Terms and Conditions
COMMA SUBSCRIPTION AGREEMENT
THESE TERMS AND CONDITIONS (“SUBSCRIPTION TERMS”) TOGETHER WITH ANY SUBEQUENT ORDER MADE THROUGH THE APP OR WEBSITE (WHERE APPLICABLE) (“ORDER”) CONSTITUTE A LEGAL AGREEMENT AND CONSTITUTES THE ENTIRE AGREEMENT BETWEEN YOU AND/OR THE CUSTOMER (INCLUDING ANY AUTHORISED USER) DETAILED IN THE APPLICABLE USER ACCOUNT PROFILE (“CUSTOMER”, “YOU”, “YOUR”) AND COMMAZERO LIMITED INCORPORATED AND REGISTERED IN ENGLAND WITH COMPANY NUMBER 12162141 AND ADDRESS AT 191 WOOD LANE, LONDON, UNITED KINGDOM, W12 7FP (“COMMA”, “WE”, “US” “OUR”) (THE “AGREEMENT”). BY USING ALL OR ANY PORTION OF THE SOFTWARE AND THE SERVICES CUSTOMER ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLICABLE TO SUCH USE. CUSTOMER AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT THEN IT SHOULD NOT USE ANY PART OF THE SOFTWARE OR THE SERVICES. COMMA AND CUSTOMER HEREBY AGREE AS FOLLOWS:
- 1. Definitions and Interpretation
- 1.1. The following definitions and rules of interpretation apply in this Agreement:
“App” means any authentication application software operated by Comma and through which the Services are delivered.
“Authorised Users” means those employees, agents and independent contractors of Customer or Customer's Clients who are authorised by Customer to use the Services.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
"Client" means a business customer of Customer who is authorised by Customer pursuant to this Agreement to access and use the Services, and who has been approved by Comma and has agreed to these Comma Subscription Terms. Comma deals with Clients directly and Customer is not acting as an agent on behalf of Comma for any purpose.
“Confidential Information” means (without limitation) all confidential information (however recorded or preserved) disclosed by one party or its employees, officers, representatives or advisers (together “Representatives”) to the other party and the other party’s Representatives, including the terms of this Agreement, the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, product information, services, know-how, technical information or trade secrets of the disclosing party.
“Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Processing and appropriate technical and organisational measures” shall have the meaning as defined in the Data Protection Legislation.
“Customer Data” means the data, which shall include without limitation, the Payment Information and all other content and information uploaded or submitted to the Services by Customer or its Clients, excluding any Derived Data.
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time including the General Data Protection Regulation ((EU) 2016/679), the UK GDPR and the Data Protection Act 2018, which apply to the Processing of Personal Data pursuant to this Agreement.
“Data Subject Request” means a Data Subject request to access, correct, amend, transfer or delete that person’s Personal Data consistent with that person’s rights under the Data Protection Legislation.
“Derived Data” means any data which is derived from Customer’s or its Clients' use of the Services or the Processing of Customer Data, which shall include: (i) any data which is processed and stored as mathematical constructs; and (ii) statistical or aggregated data, but shall exclude any Personal Data (except where such Personal Data has been anonymised) and any Customer Confidential Information.
“Documentation” means those printed or online instructions, manuals, screens and diagrams distributed or otherwise provided by Comma that pertain to the Software or use of the Services.
“Effective Date” means the date on which Customer subscribes for the Software and is able to access the Software.
“Evaluation Licence” has the meaning set out in clause 2.5.
“Force Majeure Event” has the meaning set out in clause 17.2.
“Free Access” has the meaning set out in clause 2.1.
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks, goodwill and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Payment Information” means any data relating to any payments or transactions processed by the Customer or its Clients using the Services; Personal Data; company details; account information from Customer’s selected payment accounts; and payment transaction information.
“Services” means the services which Customer and its Clients access to consolidate, display and share certain information from their selected payment accounts and use the Software to initiate payment orders with respect to their selected payment accounts held at another payment service provider.
“Software” means Comma's payment system software (including any related Websites, Apps or APIs, or any related software), operated by Comma for the purpose of providing the Services or which is used pursuant to an Evaluation Licence or as Free Access.
“Specification” means the functional specification for the Services as set out in the Documentation.
“Subscription Fees” means the subscription fees identified in any separate fee schedule or subsequent Order payable by Customer to Comma for use of the Services, including any additional capacity charges.
“Term” means the duration of this Agreement from the Effective Date until it is terminated in accordance with clause 11.
“UK GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
“User Account” means a data account in Comma’s systems that enables the Customer to use the Services.
“Virus” means 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, network, data or the user experience, including worms, Trojan horses, viruses and other similar things or devices.
“Website” means any website operated by Comma through which the Services are delivered.
- 1.2. Capitalised terms not defined where they first appear in this Agreement have the meaning given in clause 1.1.
- 1.4. This Agreement shall start on the date on which we notify you that your application to register for the Services has been accepted under clause 3 and the Service is available for your use.
- 1.5. Any references throughout this Agreement to the Services shall not apply where Customer uses the Software with Free Access.
