These terms (the Primer Merchant Terms) together with the Order Form (as defined below) and Primer’s Service Level Agreement (as defined below) form a legal agreement (the Merchant Agreement) between Primer API Limited, incorporated and registered in England and Wales with company number 12355212 whose registered office is at 154 Bishopsgate 2nd Floor London EC2M 4LN England (Primer, us, we or our) and the entity (the Merchant, you, or your) listed on the Order Form signed by the Parties .
By entering into and signing the Order Form which is governed by and incorporates these terms (the Order Form) you agree to the terms of this Merchant Agreement which will bind you. The Order Form is governed by and incorporates these Primer Merchant Terms. Capitalised terms not defined in the Order Form have the meaning given to them in the Primer Merchant Terms. Capitalised terms not defined in these Primer Merchant Terms have the meaning given to them in the Order Form.
In the event that there is any conflict between the provisions of the Order Form and these Primer Merchant Terms, the provisions of the Order Form shall take precedence, including without limitation where the Parties have agreed Special Terms as set out in the Order Form which are intended to amend any specific terms in these Primer Merchant Terms.
The version number of these Primer Merchant Terms is stated at the bottom of these terms. The Order Form also states the version number of these Primer Merchant Terms which applies to such Order Form. You should print a copy of these Primer Merchant Terms for future reference. If you do not understand any of the terms of this Merchant Agreement, please contact us (hello@primer.io) before using the Services.
1. Access to and use of the Services
1.1 Primer’s services consist of a single payments integration and unified application programme interface (API), together with an SDK, which manages the front-end checkout process and backend consolidation of certain payments services and related onboarding and integration services (the Services). Further details of the operation and functionality of the Services are made available through Primer’s API, User Guide and other associated documentation accessible via Primer’s website or as otherwise provided to you by Primer.
1.2 Subject to your compliance with the terms of this Merchant Agreement, Primer hereby grants you a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Services for your internal business operations following the creation of your account and the successful integration of the Services with your website, app and/or platform (as applicable) (the Go Live Date).
1.3 In order to use the Services, you must register and create an account on the Primer website. You must keep a secure password for your use of the Services and keep such password confidential. You must also keep the information in your Primer account accurate and up-to-date.
1.4 Primer undertakes that the Services will be provided:
1.4.1 substantially in accordance with Primer’s documentation;
1.4.2 with reasonable skill and care and in accordance with applicable laws; and
1.4.3 in accordance with Primer’s Service Level Agreement provided or made available to Merchant (the Service Level Agreement).
1.5 You must not:
1.5.1 except as may be allowed by any applicable law which is incapable of exclusion and except to the extent expressly permitted under this Merchant Agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services;
1.5.2 access all or any part of the Services in order to build a product or service which competes with the Services;
1.5.3 license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit, or otherwise make the Services available to any third party;
1.5.4 attempt to obtain, or assist third parties in obtaining, access to the Services other than as permitted under this Merchant Agreement;
1.5.5 introduce or permit the introduction of any viruses, trojans, worms, logic bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code, into our network and/or information systems; or
1.5.6 use the Services in a manner that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations (including, without limitation, where we cannot verify your identity or other required information about your business).
1.6 Primer reserves the right, without liability or prejudice to its other rights under this Merchant Agreement, to disable your access to the Services in the event of a breach of Clause 1.5 of this Merchant Agreement provided that:
1.6.1 to the extent reasonably practicable, Primer will notify you in advance of disabling such access, and
1.6.2 to the extent such breach is remediable, you do not remedy such breach within 7 days of such notice (where provided).
1.7 You must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.
2. Merchant Obligations
2.1 You shall:
2.1.1 comply with all applicable laws and regulations with respect to your use of the Services and your activities under this Merchant Agreement;
2.1.2 ensure that your personnel’s use of the Services complies with the terms and conditions of this Merchant Agreement and you shall be responsible for any breach by them of this Merchant Agreement;
2.1.3 obtain and maintain all necessary licences, consents, and permissions necessary for your use of the Services;
2.1.4 implement appropriate technical and organisational security measures in respect of your website, app, platform, services and customer data; and
2.1.5 ensure that your network and systems are sufficient to enable you to use the Services.
