Payaca Terms & Conditions

Last updated: 14 December 2021

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE REGISTERING ON AND USING THE PAYACA PLATFORM. YOUR ATTENTION IS DRAWN IN PARTICULAR TO CLAUSES 11 (INDEMNITY) AND 12 (LIMITATION OF LIABILITY).

1. Payaca Platform and these terms and conditions

1.1. About the Payaca Platform. Payaca is an online platform, available via mobile and web apps, providing a range of features to drive business efficiency, including creation and management of client deal and jobs workflows, generation of interactive proposals and invoices, and integrations with many third-party apps and payments services (the “Payaca Platform”).

1.2. Operator and supplier of Payaca Platform. The Payaca Platform is owned, operated and provided by Payaca Limited, a company incorporated and registered in England and Wales with company number 11173058 and registered office at Hamilton House, 80 Stokes Croft, Bristol, England, BS1 3QY (“Payaca”).

1.3. About these Conditions. These terms and conditions (“Conditions”) set out the rules for registering on and using the Payaca Platform. They govern the agreement between Payaca and the person or entity registered to use the Payaca Platform (“Customer”).

1.4. These Conditions apply to the agreement between Payaca and the Customer to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealings.

1.5. Unless defined in the clauses of these Conditions, the definitions and rules of interpretation that apply to these Conditions (including any Schedule) are set out in Schedule 1.

2. Commencement, duration, and termination of the Agreement

2.1. Commencement. The Customer agrees that a legally binding agreement between the Customer and Payaca (“Agreement”) will come into existence and become binding on both parties when the Customer registers an account on the Payaca Platform and subscribes to one of the subscription packages made available on the Payaca Platform from time to time (“Commencement Date”).

2.2. Duration. The Agreement will remain binding (unless terminated earlier in accordance with the provisions of these Conditions) for 12 months from the initial registration and subscription, or such other duration as specified in the subscription package selected by the Customer (“Initial Subscription Term”). After the Initial Subscription Term, the Agreement will renew automatically for successive periods equal to the duration of the Initial Subscription Term (each a “Renewal Period”). The Initial Subscription Term together with any subsequent Renewal Periods constitute the “Term” of the Agreement.

2.3. Cancellation of subscription. The Customer may prevent the renewal of the Agreement by cancelling its subscription on the Payaca Platform. The cancellation of the subscription must be received by Payaca before we take payment for the (next) Renewal Period. If you cancel your subscription after we have charged your card or account, the cancellation will take effect at the end of the Renewal Period during which cancellation was received by us, and you will continue to have access to Payaca Platform until the end of such Renewal Period.

2.4. Suspension and termination for non-payment. Payaca may suspend the Customer’s account and/or terminate the Agreement with immediate effect if the Customer fails to pay any amount due under this Agreement on the due date for payment.

2.5. Termination for breach or insolvency. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

2.5.1. the other party commits a material breach of any term of this Agreement which is irremediable or (if such breach is remediable) fails to remedy that breach within 30 days after being notified in writing to do so;

2.5.2. the other party repeatedly breaches any of the terms of this Agreement in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; and/or

2.5.3. the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.

2.6. Consequences of termination (including expiry due to cancellation of subscription). In the event of termination of this Agreement for any reason:

2.6.1. no refunds shall be due to the Customer for any Charges paid to Payaca;

2.6.2. all rights (including, for the avoidance of doubt, all Authorised User access rights) and licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Payaca Platform;

2.6.3. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement, which existed at or before the date of termination shall not be affected or prejudiced; and

2.6.4. any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after the termination of this Agreement, including, without limitation, clauses 2.6 (consequences of termination), 7 (Charges and payment), 10 (confidentiality), 11 (indemnity), 12 (limitation of liability) 13 (general terms) and Schedule 1 (definitions and interpretation) shall remain in full force and effect.

