispensed a sum less than that which the Cardholder requested and where the full sum requested has been deducted from his/her account;
“Claims Procedure” means the claims procedure as determined by LINK from time to time and with which YourCash is required to comply;
“Commencement Date” means the date on which the Application Form is signed by the Customer; “Commission” means the commission payable to the Customer by YourCash at the rate set out in the Application Form;
“Consumables” means till receipts/rolls and similar consumables for use within an ATM;
“Confidential Information” means information that is designated as ‘confidential’ and Personal Data disclosed by either party, information relating to YourCash’s business, customers or financial or other affairs which is not publicly known, including the terms of this Agreement. Confidential Information includes any information concerning the technology, technical processes, procedures and security processes of YourCash “Customer” means the entity that has applied to YourCash to obtain an ATM;
“Customer Representative” means the main contact of the Customer for all communication regarding the provision of the ATM and Processing Services as nominated in accordance with clause 5;
“Customer Services” shall have the meaning set out in clause 126.96.36.199;
“Daily Opening and Closing Procedures” means the procedures for operating the ATM at the opening and closing of the Customer’s business on each day of trading as set out in the training materials provided by YourCash to the Customer;
“Data Line” means a telephone line or other agreed form of data connection dedicated for use by the ATM;
“Data Protection Laws” means applicable legislation protecting the Personal Data of natural persons, including, from 25 May 2018, GDPR, together with applicable legislation implementing or supplementing or replacing the same from time to time or otherwise relating to the Processing of Personal Data of natural persons, together with binding guidance and codes of practice issued from time to time by relevant supervisory authorities
“Day Close Process” means the process for balancing an ATM with the System by way of undertaking an administration balance transaction on the ATM in accordance with the Operator Instructions each day; “Delivery Date” means the date for delivery agreed between YourCash and the Customer acting reasonably and in good faith;
“Error Correction” means an adjustment in the Settlements and/or Commissions payable to the Customer:
(i) to rectify errors in previous payments of Settlements or Commissions or in payments or non-payments to Cardholders; (ii) to recover money fraudulently obtained by the Customer; and/or (iii) to settle any disputes between the Customer and any of the Cardholder, a LINK Member, LINK or YourCash;
“Force Majeure Event” means, in relation to either Party, an event or circumstance beyond the reasonable control of that Party but excluding, in the case of the Customer, shortage of Staff or materials or any industrial dispute relating to the Customer and/or the Staff;
“FCA” means the Financial Conduct Authority or any Regulator that replaces it or the relevant part of its functions;
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as updated from time to time
“Group Company” means in respect of either party its Holding Companies, its Subsidiaries and the Subsidiaries of any of its Holding Companies from time to time (“Holding Company” and “Subsidiary” having the meanings set out in section 1159 of the Companies Act 2006, and for the purposes of section 1159(1) a company (the first company) shall be treated as a member of another company if: (a) any of its subsidiaries is a member of that other company; or (b) any shares in that other company are held by a person acting on behalf of the first company or any of its subsidiaries; or (c) any shares in that other company are registered in the name of a person (or its nominee) by way of security or in connection with the granting of security over those shares by the first company);
“ICO” means the Information Commissioner’s Office as the applicable regulator for the purposes of the Data Protection Laws;
“Initial Term” means the period of five (5) years from the Commencement Date;
“Insolvent” means in the case of either Party the appointment of, or the application for (or other step taken in relation to) the appointment of, a liquidator, administrator, or receiver, the entering into of a scheme of
arrangement or composition for the benefit of creditors generally, any reorganisation, moratorium involving any class of its creditors, the proposal or passing of a resolution to wind it up (including a voluntary winding-up as part of a reorganisation) or the company becoming unable or being deemed to be unable to pay its debts as and when they fall due within the meaning of section 123 of the Insolvency Act 1986;
“Installation Date” means the date for installation of the ATM as agreed between YourCash and the Customer. The Installation Date, if not advised otherwise by YourCash, will be the same as the Delivery Date;
“Intellectual Property Rights” means:
(a) all patents, trademarks, service marks, rights in designs, get-up, trade, business or domain names, logos, copyrights including rights in computer software and databases;
(b) all rights in inventions, know-how, trade secrets and other Confidential Information; and
(c) any other intellectual property rights that may exist at any point in time in any part of the world;
“Labelling” means all stickers, logos, notices, labels, directions or other representations or branding which: (i) are affixed to any ATM supplied by YourCash when supplied; (ii) appear on any material supplied by YourCash to the Customer; and/or (iii) are subsequently supplied by YourCash for affixing on any ATM;
“LINK” means Link Interchange Network Limited;
“LINK Members” means any company who is signed up with LINK to participate in the LINK Network;
“LINK Network” means the network operated by LINK which enables customers of LINK Members to withdraw money from their account using ATMs;
“Operator Instructions” means YourCash’s operator instruction guidance notes for Customers in respect of use of ATMs, required operations, and use of YourCash’s services, as may be updated or amended from time to time by YourCash, including any additional instructions provided by YourCash to the Customer in connection with the same and any instructions provided either as part of training provided by YourCash to the Customer or advice given by Customer Services;
“Premises” means the Customer’s address or, if given, the alternative Installation Address set out in the Application Form;
“Processing Services” means the processing services set out in clause 2.5;
“Processor” means YourCash’s provider of transaction Processing Services from time to time;
“Regulator” means any regulator or regulatory body (including the FCA and/or the ICO) to which either Party is subject from time to time and/or whose consent, approval, registration with or authority is required so that either Party can lawfully carry on its business;
“Regulatory Change” means a change in the law or in the regulations consent approval or authority conferred by any Regulator such that the services provided by YourCash under this agreement cannot, without modification or alteration, continue to be provided;
“Scheme” refers to either or both the Card Scheme or ATM Scheme as applicable;
“Scheme Rules” means the means the rules for access to and use of the Card Scheme or ATM Scheme as issued from time to time by the Card Scheme or ATM Scheme.
“Security Information” means information either provided to Customer or created by the Customer to allow the Customer to access and operate each ATM including the security code for the safe;
“Security Measures” means the security measures notified to the Customer by YourCash from time to time relating to any access and use of ATMs which may as the context requires include Security Information; “Settlement” means a sum, calculated following the Customer carrying out a Day Close Process in respect of an ATM, equal to the monies dispensed from that ATM pursuant to authorised withdrawal Transactions carried out by Cardholders using that ATM;
“Software” means any software installed on, embedded within or otherwise forming part of any of the ATMs supplied to the Customer by YourCash;
“Staff” means those persons employed or engaged by the Customer from time to time and includes the staff of any sub-contractor appointed under this Agreement;
“Substantial Disposal” means a sale or other disposal of the whole or a substantial part of the business or assets of the Customer;
“Support Services” means the support services set out in clause 2.6;
“Surcharge” is the fee (if any) charged to Cardholders as set out in the Application Form as amended from time to time in accordance with this Agreement;
“System” means the LINK Network and YourCash’s associated processing system;
“Tariff of Charges” means the document containing the fees and charges charged by YourCash to the
Customer as notified to the Customer from time to time;
“Term” means the period starting on the Commencement Date and ending on the Termination Date; “Termination Date” means the date on which this Agreement expires or terminates for whatever reason;
“Termination Fee” means the fees detailed in clause 15.9 of this Agreement, payable on demand by the Customer to YourCash on termination of this Agreement under clause 19.2.3;
“Transaction” means a withdrawal of money from the ATM subject to YourCash receiving confirmation (directly or indirectly) from a Card Issuer via the LINK Network that the applicable Card has not been listed as stolen and that there are sufficient funds for the relevant Transaction and which, for the avoidance of doubt, does not include balance enquiries, cheque book requests or statement requests;
“Us” means YourCash (and “Our” and “We” will be construed accordingly);
“VAT” means United Kingdom value added tax;
“You” means the Customer (and “Your” will be construed accordingly);
“YourCash” means YourCash Limited (Company Number 3904039) whose registered office is at Willow House, Woodlands Business Park, Linford Wood, Milton Keynes, Buckinghamshire, MK14 6EU;
“YourCash Group Company” means an entity that owns or Controls, is owned or Controlled by or is under the common Control or ownership of Euronet Worldwide, Inc and “YourCash Group” shall be construed accordingly;
“YourCash Representative” means the Regional or Internal Account Manager or the Commercial Director for YourCash and the main point of contact for the Customer nominated in accordance with clause 5;
“YourCash Website” means http://www.yourcash.com and.
