Merchant Agreement
Definitions
In these Terms:
(1) Business Day means a day other than a Saturday, Sunday, or public holiday in London, England;
(2) Customer means a natural person who enters into a transaction with the Merchant and utilises the PLIM Services;
(3) Customer Credit Contract means the agreement between the Customer and PLIM Services for the provision of credit using the PLIM Services to enable that Customer to pay for Merchant Services;
(4) Fees, also referred to as Rebate, means the non-refundable amount payable by a Merchant to PLIM in respect of each Merchant Services where the Customer pays for some or all of that Merchant Service using the PLIM Services;
(5) PLIM Services means the provision of a facility through which a Customer can apply to pay Merchants for goods or services, under a Consumer Credit Contract;
(6) Transaction means the transaction entered into (or proposed to be entered into) between a Customer and a Merchant, where that Customer seeks to acquire good(s) and/or services from that Merchant and wishes to pay for some or all of the amount payable to the Merchant using credit pursuant to a Customer Credit Contract;
(7) Transaction Value means the amount (including VAT, if any) payable by the Customer to the Merchant in respect of a Transaction (and, where the Customer is part-paying the value of that Transaction using a Customer Credit Contract, means the amount of that part-payment). For the avoidance of doubt, the Transaction Value includes the aggregate amount payable by the Customer for all purchases and charges that form a Transaction.
Services
(8) PLIM LIMITED trades under the brand name “PLIM“ and acts solely as an intermediary by providing an online platform and application (“Platforms”) to provide PLIM Services in connection with the Customer’s entry into a Transaction and purchase of the services provided by Merchant (“Merchant Services”).
(9) In consideration of: (i) receipt of the Fees from amounts payable by the Customers to the Merchant in respect of a Transaction; and (ii) the Merchant performing all its other obligations herein, PLIM shall provide the applicable PLIM Services to the Merchant, which shall (unless otherwise agreed) include a non-exclusive, non-transferable and fully revocable licence to use the Platforms.
(10) The Merchant shall use the App and provide the Merchant Services using the standards, practices, methods and procedures conforming to applicable laws and exercising that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances.
(11) Customers of the Merchant must be registered on the Platforms to use the PLIM Services including but not limited to entering into a Customer Credit Contract.
(12) PLIM makes no warranties in respect of the Platforms. The Merchant’s use of the Platforms is at the Merchant’s sole risk. The Platforms is provided on an “as is” and “as available” basis.
(13) To make the PLIM Services available to a Customer, the Merchant shall either:
(i) access the Platforms; or
(ii) with PLIM’s prior written consent, make the PLIM Services available to the Customer through the Merchant’s own website or physical location, and provide the price and other details relating to the Transaction to the Customer. By doing so, the Merchant agrees that it is making an irrevocable offer to the Customer to enter into the Transaction on the basis of the payment details the Merchant provides, subject only to the Customer’s application for credit being approved.
(14) The Customer will not be able to make the Transaction binding as between the Merchant and the Customer unless the Customer’s application for credit is approved. Once the credit application is approved by PLIM, PLIM will notify the Customer and Merchant. The Merchant acknowledges and agrees that if it receives confirmation from PLIM of the Customer’s credit being approved, the Merchant will complete the transaction with the Customer and will provide the Merchant Services to that Customer.
Report and Payment Process
(15) PLIM will pay to the Merchant an amount equal to the Transaction Value less the Fees (plus VAT) which will be deducted at the time that PLIM settles the Transaction with the Merchant.
(16) The Merchant agrees to accept the amount payable by PLIM under Clause (15), as full and final payment by that Customer of the Customer’s payment obligations (or part-payment obligations, if relevant) in respect of the Transaction.
(17) If the Merchant receives notification from PLIM that a Customer’s application for credit has not been approved, the Merchant shall be free to agree any other payment terms with that Customer in respect of the relevant Transaction.
(18) PLIM may, subject to the terms of this Agreement, adjust any Fees and charges payable by the Merchant by written notice (including by email) to the Merchant at any time.
(19) The Merchant acknowledges and agrees that in connection with Merchant Services paid for using PLIM Services:
(i) it cannot charge a Customer any additional fees or other amounts (including, for example, higher prices for the Merchant Services) for using the PLIM Services to pay for the Merchant Services; and
(ii) it has no right to seek any payment from the Customer regardless of whether PLIM makes payment to the Merchant in respect of that transaction.