3. Use of the Payaca Platform

3.1 Account Registration. The Customer warrants and represents that: (i) the information submitted during the Customer’s registration on the Payaca Platform is true and accurate; and (ii) it will keep such information up to date at all times. Payaca reserves the right to refuse to register a person or organisation on the Payaca Platform if Payaca, in its sole discretion, believes that any of the information provided during the Customer’s registration is not true and/or accurate.

3.2 Right to use the Payaca Platform. Subject to the payment of all Charges due to Payaca, Payaca grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to permit the Authorised Users to use the Payaca Platform during the Term in relation to the Customer’s internal business operations.

3.3 User Seats. The Customer undertakes that: (i) the maximum number of Authorised Users it permits to access and use the Payaca Platform shall not exceed the number of User Seats it has purchased from time to time; and (ii) it will not allow any User Seats to be shared between more than one Authorised User.

3.4 The Customer shall permit Payaca and/or its designated auditor to audit the use of the Payaca Platform by the Authorised Users to verify compliance with clause 3.3. This right shall be exercised with reasonable prior written notice. Payaca reserves the right to charge the Customer for additional User Seats in the event of a breach by the Customer of the restrictions in clause 3.3. This right is without prejudice to any other rights Payaca may have under these Conditions.

3.5 Security of access to the Payaca Platform. The Customer undertakes that it will ensure that each Authorised User will: (i) keep a secure password for their User Seat; (ii) maintain the confidentiality and security of its access credentials and not disclose said credentials to any unauthorised third party; (iii) update its access credentials immediately if such Authorised User knows or has any reason to suspect that said credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorised use of said access credentials.

3.6 The Customer agrees that it will ensure that no Authorised User will access, store, distribute or transmit Viruses or any harmful or illegal material during the course of their use of the Payaca Platform. 3.7 Restricted acts. The Customer will not (and will ensure that its Authorised Users will not), except as may be allowed by any applicable law:

3.7.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Payaca Platform Software (“Software”) and/or any content published by Payaca or any third party on the Payaca Platform (“Content”) (as applicable) in any form or media or by any means;

3.7.2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

3.7.3. access all or any part of the Payaca Platform in order to build a product or service which competes with the Payaca Platform or any functionality provided by it;

3.7.4. attempt to obtain, or assist third parties in obtaining, access to the Payaca Platform, other than as provided under this clause 3; and/or

3.7.5. introduce or permit the introduction of, any Virus or Vulnerability into the Payaca Platform, the network and/or information systems on which the Payaca Platform operates.

3.8. The rights provided under clause 3.2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

3.9. Responsibility for the information contained in all communications with your clients. The Customer shall have sole responsibility for the information included in any quote generated by the Authorised Users for submission to the Customer’s clients or any other communications with its clients using Payaca Platform (“Client Communications”). Payaca shall not be held liable or responsible for the information provided in Client Communications. If the Customer requires a deposit from their client before commencing the work mentioned in a Client Communication, this must be set out in the Client Communication. If the content of the Client Communication changes, the Customer is responsible for updating the recipient of the Client Communication accordingly.

4. Availability of the Payaca Platform and Payaca’s obligations

4.1. Payaca shall use reasonable endeavours to make the Payaca Platform available 24 hours a day, 7 days a week, except for: (i) planned maintenance, normally carried out during the maintenance window of 6.00 pm to 6.00 am UK time (or such other time as notified by Payaca from time to time); and (ii) unscheduled emergency maintenance, provided that Payaca will use reasonable endeavours to give the Customer at least 4 hours notice in advance.

4.2.The Customer acknowledges that the Payaca Platform is made available via the internet and as a result, the availability thereof may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Consequently, the Customer acknowledges and agrees that Payaca: (i) does not warrant that the Authorised User’s use of the Payaca Platform will be uninterrupted or error-free; and (ii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.