“2000 Act” means the Financial Services and Markets Act 2000.
1.1 In this Agreement, unless otherwise specified, reference to:
1.1.1 references to a “Party” or to the “Parties” shall mean YourCash, Us, the Customer and/or You as the context requires and shall include a reference to its or their successors and (to the extent applicable) permitted assigns and references to a third party shall mean any person other than the Parties;
1.1.2 any reference to a “sub-contractor” of a Party will be deemed to include any agent, consultant or contractor of that Party;
1.1.3 to a statute, statutory provision or any subordinated legislation made under a statute is a reference to such statute, provision or subordinated legislation as amended or re-enacted from time to time, whether before or after the date of this Agreement and in the case of a reference to a statute is also to all subordinate legislation made under that statute whether before or after the date of this Agreement;
1.1.4 “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach” and “Process/Processing/Processed” have the same meaning as described in GDPR and shall be construed accordingly and
1.1.5 the headings in this Agreement do not affect its interpretation.
1.2 To the extent only of any conflict or inconsistency between the clauses of this Agreement and the provisions of the Application Form, the provisions of the Application Form shall take precedence.
1.3 You agree that YourCash may make amendments to these terms and conditions during the Term. It will make amendments by posting the revised terms and conditions on the YourCash Website which shall include a revision date in the footer. You agree that, unless you have raised by notification to us in writing an objection to the amendment within 28 days of its posting, it will form part of the Agreement between us thereafter.
2. YOURCASH OBLIGATIONS
2.1 The Customer grants a licence to YourCash to:
2.1.1 install the ATM supplied by YourCash; and
2.1.2 operate the ATM at the Premises in accordance with this Agreement. This includes the following rights which are held in common with the Customer and all other entitled third parties. These rights are granted for YourCash’s benefit and anyone expressly or impliedly authorised by YourCash to be at the Premises:
188.8.131.52 a right of way with or without vehicles over along and through the common parts to and from the Premises as is reasonably necessary to access the Premises; and
184.108.40.206 the uninterrupted use of any conduits provided by the Customer for YourCash’s common use at the Premises as is reasonably necessary for the installation, operation, maintenance and/ or recovery of the ATM.
2.2 For the avoidance of doubt, this Agreement will not create any lease or tenancy of the site of the ATM, nor confer upon YourCash any right or interest in the Premises, other than a right to use the site of the ATM as set out in this Agreement.
2.3 YourCash will be the exclusive provider of the Processing Services or any similar services to the Customer in respect of any ATM at the Premises during the Term.
2.4 Delivery and installation of the ATM
2.4.1 We will deliver each ATM to the Premises on the Delivery Date or as soon as reasonably practicable thereafter.
2.4.2 We will install each ATM such that it is secure, either by bolting the ATM to the floor of the Premises or securing the ATM in such other manner as decided by YourCash at its sole discretion, on the Installation Date. The Customer shall notify YourCash prior to the installation of the ATM of any obstruction, risk or hindrance to the security of the ATM at the Agreed Location (including any underfloor obstructions).
2.4.3 The installation position for the ATM will be agreed in the Application Form (“the Agreed Location”). The Customer agrees that the ATM Location decided by the Regional Manager and the Customer at the time of the Site Survey is final. The Customer understands that this ATM Location was chosen according to criteria set by YourCash, mainly to comply with LINK regulations and to ensure the safety of the ATM users, and preserve their confidential data. If on the Installation Date You require the ATM to be in a position other than the Agreed Location installation will be aborted and a new survey will need to be arranged. YourCash will charge You for any aborted installation.
2.4.4 Where applicable, We will procure the supply, installation and maintenance of an appropriate Data Line at the Premises.
2.4.5 YourCash’s obligations set out in clause 2.4.4 is subject to You promptly making any payments due in respect of the Data Line where You are obliged to make such payments in accordance with the Application Form.
2.4.6 Where We are unable to complete the installation of an ATM because of Your failure to provide Our engineer with access to the Premises or to prepare the Agreed Location at the Premises as set out in clause 3.6 or You require the ATM to be in a position other than the Agreed Location on the Installation Date, We will charge You the aborted installation fee stated in Our Tariff of Charges.
2.5 Processing Services
2.5.1 We will provide the following Processing Services to You in respect of each of the ATMs during the
220.127.116.11 access for each ATM to the System during all times that the Premises are open for trading;and
18.104.22.168 the payment of Settlement monies into Your Bank Account.
2.5.2 Where any ATM is not supplied by Us, We may check its suitability for use in connection with the Processing Services prior to commencement of the Processing Services in respect of such ATM. If We deem such ATM unsuitable in connection with the Processing Services, We may, at Our option, seek to repair or make changes to the ATM to make it suitable, but We will not be obliged to do so. We will charge Our reasonable costs incurred for any such repair or changes. If an ATM is deemed unsuitable for use in connection with the Processing Services, such automated teller machine will not be an ATM for the purposes of this Agreement, and if there are no other ATMs under this Agreement, We may terminate this Agreement in accordance with clause 19.2.2. We provide no warranty as to the repair carried out and shall have no liability for ensuring that the ATM is suitable for the Processing Services.
2.5.3 Where applicable we will commission the ATM at the Premises on the Installation Date so that Processing Services may be provided and that Transactions are charged at the Surcharge(s) set out in the Application Form.
2.5.4 We will have no obligation to provide the Processing Services and We will not be liable for any failure to provide Processing Services during any period when an ATM and/or the System, or any part of it, is not operational or available for use due to:
22.214.171.124 the undertaking of maintenance works with respect to the ATM and/or System;
126.96.36.199 the undertaking by You of Daily Opening and Closing Procedures;
188.8.131.52 banknotes and/or Consumables within the ATM having run out or being low or the restocking by You of the ATM with banknotes and/or Consumables;
184.108.40.206 any failure of the Data Line, telecommunication or other networks, or the System;
220.127.116.11 any damage or defect to an ATM; and/or
18.104.22.168 Your failure to comply with Your obligations or perform Your responsibilities in accordance with this Agreement.
2.5.5 Settlement monies will be paid into Your Bank Account within three Business Days following receipt by Us of such sums in full cleared funds from the Scheme (“Payment Period”). The Payment Period may be extended by one Business Day where the Day Close Process in respect of such Settlement monies is not completed by the time the banks close, currently 5.30 pm UK time. YourCash may change the Payment Period at any time during the Term of this Agreement.
2.6 Support Services
2.6.1 We will provide the following support services to You (“Support Services”) during the Term:
22.214.171.124 the repair or replacement (at Our option, on a “like for like” basis) as soon as reasonably practicable of any ATM reported by You not to be operating normally for whatever reason; and
126.96.36.199 a customer services facility to handle account and technical related queries in such form and manner as may be notified to You from time to time (“Customer Services”).
2.6.2 If, in Our reasonable opinion, it is not economic to repair an ATM owned by You, We will charge You for the supply of a replacement ATM.
2.6.3 As Customer Services utilises the public telephone network infrastructure and the internet it is subject to interruption and planned and unplanned maintenance work. Every effort will be made to minimise the impact of any disruption to the hours of operation, You acknowledge and agree that Customer Services may be affected, disrupted or unavailable due to such interruption or disruption.
2.6.4 You will log a fault with Customer Services when such a fault is discovered and follow any instructions given by Us. If Customer Services cannot resolve the fault, an engineer will be despatched to resolve the fault. This may involve, at Our discretion, the repair or the replacement of the ATM. You will provide such assistance (including access to the Premises and the ATM) as is necessary to allow Our engineer to resolve the fault.
