Terms and conditions
- eWAY is the owner of trade marks, patents, trade secrets, copyrights, processes, know how, registered designs or other Intellectual Property and provides payment gateway services to online merchants.
- eWAY has agreed to grant You with access to the Site, the Services, and use of certain Intellectual Property and Confidential Information as set out in this Agreement.
- All products of eWAY or an affiliate including the eWAY website, payment processing pages and online documentation (collectively, the "Services") are subject to the Terms and Conditions stated below.
- By the use of the Site or the Services You agree to be bound by this Agreement. If You do not agree to the Terms and Conditions set out below You agree that You will not use the Site or the Services.
Terms and Conditions of Use
In these Terms and Conditions, the following terms have the following meanings
- "Account" means your user name and identifying particulars supplied to eWAY at the commencement of this Agreement.
- "Agreement" means this agreement as amended from time to time including schedules, terms included by reference and recitals.
- "Business" means all activities associated with on-line gateway transactions including purchases and refunds and includes development of the Site, the Services and Intellectual Property.
- "Confidential Information" means all information acquired or created by eWAY or the eWAY group during the course of or in connection with the Business by eWAY, including information about eWAY or the eWAY group, the Business, processes, systems, equipment, dealings, transactions, policies, finances, organisation or personnel, or about those of its clients or anyone associated with it or them, unless that information is readily available to the public, and shall include (but not be limited to) eWAY's and the eWAY group's principles, policies, procedures, Intellectual Property and other documents, or material which eWAY or the eWAY group may direct you to treat as Confidential Information.
- "Copyright Material" means any work or other subject-matter in which copyright subsists or is capable of subsisting under the Copyright, Designs and Patents Act 1988 or equivalent legislation.
- "Customer" means you and all users of the Site and the Services.
- "Customer Information" means all customer information about customers including name, address, contact details, use of Services, their arrangements with eWAY and their Internet Merchant Facility details.
- "eWAY" refers to eWAY Europe Limited. eWAY is a business owned and managed by eWAY Europe Limited.
- "eWAY group" means eWAY and any subsidiary undertaking thereof, parent undertaking thereof or any subsidiary undertaking of that parent undertaking (as such terms are defined in sections 1159, 1161, 1162 and Schedule 6 and 7 of the Companies Act 2006).
- "Fee Schedule" is a schedule of fees set by eWAY at its sole discretion for use of the Site and the Services. The Fee Schedule can be found at http://www.eway.co.uk/pricing.
- "Intellectual Property" means all intellectual property rights of eWAY and the eWAY group including without limitation all similar and analogous rights throughout the world (in each case for the full term of the right) whether in relation to the Site or Services or otherwise and includes all or any of the following:
- the Trade Marks of eWAY and the eWAY group whether in relation to the Site or Services or otherwise;
- the Trade Name or any other trade name under which eWAY and the eWAY group sells or distributes its Services or the provision of eWAY Services;
- any present or future patents of eWAY and the eWAY group which relate to the eWAY Site or Services or their manufacture or assembly and application for the grant of any such patents together with all applications for (and associated rights to claim) priority;
- the technical and other information or expertise devised, developed or acquired by eWAY, the eWAY group or their employees or other applied in the development, servicing and sale of the Site or Services and in the management and operation of the Business;
- copyright of eWAY and the eWAY group in the Copyright Material and any software, written material, plans, designs, logos, slogans, labels, insignia or other work relating to the manufacture, merchandising, displaying, promotion and selling of the Site or Services;
- designs, whether or not registered or protected by copyright devised or acquired by eWAY or the eWAY group and applied to the Business, the Site or Services.
- "Live Gateway" a functioning gateway linked to your bank that allows processing of transactions.
- "Merchant Bank" a financial institution that provides Internet Merchant Facilities for the use of processing credit card transactions via the Internet.
- "Notice" means any notice given pursuant to clause 30 hereof.
- "Processes" include technologies, products, devices, processes or techniques.
- "Services" means credit card gateways to process on-line transactions through the site, and also access to an administration area on the eWAY website, to view transaction reports, update details, request refunds, and perform other administrative tasks relating to transactions processed via eWAY. eWAY provides a gateway which will connect to Your Merchant bank, allowing You to process credit card transactions online, through Your website. This operates by You posting specific data to the Live Gateway, which then connects to your bank via various connections that eWAY has in place. eWAY then receives the result of the transaction, be it successful or failed, which is then passed back to your website. eWAY also provides online reports of completed transactions, and support via either phone or email.
- "Site" means eWAY web site www.eWAY.co.uk
- "Terms and Conditions" means those terms and conditions set out in this Agreement whether expressly or by reference and includes amendments made to the Agreement.
- "Test Gateway" a gateway that allows you to test the functionality of eWAY, without processing transactions to your Merchant Bank.
- "Trade Name" means eWAY or other trading name of eWAY Europe Limited or the eWAY group.
- "Trial Period" a period of 30 days after the date of joining eWAY through entry into this Agreement, ("the Trial Period").
- "Trade Marks" means the existing or future trade marks owned, used or developed by eWAY during the term of this Agreement.
- "You" includes all persons entering this Agreement with eWAY and where the context allows includes your partners, employees and agents.