4.3. Payaca shall have the right to make any changes to the functionality of the Payaca Platform from time to time: (i) to address its customers’ needs; (ii) to comply with any Applicable Laws; (iii) to add new functionalities and/or improve existing functionalities (including integrating the Payaca Platform with third-party platforms and services); and/or (iv) other changes that do not materially affect the nature or quality of the Payaca Platform, including any updates, upgrades and new releases of the Software. Other than as set out in this clause, Payaca shall use reasonable endeavours to maintain the core functionality features, as referred to in clause 1.1 (About the Payaca Platform).

4.4. Payaca shall, at no additional cost to the Customer, provide the Customer with technical support services during Payaca’s normal business hours (9.00 am to 5.30 pm Monday to Friday UK time) in accordance with Payaca’s technical support policy. If made available as part of a subscription package, the Customer may purchase enhanced technical support services separately at Payaca’s then-current rates.

4.5. Payaca shall use reasonable endeavours to ensure that all services provided by Payaca in relation to the Payaca Platform, as set out in this Agreement, are performed with reasonable care and skill and in compliance with all Applicable Laws.

4.6. The Payaca Platform, including the Content and any Financing Options made available via the Payaca Platform, are provided on an “as is” basis and Payaca does not warrant that: (i) the use of the Payaca Platform will meet the Customer's requirements and/or (ii) that any specific Content and/or Financing Options will be made available via the Payaca Platform to the Customer’s clients.

5. Refer a friend and other loyalty or promotional schemes

5.1. We may from time to time make certain loyalty or promotional schemes available on the Payaca Platform. The rules of such schemes will be made available on Payaca Platform. Please note that some schemes and promotions may be time-limited and as such, we cannot guarantee that they will always be available, or that they will last for any specific duration. The details of the start and end date of any promotions or schemes, if they are time limited, will be published on the relevant pages on the Payaca Platform.

5.2. Under our current Refer a Friend scheme, the Customer will be able to invite a new customer to use the Payaca Platform by sending them a dedicated sign-up link. In the event the recipient of such link subscribes to Payaca Platform, the referring Customer and the recipient will each be entitled to a £25 credit, which can be applied against the next invoice due or, when this becomes available, redeem it against purchases on Payaca Platform. The £25 credit cannot be redeemed for cash.

6. Third-party platforms and services

6.1. The Payaca Platform may from time to time integrate with third-party platforms and/or services, for example bookkeeping and accounting platforms, financing options and/or payments processing services (“Third-Party Products”). The Customer acknowledges and agrees that all such Third-Party Products are provided by the relevant third parties, not by Payaca, and are subject to the third party terms and conditions applicable to such Third-Party Products. Payaca will not be responsible for the availability of any such Third-Party Products and shall not be liable to the Customer for any matters related to the delivery (or a failure to deliver) of any such Third-Party Products to the Customer.

6.2. Payaca’s role in relation to third party products or services. The Customer acknowledges and agrees that in respect of all Third-Party Products Payaca’s role is limited to facilitating access to and/or technology integrations with any such Third-Party Products. Consequently, Payaca does not and will not: (i) provide any advice and/or any recommendation in respect of any matters related to the Customer’s business and/or any Third-Party Products; (ii) review the accuracy and/or completeness of any Customer Data supplied to the third-party providers; and/or (iii) become a party to any agreements between the Customer and its clients and/or any agreements in respect of the Third-Party Products.

6.3. Financing options and other regulated Third-party Products. In respect of any financing options and/or any other regulated products or services integrated with or made available by third parties via Payaca Platform, the Customer shall ensure that no advice or recommendations are provided by its Authorised Users (or any other personnel) to the Customer’s clients unless the Customer has appropriate permissions to do so (whether from the relevant regulators or the providers of such Third-Party Products). The Customer shall comply with all applicable laws, regulations, and any requirements of the providers of such Third-Party Products, and shall on demand defend, indemnify and hold harmless Payaca against any claim, action, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) suffered by Payaca arising out of or in connection with the Customer’s breach of this clause 6.3.

7. Charges and Payment

7.1. The Customer will pay the subscription Charges to Payaca by such method as the Customer selects during its subscription to the Payaca Platform and/or thereafter.