2.6.5 We will have no obligation to provide Support Services to You where a defect to an ATM is due to Your failure to comply with Your obligations under the Agreement including where the ATM is operated by any member of Staff that have not completed the training as set out in clause 2.7. If We provide Support Services to You in such circumstances, including the replacement of ATM locks where the security codes have been lost or compromised, You may be charged for these services in line with Our Tariff of Charges.
2.6.6 If an ATM is stolen or damaged by fire, flood or any other act of God, power surge or any criminal act including but not limited to vandalism (where such damage is not due to faulty design or manufacture) We may, at Our sole discretion:
188.8.131.52 elect to replace or repair the relevant ATM at no cost to You;
184.108.40.206 inform You of the cost of replacing or repairing the relevant ATM, and, subject to receipt within ten Business Days of Your written acceptance to pay the costs of repair or replacement, carry out such replacement or repair at Your cost; or
220.127.116.11 terminate this Agreement in accordance with clause 19.2.2, as regards the relevant ATM without any liability on the part of either Party, save in respect of any antecedent breach of this Agreement.
2.7.1 We will provide full operational training, including the Daily Opening and Closing Procedure and Security Measures, following the installation of Your ATM. This training will be given to the Customer Representative and to such other members of Your Staff as nominated by You. You will ensure that the Customer Representative and all nominated staff attend the training. You will ensure that all Staff who operate the ATM have either attended Our operational training or received equivalent training from another member of Staff. You will ensure that Staff do not operate the ATM or carry out any material obligations under this Agreement until they have received such training. You will pay training fees in accordance with Our Tariff of Charges for any additional Staff training which You request following installation of the ATM. If You or any members of Staff nominated by You fail to attend the training, We will be entitled to terminate this Agreement in accordance with clause 19.2.2 on notice to You, and on such termination We will charge an aborted installation fee in accordance with Our Tariff of Charges.
2.7.2 You will ensure that Staff who have been trained as described in clause 2.7.1 are available on the Premises at all times when the Premises are open for business.
2.8 Provision of Consumables
2.8.1 We may provide Consumables to You on Our terms, which may vary from time to time. We may charge You for the Consumables, and shall notify You in advance of any such charges.
2.8.2 You shall not use Consumables that have not been provided by YourCash without Our prior written approval. Only Consumables which meet the necessary quality and specification for use within an ATM will be approved by YourCash.
2.9 Moves, decommissioning and uninstallation
2.9.1 We will, on request:
18.104.22.168 survey the Premises to determine an appropriate site for an ATM or the relocation of an existing ATM;
22.214.171.124 relocate an ATM to an alternative appropriate location within the Premises, or subject to Our prior written Agreement, an alternative Premises;
126.96.36.199 decommission any ATM owned by You such that You may transfer it to a third Party; and
188.8.131.52 uninstall and remove an ATM.
2.9.2 YourCash reserves the right to charge a fee in respect of any additional services provided to the Customer, including the survey, relocation, decommissioning and uninstallation services set out under this clause 2.9, such fee to be as set out in Our Tariff of Charges unless otherwise agreed in writing at the time at which the relevant service is requested.
3. CUSTOMER OBLIGATIONS
3.1 The Customer will comply with its obligations under this Agreement.
3.2 The Customer will take and will ensure that the Staff will take all reasonable steps to co-operate with YourCash to the extent reasonably required by YourCash to facilitate YourCash’s performance of its obligations under this Agreement.
3.3 The Customer will promptly provide YourCash with all information held by the Customer which YourCash may reasonably require to enable YourCash to perform its obligations under this Agreement. The Customer will ensure all such information is accurate and comprehensive to the best of its knowledge and will immediately notify YourCash if it becomes aware of any other relevant information or any change to the information.
3.4 If YourCash is prevented or delayed from performing its obligations under this Agreement by reason of any act, omission or default of the Customer, the Customer will pay YourCash a sum in respect of all reasonable costs and losses sustained or incurred by YourCash.
3.5 Identity information
3.5.1 You will promptly provide Us with all information We request to verify the identity and address of:
184.108.40.206 the Customer Representative;
220.127.116.11 where the Customer is a company, two (2) of the company directors; and
18.104.22.168 where the Customer is a partnership, 2 of the partners.
If You fail to promptly provide such information, We may suspend provision of the Processing Services immediately on notice to You and/or terminate this Agreement in accordance with clause 19.2.2.
3.6 Site preparation
3.6.1 Prior to the Delivery Date, You will ensure that the Agreed Location for each ATM at the Premises is clear and free from obstruction and ensure that appropriate dedicated grounded electrical power sockets for powering each ATM are fitted.
3.6.2 If the Installation Date is different to the Delivery Date, You will ensure that the ATM is stored in a safe, secure, clean and dry place at Your own cost and risk from the Delivery Date to the Installation Date.
3.7 Stocking and maintenance of ATM
3.7.1 You will:
22.214.171.124 keep each ATM properly stocked with bank notes, and empty stocks of banknotes from each ATM during any period when the Premises are closed for business;
126.96.36.199 keep each ATM properly stocked with Consumables supplied or approved in advance in writing by Us in accordance with clause 2.8 and maintain an adequate stock of Consumables at all times;
188.8.131.52 keep each ATM and the Premises clean and presentable;
184.108.40.206 not place merchandise or any other objects on top of the ATM, unless requested by YourCash;
220.127.116.11 where Cardholders’ access to an ATM is inside the Premises, ensure that Cardholders have access to each ATM at all times that the Premises are open for trading;
18.104.22.168 notify Us immediately of any apparent faults, damage or defect in performance of an ATM;
22.214.171.124 comply with the Operator Instructions including:
(7.1.7.a) undertaking all operations and maintenance tasks in accordance with the Operator Instructions;
(7.1.7.b) following the Daily Opening and Closing Procedures;
(7.1.7.c) restocking the ATMs with banknotes and Consumables when needed;
(7.1.7.d) printing the ATM journal on a daily basis and retaining copies securely for not less than six (6) years;
126.96.36.199 comply with all Scheme Rules as advised to You by Us, including completion of the Day Close Process required by LINK;
188.8.131.52 ensure that there is an ongoing supply of electricity to each ATM, the relevant electricity sockets are maintained and that each ATM is switched on at all times;
184.108.40.206 ensure that the Data Line does not become disconnected from the ATM and is not used for any purpose other than the provision of Processing Services for the ATM; and
220.127.116.11 where the Application Form states that You are to pay for the Data Line, promptly pay all sums due in respect of the Data Line and not take any steps to cancel or vary the terms on which the Data Line is provided.
3.8 Security Measures
3.8.1 You will:
18.104.22.168 treat as confidential and maintain at all times the security and confidentiality of, and prevent any disclosure of, the Security Measures and Security Information and all relevant security codes and keys;
22.214.171.124 ensure that each ATM is only accessed by persons who have undertaken training described in clause 2.7 and have permission of the Customer Representative;
126.96.36.199 ensure that each ATM is at all times securely fixed at the Premises and notify Us immediately if any ATM becomes insecure;
188.8.131.52 ensure that the Premises are securely locked when closed for business;
184.108.40.206 comply with all Security Measures notified by Us to You from time to time;
220.127.116.11 only provide the security code for the ATM to Us if the ATM is returned to Us;
18.104.22.168 take all reasonable precautions (whether or not specified by Us) to limit any potentially fraudulent or other criminal activities;
22.214.171.124 if requested, give Us reasonable assistance for the prevention and detection of fraud or other criminal activity in respect of use of the ATMs;
126.96.36.199 remove all cash, leave the ATM unlocked and the safe visibly open when the Premises are closed; and
188.8.131.52 not make any changes to the immediate ATM environment without obtaining prior written authorisation from Us to do so. This includes the installation of cameras in the ATM vicinity and the introduction of anything which in Our opinion may compromise the security of the ATM users’ data (for example, anything that would enable to view the PIN pad whilst a customer is using the ATM).
