• Agreement

  The Supplier will provide the Services to the Merchant in consideration for the Fees during the Term on the terms and conditions set out in this Agreement.

• Fees

  • In consideration for the Supplier providing the Services, the Merchant will pay the Supplier the Fees monthly in arrears.
  • Without limiting the Merchant’s liability in respect of unpaid Fees, the Merchant may pass on the cost of Passable Fees directly to Customers who must pay the relevant Fees directly to the Supplier through the System.
  • The Merchant must pay any Fee Shortfalls in respect of a preceding calendar month within three business days of being issued a Shortfall Invoice by the Supplier.

• Services

  The Services to be provided by the Supplier under this Agreement are as follows:

  • providing web-access to and use of the Software to the Merchant and its Customers;
  • systematically collecting Customer payments of outstanding Customer Invoices in accordance with the procedures outlined in the Agreement, including:
    • contacting Customers via email with a summary of their outstanding Customer Invoices and inviting them to take action to settle these Customer Invoices via secure these Customer Invoices via a secure payment portal;
    • via the secure, branded payment portal providing various methods of payment to the Customers (including Payment On Terms via direct debit as defined in the Agreement);
    • processing Customer Invoice payments from Customers and forwarding such payments to the Merchant;
    • issuing payment reminder notices to the Customers via email and/or short message services (‘SMS’); and
    • providing Merchant administrators with access to online reports and visibility as to Customer payment performance in terms of paying outstanding Customer Invoices.

• Dishonour Fees

  • Each time a direct debit on a Customer’s bank account is dishonoured, the Customer must pay the Supplier the Dishonour Fee.  The Merchant agrees that if this fee is not paid by the Customer (or honoured by the Customer’s bank) then the Dishonour Fee may be invoiced and debited to the Merchant as a Fee Shortfall in accordance with this Agreement.
  • The Supplier will promptly issue dishonour notices via email and SMS to all Customers that dishonour on their payments.
  • The Merchant will have timely access to reports of dishonoured direct debits on Customers’ nominated bank accounts or credit cards via the Software.
  • The Merchant may notify the Supplier to cease payment reminder notices and collections attempts at any time via the System Authorised Administrators in respect of any Customer by using the Software function denoted as ‘Suspend Collections Activities’.
  • The Supplier is not responsible for or liable to the Merchant or any Customer for authorised and completed Charges that are later the subject of a Dispute, Refund, or Reversal, are submitted without authorisation or in error, or violate any Laws.
  • The Merchant shall immediately pay to the Supplier an amount equal to any and  all Disputes, Refunds, Reversals or Returns regardless of the reason or timing, upon being notified of the same.

• Customer Invoices

  The Supplier will only provide the Services in respect of a Customer Invoice if:

  • the Merchant and/or its agent creates a valid Customer Invoice in accordance with applicable law; and
  • the Supplier or its agent is granted access to the Customer Invoice data and the Customer’s personal information including contact details and email addresses for the purpose of providing the Services; and
  • the Supplier has (at its absolute discretion) accepted the Customer Invoice into the System.

• System

  • The Supplier may, in its absolute discretion, reject any and all Customer Invoices from the System.
  • Where the Supplier has agreed to accept a Customer Invoice issued by the Merchant into the System, then the following process will be followed by the Supplier:
    • Customers to which the Customer Invoice relates will be contacted via email and provided with an outstanding Customer Invoice summary that relates to them and they will be invited to use a URL (web-based ‘Uniform Resource Locator’) link to connect to a secure payment gateway for the purpose of settling the Customer Invoice(s);
    • within the secure payment gateway the Customers will then be offered various options for payment of outstanding Customer Invoices as pre agreed between the Merchant and the Supplier in the System Business Rules and generally:
      • a. credit card payments will be settled directly to the Merchant with next day settlement (subject to any relevant processing cut-off times); and
      • b. all bank account direct debit payments will be settled directly to the Merchant on the day of being confirmed as ‘cleared funds’ (usually three business days post direct debit of a Customer bank account) subject to any relevant processing cut-off times.
  • The Supplier will at all times administer a debt collections program and facilitate Payment On Terms through the Software in accordance with the System Business Rules.
  • The Merchant and the Supplier must comply with the System in respect of each Customer Invoice accepted into the System.