7.2. The Customer authorises Payaca to collect the Charges using the payment method selected by the Customer in advance, on the commencement of the Initial Subscription Term and, unless the Agreement is terminated earlier, on the commencement of each Renewal Period.

7.3. If the selected payment method fails and Payaca has not received payment after notifying the Customer of such failure Payaca may, without liability to the Customer and without prejudice to clause 2.4 (Suspension and termination for non-payment), disable all or some Authorised User’s access to all of part of Payaca’s Platform for the period where any unpaid Charges remain unpaid.

7.4. Unless otherwise specified on the Payaca Platform or agreed by Payaca in writing, all Charges are non-refundable.

7.5. Payaca shall be entitled to increase its Charges from time to time. Any increase will apply from the start of the Renewal Period immediately following the increase. We will provide our customers at least 30 days' notice of our intention to increase our Charges.

8. Intellectual Property Rights and Customer Data

8.1. Nothing in this Agreement shall affect the ownership of Intellectual Property Rights existing prior to the Commencement Date.

8.2. The Customer shall have sole responsibility for and shall ensure the legality, reliability, integrity, accuracy and quality of the data and materials (including the Customer’s branding) entered onto Payaca Portal by the Authorised Users (“Customer Data”) and shall on demand defend, indemnify and hold harmless Payaca against any claim, action, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) suffered by Payaca arising out of or in connection with the Customer’s breach of this clause 8.2.

8.3. Payaca shall follow its archiving and backup procedures for all Customer Data, in accordance with Good Industry Practice. In the event of any loss or damage to Customer Data, Payaca shall use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Payaca.

8.4. The Customer acknowledges and agrees that Payaca and/or its licensors own all Intellectual Property Rights in the Payaca Platform and the Content. Except as expressly stated, this Agreement does not grant the Customer any rights or licences in respect of the Payaca Platform and the Content.

8.5. The Customer and its licensors shall own and retain all right, title and interest in the Customer Data. The Customer hereby grants to Payaca a fully paid-up, worldwide, non-exclusive, royalty free, non-transferable (subject to clause 13.4 (Assignment and other dealings)) licence to use, copy and modify the Customer Data to the extent necessary to provide the services related to the Payaca Platform.

9. Data Protection

9.1. In respect of any personal data comprised in the Customer Data, each party shall comply with the applicable provisions of the Data Protection Schedule.

9.2. This Clause 9 and the Data Protection Schedule are in addition to, and do not relieve, remove or replace, a party's obligations or rights under the Data Protection Laws.

10. Confidentiality

10.1. Each party agrees, during the Term and thereafter for 2 years following termination of this Agreement, to keep confidential, and not to use for its own purposes (other than the implementation of this Agreement) nor without the prior written consent of the other to disclose to any third party (except its professional advisors under obligations of confidentiality) any Confidential Information which may become known to such party from the other party. Without limiting the generality of this clause: (i) the technology of the Payaca Platform and the Content shall constitute Confidential Information of Payaca; and (ii) the terms of this Agreement shall constitute Confidential Information of each party.

10.2. The restrictions in clause 10.1 shall not apply to the extent that: (i) such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge, in each case other than by breach of this Agreement; or (ii) subsequently comes lawfully into the possession of such party from a third party; or (iii) such information is required to be disclosed by Applicable Law or competent authority.

10.3. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

10.4. Unless the Customer submits an objection in writing to Payaca, Payaca may use the Customer’s name and logo to designate the Customer as a user of the Payaca Platform in its publicity and/or advertising material, including on any website operated by Payaca.

11. Indemnity

11.1 The Customer shall on demand defend, indemnify and hold harmless Payaca against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:

11.1.1. the use of the Payaca Platform by the Customer and its Authorised Users;

11.1.2 any claim that the use of Customer Data by Payaca as permitted under this Agreement infringes any Intellectual Property Rights or other rights of third parties;

11.1.3. any product, goods or services provided by the Customer to its clients; and/or

11.1.4. any breach by the Customer or any of its Authorised Users of any Applicable Laws and/or third-party agreements.