- 1.6. If your annual turnover and/or annual balance sheet total exceeds €2 million and you have at least ten (10) employees (“Large Enterprise”), or you are a charity with annual income of £1 million or more (“Large Charity”), then you acknowledge that you are not a consumer, micro-enterprise or a charity within the meaning of the Payment Services Regulations 2017; and you agree that:
- 1.6.1. none of the provisions of Part 6 of the Payment Services Regulations 2017 applies to this Agreement;
- 1.6.2. regulations 66(1), 67(3) and (4), 75, 77, 79, 80, 83, 91, 92 and 94 of the Payment Services Regulations 2017 do not apply to this Agreement.
- 1.6.3. If you are not a Large Enterprise or Large Charity, you shall be entitled to cancel this Agreement within the 14 day period that begins on the day after you enter into it (“Statutory Cancellation Period”). In the event that you cancel this Agreement during the Statutory Cancellation Period, any agreements that you agreed in relation to that cancelled Offer during the Statutory Cancellation Period will also be cancelled automatically. You may exercise your right of cancellation by emailing us to that effect at email@example.com.
- 1.7. This Agreement is concluded in the English language and all communications (including any notices or the information being transmitted) shall be in English. In the event that the Agreement is translated into any other language (whether for the Customer’s convenience or otherwise), the English language text of the Agreement shall prevail.
- 1.8. In this Agreement: (i) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (ii) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (iii) a reference to writing or written includes e-mail; (iv) 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; (v) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- 2. Access to the Software and use of the Services
- 2.1. Subject to the relevant terms and conditions of this Agreement, Customer may use the Software without charge provided that Customer does not make use of the Services made available via the Software ("Free Access"). Customer acknowledges that, unless using the Services under an Evaluation Licence, if Customer starts using the Services, such use will be subject immediately to clause 2.2 and Customer's Free Access will cease.
- 2.2. Comma hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited licence to use the Software as Free Access for Customer's internal business purposes, subject to any applicable terms and conditions set out in this Agreement.
- 2.3. Subject to Customer paying the Subscription Fees and complying with clause 3 and the other terms and conditions of this Agreement, Comma hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited licence for the Term to access and use the Services, and to permit Authorised Users to access and use the Services, for Customer's or its Clients' internal business purposes.
- 2.4. Customer acknowledges that its access and use of the Services shall be conditional upon Customer's compliance with any separate terms and conditions with any payment service provider who provides the Customer’s selected payment account(s).
- 2.5. Where Customer has chosen to use the Software and the Services solely for evaluation purposes under an Evaluation Licence, in compliance with the terms and conditions of this Agreement, Comma hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited licence to use the Software, and to permit Authorised Users for a period of thirty-one (31) days from the Effective Date, to use the Software and the Services, solely for trialling and evaluating the Software and the Services in connection with Customer’s internal business purposes ("Evaluation Licence"). Where Customer uses the Software under an Evaluation Licence, it shall only be entitled to access the Services or use the Services in conjunction with the Software in a limited manner as instructed by Comma. In connection with such Evaluation Licence: (i) no fees will apply; and (ii) Customer must terminate this Agreement and all of its rights hereunder by providing Comma written notice thereof no less than ten (10) days prior to the end of the Evaluation Licence, otherwise the Evaluation Licence shall expire and this Agreement shall continue in effect for the Term (subject to earlier termination as provided in the Agreement and payment of all applicable Subscription Fees).
- 2.6. Customer shall not (and shall procure Authorised Users shall not) access, store, distribute or transmit any Viruses or any material during the course of its use of the Software or Services that is unlawful, harmful, infringing, offensive, discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. Comma reserves the right, without liability or prejudice to its other rights under this Agreement, to disable Customer's (or any Authorised User's access to any material that breaches the provisions of this clause 2.4.
- 2.7. Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, Customer shall not, and shall not attempt to, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means, or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
- 2.8. Customer shall not, and shall not attempt to (and shall procure that Clients and Authorised Users shall not, and shall not attempt to: (i) access all or any part of the Services in order to build a product or service which competes with the Services; (ii) subject to clause 15.1, make the Services available to any third party except to Clients and Authorised Users, or (iii) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
- 2.9. The rights provided under this clause 2 are granted to Customer only and shall not be considered granted to any subsidiary or holding company of Customer.
- 3. Customer Obligations
- 3.1. Customer shall cooperate with Comma in all respects in relation to its use of the Services. Customer will grant to Comma all necessary access to information as reasonably required by Comma to fulfil its obligations under this Agreement from time to time, including granting Comma full and unrestricted access to its User Account in order to provide support or fix any errors. Customer shall be responsible for setting the access rights for each of its Authorised Users.
- 3.2. Customer shall ensure that:
- 3.2.1. all use of the Services (whether by Clients or Authorised Users) complies with the terms and conditions of this Agreement and all applicable laws;
- 3.2.2. its network and systems comply with the relevant Specifications necessary for the operation of the Services, as may be communicated to Customer by Comma from time to time, and Customer shall be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to Comma's data centres.