• Notify Customer payments received (only applies to server-based accounting systems)

  If a Customer makes any payment directly to the Merchant in respect of a Customer Invoice(s) that is accepted into the System by the Supplier, then the Merchant (via its System Authorised Administrators) must, within two business days, notify the Supplier of the relevant payment via the Software function denoted as ‘Manual Payment Received’.

• Software

  • The Supplier is the owner of the Software and any copies of the Software coding remain the property of the Supplier. The Software is licensed and not sold. 
  • The Merchant is authorised by the Supplier to use the Software hosted by the Supplier on the internet in accordance with the terms of this Agreement and any other requirements as notified by the Supplier to the Merchant from time to time during the  Term of this Agreement. The Merchant shall not sub-license or transfer its right to use the Software, or make available the Software to any third party.
  • The Merchant (via System Authorised Administrators) will use the Software to generate reports and manage the System.
  • The Merchant must ensure the Software including any part of it is used strictly in accordance with this Agreement.
  • To the maximum extent permitted under applicable law, the Merchant must not copy or attempt to copy or replicate (including but not limited to by reverse engineering) the Software.
  • The Merchant shall not obtain any right title or interest in or to the Software (including any intellectual property rights).  The intellectual property in any enhancements or improvements to the Software will vest in the Supplier and the Merchant will do whatever is necessary and sign any document required by the Supplier to ensure that such intellectual property rights are vested solely in the Supplier as soon as practicable after its creation.
  • The Supplier shall be entitled to modify the Software (including its technical attributes and/or functionality) from time to time in its absolute discretion.  The Supplier does not warrant, represent  or undertake that the Software will be error free or that its use will be uninterrupted. 

• Warranties

  • The Merchant warrants in respect of each Customer Invoice submitted to the Supplier for participation in the System that:
    • the full amount of the Customer Invoice is unpaid (or such lesser amount as the Supplier approves);
    • the Merchant is not aware of any complaint or challenge from the Customer in relation to the goods or services provided by the Merchant to the Customer or in relation to the Invoice;
    • the Customer Invoice has been validly rendered to the Customer by the Merchant; and
    • the Customer is an arms length party to the Merchant.
  • The Merchant warrants, in respect of any information relating to a Customer which is submitted to the Supplier by the Merchant or uploaded onto the Software by the Merchant, that:
    • the Merchant has obtained all necessary consents and authorisations and has a lawful basis to enable the Supplier to access and use the Customer’s personal information to provide the Services; and
    • the Merchant has provided the Customer with a link to the Supplier’s privacy policy (as notified by the Supplier).
  • The Merchant warrants, in respect of each Customer in respect of which a Customer Invoice is submitted to the Supplier for participation in the System, that the Merchant is not aware and has no reason to suspect that the money used by the Customer to fund the Customer Invoice is derived from any activities contrary or related to any money laundering, terrorism financing or similar activities.

• Indemnity

  The Merchant indemnifies the Supplier and agrees to keep the Supplier indemnified against any cost, claim, demand, loss, liability or expense incurred directly or indirectly by the Supplier by reason of:

  • any payment being received from a Customer which is subsequently dishonoured or the subject of a charge-back by a banking or other financial institution;
  • any act or omission of the Merchant and/or its agents (including any System Authorised Administrators);
  • any failure to comply with a condition of this Agreement or a breach of warranty under this Agreement; and
  • any failure of the Merchant to comply with any law relevant to the use of the Services.