11.2. Payaca shall defend the Customer against any claim that the use of Payaca Platform and/or the Content in accordance with this Agreement infringes any UK Intellectual Property Rights of any third party and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (i) Payaca is given prompt written notice of any such claim; (ii) the Customer provides reasonable co-operation to Payaca in the defence and settlement of such claim, at the Customer's expense; and (iii) Payaca is given sole authority to defend or settle the claim.

11.3. In the event of a third party claim referred to in clause 11.2, Payaca may procure the right for the Customer and its Authorised Users to continue using Payaca Platform and/or the Content, replace or modify Payaca Platform and/or the Content so that they become non-infringing or, if such remedies are not available in Payaca’s reasonable opinion, terminate this Agreement on not less than 2 Business Days’ notice to the Customer.

11.4. In no event shall Payaca, its employees, agents and sub-contractors be liable to the Customer under clause 11.2 or otherwise to the extent that the alleged infringement is based on: (i) a modification of any part of the Payaca Platform or the Content by anyone other than Payaca; or (ii) the Customer’s (or its Authorised Users’) use of the Payaca Platform and/or the Content in a manner contrary to this Agreement and/or any instructions given to the Customer by Payaca; or (iii) the Customer’s (or its Authorised Users’) use of the Payaca Platform or the Content after notice of the alleged or actual infringement from Payaca or any appropriate authority.

11.5. Clauses 11.2 to 11.4 state the Customer’s sole and exclusive rights and remedies, and Payaca’s (including Payaca’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.

12. Limitation Of Liability

12.1 References to liability in this clause 12 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise.

12.2 Except as expressly and specifically provided in this Agreement:

12.2.1. the Customer assumes sole responsibility for results obtained from the use of the Payaca Platform and the Content by the Customer and its Authorised Users, and for conclusions drawn from such use. Payaca shall have no liability for: (i) any damage caused by errors or omissions in any information, instructions or other Customer Data uploaded or transmitted via the Payaca Platform by the Authorised Users (including, for the avoidance of doubt, in connection with generating and issuing quotes and other Client Communications); and/or (ii) any and all other activities conducted through the Authorised Users’ accounts; and

12.2.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this Agreement.

12.2.3 Nothing in this Agreement excludes or limits the liability of either party for: (i) personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability to the extent it cannot be excluded or limited by law.

12.4. Subject to clause 12.2 and clause 12.3, 12.4.1. neither party shall be liable to the other, for: (i) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; (ii) any loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); (iii) any loss or liability (whether direct or indirect) under or in relation to any other contract; (iv) any pure economic loss; and/or (v) any special, indirect or consequential loss;

12.4.2. other than in respect of any Charges properly due under this Agreement (which shall not count towards the cap under this clause) and any indemnification obligations under this Agreement (which shall be limited pursuant to clause 12.4.3), each party’s total aggregate liability to the other party for any claims arising in the Initial Subscription Term or any Renewal Period (as applicable) shall be limited to an amount equal to the total Charges paid and/or payable by the Customer in such Initial Subscription Term or the relevant Renewal Period (as applicable); and

12.4.3. each party’s liability to the other party in respect of any indemnity provided under this Agreement shall be limited to £1 million per claim.

12.5. Subject to clause 12.3, Payaca shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Payaca or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

13. General Terms

13.1. Costs. Each party is responsible for its legal and other costs in relation to the performance of this Agreement.

13.2 Relationship of the parties. The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.

13.3. Third-party rights. For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.

13.4. Assignment and other dealings. No party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other party’s prior written consent except that: (i) each party may assign, transfer, novate, or otherwise deal with its rights and obligations under this Agreement, in full, without the prior written consent of the other party to an acquirer of assets or a successor by merger; and (ii) Payaca shall be entitled to subcontract its obligations under this Agreement (subject to the provisions of the Data Protection Schedule) to any third party or engage third-party agents or subcontractors without obtaining the Customer’s prior consent.