- 3.3. To be eligible to use the Services, you must be:
- 3.3.1. an individual or sole trader over the age of 18 who is resident in the UK; or
- 3.3.2. a company incorporated in the UK; or
- 3.3.3. a partnership established in the UK comprising individuals who are over the age of 18 and resident in the UK and/or companies incorporated in the UK.
- 3.4. You must not register on the Services more than once or register on the Services on behalf of another person or any entity without that entity's prior written authorization. You must not impersonate or try to impersonate another person when providing us with information.
- 3.5. If we accept your application to use the Services and create a User Account, you will require a valid email address and will be asked to enter a username, password and any other information reasonably necessary as part of our security procedures for your use in accessing information or initiating payment orders from a specified payment account held by you with another payment service provider (“Passcodes”).
- 3.6. You must keep the Passcodes secret and make sure that they are not stored on your workstation or otherwise in a way that enables others to impersonate you. You must periodically change the Passcodes in accordance with the periods of time and procedures established by us for doing so.
- 3.7. Each time Customer seeks to access the Services, we will check your identity by asking for Passcodes. Provided the correct Passcodes are entered, we will assume that Customer is the person giving instructions and making transactions and you will be liable for them, except to the extent provided for in clause 3.8. If you disclose the Passcodes to any other person or entity whom you employ or otherwise retain, appoint or authorise to access the Services on your behalf, you are also responsible and liable for any access, use or misuse or disclosure of your Passcodes or Services by such person or entity.
- 3.8. If you think that someone else may have access to, or be using, your Passcodes or User Account without your consent, you must tell us immediately by emailing firstname.lastname@example.org. You may be asked to provide information to enable us to verify your identity. Following satisfactory completion of the verification process, we will immediately prevent further unauthorised use, including blocking the use of the Passcodes and issue replacements.
- 3.9. You certify that all information you provide in the registration is accurate. You must have a valid email address registered with us at all times. If an email that we send to you should bounce for any reason, your User Account may be temporarily suspended until you contact us with a verifiable address.
- 3.10. We can refuse to act on any instruction that we believe: (i) was unclear; (ii) was not given by or with your authority; (iii) might cause us or any of our partners to breach a legal or other duty; or (iv) involves the use of the Services for an illegal purpose.
- 3.11. Subject to the provisions of clauses 13 and 14, unless and until you notify customer services that you believe that someone else can use the Service by impersonating you:
- 3.11.1. you will be responsible for any instruction which we receive and act on, even if it was not given by you; and
- 3.11.2. we will not be responsible for any unauthorised access to confidential information about you in the Service.
- 3.12. If we believe you have acted fraudulently, or if we believe you have intentionally or with gross negligence failed to keep your means of interacting with us or the Services secure and confidential at all times, we will hold you liable for all transactions and any associated fees.
- 3.13. We will do all that we reasonably can to prevent unauthorised access to the Services. Provided you have not breached the other terms contained in this clause 3, we will accept liability for any loss or damage to you resulting directly from any unauthorised access to the Service (see clause 14 of this Agreement for limits on our liability).
- 3.14. You agree to provide us or your account payment service provider (as the case may be) with the necessary payment order information, including support documents requested, such as invoice(s) and/or related contract with the person or entity you intend to pay (“Payee”).
- 3.15. Except as required by applicable laws, we shall not be responsible, and you will be solely responsible, for: (i) compiling and retaining permanent records of all your use of the Services, and (ii) reconciling all transaction activity between your own system or device and the Services.
- 3.16. Upon the termination of this Agreement for any reason, we shall have no obligation to you to store, retain, report, or otherwise provide any copies of, or access to, any records, documentation or other information in connection with the Services (but we may do so to comply with our obligations under applicable laws).
- 4. Restrictions on use of the Services
- 4.1. Customer undertakes that it shall permit Comma to monitor Customer’s use of the Services. Comma shall be entitled to increase or decrease Customer’s Subscription Fees in line with the payment schedule referenced in the Order relative to the applicable tier which Customer has subscribed to.
- 4.2. If the Customer exceeds any applicable Services restrictions (including any Services capacity set out in any subsequent Order), Comma will subsequently charge Customer additional Subscription Fees in line with fees or the payment schedule referenced in any subsequent Order, such fees to be pro-rated for the remainder of the Initial Term or then current Renewal Term (as applicable).
- 4.3. We may restrict or suspend your use of the Services without notice if: we identify or suspect that suspicious, fraudulent or illegal activities are being carried out in relation to your use of the Service; if we believe you have not complied with this Agreement; or in the event of exceptional circumstances which prohibit the normal operation of the Service.
- 4.4. Unless it would be unlawful for us to do so or it is impracticable, where we stop or suspend the use of the Services in accordance with clause 4.3, we will notify you of this and our reasons for doing so, by sending an email to the email address you have provided to us. Where it is not possible to notify you before we stop or suspend the Services, we will notify you as soon as possible afterwards. We will reinstate your access to the Services or initiate any suspended payment order as soon as practicable after the reasons pursuant to clause 4.3 no longer apply or exist.
- 4.5. We may record the telephone calls with you, as well as any use or attempted use of the Services and any digital communications with you and, if necessary, to use the recordings as evidence of such calls, sessions or communications.