• Liability

  • Except as expressly and specifically provided in this Agreement 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. 
  • Nothing in this Agreement excludes the liability of either party:
    • for death or personal injury caused by negligence; or
    • for fraud or fraudulent misrepresentation; or
    • for payment of fees properly due; or 
    • for any liability which cannot be excluded under applicable law. 
  • Subject to clause 11.2, Supplier is not  liable, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise in connection with this Agreement for any: 
    • loss of profit;
    • loss of goodwill; 
    • loss of revenue;
    • loss or corruption of data; 
    • loss of business; or
    • loss of anticipated savings; 

in each case whether direct or indirect or for any indirect, special or consequential loss or damage, howsoever arising.

• • Subject to clauses 11.2 and 11.3, Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance or contemplated performance of this Agreement shall be limited to the greater of (i) £10,000 or (ii) 80% of the total Fees paid to the Supplier during the 12 months preceding the date on which the most recent event giving rise to liability took place.

• Compliance with Privacy Policy

  • The Supplier shall process any personal data that the Supplier collects or otherwise obtains in delivering the Services in accordance with its Privacy Policy.

• Termination

• The Supplier may terminate this Agreement:
  • at any time by providing seven days written notice to the Merchant; or
  • with immediate effect upon written notice if the Merchant commits a material breach of this Agreement.
• The Merchant may terminate this Agreement at any time by providing written notice to the Supplier.
• Upon termination in accordance with clause 12:
  • the Merchant’s access to the Software will cease; and
  • the Supplier will cease providing the Services; and
  • all outstanding Fees shall become immediately due and payable by the Merchant.

• Confidentiality

  • Subject to clause 14.2, each party must maintain the confidentiality of and not disclose any trade secret or confidential information about each other party obtained during the Term including the terms of this Agreement, other than when required by law or when the information falls into the public domain other than by breach of this Agreement.
  • The Merchant irrevocably authorises the Supplier to provide a copy of this Agreement (including all related schedules and annexures) to the entity that referred the Merchant to the Supplier.  Each party may disclose confidential information provided by the other or obtained from the other to its professional advisers on a confidential basis and as otherwise required by applicable law.
  • This clause 14 will survive the termination of this Agreement for a period of three years.

• Standard terms

1. • This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
   • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
   • This Agreement constitutes the entire agreement between the parties as to its subject matter.
   • If the Merchant enters into this Agreement as trustee then the Merchant enters into this Agreement in its personal capacity and for each trust for which it acts as trustee. 
   • This Agreement may be signed in counterparts and/or by electronic means.
   • An obligation under this Agreement cannot be waived except by a written instrument executed by the party and specifying the waiver.
   • This Agreement may not be amended except by a written document executed by the parties and specifically referring to the provisions of this Agreement as being amended.
   • Any provision of this Agreement that is invalid or unenforceable shall be deemed amended to the minimum extent necessary to avoid that effect or if that is not possible, it must be excluded from this Agreement but only to the extent necessary.  All other provisions of this Agreement continue to be valid and enforceable in accordance with their terms.
   • Neither party shall, without the prior written approval of the other, assign, transfer, charge, or deal in any other manner with all or any of its rights or obligations under this Agreement save that the Supplier is entitled to appoint subcontractors to perform Services on its behalf provided that the Supplier shall remain liable for the performance of the Services in such circumstances
   • This Agreement does not confer any rights on any person or party pursuant to the Contracts (Rights of Third Parties) Act 1999.
   • This Agreement records the entire agreement between the parties as to its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.  Nothing in this clause shall limit or exclude any liability for fraud.
   • Neither party shall engage in any activity, practice, or conduct which would constitute either a UK tax evasion facilitation offense under section 45(1) of the UK Criminal Finances Act 2017; or a foreign tax evasion facilitation offense under section 46(1) of the UK Criminal Finances Act 2017 and each party shall have and shall maintain in place throughout the Term such policies and procedures as are both reasonable to prevent the facilitation of tax evasion by another person. 
   • Each party shall comply with all applicable laws relating to anti-bribery and slavery and human trafficking, including (without limitation) the UK Bribery Act 2010 and the Modern Slavery Act 2015.
   • Each party must promptly execute all documents and do all things that another party from time to time reasonably requests to effect, perfect or complete this Agreement and all transactions incidental to it.