13.5. Entire agreement. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and will have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement.

13.6. Variation. No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.

13.7. Severability. If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.

13.8. Waiver. No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

13.9. Notices. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its usual place of business, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as notified in writing by the other party from time to time. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

13.10. Counterparts. This Agreement may be signed in any number of counterparts and by the parties on separate counterparts, each of which when signed and dated will be an original, and such counterparts taken together will constitute one and the same agreement. This Agreement will not be effective until each party has signed one counterpart.

13.11. Dispute resolution. If any dispute arises in connection with this Agreement, each party shall appoint a representative duly authorised to settle disputes and enter into legally binding agreements on behalf of such party (“Representative”). The Representatives of the parties will, within 14 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute. If the dispute is not wholly resolved at that meeting, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (“ADR notice”) to the other party to the dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed, the mediation will start not later than 28 days after the date of the ADR notice. The commencement of mediation will not prevent the parties commencing or continuing court proceedings.

13.12. Governing law and jurisdiction. The parties agree that this Agreement, and any matters arising from it, are governed by the law of England and Wales. The parties agree that all disputes, and any matters arising under this Agreement will be subject to the exclusive jurisdiction of the courts of England and Wales.

Schedule 1 – Definitions and rules of interpretation

Applicable Law means any applicable laws or regulations, regulatory policies, guidelines or industry codes.

Authorised User a member of the Customer’s personnel who is granted permission by the Customer to use and access the Payaca Platform on behalf of the Customer.

Charges means the subscription fees payable by the Customer under this Agreement, as specified on the Payaca Platform for the subscription package selected by the Customer.

Confidential Information all data or information (whether technical, commercial, financial or of any other type) in any form, whether or not marked as ‘confidential’, acquired under, arising from or in connection with, this Agreement and any information used in or relating to the business of either party (including information relating to either party’s products (bought, manufactured, produced, distributed or sold), services (bought or supplied), operations, processes, formulae, methods, plans, strategy, product information, know-how, design rights, trade secrets, market opportunities, customer lists, commercial relationships, marketing, sales materials and general business affairs), and which are for the time being confidential to such party.

Customer Data has the meaning as defined in clause 8.2.

Data Protection Laws all applicable data protection and privacy legislation including (i) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”); (ii) the GDPR to the extent that it forms local laws arising from Section 3 of the European Union (Withdrawal Act) 2018 (“UK GDPR”); (iii) the Data Protection Act 2018; (iv) the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426) as amended, and any amendments to these laws as updated from time to time; and the guidance and codes of practice issued by the Information Commissioner or other relevant data protection or supervisory authority.

Data Protection Schedule Schedule 2 of this Agreement.

Good Industry Practice means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances.

Intellectual Property Rights all copyright, patents, rights to inventions, rights in confidential information, (including know-how and trade secrets) trade marks, service marks, trade names, design right, get-up, goodwill and the right to sue for passing off, database rights, chip topography rights, mask works, utility models, business and domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not; (ii) including any applications to protect or register such rights; (iii) including all renewals and extensions of such rights or applications; (iv) including all similar or equivalent rights or forms of protection; and (v) whether vested, contingent or future; and wherever existing.

User Seat the access account purchased by the Customer to enable an individual identified member of the Customer’s personnel to access and use the Payaca Platform on behalf of the Customer.

Virus any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

13.13. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

13.14. References to persons include individuals, unincorporated bodies and partnerships (in each case whether or not having a separate legal personality), governments, government entities, companies and corporations and any of their successors, permitted transferees or permitted assignees.

13.15. The words include, includes and including are deemed to be followed by the words ‘without limitation’.

13.16. Reference to writing or written includes e-mail.

13.17. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

Schedule 2 – Data Protection

Scope, nature and purpose of the processing Processing personal data in electronic form as part of and as necessary to supply the Payaca Platform and the services related to the Payaca Platform.