3.9 ATM Labelling and Advertising Material
3.9.1 You will:
184.108.40.206 ensure that all Labelling is and remains affixed to each ATM as supplied by Us to You and that such Labelling remains clean and unaltered and is not removed, distorted, damaged or obscured in any way, unless otherwise directed by Us;
220.127.116.11 immediately report any removal, damage, distortion or obscuring of Labelling to Us;
18.104.22.168 not place any other stickers or labelling whatsoever on or in relation to the ATMs without Our prior written approval; and
22.214.171.124 display such signage and marketing material on or close to each ATM as is reasonably requested by YourCash and as is reasonably necessary to advertise the presence of such ATM.
3.9.2 You hereby consent, permission and approval and provide your irrevocable consent, permission and approval to the display of any Advertising Material in respect of any ATM and/or the inclusion of Advertising Materials on any Consumables and you hereby acknowledge and agree that you shall have no rights, title or interest in or in relation to any and all Advertising Materials.
3.10 Landlord consents, insurance, and legal compliance
3.10.1 You will:
126.96.36.199 obtain all necessary consents, licenses and permission from landlords, insurers or otherwise in respect of the installation of ATMs, making an ATM facility available at the Premises, the display of any signage Labelling or marketing material in respect of the presence of the ATM and any Advertising Material;
188.8.131.52 comply with all laws and regulations relating to the location or positioning of ATM facilities at the Premises including those made pursuant to Equality Act 2010; and
184.108.40.206 be responsible for any rates or taxes applying to installed ATMs unless otherwise agreed in writing.
3.10.2 Where You have purchased or own the ATM, We recommend that You obtain insurance to cover damage to or loss of such ATM. In the event that You have not obtained insurance cover in accordance with this clause 3.10.2, YourCash will not be obliged to repair or replace the ATM.
3.10.3 Where YourCash is providing the ATM the Customer shall comply with the insurance obligations set out in clause 16 and the Customer must notify the insurer of the Premises.
3.11 Supply of ATM by the Customer
3.11.1 Where You are supplying an ATM or acquiring an ATM from a source other than YourCash, You will ensure and hereby warrant that:
220.127.116.11 You own full and unrestricted legal and beneficial title to such ATM;
18.104.22.168 there are no restrictions applying to Your use of such ATM;
22.214.171.124 any previous agreement relating to processing of card transactions through such ATM has expired or been terminated;
126.96.36.199 there are no restrictions limiting Your right to enter into this Agreement in respect of such ATM; and
188.8.131.52 You are not aware of any faults in or modifications made to such ATM.
3.12 Changes of location and customer ownership
3.12.1 You will:
184.108.40.206 not move or attempt to move any ATM, whether to another location at the Premises, to any other site or premises or otherwise; and
220.127.116.11 notify Us immediately of any proposed and actual changes in the ownership or control of You, Your business, the Premises and/or the ATM.
3.12.2 If You wish to move an ATM, You must request that We carry out the move in accordance with clause 2.9, We will charge You for such move in accordance with Our Tariff of Charges. A minimum of thirty (30) days’ notice will be required. If an ATM is moved without the prior written authorisation of YourCash, We reserve the right to charge an engineer call out fee to visit the ATM to repair any damage and ensure it continues to meet Scheme requirements and the requirements of this Agreement and to also charge for any other costs incurred by YourCash to carry out such Works.
3.12.3 If You sell transfer or otherwise part with ownership or control of all or any part of the business or premises then You will be charged in accordance with clause 15.9 on the same basis as if You had in breach of contract permitted the ATM or ATMs to be removed in breach of Our agreement and Your obligations set out in clause 3.
3.13 Bank account
3.13.1 For the purposes of receipt of Settlement monies and Commissions, You will establish and maintain a UK bank account acceptable to YourCash in the name of Your business (“Bank Account”) and will confirm to Us the details of the Bank Account Where You have not completed Our change of Bank Account procedure, We will continue to pay any sums due to You under this Agreement into Your previous Bank Account and We will have no liability if You are unable to recover any such sums.
3.14 Modifications to ATM required by third parties
3.14.1 From time to time, We may be required by a Regulator or Scheme to make modifications to the ATM. In such events, You will provide access to Us to the Premises and provide such assistance as is required to enable Us to carry out the modifications. Where You own the ATM, We reserve the right to charge You for Our reasonable costs incurred in making the modifications required by the relevant third party and You agree to pay such charges.
4. FEES AND COMMISSIONS
4.1 Details of Transactions, Surcharges, Commissions and Settlements will be recorded and/or calculated based upon Transaction settlement reports produced by the Processor. A Transaction will not be recorded on the Processor’s Transaction settlement reports until a Day Close Process is undertaken in respect of the relevant ATM following such Transaction. In the absence of any gross or manifest error, the details of the Transaction, Surcharges, Commissions and Settlements provided by the Processor will be determinative.
4.2 Commission will be calculated for each Transaction and the total Commission will be aggregated for each month. Commission is only payable in relation to the Transaction types set out in the Application Form.
4.3 YourCash will transfer by BACS to the Customer’s Bank Account by the 15th (or next Business Day thereafter) of each month the Commissions due to the Customer in respect of the previous month. YourCash may change the payment date for Commissions by notice to the Customer from time to time.
4.5 Save for any Commission, any Surcharge paid by the Cardholder will be retained by YourCash.
4.6 Claims will be determined in accordance with the Claims Procedure. The Customer will ensure that it follows YourCash’s Claims processes, procedures and instructions in respect of any Claim raised by a Cardholder with the Customer by referring the Cardholder to the Cardholder’s card issuing institution. The Customer will promptly provide YourCash with all information and records (including the journal of the ATM in question) requested by YourCash. If such ATM journal validates the Claim in accordance with the Claim Procedure, YourCash will advise the Customer and the Customer will refund YourCash the full amount of the Claim. If YourCash is obliged under Scheme Rules to repay any sum to a Card issuing institution of a Cardholder who has made a Claim due to any failure of the Customer to comply with its obligations, the Customer will refund the same to YourCash regardless of the actual validity or otherwise of the Claim.
4.7 All sums payable to YourCash under this Agreement, are stated exclusive of any applicable VAT or any other tax which may apply at any time during the Agreement, which will be paid by the Customer.
4.8 All Commission payments payable by YourCash to the Customer are stated inclusive of any applicable VAT or any other tax which may apply at any time during the Agreement.
4.9 Where the Customer has purchased the ATM:
4.9.1 the title in each ATM will be transferred to the Customer on the later of:
18.104.22.168 delivery to the Premises; and
22.214.171.124 receipt by YourCash of full payment of the Purchase Price for the relevant ATM from the
4.9.2 The Purchase Price set out in the Application Form will be payable on the Commencement Date;
4.9.3 The Customer may not dispose of or transfer title in any ATM, or use the ATM in connection with card processing services provided by any third Party without the relevant ATM first being decommissioned by YourCash;
4.9.4 YourCash will provide such decommissioning promptly on request. YourCash reserves the right to charge reasonable costs in relation to such decommissioning; and
4.9.5 Risk in the ATM shall pass to You on delivery of the ATM.
4.10 Where the Customer has not purchased the ATM:
4.10.1 the ATM and Consumables remain the property of YourCash at all times. YourCash will have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the ATM or Consumables. YourCash will be entitled to seek a Court injunction to prevent the Customer from selling, transferring or otherwise disposing of the ATM or Consumables;
4.10.2 for the purpose specified in clause 4.10.1 above, YourCash or any of its agents or authorised representatives will be entitled at any time and without notice to enter upon any premises in which the ATM or any part thereof is installed, stored or kept, or is reasonably believed to be;
4.10.3 The Customer may not grant any charge over the ATM or Consumables or use the ATM or Consumables by way of a guarantee during the Term. Neither the Customer nor any third party will have a lien on the ATM. The Customer will take all such steps as may be reasonably necessary to ensure that the title of YourCash in the ATM and Consumables remains unencumbered;
4.10.4 Where a monthly placement fee has been set out in the Application Form or subsequently agreed by both parties in writing, the fee will be payable on the due date as set out in the Application Form or agreed by both parties in writing; and
4.10.5 Risk in the ATM shall pass to You on delivery of the ATM.
4.11 Unless otherwise agreed, and without prejudice and supplemental to the rights of YourCash under the Late Payment of Commercial Debts Regulations 2013 as amended from time to time the Customer must pay YourCash any amount invoiced in accordance with this Agreement within 14 days of the date of invoice. If any sum due and payable under this Agreement is not paid by the Party liable to make such payment within 14 days of the date of invoice or demand, the Party to whom such money is owed will be entitled (without prejudice to any of its other rights) following notice by it to the Party in default to charge interest at 3% above the base rate from time to time of the Royal Bank of Scotland plc (or such other bank as is notified to the Customer) from the date of such notice until payment is made rising to 8% over such bank base rate once payment is 60 days overdue Such interest will accrue from day-to-day, will be compounded on a daily basis and be payable after as well as before any judgement.
