Payment Services Agreement
This Activity Fan Limited Payment Services Agreement sets out the terms and conditions under which you may utilize the Activity Fan Limited Payment Services.
This Agreement becomes a legally binding contract and is effective as of the earliest date you do any of the following (the “Effective Date”):
Section 1 — Activity Fan Limited Payment Services
1.1 “Activity Fan Limited Payment Service(s)” means the Payment Processing Services or Gateway Services defined as follows:
- (a) “Payment Processing Services” means the payment processing services offered by Activity Fan Limited which provide Providers with the ability to accept credit cards, debit cards, and other payment methods on a website. These services include Gateway Services, credit or debit cards, PayPal accounts.
- (b) “Gateway Services” means the gateway services offered by Activity Fan Limited which provides Providers with the software and connectivity required to allow real-time secure data transmission for processing of credit and debit card payments on a website.
Section 2 — Fees and Taxes
In exchange for us providing you with the Activity Fan Limited Payment Services, you agree to pay the fees, including applicable transaction, multi-currency and Chargeback fees.
2.2 Payment of Fees, Payouts, and Right to Set-off
Subject to the terms of this Agreement, Activity Fan Limited will send to your preferred payment method (Bank account or PayPal account) all amounts due to you from your Transactions, minus any fees, Commission, Reversals, Invalidated Payments, Chargebacks, Refunds or other amounts that you owe to Activity Fan Limited under this Agreement. In order to receive a payout, you will need to log in to your Activity Fan account and process a payout. You cannot request a payout until 4 (four) days before the service you sell on Activity Fan website is due. We will process your payout within 7(seven) business days after you’ve made a payout request.
Provider shall pay, indemnify, and hold Activity Fan Limited harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on Activity Fan Limited income, and (ii) all government permit fees, customs fees and similar fees which Activity Fan Limited may incur with respect to this Agreement. Such taxes, fees and duties paid by Provider shall not be considered a part of, a deduction from, or an offset against, payments due to Activity Fan Limited hereunder.
Section 3 — Representations and Warranties
3.1 Representations and Warranties by Provider
Provider has the full power and authority to execute, deliver and perform this Agreement. This Agreement is binding and enforceable against Provider and no provision requiring Provider’s performance is in conflict with its obligations under any agreement to which Provider is a party.
Provider is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries in which Provider’s business operates.
Section 4 — Liability for Invalidated Payments and other Liabilities
You are liable for all claims, expenses, fines and liability we incur arising out of:
- (a) a Chargeback, Refund, over-payment, payment error, or other invalid payment you cause (collectively “Invalidated Payment”);
- (b) any error, negligence, misconduct or fraud by you, your employees, or someone acting on your behalf; and
- (c) any losses resulting from your failure to comply with the terms of this agreement, or your usage of the Activity Fan Limited Payment Services.
Section 5 – Account Security, Data, Intellectual Property and Publicity
5.1 Security of your access
You agree to:
- (a) Not allow anyone else to have or use your password details and to comply with all reasonable instructions we may issue regarding account access and security. In the event you share your password details, Activity Fan Limited will not be liable to you for losses or damages;
- (b) Keep your personal details up to date. We may be unable to respond to you if you contact us from an address, telephone number or email account that is not registered with us; and
- (c) Take all reasonable steps to protect the security of the personal electronic device through which you access the Activity Fan Limited website (including, without limitation, using password protected personally configured device functionality to access the Activity Fan Limited website and not sharing your device with other people).
5.2 Data Security Compliance
Provider agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information.
5.3 Ownership of Data
All Customer Data shall be owned by Activity Fan Limited and Provider hereby grants Activity Fan Limited a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display Customer Data for the following purposes: (i) providing and improving the Activity Fan Limited services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymized and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.
5.4 Confidential InformationThe parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Activity Fan Limited Payment Services and the know how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.
Section 6 - Indemnification, Limitation of Liability, Disclaimer of Warranties
Provider agrees to indemnify, defend, and hold harmless Activity Fan Limited, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of (i) your breach of this Agreement or any other agreement you enter into with Activity Fan Limited or its suppliers in relation to your use of the Activity Fan Limited Payment Services; (ii) your use of the Activity Fan Limited Payment Services; and/or (iii) your violation of any applicable law, regulation, or Association Rules and requirements.
6.2 LIMITATION OF LIABILITY
ACTIVITY FAN LIMITED SHALL NOT BE LIABLE TO YOU OR A THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIVITY FAN LIMITED PAYMENT SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF ACTIVITY FAN LIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL ACTIVITY FAN LIMITED’S TOTAL AGGREGATE LIABILITY TO PROVIDER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE DIRECT DAMAGES SUFFERED BY SUCH PARTY IN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY PROVIDER TO ACTIVITY FAN LIMITED UNDER THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTH PERIOD AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.