Categories of data subject

  • Authorised Users
  • Recipients of Client Communications and invoices generated by the Authorised Users"

Categories of personal data

  • Name, email address, telephone number, usage data of Authorised Users
  • Name, email address, address, telephone number, any other personal data uploaded or generated by the Authorised Users relating to the recipients of the Client Communications.

Duration of processing The Term of the Agreement.

1. Definitions

1.1. The following additional definitions apply in this Data Protection Schedule:

1.1.1. “data controller”, “data processor”, “data subject”, “personal data”, “processing” and “appropriate technical and organisational measures” and “supervisory authority” shall have the meanings given to them in the Data Protection Laws;

1.1.2. Personal Data Breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data; and

1.1.3. Purpose means the supply of the Payaca Platform and the services related to the Payaca Platform.

2. Data protection roles and relationship

2.1. The following provisions shall apply to this Agreement and shall take precedence over any conflicting or inconsistent terms in the Conditions.

2.2.The parties acknowledge that the Customer is the data controller of any personal data uploaded, stored and/or transmitted via the Payaca Platform by the Authorised Users (“Customer Personal Data”) and Payaca is the data processor of any such Customer Personal Data.

2.3. The provisions of this Schedule 2 shall survive termination of this agreement for as long as Payaca processes any Customer Personal Data.

3. Data processing obligations

3.1. Without prejudice to the generality of clause 9.1 of the Conditions, Payaca shall, in relation to Customer Personal Data:

3.1.1. process that Customer Personal Data only on the documented instructions of the Customer, which shall be to process the Customer Personal Data to the extent necessary for the Purpose, unless Payaca is required by Applicable Laws to otherwise process that Customer Personal Data. Where Payaca is relying on Applicable Laws as the basis for processing Customer Processor Data, Payaca shall use reasonable endeavours to notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Payaca from so notifying the Customer on important grounds of public interest. Payaca shall inform the Customer if, in the opinion of Payaca, the instructions of the Customer infringe applicable Data Protection Laws;

3.1.2. implement adequate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, having regard to the state of technological development and the cost of implementing any measures;

3.1.3. ensure that any personnel engaged and authorised by Payaca to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

3.1.4. assist the Customer as reasonably possible (taking into account the nature of the processing and the information available to Payaca), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

3.1.5. notify the Customer without undue delay on becoming aware of a Personal Data Breach involving the Customer Personal Data;

3.1.6. at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Agreement unless Payaca is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this paragraph 3.1.6 Customer Personal Data shall be considered deleted where it is put beyond further use by Payaca; and

3.1.7. maintain records to demonstrate its compliance with this paragraph 3.1 and allow for reasonable audits by the Customer or the Customer's designated auditor, for this purpose, on reasonable written notice. Audits under this paragraph 3.1.7 will be conducted not more frequently than once in a 12 month period and the Customer shall reimburse Payaca on demand for reasonable costs and expenses incurred by Payaca in connection with any such audits. The Customer will bear its own costs of carrying out any audits.

3.2. The Customer hereby provides its prior, general authorisation for Payaca to:

3.2.1. appoint sub-processors to process the Customer Personal Data, provided that Payaca:

a) shall ensure that the terms on which it appoints such sub-processors comply with applicable Data Protection Laws, and are consistent with the obligations imposed on Payaca in this paragraph3.2;

b) shall remain responsible for the acts and omissions of any such sub-processor as if they were the acts and omissions of Payaca; and

c) shall inform the Customer of any intended changes concerning the addition or replacement of the sub-processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Payaca's reasonable satisfaction, that the objection is due to an actual or likely breach of applicable Data Protection Law, the Customer shall indemnify Payaca for any losses, damages, costs (including legal fees) and expenses suffered by Payaca in accommodating the objection;

3.2.2. transfer Customer Personal Data outside of the UK as required for the Purpose, provided that Payaca shall ensure that all such transfers are effected in accordance with applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Payaca, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).