• Relationship

  • Nothing in this Agreement creates a relationship of principal and agent, employer and employee, partnership or joint venture between the parties.

• Interpretation

1. • In this Agreement, unless the contrary intention appears:
     • a person includes any other legal entity and vice versa;
     • the singular includes the plural and vice versa;
     • gender includes the other gender;
     • where an expression is defined, its other grammatical forms have a corresponding meaning;
     • a clause or annexure is a clause of or an annexure to this Agreement;
     • reference to a document is to that document as amended or varied;
     • any legislation includes any subordinate legislation and amendments;
     • conduct includes any act, omission, representation, statement or undertaking whether or not in writing;
     • ‘writing’, ‘written’ and ‘in writing’ include any mode of representing or reproducing words in a visible form; and
     • ‘including’, or similar words, does not limit what else might be included.
   • Headings are for convenience and do not affect the interpretation of this Agreement.

• Definitions

  • In this document, unless the context requires otherwise:
    • ‘Agreement’ means this agreement including all schedules and annexures;
    • “Charge” means a credit or debit instruction to capture funds from an account that a Customer maintains with a bank or other financial institution in connection with a Customer transaction;
    • ‘Commencement Date’ means date that 
    • ‘Customer’ means persons or entities who are provided services by the Merchant (usually the invoiced entity or person);
    • ‘Customer Invoice’ means an invoice issued by the Merchant to a Customer;
    • ‘Dishonour Fee’ means the fee set out in the Schedule relating to dishonoured direct debit transactions; 
    • ‘Dispute’ means a Charge made to a Customer that is disputed by them either via their financial institution or directly.
    • ‘Fee’ means the fees payable to the Supplier as set out in the Schedule;
    • ‘Fee Shortfall’ means any Fees for a calendar month that remain unpaid and are due to the Supplier;
    •  ‘Merchant’ means the entity specified in the Schedule; 
    • ‘Payment On Terms’ means an agreement between a Customer and the Merchant or a third party financier where the Customer agrees to pay a Customer Invoice in a scheduled series of instalment payments. The agreement for payment on terms will be issued by the Software and comply with the System Business Rules;
    • ‘Privacy Policy’ means the privacy policy maintained by the Supplier on its website and as amended from time to time;
    • ‘Passable Fees’ means certain Fees specified in the Schedule as giving the Merchant the ability to pass on those fees to the Customer; 
    • ‘Refund’ means a payment refund to a Customer of a Charge made to them for any reason.   ;
    • ‘Return’ means a payment return to a Customer of a Charge made by them for any reason
    • ‘Reversal’ means a payment reversal to a Customer of a Charge made to them for any reason
    • ‘Schedule‘ means  the Fee Schedule to this Agreement; 
    • ‘Services’ mean the services to be provided by the Supplier to the Merchant specified in clause 3 or as otherwise agreed between the parties; 
    • ‘Shortfall Invoice’ means an invoice which details any Fee Shortfall payable by the Merchant in the previous calendar month for each of the relevant Customer Invoices;
    • ‘Software’ means the software provided and/or operated by the Supplier as part of the Services to support the System;
    • ‘Supplier’ means OneBox Professionals UK Limited, Company number 11615417, trading as Apxium and/or nominee; 
    • ‘System’ includes the debt collections management system and processes operated by the Supplier, including through the Software, in relation to the collection of payments from Customers in connection with the payment of Customer Invoices and the process by which those payments are paid to the Merchant;
    • ‘System Authorised Administrators’ means those staff members of the Merchant that are nominated by the Merchant to have System administration rights when accessing the Software’;
    • ‘System Business Rules’ means the ‘System Business Rules’ and
    • ‘Term’ means the period commencing on the Commencement Date until terminated in accordance with this Agreement.