- "VAT" means value added tax under the Value Added Tax Act 1994 or any other similar fiscal or sales tax.
In this Agreement:
- All monetary amounts are stated exclusive of VAT and are payable in pounds sterling, unless provided otherwise.
- Where the context permits, the singular includes the plural and vice versa.
- References to any "party" means a party to this Agreement and includes the successors, executors, administrators and permitted assignees (as the case may be) of that party.
- where a party consists of more than one person the liability of those persons in respect of the terms of this Agreement is joint and several.
- References to clauses, schedules and attachments are to clauses in, and the schedules and attachments to, this Agreement (unless stated otherwise). Each such schedule and attachment forms part of this Agreement.
- References in the schedules and attachments to "the Agreement" are references to this Agreement.
- References to any document (however described) shall include references to that document as modified, novated, supplemented, varied or replaced from time to time.
- References to a month or a year are references to a calendar month or calendar year.
- All references to legislation are (unless stated otherwise) references to United Kingdom legislation and include all subordinate legislation, any re-enactment of, or amendment to, that legislation and all legislation passed in substitution for that legislation.
- Where the context permits, references to a "person" include an individual, firm, company, corporation or unincorporated body of persons, any public or regional authority, any government, and any agency of any government or of any such authority.
- A reference to a time of day means the time in United Kingdom.
- Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
- "Business Day" means a day, other than a Saturday or a Sunday, on which banks are open for business in London.
- Formation of contract
- You represent and warrant that you are able to enter into a legally binding and enforceable contract with other persons and eWAY. You agree and acknowledge that you have entered into a legally binding and enforceable contract with eWAY by clicking the " Yes, I/we agree the Terms and Conditions set out by eWAY. " checkbox during the registration process.
- In consideration of eWAY agreeing to Your use of the Site and/or the Services, You agree to comply with this Agreement and Your obligations and undertakings under the Agreement.
- Commencement and Term&
- The term of this Agreement is 12 months commencing on the date of this Agreement and unless otherwise agreed in writing, shall be automatically renewed on the anniversary of you entering this Agreement and continue for successive 12 month periods unless either party gives the other written notice of termination in accordance with this Agreement.
- Before using the Site, you should read this Agreement carefully and ensure that you understand ALL of the Terms and Conditions. If you do not agree to ALL Terms and Conditions and accept them, then you must not use the Site or the Services. If you agree to the Terms and Conditions unconditionally and without reservation you will be given the opportunity to click the "Yes, I/we agree the Terms and Conditions set out by eWAY." checkbox during the registration process. Once you have accepted these Terms and Conditions you will be able to use the Site and/or, the Services.
- eWAY in its sole, absolute and unfettered discretion reserves and has the right to refuse, suspend or cancel your use of the Site and/or the Services in accordance with this Agreement without prior notice and to take such further action against You as may be appropriate. You agree and acknowledge that You will take no action in respect of any damage or loss You sustain no matter how arising from eWAY's cancellation or suspension of Your use of the Site or the Services in accordance with this Agreement.
- You also agree that in circumstances where eWAY considers damages are not a sufficient remedy eWAY may seek injunctive relief against You and that You will not oppose applications seeking injunctive relief as may be brought by eWAY in respect of your use or proposed use of the Site or the Services.
- This Agreement and any terms incorporated by reference in the Agreement shall override any contrary terms or conditions previously published by eWAY, any other terms or conditions which You seek to rely on or any inconsistent terms or conditions implied by law, trade, custom, practice or course of dealing.
- The terms of this Agreement may be amended by written agreement between the parties.
- These Terms and Conditions may be amended from time to time by eWAY by posting the amended Terms and Conditions on the Site or placing a Notice on the Site that the Terms and Conditions have been amended. The amended Terms and Conditions shall automatically be effective from the earlier of ;-
- 7 days after they are initially posted on the Site,
- Your entry to a new Agreement or the renewal of a term; and
- 7 days of Notice being given to you.
- You should ensure that you make yourself aware of any amendments that may be made to this Agreement. You acknowledge and agree that your continued use of the Site or the Services following the posting of any amendments will mean that You accept unconditionally any amendments made. This Agreement was last updated on 3 February 2010.
- eWAY, the developer of the Site and the Services, grants you non-exclusive access to the Site and the Services via an account upon the terms set forth herein. The Site and the Services, including any upgrades thereof and any code, program or software given to You to enable Your use of the Site or Services, shall remain the property of eWAY, the eWAY group or its and their licensors and be subject to the restrictions set forth herein.
- Restricted Use
- You will not use the Intellectual Property to manufacture, have made, use or market a similar site or similar services in any location nor will You use the Intellectual Property for any purpose other than expressly permitted by eWAY. Where eWAY has indicated to You that the whole or any part or parts of the Intellectual Property comprises Confidential Information You will not at any time during the term (as renewed) of the Agreement or after its termination or expiry or the termination of this Agreement during the Trial Period disclose such Confidential Information or material to any person without obtaining eWAY's express written consent. You will take such steps as may be necessary to ensure that any of Your servants or agents do not disclose such Confidential Information including any Intellectual Property.