2.2 The Parties may agree the provision by Primer of additional products/services as specified on the Order Form for the related fees, as agreed and specified on the Order Form.
3. Fees and Payment
3.1 Primer will provide the Services to you at the pricing and for the fees (Fees) described in the Order Form.
3.2 The Fees may be fixed for a period of time as specified on the Order Form and subject to any conditions stated on the Order Form. Following expiry of such period, Primer may revise the Fees at any time but will provide at least 30 days’ advance notice before any such revisions become applicable.
3.3 Where no Minimum Term is agreed and specified on the Order Form, the Fees may be fixed for a period of time as specified on the Order Form and subject to any further conditions agreed and stated on the Order Form. Where no Minimum Term is agreed and stated on the Order Form and no fixed fee period has been agreed and stated on the Order Form, Primer may revise the Fees at any time but will provide at least 30 days’ advance notice before any such revisions become applicable.
3.4 Where the Fees are based on Billable Events (as defined and set out in the Billable Events Glossary), at the end of each agreed payment period as specified on the Order Form, Primer will review the Billable Events in the applicable preceding payment period and calculate the Fees for such period based on the actual number of Billable Events. Where a Minimum Commitment is agreed and specified on the Order Form, Primer will invoice Merchant for the Minimum Commitment if it exceeds the Fees based on such actual Billable Events in the preceding payment period.
3.5 You will pay each invoice due and validly submitted by Primer, within 30 days of receipt.
3.6 Except in relation to any bona fide disputes regarding payment, in the event any Fees are not paid by the due date, without prejudice to its other rights and remedies, Primer may, without liability to you, disable your account and/or access to all or part of the Services and Primer shall be under no obligation to provide any or all of the Services while such Fees remain unpaid.
3.7 Interest shall accrue on a daily basis on any overdue Fees at an annual rate equal to 3% over the then current Bank of England base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
3.8 You shall be responsible for all taxes, fees and other charges imposed by any governmental authority, including any value added tax, goods and services tax, sales tax and applicable indirect and transactional taxes on the Services provided under this Merchant Agreement.
4. Data Protection
4.1 As part of its provision of the Services, Primer shall process certain personal data on the Merchant’s behalf acting as the Merchant’s processor. The subject-matter, nature and purpose of the processing shall be the provision of the Services pursuant to this Merchant Agreement. The duration of the processing shall be the duration of your use of the Services. The categories of individuals shall be your customers and the type of personal data shall be as described in the documentation made available to you by Primer. In relation to the foregoing, unless the Parties enter into a separate data processing agreement which the Parties agree will supersede this clause, Primer shall:
4.1.1 process such personal data only on documented instructions from the Merchant, unless required to do otherwise by applicable law, in which case Primer shall, unless legally prohibited from doing so, inform you of such legal requirement; you agree that these terms and your use of the Services in accordance with the available functionality shall constitute your documented instructions;
4.1.2 ensure that persons authorised by it to process such personal data are subject to appropriate obligations of confidentiality;
4.1.3 implement appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of such personal data and against accidental loss or destruction of, or damage to, such personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
4.1.4 notify you without undue delay on becoming aware of a personal data breach affecting such personal data;
4.1.5 assist you, at your expense, with the fulfilment of your obligation to respond to requests for exercising individuals’ rights under applicable privacy and data protection law, together with your obligations regarding data security, notification of personal data breaches to the supervisory authority, communication of personal data breaches to the affected individuals, data protection impact assessments, and prior consultation with the supervisory authority;
4.1.6 at your choice, delete or return all such personal data after the end of the provision of the Services, and delete existing copies unless applicable law requires storage of such personal data; except that the Merchant acknowledges and agrees that Primer may retain data relating to the Merchant’s transactions undertaken using the Services on an anonymous basis;
4.1.7 make available to the Merchant all information necessary to demonstrate compliance with this clause;
4.1.8 allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you provided that:
(a) Primer shall be compensated for its reasonable and demonstrable costs and expenses in relation to such audit;
(b) reasonable advance notice shall be given in respect of any such audit;
(c) any such audit shall only be conducted during Primer’s normal business hours;
(d) any such audit shall be conducted to cause minimal disruption to Primer’s business operations;
(e) no access shall be given to Primer’s confidential information or any information relating to other merchants and/or financial data; and
(f) any third party auditor shall enter into confidentiality obligations directly with Primer which are reasonably acceptable to Primer; and
4.1.9 not transfer any such personal data outside of the European Economic Area or the United Kingdom without ensuring appropriate safeguards in respect of such transfer in accordance with applicable privacy and data protection law.