4.12 YourCash may deduct from Settlement monies, Commissions and/or any other amounts owed by YourCash to Customer any amounts for the purposes of Error Correction and/or any other sums owed or liabilities of the Customer to YourCash under this or any other agreement (whether present, future, actual or contingent). YourCash will give the Customer not less than ten (10) Business Days’ notice of any deduction it intends to make from Settlement monies prior to making such deduction.
4.13 Save as explicitly set out in this Agreement or otherwise agreed in writing between the YourCash and the Customer in writing, the payment of the Commission by YourCash to the Customer in accordance with this clause 4 represents YourCash’s sole financial liability to the Customer.
5.1 The Customer and YourCash will each nominate a person with appropriate authority to act as its representative under this Agreement. The initial Customer Representative and YourCash Representative will be the people nominated as such in the Application Form.
5.2 Unless otherwise agreed between the Parties, the Customer Representative will be the first point of contact for any information requests under this Agreement.
5.3 The Customer will ensure that the Customer Representative will meet with YourCash to discuss the performance by the Customer of its obligations under this Agreement and any issues that have arisen during the course of that performance, as requested by YourCash.
5.4 The Customer will be entitled to appoint a substitute Customer Representative, with the approval of YourCash, by serving seven days’ written notice on YourCash (such approval not to be unreasonably withheld or delayed). If YourCash does not communicate its disapproval within the seven days of receiving such notice, YourCash’s approval will be deemed to have been given.
5.5 The Customer must notify YourCash of any changes to the contact details of the Customer and Customer Representative, including telephone number and email address.
6. REGULATORY REQUIREMENTS AND FRAUD PREVENTION
6.1 The Customer acknowledges that YourCash is subject to regulation by the Regulators in the countries in which YourCash operates. Such regulation may include requirements relating to outsourcing which apply to this Agreement. The Customer will give YourCash all assistance that it reasonably requires to comply with these requirements or the requirements of its Regulators and all legal requirements of the countries in which it operates. Such assistance may include preventing one or more specified members of Staff either acting on behalf of the Customer under this Agreement or having any access to the ATM. The Customer further agrees that it will co-operate with any Regulator in connection with this Agreement. Any breach by the Customer of this clause 6 will entitle YourCash to terminate this Agreement immediately upon written notice in accordance with clause 19.2.2.
6.2 Where YourCash has a reasonable suspicion that a transaction is fraudulent or involves other criminal activity, YourCash may immediately suspend the processing of that transaction and/or withhold payment to You of the relevant Settlement monies and Commission until the satisfactory completion of Our investigation. YourCash will not incur any liability to the Customer for withholding payment under this clause 6.2.
6.3 You must immediately notify YourCash of any changes to the environment in which the ATM is situated which could have the effect of allowing the input of a PIN to be monitored or observed- for example the installation or modification of partitions, mirrors, CCTV cameras, walkway areas, balconies, mezzanine floors, suspended ceilings after the original installation of the ATM.
6.4 Where fraud or other criminal activity is found to have occurred in relation to an ATM, YourCash may adjust the Settlement or Commission accordingly and/or immediately terminate this Agreement on written notice to the Customer in accordance with clause 19.2.2.
7. CHANGE CONTROL
7.1 The Customer may contact their YourCash Representative to request that a Surcharge is changed. YourCash may change the Surcharge at anytime by providing the Customer with at least 30 days written notice of the change.
7.2 Following any request to change a Surcharge, YourCash will notify the Customer of any amendments to the Commission as a result of such change. Following such notice, the Customer may withdraw its request for a change in the Surcharge.
7.3 YourCash reserves the right to reject any Customer request to change the Surcharge where the requested change is, in the opinion of YourCash, likely to reduce the level of revenue YourCash receives under this Agreement.
7.4 Surcharge changes requested by the Customer in accordance with clause 7.1 (“Customer Request”) will take five (5) Business Days to be processed by YourCash. Save that changes to the Surcharge will take effect from the 1st Business Day of the following month in which the Customer Request was received by YourCash. If there is less than 5 Business Days between the Customer’s Request and the end of the month then the change to the Surcharge will take effect from the 1st Business Day of the second month following the Customer Request. Any variation in the Commission will take effect on the same date as the corresponding variation in the Surcharge takes effect in accordance with this clause.
7.5 In respect of ATMs which do not charge a Surcharge, and have Commission payable, the fees payable to YourCash are subject to the agreement of the Schemes. If the Schemes alter the fees payable to YourCash in accordance with the Scheme Rules, YourCash reserves the right to, and the Customer hereby agrees that YourCash may, amend the Commission by the same amount as any increase/decrease in the fee payable to YourCash. Such change will take effect on the same date as the corresponding variation in the Scheme fee takes effect.
7.6 If the Customer wishes to be provided with an additional ATM and/or take Processing Services in respect of any additional ATM, the Customer should contact the YourCash Representative to discuss its requirements. If YourCash agrees to provide such ATMs and/or Processing Services, the YourCash Representative will provide the Customer with an appropriate order form. The Parties will agree that all automated teller machines listed in the order form will be ATMs for the purposes of this Agreement, and that the terms and conditions of this Agreement apply to each additional automated teller machine set out in the order form.
7.7 No variation of this Agreement will be valid unless it is in writing and signed by an authorised representative of each Party.
8. RIGHTS OF ACCESS AND AUDIT
8.1 To enable YourCash to assess the Customer’s performance and compliance with its obligations under this Agreement or to comply with the requirements of any Regulator, the Customer will, on request, immediately make available to YourCash any file or any other information that YourCash or a Regulator may require and will immediately provide access to any ATM to YourCash.
8.2 The Customer will permit and procure YourCash or Our duly authorised representatives to have access to the Premises or any other location where Your records are situated at all reasonable times to review all files, correspondence, documents or information relating to the Agreement; to inspect, maintain, repair and/or alter the ATM and to audit and inspect the Customer’s security arrangements (including data security measures as required under clause 13) and its compliance with the Agreement. YourCash will give the Customer a minimum of 48 hours prior notice, except where the requirements of a Regulator do not permit such notice. The Customer will provide YourCash and its duly authorised representatives with all reasonable assistance to understand the information provided to it by the Customer and YourCash will be allowed to have access to the Staff for such purposes.
8.3 Following any audit or inspection carried out in accordance with clause 8.1 and/or clause 8.2 the Customer will implement, as soon as reasonably practicable, any additional measures requested in writing by YourCash.
8.4 Any file, correspondence, document or information provided by the Customer pursuant to this clause 8 will be treated as Confidential Information by YourCash, except to the extent that it relates to the business or affairs of YourCash.
8.5 YourCash may exercise its rights under this clause 8 using its employees, external auditors or other agents. The Customer will permit any Regulator or its duly authorised representatives to exercise the rights of YourCash under this clause 8.
8.6 The Customer will retain, for a period of six (6) years following the termination or expiry of this Agreement, all paper and electronic records and information related in any way to this Agreement. The Customer will grant YourCash rights of access and audit, as set out in this clause 8, for as long as the records and information are retained in accordance with this clause 8.6.
