Caxton Base Terms and Conditions

Definitions

Where the following words are used in these Terms and Conditions, they shall have these meanings respectively as follows:

"Agreement" means these Base Terms and Conditions.

"Applicant(s)” means an End User who has applied to the Customer for either registration, submission or application to a service, via Caxton Services.

"ASPSP" means an Account Servicing Payment Service Provider providing and maintaining (current, savings and/or card) accounts. 

"Authorised User" means a Customer employee that the Customer has authorised to access and use the Caxton Service; and who is made aware of the Customer's obligations under a CA with respect to such access and use of the Caxton Services.

"Caxton" means Caxton Payments Limited whose registered office is located at 2 Leman Street, London E1 8FA, United Kingdom. 

"Caxton Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with Caxton.

"Caxton Service(s)" means the subscription-based service(s) (including any integration, set-up, configuration and/or branding) specified in a Fee Agreement for international payment services, payroll services, credit/debit card services, and any other services offered by Caxton and/or the licensing of Software.

"Customer" means the legal entity (i.e. registered company or legally constituted public body or financial institution) specified in the Fee Agreement and which has passed any relevant Caxton KYB/KYC compliance checks.

“Commencement Date” means the date set forth in the relevant Fee Agreement when Caxton Services commence.

"Customer Agreement” (“CA”) collectively means the Fee Agreement (including any subsequent Fee Agreement), this Agreement and any Supplementary Terms and Conditions.

"Customer Group Company" means any company belonging to the same group of companies to which the Customer belongs, where such company controls, is controlled by, or is under common control with the Customer (where "control" means having more than fifty percent (50%) voting securities in a company).

"Data" means all Customer Personal Data and other data in whatever form uploaded to the Caxton Services.

"Data Protection Laws" means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 and as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018, as amended (including by the various Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations), together with any applicable implementing or supplementary legislation in the UK or any applicable member state of the European Economic Area (including the UK Data Protection Act 2018).

"End User(s)" means any individual, company, legally constituted public body or financial institution that is a client of either the Customer or a Customer Group Company.

"Fee Agreement" means the document which specifies the international payment services, payroll services, credit/debit card services and/or other Caxton Services, set-up and/or the licensing of Software or other service(s) being acquired by the Customer pursuant to this Agreement and any Supplementary Terms and Conditions.

"Initial Term" means a period of one (1) year, or other period where specified in a Fee Agreement, commencing on the Commencement Date.

"Intellectual Property Rights" means proprietary interest, patent rights, copyrights, trademark rights, logos, service mark rights, trade secret rights, know-how, and other similar proprietary rights of any type.

"Named User" means a specific named individual registered to use the Caxton Services irrespective as to whether such user is logged on to, or actively accessing any or all of the Caxton Services. A Named User licence may not be shared by multiple users.

"Personal Data" shall have the meaning given to it pursuant to Data Protection Laws.

"Processing" shall have the meaning given to it pursuant to Data Protection Laws.

"Software" means any user interface and/or other software module licenced under this Agreement and provided for download as part of the Caxton Services and/or otherwise delivered from Caxton, including, but not limited to, any related application programming interfaces, associated media, online or electronic documentation; and any updates that may be made available thereto from time to time.

"Transaction" means a single payment, credit, debit, refund or other adjustment, issued or transacted using the Caxton Services.  

1.    General

This CA shall apply to the Customer's purchase of the Caxton Service(s) set forth in a Fee Agreement from Caxton. Certain Caxton Services may also include Supplementary Terms and Conditions referenced in the Fee Agreement. This CA shall take precedence and shall apply to the exclusion of any other terms and conditions printed on any purchase order or other document(s) prepared by Customer irrespective of their date. The parties agree that they have not relied upon any other representations, terms or conditions in entering into this Agreement. This CA states the entire agreement between the parties on this subject and supersedes all prior negotiations, understandings and agreements between the parties concerning the subject matter. No amendment or modification of this Agreement or the CA shall be made except in writing and signed by an authorised signatory of each party. By accepting this Agreement and any Supplementary Terms and Conditions, by signing a copy of the same, by clicking a box indicating your acceptance or by executing a Fee Agreement that references this Agreement and any Supplementary Terms and Conditions, you agree to the terms of this Agreement and any Supplementary Terms and Conditions. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its associates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and any Supplementary Terms and Conditions and may not use Caxton Services.