(iii) Prohibition of PLIM Fee Addition - Under no circumstances are Merchants permitted to add any PLIM-related fees, charges, or surcharges to invoices issued to their customers. The BNPLs provided by PLIM are strictly 0% interest and free of any charges, ensuring fairness and transparency for customers. Any attempt to include PLIM fees or associated costs within Merchant invoices constitutes a breach of this agreement. Furthermore, PLIM is legally obligated to report such practices to the Financial Conduct Authority (FCA) should we discover any violation of this term. Merchants found in breach may face legal consequences and risk termination of their agreement with PLIM.
(iv) PLIM will deposit the Fee in the merchant's Stripe account within 10-12 business days of the customer paying the deposit for the approved BNPL.
(20) PLIM may at its sole discretion decline to pay or withhold from the Merchant the amount of any Merchant Services if it, acting reasonably, determines that:
(i) the Customer does not exist or denies knowledge of the Merchant providing the Merchant Services;
(ii) the Customer asserts in good faith (together with accompanying evidence) any defence, claim, set off or counterclaim in relation to the Merchant Services;
(iii) there is a case of fraud;
(iv) the Merchant does not comply with the Agreement or any other reasonable instruction provided by PLIM in respect of the PLIM Services and PLIM suffers a loss as a result;
(v) the Merchant Services was submitted in a way that is structured to avoid your obligations (for example the payment of the Fees) under the Agreement;
(vi) the Merchant Services do not comply with applicable law;
(21) In respect of all Merchant Services procured by a Customer through the Platforms, PLIM shall act and is hereby appointed as agent for the Merchant to collect and process payments on behalf of the Merchant but nothing herein shall prevent or limit the Merchant from remaining fully responsible and liable for their provision and supply of Merchant Services to Customers.
(22) If after the commencement of a Customer Credit Contract, the Merchant and the Customer agree to revise the Transaction Value, where as a result of such revision, PLIM has or will overpay the Merchant under an existing Customer Credit Contract, the Merchant shall promptly (and in any case within two Business Days of becoming aware of such overpayment):
(i) notify PLIM of the overpayment;
(ii) issue PLIM a new invoice for the correct Transaction Value (“Revised TV”); and
(iii) refund PLIM the amount of the overpayment.
(23) Upon receipt of an invoice for the Revised TV, PLIM shall send the Customer a new Customer Credit Contract in respect of the Revised TV and following receipt of the new Customer Credit Contract signed by the Customer, the existing Customer Credit Contract shall be terminated.
(24) The Merchant shall, during the term of this Agreement and for a period of three (3) years thereafter, maintain accurate and complete accounts and records giving correct and adequate details of all Transactions entered into by the Merchant or its affiliates, all payments received under them and all amounts received from PLIM in respect of such Transactions.
(25) On no less than ten (10) days’ advance written notice, PLIM and its agents may, at its own expense, not more than twice per year examine the books and records of the Merchant required to be maintained pursuant to Clause (24) solely for the purpose of verifying that the correct Transaction Values have been notified to and paid by PLIM and the correct Fees deducted from such Transaction Values. In the event such examination demonstrates PLIM has made an overpayment to the Merchant (“Payment Error”) for the period audited, and the Merchant will reimburse PLIM for any overpayment within fourteen (14) days after receiving notification of a verified Payment Error.
Suspension and Termination
(26) In the event of a breach or continuous breaches or poor performance by the Merchant, PLIM has the absolute right at its sole discretion to suspend the Merchant by way of disconnecting the Merchant from the Platforms until such time the Merchant agrees in writing to rectify and/or remedy its breaches and/or performance.
(27) Either Party may terminate this Agreement by giving no less than one hundred and twenty (120) days’ prior written notice to the other Party.
(28) PLIM may terminate this Agreement forthwith if the Merchant is in material default of any obligation imposed upon it by this Agreement, a notice of default has been served, and the Merchant has not cured such failure to the satisfaction of PLIM within three (3) days of receiving the notice of default.
(29) Upon termination of this Agreement:
(i) all hardware must be returned in full working condition to PLIM (fair wear and tear accepted to the extent of scratches);
(ii) the permissions granted to the Merchant shall cease to be of any force and effect and the Merchant shall cease to exploit or use the any intellectual property held by PLIM; and
(iii) PLIM has the immediate right to block and disconnect the Merchant from the Platforms so that no further orders can be placed and/or for the Merchant to cease providing the PLIM Services.