9.1 If any dispute arises out of or in connection with this Agreement or its formation, it will first be referred to the Parties’ representatives nominated under clause 5. If the Parties’ representatives cannot resolve the dispute within 10 Business Days after it has been referred, the dispute will be referred to the managing director of the Customer (or anyone of equivalent seniority appointed by the Customer to deal with the dispute) and the Commercial Director at YourCash (or anyone appointed by YourCash to deal with the dispute) for resolution.
9.2 Should the dispute remain unresolved after reference to the managing director (or the person of equivalent seniority appointed by the Customer to deal with the dispute) of the Customer and the Commercial Director at YourCash (or the person appointed by YourCash to deal with the dispute) 10 Business Days after it has been referred under clause 9.1, the dispute may be referred to the courts in accordance with clause 25.
9.3 Either Party may apply for an interim court order while the Parties attempt to resolve a dispute in accordance with this clause 9.
10.1 The Customer undertakes that it will only use technically competent and properly trained and qualified Staff in the performance of its obligations under this Agreement.
10.2 The Customer agrees that it will, and will ensure that all members of its Staff will, take reasonable care to ensure that they do not interfere with the operations of YourCash, its employees or any other third party.
10.3 If YourCash (acting reasonably) determines that a member of the Staff should be prevented from undertaking any obligations relating to this Agreement, YourCash will notify the Customer in writing and the Customer will immediately prevent that individual from being involved in the performance of the Agreement without the prior written consent of YourCash.
10.4 Failure by the Customer to comply with the provisions of clause 10.3 constitutes an irremediable material breach of this Agreement under clause 19.4.2.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 YourCash grants to the Customer, during the Term, a non-exclusive, royalty-free, revocable licence to use YourCash’s Intellectual Property Rights insofar as is necessary and solely for the purpose of this Agreement.
11.2 The Customer will not obtain any rights in or title to any of YourCash’s Intellectual Property Rights, and any goodwill or rights in the trademarks of YourCash generated under this Agreement will inure to YourCash.
11.3 The Customer will not use the name, trademark or logo of YourCash or any member of the YourCash Group in any form or manner other than as part of the Labelling, without the prior written consent of YourCash.
11.4 The Customer will not do anything which will or may adversely affect the goodwill and reputation of YourCash or any member of the YourCash Group.
11.5 The Customer may not make any copies of training materials or other documentation provided to the Customer by YourCash under this Agreement without the prior written consent of YourCash. All such training materials or other documentation remain the property of YourCash.
11.6 Upon request by YourCash and, in any event, on the expiration or termination of this Agreement, the Customer will, at its expense, promptly return to YourCash (or, if instructed by YourCash, destroy) any YourCash training materials or other documentation or materials then in the Customer’s custody, control or possession. Upon a written demand from YourCash, the Customer will confirm in writing that all such materials and documentation has been returned or destroyed.
11.7 The Customer acknowledges and agrees that all right, title and interest in any software installed on, embedded within or otherwise forming part of any of the ATMs supplied to the Customer by YourCash (“Software”), belongs exclusively to YourCash and/or the relevant licensors. The Customer will not remove or extract the Software from the ATM and will not reproduce, modify, adapt, merge, translate, disassemble, decompile, recompile or reverse engineer the Software or create derivative works based on the whole or any part of the Software or incorporate the Software into any software program not provided by YourCash or attempt to do any such things except to the extent expressly permitted by law. The Customer will not amend or remove any copyright or other Intellectual Property Rights notices that form part of the Software.
12.1 Except to the extent set out in this clause 12, the Customer and YourCash will each treat as confidential all Confidential Information obtained from the other under or in connection with this Agreement, will protect such Confidential Information and will not, without the prior written consent of the other, disclose or use such Confidential Information except for the purposes of this Agreement.
12.2 The Customer will procure that its Staff (and any person it authorises to operate the ATM) will comply with the provisions of this clause 12.
12.3 Clause 12.1 does not prohibit disclosure of Confidential Information by the Party to this Agreement receiving that Confidential Information (the “Receiving Party”) to:
12.3.1 the Receiving Party’s own employees, agents and permitted sub-contractors who need to know it;
12.3.2 the Receiving Party’s auditors, professional advisors, HM Revenue & Customs and any other person having a statutory or regulatory right to request and receive that information (including a Regulator);
12.3.3 a person to whom an assignment has been permitted under clause 20; or
12.3.4 the extent required by any applicable law, a court of competent jurisdiction or by YourCash to the extent required by the Scheme Rules.
12.4 The Receiving Party will ensure that any person mentioned in clause 12.3 is made aware, prior to any disclosure of Confidential Information, that it is confidential and that such person and the Receiving Party owes a duty of confidentiality to the owner of it. The Receiving Party will be responsible for procuring that such person complies with the duty of confidentiality imposed by this Agreement as if they were a party to it.
12.5 This clause 12 does not apply to information which the Receiving Party can show by reference to documentary or other evidence:
12.5.1 was rightfully in its possession prior to disclosure to it by the other Party;
12.5.2 is already public knowledge or which becomes so at a future date (otherwise than as a result of breach of this clause 12);
12.5.3 is received from a third Party who is not under an obligation of confidentiality in relation to the information;
12.5.4 is developed independently without access to, or use, or knowledge of, the Confidential Information; and/or
12.5.5 is trivial or obvious.
12.6 The Customer will not make any announcement or disclosure about this Agreement without the prior written consent of YourCash.
12.7 Other than as expressly permitted under this Agreement, on termination or expiry of this Agreement for whatever reason, each Party will immediately cease to use any Confidential Information of the other and will return on demand, or at the request of the other, destroy or permanently erase all copies of that Confidential Information in its possession or control, save that either Party will be permitted to retain one copy of such part of the Confidential Information for the purposes of, and for so long as is required by any law or by judicial or administrative process or for its legitimate internal compliance issues.
12.8 The obligations in this clause 12 will remain in full force and effect following the termination or expiry of this Agreement.
13. DATA PROTECTION
13.1 Each Party will at all times during the term of this Agreement undertake all necessary steps to ensure that it operates within the requirements of the Data Protection Laws.
13.2 Each Party through the provision of services and/or discharging of their respective obligations under this Agreement may Process Personal Data of the other Party and/or their respective employees or members of Staff in the case of the Customer. In such cases each Party warrants that any such Personal Data will only be Processed in order to provide the services and/or discharge the obligations created under this Agreement. Each Party warrants that it is lawfully entitled to Process Personal Data under the terms of this Agreement.
13.3 Without limiting clause 13.1, if either Party receives Personal Data from the other Party or Processes any Personal Data on behalf of the other Party then the receiving Party will:
13.3.1 only Process the Personal Data in accordance with this Agreement and any documented instructions of the disclosing Party;
13.3.2 Process only the types of Personal Data, relating to the categories of Data Subjects, and in the manner required to deliver the applicable services and/or discharge the obligations under this Agreement;
13.3.3 take all measures required by Article 32 of the GDPR to ensure the security of the Personal Data;
13.3.4 acquire no rights or interest in the Personal Data;
13.3.5 take reasonable steps to ensure the reliability of any employees and/or other members of Staff who may have access to the Personal Data, and their treatment of the Personal Data as confidential;
13.3.6 not permit any third party, other than a YourCash Group Company, to process Personal Data without the prior written consent of the disclosing Party with such consent being subject to the conditions stipulated in Article 28 (2) and (4) of the GDPR;
13.3.7 promptly notify the disclosing Party of any communication from a Data Subject regarding the Processing of their Personal Data and/or exercise of their rights in relation to such Processing, or any other communication (including from a Regulator) relating to either Party’s obligations under the Data Protection Laws in respect of Personal Data;
13.3.8 immediately upon becoming aware, and in any case within 24 hours, notify the disclosing Party of any Personal Data Breach, such notice to include all information reasonably required by the disclosing Party to comply with its obligations under the Data Protection Laws;
13.3.9 provide any assistance reasonably requested by the disclosing Party in relation to (i) any communication received under Clause 13.3.7; (ii) any Personal Data Breach, including by taking any appropriate technical and organizational measures reasonably requested by the disclosing Party; (iii) any data protection impact assessment undertaken by the disclosing Party; and (iv) any prior consultation made by the disclosing Party to the relevant Regulator;
13.3.10 where requested by the disclosing Party, subject to any applicable laws and/or regulations to the contrary, delete any Personal Data in accordance with the disclosing Party’s then current data retention policy;
13.3.11 cease Processing the Personal Data immediately upon the termination or expiry of this Agreement and at the option of the disclosing Party, subject to any applicable laws and/or regulations to the contrary and in accordance with the then current data retention policy, securely delete the Personal Data;
13.3.12 assist the disclosing Party in ensuring compliance with the obligations of Articles 32 to 36 of the GDPR; and
13.3.13 not transfer any Personal Data received from or on behalf of the disclosing Party outside the European Economic Area, except with the prior written consent of the disclosing Party and in accordance with any reasonable terms the disclosing Party may impose on such transfer. The provisions of this clause 13.3 will apply to any further transfer of the Personal Data.