- You may not and warrant that you will not:-
- Copy, produce, transmit, transcribe, store in a retrieval system, or translate in any language (natural or computer) any part of the Site or the Services,
- Transfer or attempt to transfer any part of the Site or Services or Your right to access them or otherwise make them available to any other person,
- Attempt to discover eWAY's source code,
- Sublicense, rent or lease any portion of the Site or the Services,
- Reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Site or Services, or create derivative works from the Site or Services except so far as such actions are permitted by applicable law notwithstanding this limitation or are approved in writing by eWAY,
- Use the Site or the Services for any illegal purpose,
- Allow your Account to be used for any illegal purpose, or
- Allow your Account to be used by another person for any purpose.
- Password Policy
- Your password for access to MYeWAY must:
- be changed at least every 90 days,
- not be the same as any of your previous 6 passwords,
- be at least 8 characters long, and
- contain a mix of alpha and numeric characters.
- Limited Trial
- Upon entering into this Agreement eWAY grants You a Trial Period during which eWAY warrants that no fees will be payable if you terminate the Agreement in writing and cease all use of the Site and Services.
- During the term of this Agreement You must pay to eWAY the fees detailed at http://www.eway.co.uk/pricing.
- You warrant that You understand and agree to the fee structure as outlined at http://www.eway.co.uk/pricing. You warrant that You understand and agree that all transactions sent to the eWAY Test Gateways are FREE of charge, and that any transaction sent to the LIVE eWAY Gateways, whether successful or unsuccessful, purchase or refund, will be charged at the rates set out at http://www.eway.co.uk/pricing.
- eWAY in its sole, absolute and unfettered discretion reserves the right to change any Fees charged for the Services or use of the Site at any time. In the event of an increase in a Fee that Fee will become payable from the earlier of:-
- 7 days after a Notice in respect of the fee is posted on this Site or given to You.
- Your entry to a new agreement or the renewal of a term.
- If eWAY introduces a new Service, any Fees for the use of that Service are applicable from the commencement of the Service unless otherwise stated and by using that Service You warrant that you agree to the Fees applicable to that Service as set out at http://www.eway.co.uk/pricing.
- Unless otherwise stated Fees are exclusive of VAT and quoted in pounds sterling.
- No refund of fees is offered after the conclusion of the Trial Period.
- You must pay to eWAY within 14 days of being invoiced or receipt of a demand for payment or Notice for payment:
- All charges specified in this Agreement;
- Any amount payable by You arising from your use of the Site or Services; and
- Any amount for which you are liable to eWAY under this Agreement in respect of any breach of the Agreement or otherwise.
- You authorise eWAY to charge all monies payable to eWAY under this User Agreement to your account.
- eWAY will pay any monies payable to You by such method as eWAY may reasonably choose.
- If You learn of:
- Any infringement or threatened infringement of the Intellectual Property or Confidential Information, or
- Any common law passing-off which may cause deception or confusion to the public by a third party,
- You must immediately notify eWAY in writing giving particulars of the infringement or threatened infringement.
- eWAY will at its sole discretion institute and prosecute an action in respect of the infringement.
- Costs for Breach
- If eWAY is required by You or by an order sought by You in any litigation in which you are involved whether under summons or order of a court of competent jurisdiction, including complying with any order for discovery or attending court to give evidence, you shall bear all costs incurred by eWAY in connection with the provision of such service, including eWAY's costs for taking legal or other professional advice or representation on a full indemnity basis on demand.
- Further, you agree and acknowledge that where you take any action including legal action against or involving eWAY you will provide security for such costs to eWAY upon written demand.
- Any fraudulent or damaging activities or attempts to comprise the eWAY service will give eWAY a right to immediately terminate this Agreement and your use of the Site or Services.
- eWAY shall have the right to terminate this Agreement forthwith by written notice to You if You breach and essential term of this Agreement or breach another term of the Agreement as specified herein. The following events are deemed to be a breach of an essential term of this Agreement.
- A failure by You to pay any monies payable to eWAY on the due date.
- In the case of a body corporate, if You (i) are unable to pay your debts as they fall due, (ii) pass a resolution for winding up (other than for the purposes of a solvent amalgamation or reconstruction) or if a court of competent jurisdiction makes an order to that effect, (iii) enter into a composition or scheme of arrangement with your creditors or if a receiver, manager, administrator or administrative receiver is appointed over any of your assets, (iv) cease or threaten to cease to do business; or (v) an analogous event occurs to You in any jurisdiction.
- In the case of an individual, if You (i) are subject to a bankruptcy petition or order made against You, or enter into any composition or arrangement with or for the benefit of your creditors, or (ii) if a receiver (including fixed charge or court appointed), manager, insolvency practitioner or similar officer shall be appointed over the whole or a substantial part of the undertaking, property or assets of You.
- You or any of Your directors is convicted of a criminal offence which in the case of an individual could carry a term of imprisonment or in the opinion of eWAY has or has the potential to cause damage or injury to the reputation and standing of eWAY.
- Your marking of an assignment or attempted assignment for the benefit of credits.
- You purport or attempt to transfer, assign or deal with this Agreement or the Site or Services without the written consent of eWAY.
- You purport to or use and Site or Services which are not approved by eWAY.
- If You (or Your directors or anyone or more of them) do or neglect to do anything which in eWAY's opinion is likely to bring disrepute upon eWAY or prevent You or eWAY from properly performing Your or its obligations under this Agreement.