2.    Prices

2.1.    All prices are exclusive of value added tax and any other applicable taxes or duty. Charges shall be made for any taxes, duties or levies which Caxton is required by law to collect and any withholding tax will be for the Customer's account unless and until such time that Caxton is able to reclaim such tax.

2.2.    Prices quoted are in Pounds Sterling unless otherwise agreed and stated within the Fee Agreement.

2.3.    Unless otherwise stated in the relevant Fee Agreement, Caxton reserves the right to increase its service fees annually. Such increase shall not exceed the greater of five percent (5%) or the percentage increase in the UK Retail Price Index calculated over the previous twelve (12) month period. 

3.    Invoicing and Payment

3.1    The Customer agrees to enter into a direct debit mandate in favour of Caxton (or other payment arrangement if approved by Caxton) in respect of all fees specified in a Fee Agreement and as may be varied by Caxton pursuant to clauses 2.3, which shall be collected by Caxton in accordance with this clause 3 (unless stated otherwise in the CA) upon the Commencement Date set forth in the relevant Fee Agreement. Where a Fee Agreement specifies unlimited usage at a specified Transaction and/or invoice rate Caxton shall collect fees at the specified rate monthly in arrears for Transactions and/or invoices used for the duration of the CA.

3.2    Caxton Services (inclusive of support) shall commence on the Commencement Date and the fees shall be collected at the frequency specified in a Fee Agreement. Any initial part month will be collected on a pro rata basis. Caxton Services shall be automatically renewed after the Initial Term for further annual periods and charged on the same basis, unless terminated by either party in accordance with clause 17.

3.3    Where the Customer has (i) used all acquired Transactions and/or invoices prior to expiry of any then current month, Caxton shall collect all fees for subsequent Transactions and/or invoices monthly in arrears at the per Transaction or invoice rate specified in a Fee Agreement until renewal of annual Caxton Services for a further annual period in accordance with clause 3.2 above and/or (ii) exceeded the permitted number of Applicants prior to expiry of any then current month, Caxton shall collect all fees for subsequent Applicants monthly in arrears at a per Applicant rate calculated as the monthly or annual fee divided by the permitted number of Applicants specified in a Fee Agreement until renewal of annual Caxton Services for a further annual period in accordance with clause 3.2 above.

3.4    Set up fees, Software licence fees and expense management fees shall be invoiced as specified in the relevant Fee Agreement and as may be varied by Caxton pursuant to clause 2.3.   

3.5    Payment of all invoices shall be due within thirty (30) days of date of invoice. If payment is delayed for more than thirty (30) days Customer (i) agrees to pay interest at a rate of two per cent (2%) per annum over the Bank of England base rate from the date payment was first due until payment is received in full and (ii) hereby consents to Caxton’s debiting funds in the amount of the unpaid invoice from any account held by Customer with Caxton. Caxton at its sole option may suspend Caxton Services until full payment is received.

4.    Delivery

The dates for delivery of the Caxton Services and/or Software are approximate only and time is not of the essence. Caxton will not be liable for the consequences of any delay in delivery or failure to deliver the Caxton Services and/ Software. 

5.    Ownership

Customer acknowledges that the Caxton services and any Software are licenced not sold and that all copyrights, patents, trade secrets and other rights, title and interest therein in whole or in part and all copies thereof, are the sole property of Caxton or its related entities or third-party suppliers. Customer shall gain no right, title or interest in the Caxton Services or any Software by virtue of a CA other than the non-exclusive right of use granted herein. Without limiting the foregoing, Customer specifically acknowledges Caxton's exclusive rights to ownership in any copy, modification, translation, enhancement, adaptation, or derivation of the Caxton Services and/or any Software.