- 5. Customer Data and Derived Data
- 5.1. Customer shall own all right, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of Customer Data.
- 5.2. Comma may use Customer Data to improve the performance and functionality of the Software or develop improvements, updates, upgrades, modifications and derivative works thereof. Comma shall own all rights, title and interest in and to all of the Derived Data.
- 5.3. Comma may track and analyse Customer’s and any Client's or Authorised User’s use of the Services for the purposes of security and to help Comma improve the Services or the Software.
- 5.4. Both parties will comply with all applicable requirements of the Data Protection Legislation in respect of any Personal Data Processed pursuant to this Agreement. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. Comma and Customer agree that in respect of any Personal Data generated as a result of Customer’s access to and use of Services, Customer shall be the Controller of such Personal Data and Comma is a Processor of such Personal Data. Such Personal Data shall be Processed by Comma in accordance with Schedule 1.
- 5.5. Customer shall indemnify and hold harmless Comma from and against all losses, damages, liabilities and claims, arising from or in relation to any third party claims that the processing and use of Customer Data in accordance with this Agreement infringes or misappropriates any third party rights or breaches Data Protection Legislation.
- 6. Comma’s Obligations
- 6.1. Where Customer uses the Software either as Free Access or under an Evaluation Licence, none of the obligations in this clause 6 shall apply subject to the extent it is lawful to do so.
- 6.2. Comma shall: (i) provide the Services to Customer on and subject to the terms of this Agreement with reasonable care and skill and in accordance with the rules of the Financial Conduct Authority (“FCA”) and all applicable laws and regulations; (ii) use commercially reasonable endeavours to ensure that the Services conform to the Specification; and (iii) make the Services available in accordance with any standard applicable service levels.
- 6.3. Notwithstanding clause 6.1, Customer acknowledges that the Services may evolve over time and that functionality may be added or removed by Comma from time to time.
- 6.4. Comma shall not be liable for any breach of its obligation in clause 6.1(ii) to the extent any non-conformance with the Specification is caused by use of the Software or the Services contrary to Comma’s instructions, or modification or alteration of the Software or the Services by any party other than Comma or Comma’s duly authorised contractors or agents. If the Services do not conform materially with the Specification, Comma will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer's sole and exclusive remedy for any non-conformance.
- 6.5. Comma does not warrant that Customer's use of the Services will be uninterrupted or error-free, or that the Services and/or the information obtained by Customer through the Services will meet Customer's requirements. Comma 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, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- 6.6. This Agreement shall not prevent Comma from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products and/or services which are similar to those provided under this Agreement.
- 7. Subscription Fees and Payment
- 7.1. Customer shall pay the Subscription Fees set out in any subsequent Order in accordance with this clause 7.
- 7.2. The Customer shall provide one or more authorised payment methods which the Customer authorises Comma to charge the Subscription Fees for the Services in accordance with this clause 7. Such charges shall be made in advance, in accordance with the intervals specified in the relevant payment schedule or in any subsequent Order. The Customer is responsible for providing complete and accurate billing and contact information to Comma and notifying Comma of any changes to such information.
- 7.3. Subscription Fees may be collected via a payment processor as notified to Customer from time to time. If any payment is not successfully settled due to expiration, insufficient funds or otherwise, Customer shall immediately settle all applicable payments. For some payment methods, the issuer may charge certain fees, such as foreign transaction fees or other fees relating to the processing of the payment method, which shall be due and payable by Customer. Customer may be required to accept the terms and conditions of the issuer of the payment method or the third party payment processor to make the relevant payment.
- 7.4. If Comma has not received payment by the due date, and without prejudice to any other rights and remedies of Comma, Comma may, without liability, disable Customer's and all Authorised Users’ passwords, accounts and access to all or part of the Services until the invoice(s) concerned are paid in full. Interest shall accrue on a daily basis on any overdue amounts at an annual rate equal to 4% above the Bank of England’s base rate (or a minimum of 4% if such base rate falls below 0%), commencing on the due date and continuing until fully paid, whether before or after judgment.
- 7.5. Subscription Fees are payable in the currency detailed in any subsequent Order and are non-cancellable and non-refundable. Subscription Fees are stated exclusive of value added tax, which shall be added to Comma’s invoice(s) at the appropriate rate.
- 7.6. Comma shall be entitled to increase the Subscription Fees at the start of each Renewal Term upon thirty (30) days' prior written notice to Customer.
- 8. Compliance with Laws and Regulations
- 8.1. Customer shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement.
- 9. Intellectual Property Rights
- 9.1. As between the parties, all Intellectual Property Rights in and to the Software, the Derived Data, and the Services shall belong to, and shall remain vested in, Comma or its licensors.
- 9.2. Without prejudice to clause 9.1, to the extent that Customer’s , a Client's, or any Authorised User’s use of the Services results in any modifications, adaptations, developments, or any derivative works of or to the Software or the operation of the Software or Services (“Improvements”), notwithstanding any rights or remedies of Comma under this Agreement, any and all Intellectual Property Rights in and to such Improvements shall immediately vest in and be owned by Comma.
- 9.3. Comma makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Software.