4.2 Subject to Clause 6.1, you hereby provide your general authorisation for Primer to engage other processors (Sub-Processors) to carry out processing activities on your behalf in relation to the Services. The list of Sub-Processors currently engaged by Primer is set out in the Appendix to these terms. Primer will make available to you information regarding any intended changes concerning the addition or replacement of the Sub-Processors. If, within seven (7) days of receipt of such information, you notify Primer in writing of any objections on reasonable grounds to the proposed addition or replacement:
4.2.1 Primer shall take reasonable steps to address your objections, and shall provide you with a reasonable written explanation of the steps taken; and
4.2.2 if having received from Primer a reasonable explanation to address your objections, you nevertheless object to the addition or replacement, Primer shall not proceed with the addition or replacement with respect to the processing of any personal data on your behalf, and may, at your cost, propose the engagement of a different processor in accordance with this clause. You acknowledge and agree that where you object to the appointment of a Sub-Processor pursuant to this clause, Primer may be prevented from providing the associated services to you, and Primer shall have no liability to you in respect of its inability to provide all, or part of, such services.
4.3 Subject to Clause 6.1, where Primer engages a Sub-Processor for carrying out specific processing activities on your behalf, materially equivalent data protection obligations as set out herein shall be imposed on the Sub-Processor. Where the Sub-Processor fails to fulfil its data protection obligations, Primer shall remain fully liable to you, subject to the limitations and exclusions of liability set out herein, for the performance of the Sub-Processor’s obligations.
4.4 You must ensure that you have an appropriate lawful basis and all necessary notices in place to enable the lawful transfer of any personal data to Primer for the duration and purposes of this Merchant Agreement.
5. PCI Compliance
5.1 You agree to comply with:
5.1.1 the applicable data privacy and security requirements under the Payment Card Industry (PCI) Data Security Standard (DSS) with regard to your use, access, and storage of cardholder information; and
5.1.2 your obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information.
5.2 Primer is certified with PCI-DSS and shall maintain its PCI-DSS certification for the duration of the Merchant Agreement. Primer agrees to comply with its obligations under the PCI-DSS.
5.3 Without prejudice to the generality of the foregoing and/or Clause 4 of this Merchant Agreement, but subject to Clause 5.4, Primer acknowledges that it is responsible for the security of customer cardholder data it possesses or otherwise stores, processes or transmits on behalf of the Merchant, or to the extent that it could impact the security of the customer cardholder data environment.
5.4 You are responsible for verifying and ensuring that any third party payment processor which you choose to use via the Services:
5.4.1 complies with applicable data privacy and security requirements under the PCI DSS;
5.4.2 is responsible for the security of customer cardholder data it possesses or otherwise stores, processes or transmits on your behalf; and
5.4.3 complies with all applicable laws and regulations as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information.
6. Third Party Services and Platforms
6.1 You acknowledge that the Services will enable you to access and integrate with the products and services of third parties, such as payment services providers, fraud providers, loyalty and reward platforms, and accounting software (Third Party Services). You acknowledge and agree that the providers of any such Third Party Services are not acting as Primer’s sub-processor nor are they Primer’s sub-contractors. You may only use any such Third Party Services via Primer’s Services where you have a direct contract with the provider of any such Third Party Services.
6.2 Your use of any Third Party Services is at your own risk. Primer does not endorse, and makes no representation, warranty or commitment, and shall have no liability or obligation whatsoever in relation to your use of, any Third Party Services.
6.3 Any contract entered into and any transaction completed via any Third Party Services is between you and the relevant third party, and not Primer.
6.4 Your right to use the Services is conditional on your compliance with the applicable third party terms and conditions which apply to your use of the Third Party Services.