6.    Data Protection and Processing

Caxton will process all data, including Personal Data, in accordance with its then current GDPR Privacy Terms which can be found at Caxton - Legal hub and are deemed incorporated into this CA. 

7.    Licence and Use

7.1.    Subject to the terms and conditions contained in this Agreement and Customer's payment of the applicable Caxton Service fees, Software licence fees or other fees set forth in a Fee Agreement and/or this Agreement, Caxton hereby grants to the Customer a non-exclusive, non-transferable, revocable licence without rights to sublicence, for so long as a CA remains in force for the provision of the Caxton Services set forth in a Fee Agreement, to use: (i) the Caxton Services (for the specified number of Named Users where applicable); and (ii) any Software; for the purpose as set forth in the applicable Caxton documentation and according to the licence restrictions set forth in the related Fee Agreement in accordance with this clause 7.

7.2.    Customer will not otherwise copy, translate, modify, adapt, decompile, disassemble or reverse engineer the Caxton Services or any Software, except only when and to the limited extent that applicable law expressly permits such activity, irrespective of the limitations contained herein.

7.3.    The Caxton Services and Software are licenced in accordance with this Agreement and the relevant Fee Agreement and are permitted to be used by the Customer (and by Customer Group Companies) for their day-to-day business purposes which may include the provision of services to other Customer Group Companies and/or End Users. Unless otherwise approved by Caxton in a Fee Agreement or otherwise, Customer warrants that it shall not permit any direct access to the Caxton Services or Software by any End Users or other third parties. The Customer remains solely liable for all acts and omissions of Customer Group Companies and End Users in connection with any such access to the Caxton Services.

8.    Security Requirements

8.1.    The Customer shall change Customer's user passwords when prompted in service, or sooner if an Authorised User is no longer responsible for accessing the Caxton Services or Software, or if the Customer suspects an unauthorised person has learned the password; and use all security features in the software and hardware the Customer uses to access the Caxton Services or Software; and

8.2.    The Customer acknowledges that any un-used Transactions and/or invoices remaining upon expiry of any month, quarterly or annual billing period may not be carried forward for use in a subsequent month, quarter or annual billing period, as the case may be, and are not refundable.

9.    Retention and Use of Data

9.1.    Caxton shall retain Data within the Caxton service infrastructure for as long as it reasonably believes is necessary in connection with the specific Caxton Service; and in any event for a minimum period of twelve (12) months in respect of Data from date that such Data was first uploaded to the Caxton Services Thereafter Caxton reserves the right to delete such Data from the Caxton Service. Any back up of such Data is the sole responsibility of the Customer prior to submission to the Caxton Service.

9.2.    Solely for the purpose of improving or enhancing Customer's (or its End Users') experience, such as enabling or improving the Caxton Service or Software, development of new products and features, machine learning, advanced analytics, or personalisation, Caxton may use any information of Customer (or its End Users) or related to Customer's (or its End Users') use of the Caxton Service or Software. Notwithstanding anything to the contrary contained herein, Caxton may also: (i) compile statistical and other information related to the performance, operation and use of the Caxton Services, Software, support and other services and/or other Customer or End User Transaction; and (ii) use data from the Caxton Services, Software, support and other services and/or other Customer Transaction and usage data in aggregated form, for security and operations management, to create statistical analyses and for research and product innovation purposes (clauses (i) and (ii) are collectively referred to as "Data Analyses"). Data Analyses will anonymise Customer's and End User's identity and shall not incorporate any personal data (as defined in the GDPR), or Customer's or End User's Transaction data in a form that could serve to identify Customer or End User, Caxton retains all intellectual property rights in Data Analyses.

10.    Warranty

10.1.    Caxton warrants that:

1.1.1.    it has all licences, authorisations, permissions, approvals, consents, registrations, title to and the right to sell the Caxton Services and other services licenced by the Customer and to licence the Software; and

1.1.2.    the Caxton Services shall materially conform to their specifications; and

1.1.3.    the Software will materially conform to its specifications; and

1.1.4.    any other services ordered by Customer shall be provided using reasonable care and skill.