- You shall compensate eWAY and eWAY shall be entitled to recover damages from You for breach. Such entitlement shall be in addition to any other right or remedy which eWAY may have. The acceptance by eWAY of arrears of monies shall not constitute a waiver of Your continuing obligation to pay monies on the due date.
- Without prejudice to eWAY's rights, in the case of any other term of this Agreement, You shall be guilty of a breach, non-observance or non-performance of the terms of this Agreement or Your obligations contained in this Agreement if you have not remedied such breach, non-observance or non-performance (if it is capable of remedy):;
- In the case of any obligation to comply with any statutory law or regulatory obligation relating to the Business the use of the Site or Services, within 14 calendar days after written notice from eWAY;
- In the case of any other obligation, for a period of 7 Business Days after written notice from eWAY, then eWAY may by written notice terminate this Agreement.
- Notwithstanding the provisions contained in clause 11, if You have been guilty of any breach, non-observance or non-performance of the same obligation twice in any period of one year, or if eWAY has given notice on not less than two occasions in any 12 month period, eWAY may terminate this Agreement forthwith by written notice to You without prior warning or notice if a third or subsequent breach, non-observance or non-performance occurs within a period of 6 calendar months from the second or last of such occurrences.;
- Notwithstanding any other clause in this Agreement You may terminate this Agreement in writing, other than by email, to eWAY at any time. Such written notice is to be signed by a duly authorised officer or signatory.
- eWAY may terminate this Agreement at any time upon providing You with 30 days Notice.
- Termination of this Agreement whether by no matter how arising shall be without prejudice to the rights and obligations of the parties existing up to and including the date of expiry or termination including the right of the party terminating to seek and obtain damages for any breach of this Agreement by the other party or the other party's servants or agents.
- Termination on instructions from Your Merchant Bank
- Without prejudice to any other right of eWAY under this Agreement, if Your Merchant Bank requests that eWAY terminate your use of the Site and/or the Services or this Agreement for any reason eWAY may do so immediately without Notice being given.
- In the event of termination on instructions from Your Merchant Bank You shall indemnify and keep indemnified eWAY and the eWAY group on demand in respect of any loss or damage arising from such termination no matter how such loss or damage arises.
- Rights of Parties on Termination or Expiry
- On termination of this Agreement for whatever reason, the following shall apply from and after the expiry date or such termination.
- You shall immediately discontinue the use of the Site and the Services and cease to use the Intellectual Property, Confidential Information, and any other signs, displays or advertising material which contains reference to eWAY or the eWAY group.
- You shall not represent or advertise that You were formally using eWAY.
- All fees previously paid remain the property of eWAY and You agree to make no claim in respect of such Fees. You must further pay to eWAY any fees that have accrued but are unpaid as at the date of the termination or expiration.
- You shall forthwith pay to eWAY without any deduction or right of set off all sums of money which may be due or payable by You to eWAY including all costs, expenses and disbursements of eWAY which in accordance with this Agreement are payable by You.
- You shall deliver up to eWAY or its nominated representative all stationery, literature and materials upon which reference to eWAY or the eWAY group or any Intellectual Property, or Confidential Information may appear.
- You will ensure that all references to eWAY or the eWAY group are removed at the first possible opportunity from all websites, telephone and other directories, directory assistance records, membership rosters and from any other publication.
- You shall immediately remove, paint out or cover all notices, display and advertising material which refers to or may be associated with eWAY or the eWAY group. If You fail to carry out Your obligations and then fails within 14 days of a request to do so by eWAY, then eWAY shall have the power (without incurring any liability to You) and without the Your consent save the authority hereby given by You to remove such references at Your expense which expense You shall pay within 7 days demand.
- You shall forthwith return to eWAY or its nominated agent all items which may have been loaned to You by eWAY.
- Limit of eWAY liability
- The Site and Services are designed to merely clear transactions or data to Your selected United Kingdom bank using the existing electronic payments network. eWAY accepts no responsibility for the delivery of the transactions to the eWAY server. These transactions may come from a variety of sources (e.g. Web, phone operator, database etc) It is Your responsibility to ensure that these details are correct (e.g. correct card number, amount) and securely passed to the eWAY server.
- You release and shall indemnify and keep indemnified eWAY on demand from any and all loss or damage arising out of any loss of data or corruption of data during the transfer of such data to eWAY.
- eWAY has no responsibility, for the settlement of transactions between any Merchant Bank, You, its financial institution or any other person.
- To the extent permitted by law, eWAY excludes all conditions, representations and warranties, express or implied (by statute, common law or otherwise), other than those contained in this Agreement. Where eWAY is found to be liable for breach of any warranty or condition implied by statute and which eWAY cannot lawfully exclude, eWAY 's liability is limited (to the extent permitted by law) at the option of eWAY to the following:
- In the case of any programming or software supplied or offered by eWAY:
- To the supply of those programs or software or programs or software of similar functioning again; or
- To the payment of the cost of having those programs or software supplied again; or
- In the case of Services supplied or offered by eWAY:;
- To the supply of the services again; or
- To the payment of the cost of having services supplied again.