(30) All Fees payable to PLIM in connection with a Transaction completed prior to termination of this Agreement shall remain payable and PLIM shall be entitled to deduct such Fees from payments received from Customers.
(31) Neither PLIM nor the Merchant shall have any liability for any indirect, incidental or consequential loss or damages (including loss of profit), even if advised of the possibility of such loss or damages.
(32) Any and all liability arising out of or in connection with a breach of the Agreement shall not exceed an amount equal to the amount paid by the Merchant to PLIM for the three (3) month period prior to the date of termination to be paid by the breaching Party to the injured Party.
(33) Neither Party excludes or limits liability to the other Party:
(i) under the indemnities given in this Agreement;
(ii) for death or personal injury caused by its negligence;
(iii) for fraud;
(iv) for fraudulent misrepresentation; or
(v) for any other matter for which it would be unlawful to exclude or limit its liability.
Indemnification
(34) The Merchant shall indemnify: (i) PLIM and their subsidiaries, affiliates and their respective officers, directors, employees; and (ii) PLIM’s customers, against any actions, proceedings, liabilities, claims, demands, losses, damages, charges, costs and expenses of any nature (including, but not limited to, any property damage, personal injury or death) relating to or arising out of the Merchant Services provided (or not provided), or actions (or failure to act), of the Merchant or any person (other than PLIM) acting on its behalf, including, without limitation any action brought in connection with any data protection legislation (including but not limited to the Data Protection Act 2018 (as amended from time to time (“DPA”)), Merchant Content, a Customer visit to the Merchant’s venue, a Revised TV or a Transaction. This Clause shall survive the termination or expiry of this Agreement.
(35) The Merchant acknowledges that PLIM enters into this Agreement for its own benefit but also as an agent for the benefit and on behalf of each of its officers, directors and employees (each an “Indemnified Third Party” and, collectively, the “Indemnified Third Parties”‘) and that the rights in respect of indemnification set out shall be rights and benefits of each such Indemnified Third Party (as if, in each case, a party to this Agreement in its own right). Such rights shall be enforceable under this Agreement by PLIM as agent for each such Indemnified Third Party. Notwithstanding the foregoing, the Merchant and PLIM may agree in writing to amend any provision of this Agreement without the consent of any of the Indemnified Third Parties, even if that amendment affects or will affect the rights conferred on any Indemnified Third Party hereunder.
Customer Data
(36) For the purposes of this clause, “data controller”, “data processor”, “personal data”, “process” and “processing” shall have the meanings given to them in the DPA.
(37) PLIM and the Merchant acknowledge that, for the purposes of the DPA PLIM is the data controller and the Merchant is the data processor of any Customer personal data including special categories of personal data collected through the Platforms. PLIM processes personal data including that of Customers and the Merchant in accordance with its privacy policy made available at https://plim.co.uk/privacy-policy.
(38) The Merchant may not use Customer personal data collected through the Platforms for any purpose other than fulfilment of the relevant Merchant Service requested by the Customer.
(39) The Merchant may collect Customer personal data separately and directly by itself (for example, where Customers have booked Merchant Services otherwise than through use of the Platforms or PLIM Services and where the Merchant has separately obtained permission directly from the Customer to use their data), in which case, in respect of that data, the Merchant shall be the data controller of that Customer personal data for the purpose of the DPA.
(40) When the Merchant is processing Customer personal data as a data processor for PLIM (e.g. personal data on the Platforms) the Merchant shall:
(i) process the personal data only in accordance with instructions from PLIM (which may be specific instructions or instructions of a general nature);
(ii) comply with all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation (EU) 2016/679; the DPA, the Privacy and Electronic Communications Directive 2002/58/EC as amended and the Privacy and Electronic Communications Regulations 2003 as amended;
(iii) process the personal data only to the extent and in such manner as is necessary or as is required by law or by any regulatory body;
(iv) promptly comply with any request from PLIM requiring it to amend, transfer or delete the personal data;
(v) implement appropriate technical and organisational measures to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;
(vi) take all reasonable steps to ensure the reliability of its staff and agents who may have access to the personal data and ensure that such staff and agents (a) are informed of the confidential nature of the personal data; and (b) have undertaken training in the laws relating to handling personal data;
(vii) not cause or permit the personal data to be published, disclosed or divulged, or transferred to a third party or to be transferred outside of the European Economic Area without the prior consent of PLIM; and
(viii) notify PLIM within one (1) Business Day of any potential data breach or if it receives any complaint, notice or communication which relates directly or indirectly to the processing of the personal data or to either Party’s compliance with the DPA and the data protection principles set out therein, and it shall provide PLIM with full cooperation and assistance in relation to any such complaint, notice or communication.