10.2.    The Customer's sole and exclusive remedy in the event of breach of the warranties in clause 8.1 is the correction of any failure reasonably determined by Caxton as a failure by Caxton to comply with such warranty provisions. Correction may comprise, at Caxton's sole discretion, re-performance of the services or portion thereof, replacing, repairing or adjusting the Caxton Service or Software without charge to the Customer or refunding a portion of paid fees for any remaining un-used period. All remedies for any breach of the warranty provisions are available only if such breach is reported to Caxton in writing within thirty (30) days of such breach occurring.

10.3.    The Customer warrants that it has all licences, authorisations, permissions, approvals, consents, registrations necessary to perform its obligations under this Agreement.

11.    Alterations

Customer hereby undertakes not to alter or modify the whole or any part of any Caxton Service or the Software supplied hereunder nor, without the prior written consent of Caxton, to permit the whole or any part of the Caxton Service or the Software supplied hereunder to be combined with or become incorporated in any other software or service.

12.    Liability

12.1.    Neither party excludes or limits liability to the other party for, a) death or personal injury caused by its negligence or the negligence of its employees, agents or sub-contractors or, b) for any matter which would be illegal for a party to exclude or attempt to exclude its liability or, c) any fraudulently made statement or misrepresentation, or d) breach of clause 13 (Confidentiality).

12.2.    Subject to Conditions 10.1 and 10.3, Caxton's maximum aggregate liability for any breach of its contractual obligations or any tortious act or omission shall be limited to the amount paid by Customer during the preceding twelve (12) month period for the Caxton Service or Software, as the case may be, to which such claim or series of related claims relates.

12.3.    In no event shall Caxton have any liability:

12.4.    for loss of Data (unless due to the gross negligence or willful default of Caxton), profits, goodwill, business interruption, delay in provision of services, or any type of special, indirect, consequential or incidental loss or damages (including loss or damage suffered by Customer as a result of any action brought by an End User or other third party) even if Caxton has been advised of the possibility of such damages; 

12.5.    for the non-performance or unavailability, of whatever nature and howsoever arising, of external communications networks (except where such communications networks are contracted by Caxton from a third party to which the Caxton Service infrastructure is connected);

12.6.    for the non-performance or unavailability of the Caxton Service due to the unavailability or any failures within the world-wide web;

12.7.    in respect of any liability (including breach of warranty) which arises as a result of the misuse of the Caxton Service, Software or use thereof in combination with any equipment and/or software not approved by Caxton or as a result of any defect or error in any equipment and/or software not supplied by Caxton; and

12.8.    unless the Customer shall have served notice in writing of any facts which may give rise to a claim hereunder (and where not excluded under this Agreement), within two (2) years after the date Customer either became aware of the circumstances giving rise to a claim or the date when it ought reasonably to have become so aware.

13.    Third Party Intellectual Property Infringement

13.1.    Caxton agrees to defend, at its expense, any suit against Customer based upon a claim that any Caxton Service or Software provided to Customer under this Agreement infringes any patent or copyright, and to pay any settlement, or any damages finally awarded in any such suit.

13.2.    Caxton's obligations under this clause 11 shall not be effective unless Customer notifies Caxton in writing of any claim or threatened or actual suit within seven (7) business days of knowledge thereof and Customer gives full control of the defence and settlement, along with Customer's full co-operation, to Caxton.

13.3.    Caxton may, at its own expense and sole discretion: (i) procure for Customer the right to continue to use the Caxton Services and/or Software; (ii) make the Caxton Service and/or Software non-infringing; or (iii) terminate the Caxton Services and/or accept return of the Software and refund any Caxton Service or Software fees received from Customer for any un-used period pro-rata from the date termination is effective.

13.4.    Caxton shall have no liability for any claim based on: (i) Customer's use of the licenced Software and/or Caxton Service other than in accordance with the rights granted under this Agreement; (ii) Customer's combination of the licenced Software and/or Caxton Service with any other equipment or software not provided by Caxton, where such infringement would not have occurred but for such combination; or (iii) intellectual property rights owned by Customer or any of its affiliates.