6.5 You hereby consent to the providers of the applicable Third Party Services with whom you integrate via Primer’s Services accessing your fraud, chargeback and authentication and authorisation level data for your transactions for the purposes of reporting to Primer and improving and enhancing the fraud and risk capabilities of the Third Party Services in general.
6.6 Where Primer has agreed that you may use the Services acting as a platform on behalf of other third party merchants (End Merchants), the following shall apply:
6.6.1 Primer acknowledges and agrees that you will not be in breach of Clauses 1.2, 1.5 and 14.6 of these Primer Merchant Terms solely as a result of you using the Services in connection with and/or on behalf of any such End Merchants;
6.6.2 you shall ensure that any such End Merchants comply with:
(a) the PCI DSS; and
(b) their obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information;
6.6.3 you will be responsible for the acts and/or omissions of the End Merchants in connection with the Services provided pursuant to this Merchant Agreement;
6.6.4 you will notify Primer of the identity of the End Merchants in accordance with the process as agreed between the Parties; and
6.6.5 you acknowledge and agree that Primer shall be free to provide the Services directly to any such End Merchants and/or enter into agreements directly with such End Merchants at Primer’s discretion.
7. Customer Transactions
7.1 You may only use the Services for legitimate transactions with your customers. Primer is not responsible for the products or services which merchants (including you) promote or sell. You acknowledge and agree that you are solely responsible for the nature and quality of the products or services you promote and sell, and for any/all delivery, support, refunds, returns, and for any other ancillary services you provide to your customers.
7.2 You further acknowledge and agree that you are responsible for:
7.2.1 determining whether any transaction undertaken by your customers using the Services is suspicious or accidental; and
7.2.2 any losses you incur due to any such suspicious or accidental transactions in connection with your use of the Services.
8. Proprietary Rights
8.1 You acknowledge and agree that Primer and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Merchant Agreement does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
8.2 You may choose to or we may invite you to submit suggestions or ideas about improvements to the Services (Feedback). If you submit any Feedback to us, we will presume that your Feedback was delivered to us without any restrictions on our use of the same. You also agree that Primer has no obligations or duties to you in connection with any Feedback you submit to us, and that we are free to use your Feedback without any attribution or compensation to you.
8.3 The parties acknowledge and agree that, as between Primer and the Merchant, the Merchant owns all customer payment data. The Merchant will be able to migrate its token from Primer to another provider at any time at the Merchant’s discretion.
8.4 Merchant exclusively own all materials provided by Merchant to Primer hereunder as well as Merchant’s trademarks, copyrights, patents and all other intellectual property (collectively Merchant IP). Primer agrees that its use of Merchant IP, if any, inures to the benefit of Merchant, including any goodwill therein, and that Primer will not acquire any ownership in Merchant IP as a result of this Merchant Agreement.
9. Confidentiality
9.1 Each party may be given access to information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information in this Merchant Agreement, or is information which a reasonable personal would understand to be confidential (Confidential Information).
9.2 A party’s Confidential Information shall not be deemed to include information that:
9.2.1 is or becomes publicly known other than through any act or omission of the receiving party;
9.2.2 was in the other party’s lawful possession before the disclosure;
9.2.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
9.2.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
9.3 Subject to Clause 9.5, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Merchant Agreement. Notwithstanding the foregoing, each party may disclose the other’s Confidential Information to its professional advisors and agents provided they are subject to confidentiality obligations no less strict than those contained in these Primer Merchant Terms.
9.4 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 this Merchant Agreement.
9.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much written notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.6 The above provisions of this Clause 9 shall survive termination of this Merchant Agreement for any reason.
10. Warranties and Indemnity
10.1 Primer shall defend you against any claim that your use of the Services in accordance with this Merchant Agreement infringes any patent, copyright, trade mark, or database right, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
10.1.1 Primer is given prompt notice of any such claim;
10.1.2 you provide reasonable co-operation to Primer in the defence and settlement of such claim; and
10.1.3 Primer is given sole authority to defend or settle the claim.
10.2 In the defence or settlement of any which is the subject of the indemnity in Clause 10.1 above, Primer may procure the right for you to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Merchant Agreement on notice to you without any additional liability.