- 9.4. Comma shall defend Customer against any third party claims that the use of the Services in accordance with this Agreement infringes any third party Intellectual Property Right and shall indemnify Customer for and against any amounts awarded against Customer in judgment or settlement of such claims, provided that (i) Comma is given prompt notice of such claim; (ii) Customer provides reasonable co-operation to Comma in the defence and settlement of such claim, at Comma’s expense; (iii) Comma is given sole authority to defend or settle the claim; and (iv) Customer makes no admission of liability or fault itself or on behalf of Comma. Where Customer uses the Software under an Evaluation Licence or as Free Access, the indemnity in this clause 9.4 shall not apply.
- 9.5. In the defence or settlement of any claim pursuant to clause 9.4 above, Comma may at its sole option and expense either:
- 9.5.1. procure for Customer the right to continue using the Software or the Services in the manner contemplated by this Agreement,
- 9.5.2. replace or modify the Software or Services as applicable so that it becomes non-infringing, or
- 9.5.3. terminate this Agreement forthwith by notice in writing and without liability to Customer.
- 9.6. Comma shall not in any circumstances have any liability (including in respect of the indemnity provided under clause 9.4) if the alleged infringement is based on: (i) modification of the Software by anyone other than Comma; or (ii) Customer’s , a Client's, or any Authorised User’s use of the Software otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to Customer by Comma in connection therewith; or (iii) Customer’s , a Client's, or any Authorised User’s use of the Software after notice of the alleged or actual infringement from Comma or any appropriate authority; or (iv) use or combination of the Software with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred.
- 9.7. Customer shall defend Comma against all or any costs, claims, damages or expenses incurred by Comma in respect of any third party claims relating to Customer’s , a Client's, or any Authorised User’s use of the Software of the Services otherwise than in accordance with this Agreement, provided that (i) Customer is given prompt notice of such claim; (ii) Comma provides reasonable co-operation to Customer in the defence and settlement of such claim, at Customer’s expense; (iii) Customer is given sole authority to defend or settle the claim; and (iv) Comma makes no admission of liability or fault itself or on behalf of Customer.
- 10. Confidential Information
- 10.1. Each party agrees to keep confidential, and not to use for any purpose other than the performance of its obligations under this Agreement, all Confidential Information of the other party.
- 10.2. Each party will only disclose or reveal any of the other party’s Confidential Information disclosed to it to: (i) those of its personnel who are required in the course of their duties to receive and consider the same for the purpose for which it is supplied (provided that each party shall ensure that any such personnel to whom it discloses the other party's Confidential Information comply with this clause 10.2); and (ii) any court, governmental or administrative authority competent to require the same, or as required by any applicable law, legislation or regulation (provided the disclosing party is given the opportunity to discuss and agree any possible limitations or restrictions on disclosure in advance to the extent permitted by law).
- 10.3. The provisions of clauses 10.1 and 10.2 shall not apply to information that: (i) is or becomes generally available in the public domain otherwise than arising in connection with a breach of this obligation by the recipient; (ii) is lawfully in the recipient's possession free of any restrictions as to its use or disclosure at the time of disclosure by the disclosing party; (iii) is lawfully acquired from an independent third party who did not itself obtain it under an obligation of confidentiality; or (iv) is independently developed without access or reference to any information disclosed by the disclosing party.
- 10.4. The provisions in this clause 10 shall survive termination or expiry of this Agreement.
- 11. Term and Termination
- 11.1 This Agreement is effective from the Effective Date for the duration of the Term, unless terminated earlier in accordance with this clause 11.
- 11.2. If the Customer is not a Large Enterprise or Large Charity:
- 11.2.1 the Customer may terminate the Agreement by notifying us not later than 1 (one) month in advance;
- we may terminate the Agreement by notifying the Customer not later than 2 (two) months in advance.
- 11.3. If the Customer is a Large Customer or Large Charity, either party may terminate this agreement by giving at least two months’ notice in writing to the other.
- 11.4. 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:
- 11.4.1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than ten (10) Business Days after being notified in writing to make such payment;
- 11.4.2. if the other party commits a material breach of any term of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within thirty (30) days after being notified in writing to do so; or
- 11.4.3 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction, or it ceases or threatens to cease to carry on business.
- 11.5. Notwithstanding clause 4.3, without prejudice to any other rights or remedies to which Comma may be entitled and provided it would be lawful to do so, if Comma knows or has reasonable grounds to suspect that Customer is acting in breach of its obligations under this Agreement (including failure to pay Subscription Fees), Comma may notify Customer in writing accordingly and may suspend Customer’s, Clients', and all Authorised Users’ access to the Services until such breach can be remedied or until Comma is satisfied, acting reasonably, that its suspicions are unfounded.
- 11.6. On termination of this Agreement for any reason: (i) all licences granted under this Agreement shall immediately terminate; (ii) each party shall return and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other party; (iii) 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced; and (iv) any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
- 12. Exclusion of Warranties
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. Customer acknowledges that the Software and the Services and any information provided by or on behalf of Comma are provided to Customer on an "as is" basis.