13.5.    This clause 11 states Customer's sole remedy and Caxton's exclusive liability in the event that Customer's use of any Caxton Service or Software provided under a CA infringes on the intellectual property rights of any third party.

14.    Caxton Intellectual Property

Customer acknowledges that the information contained in the Caxton services and Software is confidential and contains trade secrets and proprietary data belonging to Caxton (or its third party licensors), and that the presence of copyright notices, or not, does not constitute publication or otherwise impair their confidential nature. No intellectual property rights are conveyed to the Customer or to any third party. Customer shall implement all reasonable measures necessary to safeguard Caxton's (and its third party licensors') ownership of, and the confidentiality of the Caxton Services and Software, including, without limitation: (a) allowing its employees and agents access to the Caxton Services and Software only to the extent necessary to permit the performance of their ordinary services to the Customer and to require, as a condition to such access, that such persons comply with the provisions of this Clause 12; (b) cooperating with Caxton (and its third party licensors, as appropriate) in the enforcement of such compliance by Customer's employees and agents; and (c) not allowing access to the Caxton Services and Software to any third party other than to the limited extent permitted under this Agreement. Notwithstanding the foregoing, Customer agrees not to allow access to the Caxton Services and/or Software (without Caxton's prior written consent) to any service bureau or similar third party or use in a network accessible by third parties. Customer acknowledges that use or disclosure of the Caxton Services and Software in violation of this Agreement may cause irreparable harm to Caxton (and its third party licensors). Customer acknowledges that no remedy available in law may be sufficient in the event of a material breach of this clause by Customer in respect of the confidentiality of Caxton's (and its third party licensors') intellectual property; and that in connection therewith Caxton (and its third party licensors) shall each have the right to seek injunctive relief in addition to any other legal or financial remedies to which they may be entitled.

15.    Confidentiality

Each party shall treat as confidential information all information (including the Caxton Services and Software, any data or document obtained via use thereof; and the terms of a CA) obtained from the other pursuant to a CA and shall not divulge such information to any person (except to such party's own employees and then only to those employees who need to know the same) without the other party's prior written consent provided that this shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the CA (and not subject to any confidentiality undertakings), which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause), is subsequently received by a party without restriction or is independently developed by a party without use or access to the other party’s confidential information, or is required to be disclosed by law or relevant regulatory body. Each party shall ensure that its employees are aware of and comply with the provisions of this condition and ensure that it is observed and performed by them.

16.    Assignment

Customer shall not be entitled to assign, sub-licence or otherwise transfer the rights and obligations granted hereunder, or under a CA, whether in whole or in part unless otherwise agreed in writing by a duly authorised representative of Caxton. 

17.    Term & Termination

17.1.    The Caxton Services shall be made available for the duration of the Initial Term and thereafter for subsequent annual periods unless terminated in accordance with this clause 18. Any Software shall be licenced for the term set forth in a Fee Agreement and thereafter for subsequent annual periods unless terminated in accordance with this clause 17.

17.2.    Either party may terminate this CA upon expiry of the Initial Term or Software licence term or of any subsequent annual period by giving to the other party not less than sixty (60) days written notice prior to expiry thereof.

17.3.    Either party may terminate this CA in writing if:

(i)the other party commits any material breach of any term of a CA and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing so to do; or

(ii)the other party has an interim or bankruptcy order made against it or enters into or becomes subject to a scheme, composition or voluntary arrangement with its creditors or becomes subject to a winding-up, dissolution, administration or receivership proceedings.

17.4.    Caxton may further without prejudice to its other rights, suspend access to Caxton Services, Software licence and/or terminate a CA and any other licences granted to Customer forthwith on giving notice in writing to the Customer if Customer fails to pay any amount due thereunder in accordance with the payment terms.