Complaints
(41) PLIM shall refer any Customer complaints relating to the Merchant Services it receives to the Merchant and the Merchant shall acknowledge all complaints, and shall respond to the relevant Customer within seventy two (72) hours of the Merchant’s receipt of a complaint (whether the complaint has come directly from the Customer or via the Platforms).
(42) The Merchant shall make all efforts to reach a resolution to any complaints within fifteen (15) days and must notify PLIM of any correspondence between the Merchant and the Customer relating to the complaint and generally keep PLIM apprised of its progress and the status of the complaint.
Customer Reviews
(43) The Merchant acknowledges and agrees that the Platforms may include a reviewing platform, on which Customers may post publicly viewable reviews about their experiences with PLIM and with the Merchant (particularly in relation to the Merchant Services) (“User Generated Content”). The Merchant acknowledges that User Generated Content may contain negative reviews and/or feedback from Customers. There may be an option for the Merchant, if they are the subject of any User Generated Content, to reply to reviews about them. The Merchant undertakes that any content they post in response to User Generated Content shall be polite and professional and non-threatening or confrontational, and may be removed or amended in PLIM’s sole discretion if PLIM deems it reasonably necessary to do so. The Merchant shall have no right to any remedy (including without limitation, any right to terminate this Agreement) as a result of any User Generated Content naming or referring to the Merchant.
(44) If the Merchant, acting reasonably, considers that any User Generated Content is defamatory to the Merchant or any person or is in some other way is a violation of any person’s legal rights, the Merchant shall promptly report that User Generated Content to PLIM. In such case, PLIM shall review the same and in its sole discretion take any action it deems necessary or desirable (including, for example, removing or amending the relevant piece of User Generated Content). This is in addition to any legal rights the Merchant may have against the person or persons who created the User Generated Content.
Merchant Warranties
(45) The Merchant acknowledges and agrees that it:
(i) may only promote the PLIM Services for so long as it is registered as a merchant on the Platforms;
(ii) may allow a Customer to use the PLIM Services to part-pay for any Transaction;
(iii) have the right to refuse a Customer’s request to use the PLIM Services to pay for any Transaction;
(iv) PLIM may appoint other persons as a merchant on the Platforms from time to time, including persons with businesses that compete with the Merchant’s business;
(46) The Merchant shall provide at its own cost all staff, equipment, tools, appliances, materials or items required for the provision of the Merchant Services.
(47) The Merchant shall comply with all applicable laws, ordinances and regulations in the performance of its obligations and the provision of the Merchant Services.
(48) The Merchant will immediately notify PLIM of any actual or potential problems that affect or might affect its ability to provide the Merchant Services.
(49) The Merchant shall not copy, modify, publish, distribute, reverse engineer, create derivative works from or otherwise infringe, misuse or misappropriate any of the intellectual property held by PLIM, including patents, copyrights, trade secrets, trademarks, trade names, service marks, proprietary methods, procedures and processes and know how.
(50) The Merchant shall not allow any third party (including group companies of the Merchant) to use or access the Platforms without prior written consent from PLIM (which may be given at PLIM’s discretion).
(51) The Merchant shall provide PLIM with any marketing information, documentation, photographs or other material (including but not limited to the Merchant’s name, logo and any other brand features and Intellectual Property Rights) (“Merchant Content”) as PLIM may request from time to time to include on the Platforms for the purpose of supplying the PLIM Services including letting Customers know that they may use PLIM Services when acquiring the Merchant Services.
(52) The Merchant warrants that all Merchant Content it supplies to PLIM in connection with this Agreement and/or publishes (or provides to PLIM for publication) on the PLIM website or App will be accurate in all material respects and shall not infringe any other person’s rights (including Intellectual Property Rights) or be defamatory, unlawful, offensive, threatening, or pornographic or otherwise falling below general standards of taste and decency.
(53) The Merchant hereby grants PLIM the right:
(i) to use and publish the Merchant Content in connection with the provision of PLIM Services;
(ii) to remove, edit, cut-down or otherwise amend Merchant Content published on any pages, including without limitation where such Merchant Content does not, in PLIM’s opinion comply with the warranties, or is otherwise in breach of the terms of this Agreement; and
(iii) to make use of search engine optimisation services and other mechanisms that embody, incorporate or quote (in whole or part) the trading name of the Therapist or any brands used in connection with the Therapist Services.