10.3 In no event shall Primer be liable to you to the extent that any alleged infringement is based on:
10.3.1 a modification of the Services by anyone other than Primer;
10.3.2 your use of the Services in a manner contrary to this Merchant Agreement, Primer’s documentation and/or the instructions given to you by Primer;
10.3.3 your use of the Services after notice of the alleged or actual infringement from Primer or any appropriate authority.
10.4 The foregoing and Clause 11 state your sole and exclusive rights and remedies, and Primer’s entire obligations and liability, for infringement of any patent, copyright, trade mark, or database right.
11. Disclaimer and Limitation of Liability
11.1 Except as expressly and specifically provided in this Merchant Agreement:
11.1.1 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Merchant Agreement; and
11.1.2 the Services are provided on an “as is” and “as available” basis. Notwithstanding the generality of the foregoing, Primer does not warrant that:
(a) your use of the Services will be uninterrupted or error-free; or
(b) that the Services will meet your requirements.
11.2 Notwithstanding any other provision in this Merchant Agreement, to the extent you utilise the SDK as part of the Services in relation to a mobile application, you acknowledge and agree that you will be the developer of the mobile application and, as between you and Primer, you shall be responsible for submitting the application to the applicable third party platform (including for example the Apple App Store). You further acknowledge and agree that Primer is not responsible or liable for any loss, liability, costs or expenses (including without limitation loss of data) you may suffer or incur to the extent you incorporate any third party code into, and/or use any third party code, products or services in conjunction with, the Primer SDK, including without limitation where any such third party code is malicious in its operation (such as malicious JavaScript, malware or skimmers).
11.3 Primer is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.4 Nothing in this Merchant Agreement limits or excludes either Party’s liability for:
11.4.1 death or personal injury caused by negligence;
11.4.2 fraud or fraudulent misrepresentation;
11.4.3 Fees payable and/or due; or
11.4.4 any other liability which cannot be limited or excluded by applicable law.
11.5 Subject to Clause 11.4, neither Party shall be liable whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, or otherwise for any:
11.5.1 loss of profits;
11.5.2 loss of business;
11.5.3 depletion of goodwill and/or similar losses;
11.5.4 loss or corruption of data or information; or
11.5.5 any special, indirect or consequential losses, in each case however arising under this Merchant Agreement.
11.6 Subject to Clauses 11.1 to 11.5, each Party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, or otherwise, under or in connection with this Merchant Agreement (including in respect of any indemnity given in this Merchant Agreement), shall be limited to the Fees paid by you during the 3 months immediately preceding the date on which the claim arose.
12. Term and Termination
12.1 This Merchant Agreement commences on the Effective Date stated on the Order Form and shall continue until terminated by you or Primer in accordance with these Primer Merchant Terms.
12.2 Where no Minimum Term is agreed and specified on the Order Form, you may terminate this Merchant Agreement by closing your account with Primer at any time and ceasing to use the Service.
12.3 Where a Minimum Term is agreed and specified on the Order Form, this Merchant Agreement shall continue for the duration of the Minimum Term. On expiry of the Minimum Term, this Merchant Agreement will automatically renew for successive one (1) year periods, each a Renewal Period unless you serve at least thirty (30) days’ written notice of termination prior to expiry of the Minimum Term or the then current Renewal Period.
12.4 We may terminate this Merchant Agreement or close your Account:
12.4.1 at any time (if no Minimum Term is agreed and specified on the Order Form); or
12.4.2 following expiry of the Minimum Term (where a Minimum Term is agreed and specified on the Order From),
in each case for any reason by providing you with at least 3 months’ advance notice.