17.5.    Without prejudice to any other remedies which Caxton may have under this Agreement or at law, Caxton shall be entitled to suspend the provision of the Caxton Services, Software licence or to terminate this Agreement forthwith on written notice to the Customer in the event that the Customer has been or is in breach of any applicable law or regulation or in the event that Caxton is required to do so by any law, regulation or regulatory body or upon demand by one of Caxton's third party suppliers for reasonable cause directly due to the Customer's acts or omissions in connection with its misuse of the Caxton Services or Software licence. Notwithstanding any other term of this Agreement, Caxton may terminate without notice, or indefinitely suspend, this Agreement or any contractual provision herein as required to fulfil its obligations to comply with any sanctions regulations.

17.6.    Following termination for any reason whatsoever, any monies owing from the Customer to Caxton shall immediately become due and payable.

17.7.    Following termination, the parties will promptly return all confidential information received (excluding any Data retained in accordance with clause 7.5), together with all copies, or certify in writing that all such confidential information and copies thereof have been destroyed. Any obligation to return, destroy or permanently erase confidential information shall not be applicable to confidential information that is retained on electronic back-up media made in the ordinary course of business and from which the confidential information can not readily be isolated from other information and deleted, and the provisions of this Agreement shall continue to apply to any confidential information retained on such electronic back-up media.

The Customer may at any time (including for the avoidance of doubt if this CA is terminated) request in writing a copy of the Data and Caxton shall in so far as is technically possible retrieve Data retained at date of receipt of such request and deliver it to the Customer in a form to be mutually agreed between the parties.

18.    Force Majeure

With the exception of payment of outstanding invoices, neither party shall be responsible for any delay or failure in performance resulting from acts beyond the control of such party. Such acts shall include but not be limited to: an act of God; an act of war; civil unrest; terrorism; riot; epidemic/pandemic; fire; explosion or accidental damage; extreme weather conditions (including but not limited to: flood, storm, or other disaster); an act of government; industrial action or lockouts; and failure of the world wide web. In the event of such a Force Majeure event, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure. The party claiming to be prevented, hindered, or delayed in the performance of any of its obligations under the CA by reason of a Force Majeure event shall use all reasonable commercial endeavours to mitigate against the effects and consequences of the Force Majeure event. The affected party shall resume performance of its obligations under the CA immediately upon the end of the Force Majeure event.

19.    Notices

Any notice or other communication to be given under this CA must be in writing and may be delivered or sent by pre-paid first-class letter post to Caxton or the Customer at its registered address for the attention of an officer of Caxton or Customer, as applicable. Any notice or document shall be deemed served: if delivered electronically by e-mail at the lime of opening; and if posted 48 hours after posting.

20.    Invalidity

The invalidity or unenforceability of any provision shall not affect any other part of this Agreement.

21.    Third Party Rights

A person who is not a party to a CA shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of a CA. This condition does not affect any right or remedy of any person which exists or is available otherwise pursuant to the Act.

22.    Non-Solicitation

While this Agreement remains in effect and for one (1) year following the termination of the Agreement, neither party shall directly or indirectly recruit, solicit or hire any employee of the other party, or induce or attempt to induce any employee of a party hereto to terminate his/her employment with the other party; provided that either party shall be permitted to hire any employee of the other party who responds to a general employment advertisement or solicitation.

23.    Marketing

Customer hereby authorises Caxton to use Customer’s name (in accordance with any marketing communications standards provided by Customer from time to time to Caxton) solely for the purpose of referring prospective customers, in any press release or marketing materials produced by Caxton, for the Caxton services and Software offered by Caxton.

24.    Modifications to the Agreement

Caxton may update this Agreement and any applicable Supplementary Terms and Conditions from time to time and if commercially feasible Caxton will endeavour to inform Customer of any such update prior to the update becoming effective. Caxton recommends that Customer reviews this Agreement at Caxton Legal Hub and any applicable Supplementary Terms and Conditions at Caxton Legal Hub periodically to check whether any update(s) have been made. Customer’s continued use of Caxton's Services after an update has become effective (whether or not Caxton has notified Customer of the update) shall be deemed Customer’s acceptance of the update(s).

25.    Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the Laws of England and Wales and shall be subject to the exclusive jurisdiction of the English Courts.