(54) The Merchant warrants, represents and undertakes that shall obtain all licences, consents, authorities and insurance it is either necessary or reasonably prudent for the Merchant to obtain in respect of all its business activities and personnel (but especially in connection with the provision of Merchant Services).
Confidentiality
(55) The Parties shall keep confidential all Confidential Information relating to this Agreement and shall use all reasonable endeavours to prevent their employees and agents from making any disclosure to any person of any matters relating hereto.
(56) Clause (51) shall not apply to any disclosure of Confidential Information required by any applicable law:
(i) that is reasonably required by persons engaged by a party in the performance of such party’s obligations under this Agreement;
(ii) where a Party can demonstrate that such Confidential Information is already generally available and in the public domain otherwise than as a result of a breach of this Agreement;
(iii) by either party of any document to which it is a party and which the Parties to this Agreement have agreed contains no Confidential Information;
(iv) which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing Party; and
(v) by either Party relating to this Agreement and in respect of which the other Party has given its prior written consent to disclosure.
(57) The Merchant will not make any announcement or publicity statement relating to PLIM, this Agreement or its subject matter without the prior written approval of PLIM (except as required by law or by any legal or regulatory authority).
Assignment
(58) The Merchant will not be entitled to assign, transfer, sub-license or charge any or all of the Merchant’s rights or obligations under this Agreement without the prior written consent of PLIM.
(59) PLIM will be entitled to assign or sub-license any or all of its rights or obligations under this Agreement without PLIM’s consent. PLIM will give the Merchant notice of any such assignment as soon as reasonably practicable.
Notices
(60) Any notice given under this Agreement shall be in writing and served by delivering it personally or sending it by pre-paid recorded delivery or registered post to the address and for the attention of the relevant Party (or as otherwise notified by that Party hereunder). Any such notice shall be deemed to have been received:
(i) if delivered personally, at the time of delivery; and
(ii) in the case of pre-paid recorded delivery or registered post forty eight (48) hours from the date of posting,
provided that if deemed receipt occurs before 9am, on a Business Day the notice shall be deemed to have been received at 9am on that day, and if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice shall be deemed to have been received at 9am on the next Business Day.
(61) The addresses of the Parties for the purposes of this Clause shall be those set out at the beginning of this Agreement or such other address as may be notified in writing from time to time by the relevant Party to the other Party.
(62) General: (i) In the event of any conflicts concerning the terms or matters contemplated herein, the parties shall cooperate and attempt to amicably resolve such conflicts; (ii) PLIM reserves the right to change the terms and conditions in this Agreement at any time by notice to the Merchant; (iii) if any term or condition of this Agreement is deemed illegal, invalid or unenforceable, that term or condition shall, to the maximum extent possible, be amended to make the term or condition legal, valid or enforceable or to give effect to the intention of the parties; and (iv) PLIM and the Merchants are independent contractors.
(63) Nothing contained herein will be construed to create the relationship of principal and agent, employer and employee, partners or joint venturers between the Parties.
(64) Without prejudice to the Merchant’s obligations and liabilities pursuant to this Agreement, during the term of the Agreement and for a period of two (2) years thereafter, the Merchant shall maintain in force, with a reputable insurance company, all insurance cover as required by applicable law and which shall be adequate to cover such losses and risks as are prudent in the business in which the Merchant is engaged including those that may arise under or in connection with this Agreement and shall, on PLIM’s request, produce the insurance certificate giving details of cover. The obligation to carry insurance shall not limit, expand or modify in any way any liability or obligation assumed by the Merchant under this Agreement.
(65) Each Party agrees and undertakes that it will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning the other Party or its businesses, or any of its employees, officers and directors.
(66) The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. A waiver of a breach of any of the terms of this Agreement or a default under this Agreement does not constitute a waiver of any other breach or default and shall not affect the other terms of this Agreement. A waiver of a breach of any of the terms of this Agreement or a default under this Agreement will not prevent a Party from subsequently requiring compliance with the waived obligation. The rights and remedies provided by this Agreement are cumulative and (subject as otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law.
(67) This Agreement sets out the entire agreement and understanding between the Parties and supersedes any previous agreements between the Parties relating to the subject matter of this Agreement.
(68) If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
(69) If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
Governing Law
(70) This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
(71) Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