- 13. Unauthorised or Defective Payment Transactions
- 13.1. If you believe you did not authorise a particular payment transaction or that it was incorrectly initiated, you must contact the payment account service provider who operates the payment account from which payment was taken without undue delay, as soon as you notice the problem. If you contact our customer services team, we will refer you to your payment account service provider. Depending on the circumstances, our customer services team may require you to provide certain additional information.
- 13.2. In order to reclaim an unauthorised or incorrectly executed payment transaction, you must notify your payment account service provider without undue delay after becoming aware of the unauthorised or incorrect transaction and in any event no later than thirteen (13) months after the debit date of the payment transaction. It is your payment account service provider’s responsibility to provide a refund, if appropriate, and subject to its agreement with you. If your payment account service provider believes we should be liable, the payment account service provider can then seek compensation from us.
- 13.3. Neither we nor your payment account service provider will be liable to refund any unauthorised or incorrectly executed Payment Transaction immediately where we have reason to believe that the incident may have been caused:
- 13.3.1. by a breach of contract;
- 13.3.2. through gross negligence; or
- 13.3.3. where we have reasonable grounds to suspect fraud.
- 13.4. We shall not be held liable for a payment transaction that has been incorrectly executed if you have failed to notify us of a problem in accordance with the provisions of clauses 13.1 and 13.2
- 13.5. In certain circumstances, we or your payment account service provider may refuse to initiate a payment order that you have authorised (for example where there is a breach of this Agreement or there is concern regarding fraud or security). Unless it would be unlawful for us to do so, where we refuse to initiate a payment order for you, we will notify you as soon as reasonably practicable that it has been refused and the reasons why it has been refused, together where relevant, with the procedure for correcting any factual errors that led to the refusal. We may charge you for each such notification depending on the circumstances in each case.
- 13.6. Any dispute arising under this clause 13 will be dealt with as a complaint under clause 16.
- 14. Limitation of Liability
- 14.1. This clause 14 sets out the entire financial liability of Comma to Customer arising under or in connection with this Agreement.
- Subject to the provisions of clause 14.3 and 14.4, in case of an unauthorised payment transaction or a payment transaction that was incorrectly executed due to an error by us, you must notify your account payment service provider under clause 13.1 and 13.2, who may then seek compensation from us.
- 14.3. We shall not be liable under clause 14.2:
- 14.3.1. where the unauthorised Payment Transaction arises from: (i) your failure to keep your Passcodes safe, secure and confidential; or (ii) any breach of this Agreement you, or your negligence or wilful misconduct;
- 14.3.2. if you fail to notify us without undue delay of any event that could reasonably be expected to have compromised the security of the Service after you have gained knowledge of such event; or
- 14.3.3. you fail to dispute and bring the unauthorised or incorrectly executed Payment Transaction to your account payment service provider’s attention within the relevant time specified in clause 13.2.
- 14.4. If you are not a Large Enterprise or Large Charity, you may be liable for losses relating to any unauthorized Payment Transactions up to a maximum of £35 resulting from the use of loss, theft or misappropriation of your Passcodes, unless the loss theft or misappropriation was not detectable to you prior to payment (except where you acted fraudulently) or was caused by acts or lack of action of our employee, agent, branch or service provider.
- 14.5. You acknowledge and accept that:
- 14.5.1. the Services are subject to any constraints or limitations stipulated by the FCA or applicable laws; and our continued authorisation by the FCA and ability to provide crucial elements of the Services is dependent on and subject to their continued consent, over which we have no control; and
- 14.5.2. our ability to provide the Services depends on the continued provision of essential components provided by third party suppliers including but not limited to providers of processing and other services, over which we have no control.
- 14.6. By facilitating payment transactions Comma shall not be deemed to have assumed any liability that any you or a Payee may have incurred in relation to the payment transaction or the purpose for which it is made. Comma shall not be responsible for the safety, legality, quality or any other aspect of any transactions or goods and services for which you might be using the Services to disburse the proceeds of or otherwise pay or receive funds.
- 14.7. Comma hereby excludes all liability for any delays, delivery failures, or any other loss or damage that arises from any delay or error in the transfer of any data over any communications facilities, including the internet, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- 14.8. Except as expressly and specifically provided in this Agreement, Customer assumes sole responsibility for its , Clients', and Authorised Users' use of the Services, and for any conclusions drawn or results obtained from such use. Comma shall have no liability for any damage caused by errors or omissions in any information, or any actions taken by Comma at Customer's direction or in respect of any Payment Information submitted to the Services.
- 14.9. Nothing in this Agreement excludes either party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law.
- 14.10 Subject to clause 14.9, Comma shall not be liable for any consequential, indirect, special, incidental, punitive or exemplary losses or damages, whether foreseeable or unforeseeable, including loss of profit, loss of business, loss of goodwill, loss of or corruption of data, loss caused or contributed to by any employee, agent, contractor or representative of Customer or a Client, loss caused as a result of the Services or the Software being unavailable as a result of planned downtime for the Services or the Software as notified to Customer, loss arising from any failure of Customer’s infrastructure and/or utilities, loss caused as a result of the Services being unavailable caused by a Force Majeure Event, or loss caused by the failure or delay of any third party application or service or network, however arising under this Agreement. Comma’s entire, aggregate liability in contract, tort (including negligence, misrepresentation, restitution or breach of statutory duty) arising out of or relating to this Agreement shall be limited to: (i) the total Subscription Fees paid during the twelve (12) months immediately preceding the date on which the claim arose; or (ii) where Customer uses the Software under an Evaluation Licence or as Free Access, an amount of £100.00 (one hundred pounds).