13.5 Both Parties acknowledge that any breach of this Clause 13 and/or any applicable Data Protection Laws shall represent a material breach of this Agreement.
13.6 By signing the Application Form, the Customer hereby agrees unconditionally for YourCash to conduct a credit search on those associated with the Customer and for YourCash to pass, subject always to continued compliance with the Data Protection Laws, Customer details to an external third party such as, but not limited to, a credit reference agency or debt recovery agent
14. WARRANTIES AND UNDERTAKINGS
14.1 The Customer warrants and undertakes to YourCash that:
14.1.1 during the Term, it has sufficient resources to perform its obligations under this Agreement;
14.1.2 all the information provided to YourCash under this Agreement is true and accurate in all respects;
14.1.3 the Customer is not and has not been declared bankrupt or Insolvent;
14.1.4 none of the items used by the Customer, the Staff or any sub-contractors in the performance of this Agreement will infringe any Intellectual Property Rights or other rights of any third party; and
14.1.5 the Customer has full power and authority to enter into this Agreement and to perform its obligations under this Agreement.
14.2 YourCash warrants and undertakes to the Customer that it will provide the Support Services, the Processing Services and the Training with reasonable skill and care.
14.3 Except as expressly set out in this Agreement, all conditions, warranties, terms and undertakings, express or implied, whether by statute, common law, trade practice, custom, course of dealing or otherwise (including without limitation as to quality, performance or fitness or suitability for purpose) in respect of the ATM, the Support Services, the Processing Services and the Training are hereby excluded to the fullest extent permissible by law.
15.1 Subject to clause 15.4, YourCash’s aggregate liability in contract, tort, misrepresentation, breach
of statutory duty or otherwise, including any liability for negligence, howsoever caused, arising out of or in connection with this Agreement including any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of the YourCash’s obligations under this Agreement shall in no event exceed the greater of:
15.1.1 £10,000 (ten thousand pounds Sterling); or
15.1.2 the total of: (i) the sums paid by the Customer to YourCash in respect of the ATM; and (ii) the sums retained by YourCash in respect of Transactions under this Agreement.
15.2 Subject to clause 15.4, in no circumstances will YourCash be liable to the Customer, or any other third party, including any Cardholder, whether in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise in respect of loss of profits, revenue, goodwill, business opportunity, liability of YourCash to third parties (in each case whether direct or indirect), or any indirect, special, consequential, financial or economic loss or damage costs or expenses whatsoever or howsoever arising out of or in connection with this Agreement including any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of the YourCash’s obligations under this Agreement.
15.3 YourCash will use its reasonable endeavours to minimise and mitigate any damage arising as a result of the installation (including the securing of the ATM in accordance with clause 2.4.2), replacement or removal of an ATM. Subject to clause 15.4, YourCash will have no liability for any loss or damage (including any damage to property) which is a reasonable consequence of the process of installing, replacing or removing the ATM, nor any obligation to effect any repairs to the property or to return the property to the state of repair that it was in prior to the installation, replacement or removal of the ATM.
15.4 The limits and exclusions of liability in this Agreement do not apply to:
15.4.1 liability for death or personal injury caused by a Party’s negligence or that of its employees or agents or a person for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair Contract Terms Act 1977);
15.4.2 a Party’s fraud or fraudulent misrepresentation or the fraud or fraudulent misrepresentation by a person for whom it is vicariously liable;
15.4.3 any loss which by law cannot be excluded or limited; or
15.4.4 for breach of YourCash’s obligations arising under section 2 of the Sale and Supply of Goods Act 1982.
15.5 The Customer acknowledges and agrees that the operation of each ATM is dependent on the operation of the LINK Network, and that the LINK Network is subject to planned and unplanned maintenance work. In particular, LINK reserves the right to perform unscheduled and emergency maintenance work at any time to maintain security, data network connectivity and/or one or more components of the LINK Network. Whilst LINK make every effort to minimise the impact of the maintenance work on the LINK Network, the hours of operation of the LINK Network may be affected and, subject to clause 15.4, YourCash accepts no liability arising from the non-availability of the LINK Network.
15.6 Subject to clause 15.4, the Customer acknowledges and agrees that the Support Services represent the Customer’s only remedy in respect of the non-availability of the ATM.
15.7 Subject to clause 15.4, YourCash will have no liability to the Customer in respect of any loss or damage suffered by the Customer as a result of the non-availability of the ATM or any interruption and/or the non-availability of the Customer Services.
15.8 The Customer will indemnify and keep indemnified YourCash from any loss, liability, cost, claim, expense (including fines or other sums charged by LINK and any reasonable legal fees and disbursements) suffered or incurred by YourCash arising out of any failure by the Customer to comply with its obligations or perform its responsibilities in accordance with this Agreement. YourCash reserves the right to levy an administration charge to the Customer of £10 per day for every day the Customer does not comply with its obligations pursuant to this Agreement and clause 3 in particular.
15.9 In the event that the Customer is in breach of its obligations in clause 3, which causes the ATM to be unavailable for use and/or unable to effect transactions, YourCash reserves the right to terminate this Agreement in accordance with clause 19.2.3 and charge a Termination Fee to the Customer by way of liquidated damages, calculated as follows: ATM installation and removal fee of £620; Data Line cancellation fee of £200; Administration fee of £150 and an early termination fee calculated as the average daily transactions based on last twelve months’ transactions or from installation date if transacting less than twelve months, times the YourCash share of transactions income, times the number of days left in the Initial Term or any successive term. The parties hereby acknowledge and agree that the formula specified in this clause 15.9 is a reasonable estimation of the loss which would be incurred by YourCash for the loss of availability of the ATM. This provision is without prejudice to YourCash’s other rights and remedies.
16.1 Whether or not the ATM is owned by Customer, the Customer will arrange and maintain at its own cost, sufficient insurance policies with a reputable insurance company to cover its potential liabilities under this Agreement and will upon request by Us provide evidence of cover satisfactory to Us.
17. FORCE MAJEURE
17.1 Neither Party will be liable for any delay in performing their obligations under this Agreement where such delay is directly caused by a Force Majeure Event provided that in the case of the Customer, it will only have a right to relief in accordance with this clause 17 where there is no failure by the Customer to use commercially reasonable efforts to mitigate any potential losses.
17.2 Subject to the Party which has been delayed:
17.2.1 promptly telling the other Party in writing of the reasons for the delay and the likely duration the delay; and
17.2.2 using its reasonable efforts to continue to perform its obligations under this Agreement and to mitigate the effects of the delay, the performance of that Party’s obligations will be suspended during the period of the Force Majeure Event so far as it affects the obligations in question and that Party will be granted an extension of time for performance equal to the period of the delay. Where the Force Majeure Event is Regulatory Change YourCash may elect to continue to provide the ATM and related services to the Customer with such changes as YourCash may reasonably determine as necessary or appropriate in view of the Regulatory Change and YourCash’s published tariff of charges shall apply to provide the commercial terms of the revised ATM services to be provided.