- eWAY, the eWAY group, its directors, and its employees accept no liability for any loss (including loss of revenue or anticipated profits, loss of goodwill, loss of business or loss of data, computer failure or malfunction) (whether direct or indirect) or injury or any direct, indirect, consequential, special, punitive, or other damages caused by or as a result of:
- Your use of or inability to use the Site or Services;
- Any virus or other harmful, or potentially harmful, code which may be transmitted in connection with Your use of the Site or Services;
- eWAY 's negligence or the negligence of the eWAY group or its directors, officers, shareholders, employees, providers or agents arising from or related to this Agreement, the Site and the Services;
- Your provision of incorrect information;
- Your loss of information or data.
- eWAY's liability for any loss or damage under this Agreement or any statute is reduced by the extent that You have caused or contributed to such loss or damage.
- Nothing in this Agreement shall limit the liability of eWAY to You for death or personal injury relating from its negligence (as defined in the Unfair Contract Terms Act 1977) or for fraudulent misrepresentation or for any liability which cannot be excluded by law.
- eWAY warranty
- eWAY warrants that the use of any or all of the Intellectual Property according to this Agreement in connection with the Site or Services will not result in the infringement of proprietary or third party rights.
- eWAY shall indemnify You against any losses, costs, actions, claims, demands, expenses, judgments, court orders or other liabilities arising directly out of or in connection with any claim made against You by a third party on the grounds that by virtue of rights to which such third party lays claim, such third party is entitled to prevent or interfere with your use of any or all of the Intellectual Property pursuant to this Agreement.
- eWAY also shall indemnify You against any claim by Your customers in respect of any loss or similar to those in 14.2 injury and court fees and expenses or damages and costs and loss or injury suffered by compliance with an injunction order on the part of such a customer or third party.
- The Site is provided by eWAY on an "as-is" basis and the only obligations on eWAY are set out in this Agreement. eWAY gives no warranty or condition, express or implied other than those expressly set out herein. eWAY does not warrant that the functions contained in this Site and the Services provided will be uninterrupted, always available or error free, that defects will be corrected, or that this Site, or eWAY's hardware or computer systems are free of viruses or other harmful components or programs. eWAY does not warrant or make any representations regarding the accessibility or the use or the results of the use of this Site or the Services and You hereby acknowledge that You have relied on the Your own enquiries and inspection in relation to the Site and the Services including "Test Gateway" transactions and the use of the Site and Services during the Trial Period before entering into this Agreement and using the Site or the Services.
- eWAY does not give a warranty of completion of transactions. eWAY does not warrant that any Merchant or financial institution will complete a transaction. eWAY accepts no liability associated with such risks. You agree that you accept these risks and shall indemnify and keep indemnified on demand eWAY in respect of such risks.
- Your Indemnity
- In this clause "eWAY" includes the eWAY group and any officers, directors, employees and agents of the eWAY group. You shall indemnify and keep indemnified on demand eWAY against any claim, loss, liability, cost or expense, including legal costs on a full indemnity basis, made against or incurred by eWAY in relation to:-;
- Personal injury or death;
- Property damage;
- Economic loss;
- Civil or criminal penalty; or
- Consequential loss;
- Any other matter arising out of any breach by you of this Agreement; or
- Any negligent or criminal act or omission by you;
- Compliance by eWAY with eWAY's obligations under this Agreement; or
- eWAY's exercise or failure to exercise any right under this Agreement.
- Your indemnity includes all claims, demands, proceedings, damages (actual, special or consequential) of every kind and nature, known and unknown, including but not limited to demands, proceedings, damages (actual, special and consequential) of every kind and nature taken by any third party due to or arising out of your breach of this Agreement or by your violation or breach of any law or any rights of a third party.
- You agree and acknowledge that You and not eWAY are liable for all loss and damage no matter how arising which is caused or contributed to by your use or misuse of the Site or the Services.
- You shall indemnify and keep indemnified on demand eWAY in respect of any loss or damage sustained by you as a result of eWAY's refusal to renew or enter into an Agreement with You and agree and acknowledge that eWAY's refusal does not amount in anyway to a restraint of trade.
- You shall indemnify and keep indemnified on demand eWAY in respect of all loss or damage no matter how arising caused by unauthorised, illegal or improper access to the Site or the Services from any terminals or access points within Your control, custody or power.
- eWAY reserves the right to use your company or trading name in any promotional or marketing material it deems fit. This may be of the form print, TV, radio or Multimedia (including Web). Example uses may include; promotional flyers, or website case studies.
- You acknowledge and undertake to eWAY and the eWAY group that:
- All information, documents, data and any other material which is provided by eWAY or the eWAY group to You or Your directors, officers, employees and agents in connection with this Agreement and all copies of such information, documents, data and material made by You or Your directors, officers, employees and agents or a third-party is and remains the property of eWAY or a member of the eWAY group (as applicable);;
- You will use the Confidential Information for the sole purpose of the exercise of the rights and performance of the obligations under this Agreement;
- You will only disclose the Confidential Information to such of Your officers, employees, agents and advisers to whom it is necessary to disclose the Confidential Information for the purposes of this Agreement and the use of the Site and the Services ;
- You will not, and will ensure that Your officers, employees, agents and advisers will not, use, provide or disclose the Confidential Information to any person, other than as expressly permitted in this clause;
- You will take all steps necessary to prevent or stop, and comply with all reasonable directions of eWAY in respect of, suspected or actual breaches of, or defaults under this clause;
- You will promptly notify eWAY if it suspects, or becomes aware of, any unauthorised access, use or disclosure of any of the Confidential Information and will give eWAY (at Your cost if the unauthorised access, use or disclosure is as a result of a breach of, or default under, this Agreement) all reasonable assistance in connection with any action which eWAY or a member of the eWAY group may take, or proceedings which eWAY may institute, in respect of the unauthorised access, use or disclosure; and
- You will, and will procure that Your agents and advisers will, return to eWAY all Confidential Information at the end of the term or upon termination of this Agreement.
- You agree that you will not during the term of the Agreement, or at any time after the termination of the Agreement (howsoever this may occur) disclose to any other person (without the previous consent in writing by eWAY) either directly or indirectly, any Confidential Information relating to eWAY or the eWAY group of which you became possessed whilst subject to this Agreement, nor use of any such Confidential Information in any manner which may cause or be calculated to cause injury or loss to eWAY or the eWAY group howsoever arising.
- Without limiting the generality of the foregoing clause, eWAY's Confidential Information shall include information which eWAY directs You to treat as confidential and shall include (but not be limited to) eWAY's documents, client lists, client cards, job orders, eWAY's principles, policies and procedures or other documents you came into possession in the course of this Agreement.
- Upon termination of this Agreement, or at any time on the request of eWAY, you will immediately deliver up to eWAY all documents which were prepared by or on behalf of eWAY or the eWAY group and which are in your care, custody, or control, and all other property belonging to eWAY or the eWAY group.
- You must treat as confidential all information gained during the term of this Agreement that relates to clients of eWAY or the eWAY group and utilise your best efforts to ensure that any employees under your supervision or control also do so.
- Trade Mark
- This Agreement does not grant You any rights in connection with the Trademarks (registered or otherwise) of eWAY or the eWAY group.
- You will not at any time during or after the expiry or termination of this Agreement, contest or challenge in any legal proceedings or otherwise the proprietorship of eWAY or the eWAY group in the Intellectual Property.
- You shall not in any manner represent that You have any proprietary rights in the Intellectual Property.
- In so far as the Intellectual Property or any components of the Intellectual Property are the subject of registrations or applications for registrations under applicable statutes, You shall do nothing to challenge, oppose, dispute or impugn the validity of such applications or registrations and shall take all necessary steps as may be required by eWAY to assist in maintaining or obtaining such registrations.
- If You become aware of any claims against or infringements of any rights associated with the Intellectual Property, then You shall forthwith notify eWAY and eWAY at its sole discretion may elect to defend or prosecute any action relating to the Intellectual Property. In relation to any proceedings or claims to protect or defend the Intellectual Property, You, if required by eWAY, shall render all assistance including if necessary, providing evidence and being named as a party to any legal proceedings.
- At the expiry or termination of this Agreement, all of Your rights in respect of the Intellectual Property shall cease.
- eWAY may change the Intellectual Property which You are permitted to utilise at any time for any reason.
- You may not use the Intellectual Property in a manner which may place the Intellectual Property at risk of loss or loss of value to eWAY or the eWAY group.
- In this clause, "Personal information" has the same meaning as "personal data" has in the Data Protection Act 1998 ("Privacy Act").
- eWAY agrees, in relation to Personal Information which You disclose to eWAY pursuant to these Terms and Conditions:
- Not to do an act, or engage in a practice, that would breach a data protection principle ("DPP") contained in the Privacy Act; and&
- Not to authorise any subcontractor to do an act, or engage in a practice, that would breach a DPP.
- You agree that an act done or a practice engaged in by eWAY, or by a subcontractor, for the purposes of meeting (directly or indirectly) an obligation under these terms and conditions is authorised by this clause for the purposes of the Privacy Act.
- You warrant that all Personal Information which you disclose to eWAY is up-to-date, complete and relevant to the purpose for which it was disclosed to eWAY.
- 21. Prior Agreements
- This Agreement supersedes any prior agreement between the parties whether written or oral and any such prior agreements are cancelled but without prejudice to any rights which have already accrued to either of the parties under those arguments.
- Rights Cumulative
- All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any right granted by this Agreement or otherwise available to it.
- You shall pay Your own costs in respect of this Agreement.
- Set Off
- eWAY shall have the right to set-off against any payment due by eWAY to You any amount owed to eWAY by You. Upon termination or expiration of this Agreement for any reason, You shall pay any amount due to eWAY immediately with no right to set-off.
- The failure by eWAY to enforce at anytime or for any period anyone or more of the Terms or Conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement and no custom or practice of the parties at variance with the terms of this Agreement shall constitute any waiver of eWAY's rights. Rights or remedies under this Agreement may only be waived in writing and specifically. Waiver of a breach of any term of this Agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
- Force Majeure
- Neither party shall be considered in breach of this Agreement where performance of its obligations under the Agreement is by any cause beyond the reasonable control of the parties rendered impossible or delayed.
- If the reason for the inability to perform or delay in performance referred to in clause continues for a continuous period of 30 days, either party may by written notice to the other terminate this Agreement.
- Survival of Obligations
- Any provision of this Agreement intended to survive termination or expiry of this Agreement survives termination or expiry of this Agreement.
- The representations, warranties and indemnities contained in this Agreement survive its expiry or termination and the discharge of any of eWAY's or your obligations to the other and to other Members.
- If any provision of this Agreement is or becomes wholly or partially invalid or unenforceable for any reason then from the date of the invalidity or unenforceability:-
- If the offending provision can be read down in any way to make it valid and enforceable by any means without materially changing its effect, it must be read down or amended to the extent necessary to achieve that result; and
- the offending provision shall be severed from this Agreement and the remaining provisions will operate as if the severed section had not been included; and
- the parties must negotiate in good faith to replace the severed provision with one that is valid and enforceable and provides as near as possible the same effect as the severed provision.
- Any provision of this Agreement, which is or becomes unenforceable for any reason will be ineffective or severable to the extent only of such unenforceability or invalidity and will not invalidate the remaining provisions.
- The parties shall do, sign, execute and deliver and shall procure that, if any, each of its employees and agents, does, signs, executes and delivers all documents, monies, instruments and performs every act reasonably required of it or them by notice from another Member to a Transaction to effectively carry out and give full effect to the Transaction and the rights and obligations of the Members involved in that Transaction.
- All notices must be in writing and be given by any one or the following means:-
- By delivering it to the address of the party specified in this Agreement.
- By sending it to the address of the party by pre-paid mail.
- By emailing it to the address of the party and on the next business day giving it by either of the means set out (a) or (b)
- By sending it by facsimile transmission to the facsimile number of the party.
- The postal address, facsimile number and email address of each party is set out below.
- A notice is deemed to have been given
- If given in accordance with 30.1 (a) the next business day after the day of delivery.
- If given in accordance with 30.1(b) 3 business days after the date of posting.
- If given in accordance with 30.1(c) or (d) the next business day after sending or transmission.
- Third Party Rights
- Other than a person within the eWAY group, no person who is not a party to this Agreement has no rights under the Contracts (Right of Third Parties) Act 1999 to enforce, or to enjoy the benefit of, any provision of this Agreement.
- Governing Law and Jurisdiction
- This Agreement is subject to the laws of England and Wales.
- Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of England and Wales.
18th January 2010
Collection of Information
In order to use the eWAY Payment Gateway (eWAY), we require information relating to your Internet Merchant Facility (including your Merchant Number, Terminal ID and/or Settlement Account, depending on your merchant bank), Company Details, Contact Details, and Payment Details.
Company details may include your company name, website, email address and type of business.
Contact details may include your name, email address, telephone number and address.
Payment details may include credit card details and/or direct debit details.
All correspondence may also be collected and stored, particularly in regard to sales, support and accounts, including Email.
Any information collected by eWAY is collected via correspondence from you or your company. This may be via the telephone, Email, or directly through our website.
Use of Collection Information
Any Internet Merchant Facility, Company Details, Contact Details, and Payment Details collected from eWAY customers is required in order to provide you with our payment gateway product, and a high level of customer service.
Correspondence is recorded in order to provide service references, and to assist in our staff development.
Use of Collected Information
In order to use this Website, you must first complete the registration form and create a username and password. During registration you are required to give contact information (such as name and Email address). We use this information to contact you about the services on our site in which you have expressed interest.
You have the option to provide company demographic information (such as industry type and business size) to us; we encourage you to submit this information so we can provide you with a more personalised experience on our site. eWAY and its parent company eWAY Europe Ltd is the sole owner of the information collected on www.eway.co.uk. eWAY collects personally identifiable information from our users at several different points on our Website.
If you purchase a product or service from us, we request certain personally identifiable information from you on our order form. You must provide contact information (such as name, Email, and postal address) and financial information (such as credit card number, expiration date).
We use this information for billing purposes and to fill your orders. If we have trouble processing an order, we will use this information to contact you.
eWAY uses personally identifiable information for essential communications, such as confirmation Emails, accounts information, and critical service details. We may also use this information for other purposes, including some promotional Emails. If at any time a customer wishes not to receive such correspondence, they can request to be removed from any mailing lists by emailing us at firstname.lastname@example.org
You will be notified when your personal information is collected by any third party that is not our agent/service provider, so you can make an informed choice as to whether or not to share your information with that party.
We use other third parties to provide the essential links between the merchants, the banks and ourselves in order to provide credit card payment gateway services on our site. When you sign up for eWAY, we will share your Internet Merchant Account details as necessary for the third party to provide that service.
These third parties are prohibited from using your personally identifiable information for any other purpose.
eWAY does not share any information with third parties for any unknown or unrelated uses.
Clear Gifs (Web Beacons /Web Bugs)
Our third party advertising partner, Google Adwords, employs a software technology called clear gifs (a.k.a. Web Beacons/Web Bugs), that help us better manage content on our site by informing us what content is effective. Clear gifs are tiny graphics with a unique identifier, similar in function to cookies, and are used to track the online movements of Web users. In contrast to cookies, which are stored on a user's computer hard drive, clear gifs are embedded invisibly on Web pages and are about the size of the period at the end of this sentence. We do not tie the information gathered by clear gifs to our customers' personally identifiable information.
To learn more about our advertising company's use of clear gifs, please go to https://adwords.google.com
If you use the eWAY forum on this site, you should be aware that any personally identifiable information you submit there can be read, collected, or used by other users of these forums, and could be used to send you unsolicited messages. We are not responsible for the personally identifiable information you choose to submit in these forums.
We reserve the right to disclose your personally identifiable information as required by law and when we believe that disclosure is necessary to protect our rights and/or comply with a judicial proceeding, court order, or legal process served on our Website.
We post customer testimonials on our website which may contain personally identifiable information such as the customer's name. We do obtain the customer's consent prior to posting the testimonial to post their name along with their testimonial. If at any time the customer feels that they no longer wish to have their testimonial posted on the site they can request for it to be removed by emailing us at email@example.com.
eWAY provides free-of-charge a directory for associated partners to join. This is a process initiated and completed entirely by the partner, with all information submitted by the partner. If at any time the partner feels that they no longer wish to be a part of this directory they can request to be removed by emailing us at firstname.lastname@example.org.
There are many links on the eWAY site to external entities. The terms and conditions set out in this privacy statement only covers the domain name of www.eway.co.uk.
Storage of Collected Information
The security of your personal information is important to us. When you enter sensitive information (such as credit card number and/or social security number) on our registration or order forms, we encrypt that information using secure socket layer technology (SSL).
We follow generally accepted industry standards to protect the personal information submitted to us, both during transmission and once we receive it. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, while we strive to use commercially acceptable means to protect your personal information, we cannot guarantee its absolute security.
If you have any questions about security on our Website, you can email us at email@example.com.
Access to collected information
If your personally identifiable information changes, or if you no longer desire our service, you may correct, update, delete or deactivate it by making the change on the Your Profile page in the eWAY Administration Area or by emailing our Customer Support at firstname.lastname@example.org or by contacting us by telephone or postal mail at the contact information listed below.
eWAY Europe Ltd
9/10 St Andrew Square
Edinburgh EH2 2AF
eWAY believes that the privacy of its users is of the utmost importance, and all efforts are made to ensure that any communications from eWAY are carried out to benefit our valued merchants.
eWAY uses third party tools for all mass email campaigns, allowing users to unsubscribe should they wish to no longer receive emails from us. These tools allow us to manage our email lists and ensure that once a user has unsubscribed they can no longer be contacted. These tools abide by anti-spam laws and make all efforts to ensure that any email communication is carried out to benefit recipients.
eWAY adheres to the United Kingdom's Anti-Spam best practices.
Should you receive any communications from eWAY and no longer wish to do so, please unsubscribe by sending an email to email@example.com
A “cookie” is a small software file stored temporarily (session cookie) or placed on your computer’s hard drive (persistent cookie). The main purpose of a cookie is to allow a web server to identify a user’s computer and web browser, and tailor web pages and/or login information to the user’s preferences. Cookies help us customise your interactions with eWAY and improve the way you interact with the website. By gathering and remembering information about your website preferences through cookies we provide an enhanced user experience. Cookies don’t give us access to users’ computers, and the information we collect through cookies doesn’t include personal information.
When you visit the eWAY site we use “session cookies” to allow us to uniquely identify your browser. We also use “persistent cookies” that only eWAY can read and use, to identify you as an eWAY user and make it easier for you to use our services.
Essential cookies: Cookies that are critical to the functionality of our Site. They are used to keep a user logged into the Site and remember relevant information when the user returns to the Site and uses the Service.
Functional cookies: Cookies to track users’ activities on the Site, understand their preferences within the Site and improve their user experience.
Marketing cookies: Cookies provided by third parties, allowing us to deliver customised marketing information to our customers based on their site usage profile and avoid delivering irrelevant marketing
Below are the main cookies we use and an explanation on what each cookie does:
Google Analytics: __utma, __utmb, __utmc, __utmz, __utmv
These cookies are used to collect information about how visitors use our site. The information is used to help us improve the website and shopping experience. The cookies collect information in an anonymous form, including the number of visitors to the site, where visitors have come to the site from and the pages they visited.
Crazy Egg: mf_user, mf_session, mf_lastpageview, is_returning Marketo: _mkto_trk
These cookies are used to collect information about how visitors use our site. We use the information to compile reports and to help us improve the site. The cookies collect information in an anonymous form, details of which can be found by following the relevant link.
Marketo tracking cookies allow us to collect information about how you use our site after you have received an email from us. The cookies track data linked to your email address and include data such as how you arrived at the site, how often you've visited, and which pages you looked at. Live Chat: __lc.server.XXXXXXX, lc_window_state, __lc.visitor_id.XXXXXXX
These cookies are set by our live chat client, supplied by LiveChatInc. All cookies starting either __lc or lc_ are associated with the chat client and store information about any currently running chat sessions and previous chat sessions you've had. Chartbeat: _chartbeat2
This cookie is used by Chartbeat, a third party real-time analytics service. It lets us see how people are interacting with our site in real-time. Controlling cookies:
If You want to learn more about cookies, or how to control or delete them, please visit http://www.aboutcookies.org
for detailed guidance.
If You disable Your web browser’s ability to accept cookies You still will be able to browse our Site, but might not be able to access or take advantage of all of our features.