- 15. Assignment
- 15.1. Customer shall not, without the prior written consent of Comma, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Comma may, on notice to Customer assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without requiring any further consent from Customer (subject to the Customer’s right of termination, including in relation to any variations to this Agreement).
- 16. Complaints
- 16.1. Any complaints about Comma or the Services must be addressed to Comma in the first instance by contacting email@example.com. Comma will make every possible effort to reply, addressing all points raised, within an adequate timeframe and at the latest within 15 Business Days of receipt of the complaint, in a form which enables Customer to store the information in a way that is accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored. In exceptional situations, if the answer cannot be given within 15 Business Days for reasons beyond its control, Comma shall send a holding reply, clearly indicating the reasons for a delay and specifying the deadline by which Customer will receive the final reply, which shall not exceed 35 Business Days.
- 16.2. Unless Customer is a Large Enterprise or Large Charity, the complaint may ultimately be referred to the Financial Ombudsman Service, details of which can be found at www.financial-ombudsman.org.uk and who can be contacted at The Financial Ombudsman Service, Exchange Tower, Harbour Exchange Square, London E14 9SR, United Kingdom.
- 17. General
- 17.1. Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- 17.2. Force Majeure. Neither party is responsible for failure to fulfil its obligations under this Agreement, except for any payment obligations, due to causes beyond its reasonable control that directly or indirectly delay or prevent timely performance, if such delay or failure results from events beyond that party's reasonable control (“Force Majeure Event”). Dates or times by which each party is required to render performance under this Agreement shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes. If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations for a continuous period of more than thirty 30 days, either party may terminate this Agreement by giving thirty 30 days’ written notice to the other party.
- 17.3. Notices. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be deemed to have been received: (i) if delivered by hand at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and (iii) if sent by email, at 9.00 am on the next Business Day after transmission, in the absence of a failed delivery receipt.
Notices shall be sent to:
In the case of Comma, in writing to:
in your case: in writing to the address or email address provided to us on registration, as updated by you from time to time.
The parties shall notify each other of any change in their contact details for notices as set out in this clause.
- 17.4. Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). We may periodically make changes to this Agreement and shall notify you by posting a revised version of the Agreement on the Website and emailing you at your email address registered with us. The revised terms including the changes will take effect two (2) months following such notice. You will be deemed to have accepted the changes if you do not notify us before the proposed date that the changes take effect that the changes are not accepted. If you reject the changes, you can immediately terminate this Agreement in accordance with clause 11.2 free of charge and with effect at any time until the date when the changes would have applied (subject to clause 11.3). We will only make changes:
- where we consider that a change will make these this Agreement clearer and no less favourable to you; or
- to reflect new, or changes to existing, systems, technology, products, services or business processes; or
- to help meet the cost of changes in our funding or working capital requirements; or
- to implement changes required by applicable law, industry codes of practice or decisions of any court, arbitrator or the Financial Ombudsman Service.
You agree that, where applicable, changes in exchange rates may be applied immediately and without notice, provided that the change in the rates are based on the Reference Exchange Rate, except that changes in rates which are more favourable to you, may be applied without notice. Changes in exchange rate used by us in payment transactions shall be implemented and calculated in a neutral manner that does not discriminate against you.
- 17.5. Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- 17.6. Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
- 17.7. Relationship. Each of the parties to this Agreement is an independent contractor and nothing contained in this Agreement shall be construed to imply that there is any relationship between the parties of agents or of principal/agent or of employer/employee nor are the parties engaging in a joint venture and accordingly neither of the parties shall have any right or authority to act on behalf of the other, nor to bind the other by contract or otherwise, unless expressly permitted by the terms and conditions of this Agreement. The parties acknowledge that the arrangements between them are non-exclusive. Nothing contained in this Agreement shall prohibit either of the parties from conducting business activities with other third parties.
- 17.8. Third party rights. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms and conditions of this Agreement.
- 17.9. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
- 17.10. Governing Law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England and Wales.
- 17.11. Jurisdiction. Each party irrevocably agrees that the courts of the United Kingdom shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
Data Processing Schedule
- 1. Interpretation. Capitalised terms used in this Schedule and not otherwise defined in the Agreement shall bear the meaning given to them in the Data Protection Legislation.
- 2. Data Processing Obligations. The parties acknowledge and agree that for the purposes of the Data Protection Legislation, in respect of any Personal Data generated as a result of Customer access and use of the Services, Customer is the Data Controller and Comma is the Data Processor of such Personal Data and the Processing activities undertaken by Comma are set out in Annex A.