6.3 Disclaimer of Warranties
THE ACTIVITY FAN LIMITED PAYMENT SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. ACTIVITY FAN LIMITED DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO PROVIDER AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF PROVIDERABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ACTIVITY FAN LIMITED OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ACTIVITY FAN LIMITED OBLIGATIONS.
The parties acknowledge that the Activity Fan Limited Payment Service is a computer network based service which may be subject to outages and delay occurrences. As such, Activity Fan Limited does not guarantee continuous or uninterrupted access to the Activity Fan Limited Payment Services. Provider further acknowledges that access to the Activity Fan Limited website or to the Activity Fan Limited Payment Services may be restricted for maintenance. Activity Fan Limited will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, Activity Fan Limited will not be liable for any interruption, outage, or failure to provide the Activity Fan Limited Payment Services.
Section 7 - Term and Termination, Data Portability
7.1 Term and Termination
The term of this Agreement shall commence on the Effective Date and shall continue on until terminated as set forth herein. You may terminate this Agreement, without cause, by providing Activity Fan Limited with notice of your intent to terminate, or by ceasing to use the Activity Fan Limited Payment Services.
Activity Fan Limited may terminate this Agreement or suspend services to you if any of the following occurs: (1) we are required by the Associations, the acquiring bank, or an order from a regulatory body to cease providing services to you; (2) we believe that you have breached this Agreement, or are likely to do so; (3) if we determine that your use of the Activity Fan Limited Payment Services carries an unacceptable amount of risk, including credit or fraud risk; or (4) any other legal, reputational, or risk-based reason exists, in Activity Fan Limited sole discretion. In the event that Activity Fan Limited must terminate this Agreement, Activity Fan Limited shall provide you with written notice as soon as reasonably practicable.
After termination by either party as described above, Provider shall no longer have access to, and shall cease all use of the Activity Fan Limited Payment Services. Any termination of this Agreement does not relieve Provider of any obligations to pay any fees, costs, penalties, Chargebacks or any other amounts owed by you to us as provided under this Agreement, whether accrued prior to or after termination.
Section 8 – General Provisions
8.1 Independent Contractors
The relationship of Activity Fan Limited and Provider is that of independent contractors. Neither Provider nor any of its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of Activity Fan Limited, nor do they have any authority to bind Activity Fan Limited by contract or otherwise to any obligation. None of such parties will represent anything to the contrary, either expressly, implicitly, by appearance or otherwise.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Provider may not assign this Agreement without the written consent of Activity Fan Limited. Activity Fan Limited may assign this Agreement in its sole discretion without the written consent of Provider.
We may amend this Agreement at any time by posting a revised version of it on our website under the “Legal” section of our website. The revised version will be effective at the time we post it.
8.6 Entire Agreement
This Agreement sets forth the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
8.7 Communication; Recording Calls; and Availability of Contractual Documents
You consent to receive autodialed or prerecorded calls and text messages from Activity Fan Limited at any telephone number that you have provided us or that we have otherwise obtained to (i) notify you regarding your account; (ii) collect a debt; (iii) resolve a dispute; (iv) contact you about exclusive offers; or (v) as otherwise necessary to service your account or enforce the Agreement. Standard telephone minute and text charges may apply.
We may share your telephone numbers with our service providers (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under the Agreement, our policies, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.
Activity Fan Limited may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Activity Fan Limited or its agents for quality control and training purposes or for its own protection.
If you have a question or complaint relating to the Activity Fan Limited Payment Services or your Transactions, please contact the Activity Fan Limited customer support as defined in the “Contact” tab of the Activity Fan Limited website.
The general terms and conditions for the Activity Fan Limited Payment Services will be available at all times on www.activityfan.com or will be made available during signup process as an electronic copy per e-mail. You may request at any time free of charge electronic copy of your contractual documents.
8.8 Notices, Contracting Entity, Governing Law, and Jurisdiction
- a. Contracting Entity. “Activity Fan Limited,” “we,” and “our” in this agreement refer to Activity Fan Limited, Wood End, Park Drive, Ashtead, KT21 1JB. Registered in England No. 9725081
- b. Notice to Provider. Provider agrees that Activity Fan Limited may provide notices and disclosures to Provider by posting them on Activity Fan Limited website, emailing them to Provider, or sending them to Provider through postal mail. Notices sent to Provider by postal mail are considered received by Provider within three (3) Business Days of the date Activity Fan Limited sends the notice unless it is returned to Activity Fan Limited. Disclosures and notices posted on Activity Fan Limited website or emailed shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered. Furthermore, you understand and agree that if Activity Fan Limited sends you an email but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic communications, Activity Fan Limited will be deemed to have provided the communication to you. In addition, Activity Fan Limited may send Provider emails, including, but not limited to, those relating to product updates, new features and offers and Provider hereby consents to such email notification. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy.
- c. Notices to Activity Fan Limited. Notice to Activity Fan Limited shall be considered valid only if sent by postal mail to Activity Fan Limited registered address.
- d. Choice of law and jurisdiction. This Agreement shall be subject to the laws of England and Wales.