12.5 Where a Minimum Term is agreed and specified on the Order Form, without affecting any other right or remedy available to it, either Party may terminate this Merchant Agreement with immediate effect by giving written notice to the other Party if:
12.5.1 the other Party commits a material breach of any term of this Merchant Agreement and (if such breach is remediable) fails to remedy such breach within a period of thirty (30) days after being notified in writing to do so;
12.5.2 to the extent permitted by applicable law, the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
12.5.3 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.6 Notwithstanding any other provision of this Merchant Agreement, we may also immediately suspend your account with Primer or terminate this Merchant Agreement on written notice to you in the event:
12.6.1 we determine at our reasonable discretion that you or your use of the Services present any fraud risk, credit risk, or any other material risk to Primer, Primer’s other customers or the Services;
12.6.2 you use the Services in a prohibited manner or otherwise do not materially comply with any of the terms of this Merchant Agreement;
12.6.3 we are required to do so by any applicable law or regulatory authority;
12.6.4 you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
12.6.5 you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business.
12.7 On termination of this Merchant Agreement for any reason:
12.7.1 all licences and rights granted under this Merchant Agreement shall immediately terminate and you shall immediately cease all use of the Services;
12.7.2 each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
12.7.3 Primer shall destroy or otherwise dispose of any data relating to your transactions undertaken using the Services in its possession in accordance with Clause 4.1.6 except that Primer may retain data relating to your transactions undertaken using the Services on an anonymous basis; and
12.7.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Merchant Agreement which existed at or before the date of termination shall not be affected or prejudiced.
13. Changes to the Services and this Merchant Agreement
13.1 You acknowledge and agree that the Services are continually evolving and Primer may add, remove and/or alter any features or functionality of the Services at any time with or without notice, provided that Primer will provide advance notice where any such addition, removal and/or alteration will result in a material degradation or depreciation in the Services.
13.2 Primer may amend or add to the terms of this Merchant Agreement at any time. Any such changes and/or additions will apply to a new version of the Merchant Agreement (as indicated by the applicable version number stated at the bottom of these Primer Merchant Terms). Notwithstanding the foregoing, the version of the Merchant Agreement stated on the Order Form will continue to apply as between the Parties until and/or unless the Parties agree to amend the Order Form to reflect any amendments to the Primer Merchant Terms which apply to such Order Form.
14. General
14.1 The Merchant acknowledges and agrees that Primer shall be entitled to make any public or press announcements, publicise its provision of the Services to the Merchant, and/or refer to the Merchant as a user of the Services on Primer’s website and/or in Primer’s promotional materials, except that any use by Primer of the Merchant’s brand or logo shall be subject to the Merchant’s prior written consent.
14.2 Neither party shall be liable under or in connection with this Merchant Agreement if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control (Force Majeure), including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, epidemic, pandemic, storm or default of suppliers or sub-contractors (provided such default of suppliers or sub-contractors is itself caused by Force Majeure).
14.3 No failure or delay by a party to exercise any right or remedy provided under this Merchant Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.4 If any provision or part-provision of this Merchant Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Merchant Agreement.
14.5 This Merchant Agreement and the documents referred to and incorporated herein constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Merchant acknowledges that in entering into this Merchant Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Merchant Agreement.
14.6 You shall not, without Primer’s prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Merchant Agreement.
14.7 Primer shall not, without your prior written consent, assign, transfer, charge, sub-contract (subject to Clause 4.2) or deal in any other manner with all or any of its rights or obligations under this Merchant Agreement, except that Primer may assign all or any of its rights under this Merchant Agreement to any person to which it transfers its business.
14.8 Nothing in this Merchant Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.9 This Merchant Agreement does not confer any rights on any person or party (other than the parties to this Merchant Agreement and, where applicable, their successors and permitted assigns).
14.10 Any notice required to be given under this Merchant Agreement shall be in writing or email, or where delivered by Primer may be delivered as a notification from within the Services themselves, and, in the case of post shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out on the Order Form, or such other address as may have been notified by that party for such purposes.
14.11 If we have to contact you, we will do so by email or by pre-paid post to the address you provided as part of your account set up.
14.12 Any notice given by us to you will be deemed received and properly served 24 hours after it is first posted on our website or from within the Services themselves, 24 hours after an email is sent, or three days after the date of posting of any letter.
14.13 Any notice given by you to us will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter.
14.14 This Merchant Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
14.15 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Merchant Agreement or its subject matter or formation (including non-contractual disputes or claims).
APPENDIX - Sub-processors
Please refer to trust.primer.io for the list of ‘sub-processors’ (i.e. third party vendors) we use to handle data.