- 3. Comma’s Processing obligations
- 3.1. To the extent that Comma Processes any Personal Data on behalf of Customer in connection with Customer use of the Services, Comma shall:
- 3.1.1. only Process such Personal Data in accordance with the purposes set out in the Agreement and notify Customer immediately if in its opinion Customer instructions infringe applicable law;
- 3.1.2. maintain a record of its Processing activities under the Agreement in accordance with and to the extent required by Article 30(2) GDPR, and Comma shall at any time upon request, deliver up to Customer details of such Processing activities;
- 3.1.3. ensure that access to any such Personal Data is restricted to those of its personnel who need to have access in order to make the Services available in accordance with the Agreement and who are subject to confidentiality obligations in respect of the Personal Data;
- 3.1.4. notify Customer without undue delay if it suffers a Personal Data Breach, if it receives any Data Subject Request relating to the Personal Data, and shall: (i) not respond to the Data Subject Request without Customer prior written consent and in accordance with Customer instructions; and (ii) shall provide such assistance as Customer may reasonably require in respect of such Personal Data in order for Customer to comply and respond to the Data Subject Request in accordance with the Data Protection Legislation;
- 3.1.5. provide reasonable assistance to Customer in inputting into and carrying out data protection impact assessments and, to the extent required under the Data Protection Legislation, prior notification under Article 36 of GDPR; and
- 3.1.6. ensure that it has implemented appropriate organisational and technical measures in order to comply with its obligations under this paragraph 3.
- 3.2. To the extent legally permitted, Customer shall be responsible for any costs arising from Comma’s provision of assistance beyond the existing functionality of the Services.
- 3.3. Comma is permitted to engage a sub-processor to Process any of the Personal Data on Customer behalf in connection with Customer use of the Services. Customer pre-approves Comma’s use of third party processors for the purposes of fulfilling its obligations. Comma shall:
- 3.3.1. inform Customer prior to the appointment or removal of any such sub-processor, thereby giving Customer an opportunity to object to the appointment or removal. If Customer objects on reasonable grounds, Comma shall either: (i) alter its plans to use the sub-processor with respect to Personal Data; or (ii) take corrective steps to remove Customer objections. If none of the above options are reasonably available or the issue is not resolved within thirty (30) days of the objection, either party may terminate the Agreement;
- 3.3.2. ensure that such sub-processor is subject to a written agreement which imposes on it binding contractual obligations which are equivalent to the terms imposed on Comma under this Schedule to the extent required by Data Protection Legislation; and
- 3.3.3. ensure that the sub-processor’s Processing of such Personal Data terminates upon termination of Comma’s right to Process the data,
provided that Comma shall be liable for the acts and omissions of such sub-processors in relation to the Processing of such Personal Data.
- 3.4. Customer acknowledges that Comma and its sub-processors may Process Personal Data in non-EEA countries. Comma will abide by the requirements of the Data Protection Legislation regarding the transfer and Processing of Personal Data from the EEA. Comma will ensure that transfers of Personal Data to a third country that does not ensure an adequate level of protection or an international organization are subject to appropriate safeguards as described in Article 46 of the GDPR or where required enter into the EU-controller to Non-EU/EEA processor model contractual clauses annexed to European Commission Decision C(2010) 593 (“Standard Contractual Clauses”), incorporating the details from Annex A as applicable.
- 3.5. Upon termination or expiry of this Agreement, Comma shall cease all Processing of any Personal Data Processed on Customer's behalf under this Agreement and shall return or destroy all such Personal Data.
- 3.6. In order to demonstrate Comma’s compliance with the Data Protection Legislation and the terms of this Schedule, Comma shall:
- 3.6.1. provide Customer with such information as Customer reasonably requests from time to time to enable Customer to satisfy itself that Comma is complying with its obligations under this Schedule and the Data Protection Legislation; and
- 3.6.2. allow Customer, at Customer's sole cost and expense access (on reasonable notice and no more than once a year) to its premises where Personal Data is Processed under the Agreement to allow Customer to audit its compliance with this Schedule and the Data Protection Legislation and shall provide reasonable co-operation as requested by Customer in the performance of such audit. The parties shall agree in advance on the reasonable start date, duration and security and confidentiality controls applicable to such audit.
- 4. Obligations of Customer
- 4.1. Customer shall:
- 4.1.1. have at all times during the Term of the Agreement appropriate technical and organisational measures to ensure a level of security appropriate to the risk to protect any Personal Data;
- 4.1.2. provide clear and comprehensible written instructions to Comma for the Processing of Personal Data to be carried out under the Agreement; and
- 4.1.3. ensure that it has all the necessary licences, permissions, consents and notices in place to enable lawful transfer of Personal Data to Comma for the duration and purposes of the Agreement.
- 1. Nature and Purpose of Processing. Comma will Process Personal Data as necessary to perform its obligations pursuant to the Agreement.
- 2. Duration of Procession. Comma will Process Personal Data for the Term of the Agreement.
- 3. Categories of Data Subjects. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects: Data Subjects signed up to use the Services through an account.
- 4. Type of Personal Data. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following types of Personal Data: Payment Information, names, email addresses, dates of birth, addresses and other ancillary contact details of Data Subjects.