17.3 Save where a delay is caused by the act or failure to act of the other Party (in which event the rights, remedies and liabilities of the Parties will be those conferred by the other terms of this Agreement and by law):
17.3.1 any costs arising from that delay will be borne by the Party incurring the same; and
17.3.2 YourCash may, if that delay continues for more than five weeks, terminate this Agreement immediately on giving notice in writing to the Customer in accordance with clause 19.2.2.
18.1 This Agreement shall commence or shall be deemed to have commenced on the Commencement Date and shall continue for the Initial Term. This Agreement shall automatically renew for a two (2) year term at the end of the Initial Term and also at the end of each successive term unless terminated by either party providing the other with written notice of no less than one hundred and eighty (180) days prior to the end of the then current term.
19. TERMINATION AND OTHER REMEDIES
19.1 Notwithstanding clause 18.1, YourCash may terminate this Agreement at any time by giving the Customer not less than 30 days’ prior written notice.
19.2 YourCash may terminate this Agreement with immediate effect by notice to the Customer:
19.2.1 if required to do so by a Regulator; or
19.2.2 in accordance with (i) clause 2.5 (Processing Services), clause 2.6 (Support Services) or clause 2.7 (Training); (ii) clause 3.5 (Identity Information); (iii) clause 6 (Regulatory Requirements and Fraud Prevention); or (iv) clause 17 (Force Majeure); or
19.2.3 if the ATM is unavailable for use and/or is unable to effect Transactions for a period of 30 consecutive days due to any act or omission of the Customer including due to a breach of its obligations under this Agreement.
19.3 The Customer will give written notice to YourCash immediately on becoming aware that a Change of Control or Substantial Disposal has taken place or is due to take place. If YourCash becomes aware that a Change of Control or a Substantial Disposal which YourCash had not approved in advance in writing has taken place, YourCash may terminate this Agreement by giving written notice to the Customer.
19.4 Either Party may terminate this Agreement with immediate effect by written notice to the other Party if the other Party:
19.4.1 becomes Insolvent;
19.4.2 commits an irremediable material breach of this Agreement;
19.4.3 commits a remediable material breach of this Agreement and fails to remedy such breach within 30 days of being requested to do so;
19.4.4 commits a persistent material breach of this Agreement (where a Party has committed and remedied any material breach of the Agreement and any such material breach has occurred two or more further times in any continuous period of twelve (12) months);
19.4.5 loses (or is expected to lose) any authorisation, licence, and/or permission that it requires under the 2000 Act in connection with the performance of its obligations under this Agreement;
19.4.6 dies or becomes mentally incapacitated or, in YourCash’s reasonable opinion, is unable to perform its obligations under this Agreement; or
19.4.7 is accused or convicted of a criminal offence which, in YourCash’s reasonable opinion, will ormay affect the Customer’s ability to carry out its obligations under this Agreement.
19.5 Upon termination of this Agreement for any reason, the respective obligations of each Party shall automatically terminate save that the rights and liabilities of either Party which have accrued before termination will continue to subsist.
19.6 Without limiting the terms of this clause 19, where this Agreement is lawfully terminated by YourCash, the Customer will immediately repay to YourCash any portion of the Settlement monies or Commission which has been paid in advance and which relates to the period after the date of termination, any Termination Fees calculated under clause 15.9 and any other amounts due to YourCash, save in circumstances where the Customer is not in breach of this Agreement. For the purposes of calculating any sum to be repaid under this clause 19.6, the Settlement monies and Commission and Termination Fees will be treated as accruing on a daily basis. If the Customer does not refund any portion of the Settlement monies or Commission or pay the Termination Fees which are due to be repaid pursuant to this clause 19.6, the Customer will pay interest at the rate specified in clause 4.11 on such outstanding sums until payment is made in full.
19.7 Following termination of this Agreement, the Customer will:
19.7.1 not use the ATM, nor allow or enable the ATM to be used by any third party; and
19.7.2 permit YourCash access to the ATM to decommission the ATM and the Customer will provide all reasonable assistance to YourCash in carrying out such decommissioning. If any ATM is not owned by the Customer, the Customer will permit YourCash access to the ATM to uninstall and remove the ATM.
19.8 YourCash reserves the right to charge the Customer for the costs of uninstalling and removing the ATM (such rates being set out in the Tariff of Charges) where this Agreement expires or is terminated following any act or omission of the Customer and/or if the Customer terminates this Agreement in accordance with clause 18.1.
19.9 Where the Agreement is lawfully terminated by YourCash, in accordance with clause 19.2, 19.3 or 19.4, YourCash reserves the right to charge the Customer, by way of liquidated damages, the sum stipulated in clause 15.9. This provision is without prejudice to YourCash’s other rights and remedies.
20. ASSIGNMENT AND SUBCONTRACTING
20.1 Subject to clause 20.2, neither Party may create a trust in, assign, novate or otherwise transfer this Agreement or any of its rights and obligations under it, whether in whole or in part, without the prior written consent of the other.
20.2 YourCash may assign any of its rights under this Agreement or novate this Agreement (and the Customer will execute any necessary documents to give effect to such novation), or any part of it, to:
20.2.1 any facilities management, disaster recovery or other contractor to which YourCash outsources any part of its activities; and/or
20.2.2 any YourCash Group Company.
20.3 The Customer may not sub-contract with any person (including appointing any agent, consultant or contractor) to perform any part of this Agreement, without obtaining YourCash’s prior written consent. If YourCash gives such consent, the Customer will be responsible for any acts, or failures to act, of its sub-contractors as if they were the Customer’s acts or failures to act and will ensure that the appointment of any sub-contractors allows YourCash to comply with the requirements of the Regulators. The Customer will ensure that all sub-contractors comply with the provisions of clauses 6 and 8 as if they were the Customer.
20.4 YourCash may sub-contract with any third Party, which may include appointing an agent, consultant or contractor, to perform any and all of its obligations hereunder.
21. ENTIRE AGREEMENT
21.1 This Agreement, together with the Application Form and any other documents referred to in it, constitutes the entire agreement between the Parties relating to the subject matter of the Agreement. Each of the Parties acknowledges that in entering into this Agreement, it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding other than as expressly set out in this Agreement. Nothing in this clause will operate to exclude any liability for fraud.
22.1 Any notice, demand or other communication given or made under or in connection with this Agreement will be in writing and will be delivered personally or sent by first class prepaid recorded delivery or registered post to the address of each Party stated in the Application Form and will be deemed to be given, if personally delivered, upon delivery and if posted (in the absence of evidence of earlier receipt) 48 hours after posting.
22.2 Should a notice be delivered on a day other than a Business Day, the notice will be deemed to have been given on the next Business Day following the day of actual delivery.
23. SEVERABILITY, WAIVER AND TIME FOR PERFORMANCE
23.1 If any provision (or part of a provision) of this Agreement is or becomes for any reason whatsoever invalid, illegal or unenforceable, it will be divisible from this Agreement and will be deemed to be deleted from it and the validity of the remaining provisions will not be affected.
23.2 No breach of any provision of this Agreement will be waived or discharged except with the express written consent of the Parties. No failure or delay by a Party to exercise any of its rights under this Agreement will operate as a waiver thereof and no single or partial exercise of any such right will prevent any other or further exercise of that or any other right.
23.3 Subject to the express terms of this Agreement, time will be of the essence in respect of any dates, times and periods given for performance of the Customer’s obligations under this Agreement. Time will not be of the essence in respect of any other obligation in this Agreement.
24. THIRD PARTY RIGHTS
24.1 The Contracts (Rights of Third Parties) Act 1999 will not apply to this Agreement.
25.1 This Agreement and any non-contractual obligations arising out of or in connection with it will be governed by and construed in accordance with English law and the courts of England and Wales shall have exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement.