Terms of Service for Transaction Stream - UK & Europe

Last updated: 14 Oct 22

The Terms of Service set out the terms and conditions upon which you may use the Fidel API Service and any application or functionality Fidel API makes available through the Fidel API Service in the United Kingdom and Europe.

By using the Fidel API Service or signing an Order Form, you agree to and accept the Terms of Service and the Order Form.

Information about Fidel API
1. The Fidel API Service is provided by Enigmatic Smile (“Fidel API”), a company incorporated and registered in England and Wales under company number 08869163 whose registered office is at Swift House Ground Floor, 18 Hoffmanns Way, Chelmsford, Essex, England, CM1 1GU. Fidel API’s VAT number is 247613206.
Interpretation
1. In the Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:
  1. “Account” means the Customer’s account on the Fidel API Service;
  2. “Agreement” means the agreement between the Customer and Fidel API comprising the Order Form and the Terms of Service for the provision of the Fidel API Service (including the Data Processing Addendum and, where relevant, the MasterCard Data Sharing Agreement);
  3. “API” means Fidel API’s application programming interface enabling the Customer to connect Users’ Payment Cards with the Expense Management Platform;
  4. “Authorized User” means an employee, worker or other person who is authorized by the Customer to use the Fidel API Service on behalf of the Customer;
  5. “Authorization Notification” means the provision of a near-real time notification of Transaction Data to the Customer;
  6. “Business Day” means a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business;
  7. ”Card Network” means a payment processor that facilitates card payment transactions to provide Transaction Data to Fidel API (for example Visa or MasterCard);
  8. “Cardholder Verification Fee” means the fee as set out in the Order Form payable each time a Customer attempts to connect or connects to the Verification SDK during the applicable monthly billing period;
  9. “Code” means the JavaScript or other source code provided by Fidel API to the Customer for incorporation into the Customer’s Expense Management Platform;
  10. “Commencement Date” means the date from which the Customer will receive the Fidel API Service, as set out in the Order Form;
  11. “Confidential Information” means information which is identified as confidential or proprietary by either party or by the nature of which is clearly confidential or proprietary;
  12. “Customer” means the person identified in the Order Form;
  13. “Data Processing Addendum” means the data processing addendum set out in Schedule 1;
  14. “Documentation” means the description of the Fidel API Service functionality and related information available at: https://fidelapi.com/docs;
  15. “EMP Customer” means a client of the Customer who is provided with access to the Customer’s Expense Management Platform;
  16. “Expense Management Platform” means the expense management platform or application operated by the Customer in order to provide expense management services to EMP Customers;
  17. “Extended Term” means the period of time set out in the Order Form that the Agreement will automatically extend for following the end of the Initial Term or any Extended Term;
  18. “Fees” means any fees payable by Customer to Fidel API for the provision of the Fidel API Service pursuant to the Agreement;
  19. “Information Security Incident” means any actual or reasonably suspected:
    1. unauthorized use of, or unauthorized access to, any of Customer’s computers or networks;
    2. damage to, or inability to access, any of Customer’s computers or networks due to a malicious use, attack or exploit of such computers;
    3. unauthorized access to, theft of, or loss of Confidential Information, specifically including but not limited to, personal data and Transaction Data;
    4. unauthorized use of Confidential Information, specifically including, but not limited to, personal data and Transaction Data, for purposes of actual, reasonably suspected, or attempted theft, fraud, identity theft, or other misuse;
    5. breach of, or transmission of malicious code or a Virus to, any of Customer’s computers or networks arising from, in whole or part, an act, error, or omission of Customer, or third parties acting on behalf of Customer; or
    6. unauthorized disclosure of Confidential Information, specifically including, but not limited to, personal data and Transaction Data;
  20. “Initial Term” means the initial term of the Agreement, commencing on the Commencement Date, as set out in the Order Form;
  21. “Licensed Bank” means a bank that is licensed and authorized in the Territory;
  22. “MasterCard” means MasterCard Europe SA and its affiliated companies;
  23. “MasterCard Data Sharing Agreement” means the MasterCard data sharing agreement entered into by Fidel API and the Customer;
  24. “Merchant” means the person which operates the point of sale equipment relating to a Transaction;
  25. “Minimum Charge Fee” means the minimum monthly fee for use of the Fidel API Service, as set out in the Order Form;
  26. “Monthly Card Enrolment Fee” means the fee per card as set out in the Order Form payable on the total number of Payment Cards the Customer has enrolled on the Expense Management Platform at any point during the applicable monthly billing period;
  27. “On Us Transaction” means a Transaction where the acquiring bank of the Merchant and issuing bank of the Payment Card used by a User to make a Transaction are the same entity, and the Transaction is settled outside of the Card Networks;
  28. “Onboarding Fee” means the one-off on-boarding fee payable by the Customer to Fidel API, as set out in the Order Form;
  29. “Order Form” means the signed (whether electronically or otherwise) order form which amongst other things, identifies the Customer and sets out the Fees;
  30. “Payment Card” means a consumer debit, credit, small business or commercial card issued by a Licensed Bank;
  31. “Qualifying Expenses” means any expenses incurred by a User using a Payment Card that is enrolled in the Expense Management Platform that a User has agreed are to be managed by the Expense Management Platform;
  32. “Qualifying Expenses Data” has the meaning set out in clause 5.2;
  33. “Settlement Notification” means the provision of non-real time Transaction Data to the Customer relating to cleared Transactions;
  34. “Term” means the period of time made up of the Initial Term plus any Extended Term;
  35. “Terms of Service” means these terms and conditions of service;
  36. “Territory” means the location(s) identified in the Order Form, and such other territories as may be agreed by the parties in writing from time to time;
  37. “Tier 1 Support” means first line user support on non-technical issues;
  38. “Tier 2 Support” means second line support on technical and urgent issues;
  39. “Transaction” means a point of sale purchase made by a User in the Territory with a Payment Card enrolled in the Expense Management Platform, excluding any On Us Transaction;
  40. “Transaction Data” means data supplied via a Card Network relating to a Transaction including the following: last 4 digits of PAN, MCC, authorization code, Merchant location, card token, currency, authorization and settlement date and time, and amount paid;
  41. “Transaction Fee” means the fee payable per Transaction, as set out in the Order Form;
  42. “User" means an EMP Customer whether an individual cardholder or corporate or employee or staff member of EMP Customer who has enrolled their Payment Card(s) with the Expense Management Platform;
  43. “Verification SDK” means the SDK made available by Fidel API which uses two-factor authentication to securely identify the User;
  44. “Virus” mean any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices;
  45. “Visa” means Visa Europe Services Inc. and its affiliated companies; and
  46. “Website” means http://fidelapi.com.
Duration
1. The Agreement shall start on the Commencement Date in the Order Form and continue for the Term.
2. The Initial Term of the Agreement shall automatically extend for an Extended Term at the end of the Initial Term, and at the end of each Extended Term thereafter, unless either party gives at least thirty (30) days’ written notice to the other party to terminate the Agreement at the end of the Initial Term or at the end of the then-current Extended Term, as the case may be, such notice to be given no later than thirty (30) days prior to the end of the Initial Term or then-current Extended Term (as applicable).
Users’ consent to monitor payment activity
1. The Customer shall utilize the Verification SDK as described in the Documentation, to obtain affirmative consent from Users to enable the Card Network to monitor activity on the User’s Payment Card to:
  1. identify, track and record Transactions; and
  2. share such Transaction Data with the Customer in order to enable Fidel API to provide the Fidel API Service.
Customer’s restrictions on the use of Transaction Data
1. In order to provide the Fidel API Service, Fidel API will provide the Customer with the Transaction Data.
2. The Customer will ensure that it is able to identify and separate the Qualifying Expenses from the Transaction Data (the “Qualifying Expenses Data”) and shall only share the Qualifying Expenses Data with an EMP Customer and relevant Users to the extent necessary to provide its Expense Management Platform.
3. The Customer agrees in respect of the Transaction Data received that it will:
  1. use the Transaction Data for the sole purpose of enabling the Customer to operate the Expense Management Platform (the “Permitted Use”);
  2. delete the Transaction Data as soon as reasonably practicable after having extracted the Qualifying Expenses Data and retain the Qualifying Expense Data as long as necessary for the Permitted Use and in any event no longer than one year from the date of receipt of the Transaction Data;
  3. not share, transfer or disclose the Transaction Data to any third parties save for the EMP Customer or relevant Users as permitted by clause 5.2, or otherwise cause Transaction Data to be disclosed to any third parties without the prior written consent of Fidel API, except that the Customer may share Transaction Data with any subcontractors without the prior written consent of Fidel API, solely to the extent necessary for the purpose of performing the Customer’s rights and obligations under the Agreement, and subject to the remaining provisions of this clause. The Customer shall at all times remain liable for all of its obligations under the Agreement, and will be liable for the acts and omissions of any third party (including subcontractors) with which it shares, or to which it gives access to, Transaction Data as if they were the Customer’s own acts and omissions, and will ensure that all such third parties comply with any security obligations of the Customer and any restrictions regarding the use of Transaction Data, as set out in the Agreement;
  4. not use the Transaction Data (or any portion thereof) even if aggregated and anonymized, for any marketing purposes, customer profiling or analysis customer behavior patterns, except as otherwise permitted under clause 5.3.1 or with the express permission of Fidel API and the Card Networks;
  5. not use the Transaction Data for any credit risk determination or fraud purposes except as otherwise approved by Fidel API and Card Networks; and
  6. not use the Transaction Data (or any portion thereof) to develop, derive, or create, directly or indirectly, a personal identification number, individual reference number, or any “customer data integration” system which Customer offers or makes available to third parties.
4. Fidel API has the right to obtain equitable relief regarding the Customer’s use or threatened use of the Transaction Data contrary to the Permitted Use. Where the Card Network providing the Transaction Data is MasterCard, MasterCard shall be a third party beneficiary entitled to enforce this clause against the Customer.
5. The Customer shall provide to Fidel API and to the Card Networks, and to each of their auditors and other advisers and representatives as Fidel API may from time to time designate in writing, (giving at least five (5) days’ prior written notice) access at all reasonable times (and in the case of regulators, at any time required by such regulators) to any facility in which the Customer performs this Agreement, the Customer’s employees, and data and records of the Customer, for the purpose of performing audits and inspections of the Customer in order to verify the Customer’s compliance with the terms and conditions of this Agreement.
Access to the Fidel API Service
1. Fidel API grants the Customer a non-exclusive, non-transferable, personal and non sub-licensable right during the Term to use the Fidel API Service in connection with the operation of the Customer’s Expense Management Platform in the Territory.
2. The Customer must treat any username and password to access the Fidel API Service or the Account as Confidential Information, and it must not disclose it to any third party.
3. The Customer shall require that each Authorized User keeps secure and confidential their username and password for the Authorized User’s use of the Fidel API Service via the Customer’s webpages or mobile application and shall not disclose such user name and password to any third party.
4. Fidel API may suspend any Account, at any time and at Fidel API’s sole discretion, if the Customer has failed, in any material respect, to comply with any of the provisions of this Agreement.
5. The Customer is responsible for maintaining the confidentiality of login details for its Account and any activities that occur under its Account including the activities of Authorized Users. Whenever applicable, Fidel API encourages the Customer to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with its Account. If the Customer has any concerns about the login details for its Account or thinks they have been misused, the Customer should promptly contact Fidel API at cs@fidelapi.com.
6. The Customer must use reasonable endeavors to prevent any unauthorized access to, or use of, the Fidel API Service and, in the event of any such unauthorized access or use, as soon as reasonably practicable notify Fidel API.
7. The Customer recognizes that Fidel API is always innovating and finding ways to improve the Fidel API Service with new features and services. Therefore, the Customer agrees that the Fidel API Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Fidel API Service.
8. Fidel API undertakes that the Fidel API Service will be performed substantially in accordance with the Documentation and with reasonable skill and care.
Customer’s Obligations
1. Fidel API authorizes the Customer to download the Code (including any updates to the Code that Fidel API may make available from time to time) from the Website for the sole purpose of integrating the Code into the Customer’s web pages or mobile applications in order to allow Users to connect Payment Cards with the Customer’s Expense Management Platform programs via the Fidel API Service.
2. The Customer shall insert the Code into the Customer’s web pages or mobile applications in accordance with the reasonable directions given by Fidel API in writing (including email) from time to time.
3. The Customer shall, on reasonable request from Fidel API, update the Code inserted into the Customer’s web pages as soon as reasonably practicable upon receiving notice from Fidel API to do the same.
4. The Customer assumes sole responsibility for installation and integration of the Code with its IT systems including but not limited to the Customer’s hardware, software, websites and apps.
5. Fidel API permits the Customer to use the API (including updates to the API that Fidel API may make available from time to time) for the sole purpose of enabling the Customer to connect Users’ Payment Cards with the Expense Management Platform.
6. The Customer shall use the API in accordance with the reasonable directions given by Fidel API in writing (including email) from time to time.
7. The Customer is encouraged to use the most current version of the API made available by Fidel API, following reasonable notice from Fidel API to do so. The Customer acknowledges that the API may only be backwards compatible for a period of two (2) years from the date of such notice.
8. Fidel API may monitor the Customer’s use of the Fidel API Service to ensure quality, improve the Fidel API Service, and verify the Customer’s compliance with the Agreement.
9. The Customer:
  1. must comply with all applicable laws and regulations with respect to its use of the Fidel API Service, the Transaction Data, and its activities under the Agreement;
  2. must only enroll Payment Cards issued by a Licensed Bank with the Expense Management Platform and take reasonable measures to verify the same. Fidel API may remove any Payment Cards that are not issued by a Licensed Bank from the Expense Management Platform (to the extent it becomes aware of this);
  3. must use the Fidel API Service and Transaction Data in accordance with the terms of the Agreement;
  4. must obtain and shall maintain all necessary licenses, consents, permits and permissions necessary for Fidel API to perform its obligations to the Customer under the terms of the Agreement;
  5. must ensure that its network and systems, including its internet browser used complies with the relevant specifications provided by Fidel API in writing (including email) from time to time;
  6. is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Fidel API Service;
  7. shall not:
    1. access, store, distribute or transmit any Virus through the Fidel API Service;
    2. use the Fidel API Service to access, store, distribute or transmit any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
    3. use the Fidel API Service in a manner that is illegal or causes damage or injury to any person or property;
    4. use any automated system, including without limitation “robots”, “spiders”, “offline readers”, to access the Fidel API Service in a manner that sends more request messages to the Fidel API Service than a human can reasonably produce in the same period of time by using a conventional online web browser, or conduct any denial of service attack on the Fidel API Service;
    5. attempt to interfere with or compromise the Fidel API Service integrity or security. Fidel API reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Customer’s Account for material or persistent breaches of the provisions of this clause 7.9.7;and
  8. shall promptly notify Fidel API if any User unenrolls any of its Payment Cards from any of the Expense Management Platform.
Important note on intellectual property rights
1. Fidel API is the owner of or the licensee of all intellectual property rights in the Fidel API Service. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved.
2. The Customer will not, when using the Fidel API Service:
  1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Fidel API Service in any form or media or by any means; or
  2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Fidel API Service; or
  3. access all or any part of the Fidel API Service in order to build a product or service which competes with the Fidel API Service or use or attempt to use the Fidel API Service to directly compete with Fidel API.
Publicity, case studies and feedback
1. Fidel API may use the Customer’s name, logo and related trade marks in any of Fidel API’s publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Customer uses the Fidel API Service and alongside any testimonials that the Customer has agreed to give. The Customer grants to Fidel API such rights as are necessary to use its name, logo, related trade marks and testimonial for the purposes of this clause 9.1.
2. At the Customer’s written request, Fidel API shall cease use of the Customer’s name, logo or related trade marks in Fidel API’s publicity and marketing materials, provided that Fidel API shall have no obligation to remove the Customer’s name, logo and/or related trade marks from any of Fidel API’s publicity or marketing materials published (whether in printed or electronic form) prior to the date of Fidel API’s receipt of the Customer’s request.
Data Protection
1. The parties will collect and process personal data (each as defined in the Data Processing Addendum) contained in Customer Data in accordance with the Data Processing Addendum and the MasterCard Data Sharing Agreement (where applicable).
Information Security
1. The Customer shall have in place appropriate technical and organizational measures to keep the Transaction Data secure, and to protect against unauthorized or unlawful disclosure of or access to, or accidental loss or destruction of, or damage to, any Transaction Data.
2. The Customer must promptly notify Fidel API in writing upon becoming aware of any actual or suspected Information Security Incident.
3. Where the Card Network providing the Transaction Data is MasterCard, the Customer must promptly report any Information Security Incident in writing to both Fidel API and directly to MasterCard, and in any event within twelve (12) hours of confirming such Information Security Incident.
Confidential Information
1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
  1. is or becomes publicly known other than through any act or omission of the receiving party;
  2. was in the other party’s lawful possession before the disclosure;
  3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
  4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
  5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement during the Term and for so long as the Confidential Information remains confidential.
3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
4. Each party shall limit dissemination of Confidential Information of the other party: (a) to persons within its own organization; (b) to third parties who are bound by written confidentiality obligations consistent with this clause 12; and (c) all on a “need-to-know” basis.
5. Each party shall use the same degree of care to protect the other’s Confidential Information as it uses to protect its own most highly confidential information, but in no circumstances less than reasonable care
6. In the event the receiving party receives a court order or other validly issued administrative or judicial process demanding the other’s Confidential Information, or to the extent required to be disclosed by any applicable laws or regulations by a party as a publicly traded company, the receiving party will be permitted to disclose the other’s Confidential Information to the minimum extent necessary to comply with such legal obligations. The receiving party will, to the extent not prohibited by law, give the disclosing party prompt written notice of any disclosure that, in the opinion of its counsel, appears to be required by law, so that the disclosing party, at its sole cost and expense, may assert any defenses to disclosure that may be available and seek an injunction or other protective relief.
7. The parties agree that in the event of any breach of the confidentiality obligations described herein, the non-breaching party shall be entitled to seek immediate injunctive relief for such breach in addition to any other right or remedy that the non-breaching party may have at law or in equity.
8. At the time of expiration or termination of this Agreement, as applicable, or upon the other party’s request, each party agrees to promptly return or destroy any Confidential Information provided by the other party in connection with this Agreement.
9. Each party acknowledges and agrees that, as between the parties, Confidential Information disclosed by the disclosing party to the receiving party will at all times remain the property of the disclosing party. No license of any trade secrets, copyrights, or other rights is granted by any disclosure of Confidential Information under the Agreement.
Fees and Payment
1. The Customer shall pay the Transaction Fee to Fidel API monthly in arrears.
2. For the purpose of calculating the Transaction Fee, the provision of an Authorization Notification shall be considered one Transaction and the provision of a Settlement Notification shall be considered a second, separate Transaction. Each of these Transactions will be subject to a separate Transaction Fee.
3. The Customer shall pay the Monthly Card Enrolment Fee and Cardholder Verification Fee monthly in arrears.
4. The Customer shall pay the Minimum Charge Fee for the first month of the Term, together with the Onboarding Fee, no later than two (2) Business Days from the Commencement Date. Thereafter, the Minimum Charge Fee for each month during the Term shall be payable monthly in advance.
5. Fidel API shall invoice the Customer for the Fees at the end of each month during the Term. The Customer shall pay any invoice within seven (7) Business Days from the receipt of the invoice.
6. Unless alternative payment is agreed in the Order Form, the Customer will provide to Fidel API valid, up-to-date and complete credit or debit card details and it hereby authorizes Fidel API to bill such credit or debit card for the Fees in accordance with the Order Form.
7. If Fidel API has not received full payment of an undisputed invoice within 30 days after the due date, and without prejudice to any other rights and remedies available to Fidel API:
  1. Fidel API may, without liability to the Customer, suspend or temporarily disable all or part of its access to the Fidel API Service and Fidel API shall be under no obligation to provide any access to the Fidel API Service while the invoice(s) concerned remain unpaid, but shall reinstate such access at no further cost when the delinquent invoice has been paid; and
  2. interest shall accrue each day on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
8. All amounts and Fees stated or referred to in the Agreement:
  1. are payable in the currency specified in the Order Form or otherwise stipulated by Fidel API; and
  2. are exclusive of value added tax (“VAT”) unless otherwise expressly stated, which shall (if applicable) be paid at the same time as payment of the Fees. Fidel API shall send the Customer a VAT invoice if Fidel API is requested to do so.
9. Unless otherwise agreed between the parties in writing, Fidel API may increase any of the Fees at any time after the Initial Term upon giving at least sixty (60) days’ notice (the “Notice Period”) in writing to the Customer, such increase to take effect on expiry of such Notice Period. If the Customer is unhappy with the increase, the Customer may give notice to terminate the Agreement by providing at least thirty (30) days’ written notice to Fidel API, and the Agreement will terminate at the end of the Notice Period. The Fees will not increase during the Notice Period.
Availability and Support
1. Where the Customer has paid for access to the Fidel API Service, Fidel API will use commercially reasonable endeavors to make the Fidel API Service available with an uptime rate of 99.99% except for:
  1. planned maintenance for which twenty-four (24) hours’ notice will be given; or
  2. unscheduled maintenance during normal business hours (UK time) or otherwise, for which Fidel API will use reasonable endeavors to give the Customer advance notice; or
  3. any downtime caused by or arising from the services (or any non-availability of the services) provided by the Card Networks.
2. The Customer will provide Users with Tier 1 Support during normal business hours of the Customer. Fidel API will provide the Customer with Tier 2 Support to enable the Customer to provide Tier 1 Support to the Users. The Customer may raise Tier 1 Support or Tier 2 Support tickets with Fidel API via email. Fidel API shall respond to email support queries no later than twenty-four (24) hours after receipt.
3. Fidel API agrees that Transactions via any of the Card Networks will track and report no later than five (5) Business Days after they are made.
4. The Customer acknowledges that the Fidel API Service is dependent on access to various third party data sources (including the Transaction Data). The Customer agrees that Fidel API is not responsible for the non-availability or interruption to the Fidel API Service caused by any such non-availability of any such third party data source unless such non-availability or interruption is caused by Fidel API acting negligently.
Suspension and Termination
1. If the Customer fails to pay any sum due to Fidel API and such sum remains outstanding for a further thirty (30) days following notice requiring such sum to be paid, Fidel API may terminate the Agreement immediately by notice in writing and without any liability to the Customer.
2. Fidel API may terminate the Agreement by written notice with immediate effect if the Customer infringes Fidel API’s intellectual property rights in the Fidel API Service.
3. Either party may terminate the Agreement at any time on written notice to the other if the other:
  1. is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within thirty (30) days after receiving written notice requiring it to remedy that breach;
  2. is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction; or
  3. is in breach of applicable law.
4. Upon termination of the Agreement for any reason all licenses granted under the Agreement shall immediately terminate and the Customer’s right to access and use the Fidel API Service will end.
5. If the Agreement is terminated by Fidel API in accordance with clause 15.1, 15.2 or 15.3, the Customer shall pay Fidel API any shortfall between the total aggregate the Minimum Charge Fee for the duration of the Term and any Fees already paid to Fidel API at the date of termination together with all other amounts payable to Fidel API, within thirty (30) days of the date of termination of the Agreement.
6. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
7. In the event that a Card Network is unwilling or unable to provide Transaction Data to Fidel API or the Customer, Fidel API shall continue to provide the Fidel API Service only in respect of the remaining Card Networks. Fidel API may terminate the Agreement by written notice with immediate effect in the event that all of the Card Networks are unwilling or unable to provide Transaction Data to Fidel API or the Customer. If this clause is exercised, Fidel API agrees to provide the Customer with written proof that the relevant Card Network(s) is unwilling or unable to provide the Transaction Data.
Limited Warranty
1. Where the Customer has paid for the Fidel API Service, Fidel API undertakes to make the Fidel API Service available as specified in clause 14.1. Otherwise the Fidel API Service is provided on an “AS IS” basis and Fidel API gives no representations, warranties, conditions or other terms of any kind in respect of the Fidel API Service, whether express or implied, including, but not limited to, warranties of satisfactory quality, merchantability fitness for a particular purpose or non-infringement.
2. Fidel API warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under the Agreement.
3. Except as expressly and specifically provided for in the Agreement:
  1. the Customer assumes sole responsibility for (i) installation and integration of the Fidel API Service with its IT systems including but not limited to the Customer’s hardware, software, websites and apps; and (ii) any results obtained from the use of the Fidel API Service and for any conclusions drawn or taken from such use and it relies on the results obtained from the Fidel API Service at its own risk;
  2. all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and
  3. Fidel API will not be responsible for any interruptions, delays, failures or non-availability affecting the Fidel API Service or the performance of the Fidel API Service which are caused by third party services or errors or bugs in software, hardware or the internet on which Fidel API relies to provide the Fidel API Service and the Customer acknowledges that Fidel API does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.
Liability
1. Subject to clause 17.2, neither party will be liable to the other whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any (a) loss of income or revenue; (b) loss of business; (c) loss of profits; (d) loss of anticipated savings; (e) loss of data (other than loss of data caused by a breach of the Agreement); or (f) any indirect, consequential or special damages, costs or expenses.
2. Nothing in the Agreement excludes or limits either party’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation or for any indemnity given by either party in accordance with clause 18.
3. Subject to clause 17.2 and except as expressly stated otherwise in this Agreement, each party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall in all circumstances be limited to an amount equal to the Fees paid or payable by the Customer in the first twelve (12) months of the Term.
Indemnity
1. The Customer shall indemnify and defend Fidel API, the Card Networks, and each of their officers, directors, employees, agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyers’ fees) arising out of any claim brought by a third party relating to the Customer’s use of the Fidel API Service (except to the extent caused by Fidel API’s negligence and other than as set out in clause 18.2), provided that Fidel API:
  1. gives the Customer prompt notice of any such claim;
  2. provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer’s expense; and
  3. gives the Customer sole authority to defend or settle the claim
2. Fidel API shall indemnify and defend the Customer, its agents and employees against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyers’ fees) arising out of a claim brought by a third party alleging that the use of the Fidel API Service in accordance with this Agreement infringes the intellectual property rights of such third party, provided that the Customer:
  1. gives Fidel API prompt notice of any such claim;
  2. provides reasonable co-operation to Fidel API in the defense and settlement of such claim, at Fidel API’s expense; and
  3. gives Fidel API sole authority to defend or settle the claim
3. In no event shall Fidel API, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
  1. a modification of the Fidel API Service by anyone other than Fidel API or anyone acting on behalf of Fidel API;
  2. the Customer’s use of the Fidel API Service in a manner contrary to this Agreement; or
  3. the Customer’s use of the Fidel API Service after notice of the alleged or actual infringement from Fidel API or any appropriate authority has been given to the Customer.
Written communications
1. Applicable laws may require that some of the information or communications Fidel API sends to the Customer should be in writing. When using the Fidel API Service, the Customer accepts that communication with Fidel API will be mainly electronic. Fidel API will contact the Customer by e-mail or provide the Customer with information by posting notices on the Fidel API Service. For contractual purposes, the Customer agrees to this electronic means of communication and the Customer acknowledges and agrees that all contracts, notices, information and other communications that Fidel API provides to the Customer electronically comply with any legal requirement that such communications be in writing.
Notices
1. All notices given by the Customer to Fidel API must be given to cs@fidelapi.com. Fidel API may give notice to the Customer at either the e-mail or postal address the Customer provides to Fidel API, or any other way Fidel API deems appropriate. Notice will be deemed received and properly served immediately when posted on the Fidel API Service or twenty-four (24) hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
2. Notice will be deemed received and properly served immediately when posted on the:
  1. if sent by email, twenty-four (24) hours after an e-mail is sent; or
  2. if sent by post, three (3) days after the date of posting of any letter.
3. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
Transfer of rights and obligations
1. The Customer may not transfer, assign, charge or otherwise deal in the Agreement, or any of its rights or obligations arising under the Agreement, without Fidel API’s prior written consent.
2. Fidel API may transfer, assign, charge, or otherwise deal in the Agreement, or any of its rights or obligations arising under the Agreement, in Fidel API's sole discretion without the Customer’s prior written consent.
3. If the Customer sells all or a substantial part of its business or materially changes the nature of its business, or by any means causes or permits a new entity to own a substantial part of its business, Customer agrees to notify Fidel API in advance.
Changes to the Agreement
1. Fidel API may amend these Terms of Service from time to time. Every time the Customer uses the Fidel API Service, the Customer acknowledges that it is responsible for checking these Terms of Service to ensure it understands the Terms of Service that apply at any time. Any changes to these Terms of Service in the future will be posted on this page and, where appropriate, notified to the Customer by e-mail.
2. Subject to clause 13.12, no variation of the Order Form shall be effective unless it is in writing and agreed by the parties (or their authorized representatives).
Events outside a party’s control
1. No party shall be liable to the other for any delay or non-performance of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, internet failure, act of God, governmental act, war, fire, flood, explosion or civil commotion.
Waiver
1. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
Severability
1. If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
Third party rights
1. Except as expressly stated at clause 5.4, a person who is not party to the Agreement shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
Law and jurisdiction
1. The Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.
Counterparts
1. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. This Agreement may be executed by facsimile or .pdf signature, either of which shall constitute an original for all purposes.

DATA PROCESSING ADDENDUM

BACKGROUND
1. In accordance with clause 10 of the Agreement, this Data Processing Addendum ("DPA") sets out the basis on which the parties Process Customer Personal Data (as defined below).
2. In the event of a conflict between any of the provisions of this DPA and the remaining provisions of the Agreement, the provisions of this DPA shall prevail.
3. Both parties will comply with all applicable requirements of the Data Protection Laws (as defined below). This DPA is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Laws.
4. For the purposes of this DPA, the parties acknowledge that the Customer is the Controller (as defined below) and Fidel API is the Processor (as defined below).
DEFINITIONS
1. Unless otherwise set out below, each capitalized term in this DPA shall have the meaning set out in clause 2 of the Agreement, and the following capitalized terms used in this DPA shall be defined as follows:
  1. "Controller" has the meaning given in the Data Protection Laws;
  2. "Customer Personal Data" means the personal data (as defined in the Data Protection Laws) described in ANNEX 1 and any other personal data that Fidel API Processes on behalf of the Customer in connection with Fidel API's provision of the Fidel API Service;
  3. “Data Protection Laws” means any applicable laws and regulations relating to privacy or the processing of personal data, including (i) the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("EU GDPR"), (ii) the retained EU law version of the EU GDPR as enacted into UK law (“UK GDPR”), (iii) the UK Data Protection Act 2018, and (iv) any applicable decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, supervisory authorities and other applicable government authorities; in each case together with any law implementing, supplementing, amending or replacing the same from time to time;
  4. "Data Subject" has the meaning given in the Data Protection Laws;
  5. "European Economic Area" or "EEA" means the Member States of the European Union together with Iceland, Norway, and Liechtenstein;
  6. "GDPR" means the EU GDPR and/or the UK GDPR (as applicable);
  7. "Processing" has the meaning given in the Data Protection Laws, and "Process" shall be interpreted accordingly;
  8. "Processor" has the meaning given in the Data Protection Laws;
  9. "Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Customer Personal Data;
  10. "Standard Contractual Clauses" means the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593 or any subsequent version thereof released by the European Commission (which will automatically apply);
  11. "Subprocessor" means any Processor engaged by Fidel API that agrees to receive from Fidel API and Process any Customer Personal Data;
  12. "Supervisory Authority" has the meaning given in the Data Protection Laws.
DATA PROCESSING
1. Instructions for Data Processing. Fidel API will only Process Customer Personal Data in accordance with (a) the Agreement, to the extent necessary to provide the Fidel API Service, and (b) the Customer's written instructions, unless Processing is required by applicable law to which Fidel API is subject, in which case Fidel API shall, to the extent permitted by such law, inform the Customer of that legal requirement before Processing that Customer Personal Data.
2. The Agreement (subject to any changes to the Fidel API Service agreed between the Parties), including this DPA, shall be the Customer's complete and final instructions to Fidel API in relation to the Processing of Customer Personal Data.
3. Processing outside the scope of this DPA or the Agreement will require prior written agreement between the Customer and Fidel API on additional instructions for Processing.
4. Required consents and disclosures. Where required by applicable Data Protection Laws, the Customer will ensure that it has obtained/will obtain all necessary consents, and has made all necessary disclosures, for the Processing of Customer Personal Data by Fidel API and the Card Networks in accordance with the Agreement, including:
  1. consent from Users to enable the Card Networks to collect, Process and share Customer Personal Data relating to the Users for the purposes set out in the Agreement (including this DPA); and
  2. disclosures to Users of the following information: (i) a description of all Customer Personal Data that the Customer collects, including an indication of all potential sources of such data; (ii) identity of the collector of Customer Personal Data; (iii) purpose for which Customer Personal Data will be used; (iv) to whom Customer Personal Data, or portions thereof, may be disclosed, including the recipients or categories of recipients thereof; (v) whether the provision of Customer Personal Data by Users to the Customer is voluntary or obligatory; and (vi) that Users have certain rights in respect of their personal data, including the right of access and right to update and correct their personal data.
TRANSFER OF PERSONAL DATA
1. Appointment of Subprocessors. The Customer agrees that Fidel API may use Subprocessors to fulfil its contractual obligations under the Agreement. Fidel API shall provide the Customer with reasonable notice of the identity of any new or replacement Subprocessor it wishes to engage, thereby giving the Customer the right to object to such appointment or replacement.
2. The Customer’s sole remedy if it does not agree to the appointment or replacement of a Subprocessor shall be to terminate the Agreement.
3. Fidel API shall enter into a written agreement with each Subprocessor which imposes materially the same obligations on the Subprocessor with regards to its Processing of Customer Personal Data as are imposed on Fidel API under this DPA.
4. Liability of Subprocessors. Fidel API shall at all times remain responsible for compliance with its obligations under the DPA and will be liable to the Customer for the acts and omissions of any Subprocessor as if they were the acts and omissions of Fidel API.
5. Transfers of Personal Data. To the extent that the Processing of Customer Personal Data by Fidel API involves the export of such Customer Personal Data to a third party to a country or territory outside the UK and EEA, other than a country or territory recognized under applicable Data Protection Laws as ensuring an adequate level of protection for personal data, such export shall be governed by the Standard Contractual Clauses and Fidel API shall enter into an unamended version of the Standard Contractual Clauses with the relevant third party as agent on the Customer’s behalf (and shall demonstrate to the Customer that Fidel API has done so, upon the Customer’s written request), or such other mechanism as the Customer may direct to ensure an adequate level of protection for the Customer Personal Data in the relevant third country. In the event of any conflict between any terms and conditions of the Standard Contractual Clauses and this DPA, the Standard Contractual Clauses shall prevail.
DATA SECURITY, DATA AND SECURITY NOTIFICATIONS
1. Fidel API Security Obligations. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Fidel API shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including the measures set out in ANNEX 2.
2. Security Audits. The Customer may, upon reasonable notice, audit (by itself or using independent third party auditors) Fidel API’s compliance with the security measures set out in this DPA (including the technical and organizational measures as set out in ANNEX 2), including by conducting audits of Fidel API’s data processing facilities. Upon request by the Customer, Fidel API shall make available all information reasonably necessary to demonstrate compliance with this DPA.
3. Security Incident Notification. If Fidel API or any Subprocessor becomes aware of a Security Incident, Fidel API will (a) notify the Customer of the Security Incident within seventy-two 72 hours, (b) investigate the Security Incident and provide such reasonable assistance to the Customer (and any law enforcement or regulatory official) as required to investigate the Security Incident, and (c) take steps to remedy any non-compliance with this DPA.
4. Fidel API Employees and Personnel. Fidel API shall treat the Customer Personal Data as the Confidential Information of the Customer, and shall ensure that:
  1. access to Customer Personal Data is limited to those employees or other personnel who have a business need to have access to such Customer Personal Data; and
  2. any employees or other personnel have agreed in writing to protect the confidentiality and security of Customer Personal Data.
ACCESS REQUESTS AND DATA SUBJECT RIGHTS
1. Data Subject Requests. Save as required (or where prohibited) under applicable law, Fidel API shall notify the Customer of any request received by Fidel API or any Subprocessor from a Data Subject in respect of their personal data included in the Customer Personal Data, and shall not respond to the Data Subject.
2. Fidel API shall, where possible, assist the Customer with ensuring its compliance under applicable Data Protection Laws, and in particular shall:
  1. provide the Customer with the ability to correct, delete, block, access, or copy the Customer Personal Data in accordance with the functionality of the Fidel API Service; or
  2. promptly correct, delete, block, access, or copy Customer Personal Data within the Fidel API Service at the Customer's request.
3. Government Disclosure. Fidel API shall notify the Customer of any request for the disclosure of Customer Personal Data by a governmental or regulatory body or law enforcement authority (including any Supervisory Authority) unless otherwise prohibited by law or a legally binding order of such body or agency.
4. Data Subject Rights. Where applicable, and taking into account the nature of the Processing and the information available to Fidel API, Fidel API shall use all reasonable endeavors to assist the Customer by implementing any other appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising Data Subject rights laid down in the Data Protection Laws.
Data Processing Assessment and Prior Consultation
1. To the extent required under applicable Data Protection Laws, Fidel API shall provide reasonable assistance to the Customer with any data protection impact assessments and with any prior consultations to any Supervisory Authority of the Customer, in each case solely in relation to Processing of Customer Personal Data and taking into account the nature of the Processing and information available to Fidel API.
TERMINATION
1. Deletion or return of data. Subject to paragraph 8.2 below, Fidel API shall, at the choice of the Customer, within ninety (90) days of the date of termination of the Agreement either:
  1. return a complete copy of all Customer Personal Data by secure file transfer in such a format as notified by the Customer to Fidel API and securely wipe all other copies of the Customer Personal Data processed by Fidel API or any Subprocessor; or
  2. delete and use all reasonable efforts to procure the deletion of all other copies of Customer Personal Data Processed by Fidel API or any Subprocessors.
2. Fidel API and its Subprocessors may retain Customer Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that Fidel API shall ensure the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.

Annex 1

DETAILS OF THE PROCESSING OF CUSTOMER PERSONAL DATA

This Annex 1 includes certain details of the processing of Customer Personal Data as required by Article 28(3) of the GDPR.

Subject matter and duration of the Processing of Customer Personal Data
1. The subject matter and the duration of the Processing of the Customer Personal Data are set out in the Agreement and this DPA.
The nature and purpose of the Processing of Customer Personal Data
1. The Customer Personal Data will be subject to the following basic Processing activities: transmitting, collecting, storing, and analyzing data in order to provide the Fidel API Service to the Customer; identifying, tracking and recording Transactions; and any other activities related to the provision of the Fidel API Service or as specified in the Agreement.
The types of Customer Personal Data to be Processed
1. The types of Customer Personal Data to be Processed concern the following categories of data: names of Customer personnel; contact information (including email addresses and telephone numbers) of Customer personnel; Payment Card information of Users including long card number; personal data of Users contained in Transaction Data.
The categories of Data Subject to whom the Customer Personal Data relates
1. The categories of Data Subject to whom the Customer Personal Data relates concern: employees and other personnel of the Customer; Users.
The obligations and rights of the Customer
1. The obligations and rights of the Customer are as set out in the Agreement including this DPA.

Annex 2

TECHNICAL AND ORGANISATIONAL SECURITY MEASURES

Fidel API maintains internal policies and procedures, or procures that its Subprocessors do so, which are designed to:
1. secure any Customer Personal Data Processed by Fidel API against accidental or unlawful loss, access or disclosure;
2. identify reasonably foreseeable and internal risks to security and unauthorized access to the Customer Personal Data Processed by Fidel API;
3. minimize security risks, including through risk assessment and regular testing.
Fidel API will, and will use reasonable efforts to procure that its Subprocessors do, conduct periodic reviews of the security of its network and the adequacy of its information security program as measured against industry security standards and its policies and procedures.
Fidel API will, and will use reasonable efforts to procure that its Subprocessors periodically do, evaluate the security of its network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
Fidel API is Level 1 PCI compliant.