MiShop Merchant Services
MERCHANT AGREEMENT
1.0 TERMS AND CONDITIONS
This Agreement relates to the marketing, promotion and branding services provided by MiShop Limited ("We" or "MiShop") whose registered number is 8 Gordon Road, Brighton, East Sussex, BN1 6PD and merchant retailers ("You" or Merchant") whereby MiShop will provide services to enable Merchant to enter into a sale of goods and services directly with customers.. MiShop shall provide the Services to the Merchant on the terms and subject to the conditions set out in this Agreement. By using the Service as defined below the Merchant is deemed to have accepted these conditions.
Order processing and fulfilment(The processing and fulfilment of all Orders received by the Merchant via the MiShop Services, and the obligations of acceptance and payment) shall be the sole responsibility of the Merchant and the Customer and MiShop shall have no responsibility or liability in relation to these obligations.
2.0 PROVISION OF SERVICE
The MiShop service and any and all support that relates to it (the "Service") shall be as described on the MiShop website www.mishop.co.uk (the "Website"). MiShop reserves the right to make changes and updates to the Service from time to time.
The Service is a sales channel through which Customers can order goods and services from Merchants. The Service operates via a MiShop software applications ("MiShop Software") on a mobile device (particularly mobile phones) or through other connected devices such as an internet browser.
The mobile devices (collectively and hereinafter referred to as "Mobile Device") require data connectivity (e.g. GPRS, UMTS, WiFi) to operate for the transaction based components (e.g. catalogue updates, Order processing) of the service.
In consideration of the Merchant's use of the Service the Merchant agrees to abide by these terms and conditions and to pay for use of the Service in accordance with this agreement.
3.0 THE ORDER MANAGEMENT FACILITY (OMF)
Support of the OMF shall be carried out by MiShop Merchant Services ('Merchant Services') who are contactable by phone or e-mail during trading hours of 5.00 p.m. to 11.00 p.m. with the exception of public holidays.
The Order Management Facility (OMF) is the facility used by the Merchant for the purpose of receiving, acknowledging and tracking Customer orders ('Orders') submitted through MiShop.
The OMF can be accessed in two ways;
- 1. Using a suitable mobile device owned and designated by the Merchant for the purpose of receiving, acknowledging and tracking Orders and on which the OMF Application is loaded. Herein after referred to as the Mobile Order Management Facility (MOMF) or,
- 2. Using a PC with an Internet connection where the OMF and Merchant Account is accessed using a web browser. Herein after referred to as the Web Order Management Facility (WOMF).
Only Mobile Devices listed on the MiShop website which are compatible with the OMF application and have access to mobile data services may be used for the MOMF.
The Merchant shall ensure that the MOMF is:
- available, switched on and operable during Merchant's trading hours
- is frequently monitored by a suitable person who is able and authorised to acknowledge Orders and ensure their fulfilment
- has sufficient phone credits,
- be in range of a network signal
- has data connectivity allowing communication with the internet
The Merchant shall contact MiShop Merchant Services where Merchant is unable to use the OMF for any reason including but not limited to a problem with the mobile device, mobile network or internet connectivity, the MOMF or the WOMF. MiShop shall provide the Merchant with reasonable technical support to resolve any OMF problems however any network or device issue shall remain the responsibility of the Merchant..
Where problems exist with the OMF that cannot be rectified immediately, the Merchant may request that MiShop temporarily suspend their MiShop Service or MiShop may call Merchant on behalf of the Customer to place orders over the telephone. Where the Service is suspended, MiShop shall notify any Customer attempting to browse the Merchant's catalogue or place an Order that the Customer should contact the Merchant by Telephone to place any Order.
At the Merchant's request and in consideration of a £100 deposit, MiShop will provide the Merchant with a temporary MOMF (subject to availability). This MOMF will be provided with a "Pay-As-You-Go" SIM Card that will remain the Merchant's responsibility to 'top-up'. Merchant shall accept full liability for the temporary MOMF and any network charges or other costs incurred. The Merchant shall return the temporary MOMF to MiShop on demand.
In the event that MiShop detects a fault with the Service, which prevents Customer Orders from being presented or acknowledged via the OMF, Merchant Services will make best efforts to contact the Merchant and on behalf of the Customer and communicate any outstanding Order to the Merchant. There will be no charge to the Merchant associated with this activity providing that the fault is not a result of any device (including but not limited to Mobile Devices, PCs, network devices, cables) provided by the Merchant or a mobile network or internet fault.
4.0 ORDER ACKNOWLEDGEMENT AND ORDER FULFILMENT
MiShop shall be responsible for transmitting Orders to the OMF. The Merchant is responsible for acknowledging receipt of the Order (using the OMF) and fulfilling it.
When acknowledging an Order ('Acknowledgement'), the Merchant shall indicate that the Order has been received, confirm details of the Order and provide the expected time of delivery or collection. The means to communicate all this information is provided via the OMF.
The Merchant shall abide by the following process for Order management:
- Orders shall be acknowledged within 5 minutes of receipt on the OMF.
- If an Order is not acknowledged after 5 minutes of receipt the OMF will provide an alert to the Merchant.
- If an Order has not been acknowledged 10 minutes after receipt, an SMS notification will be sent to the Customer informing them that the Merchant has not acknowledged and inviting the Customer to call the Merchant.
- If after 15 minutes the Order has still not been acknowledged, Merchant Services will attempt to contact the Merchant by telephone to clarify if there is an issue or fault.
- The Merchant shall fulfil (deliver or have ready for collection) the Order within the time frames specified in the acknowledgement.
- If the Merchant is unable to fulfil an Order, the Merchant shall use the Customer contact number provided in the OMF to call and change the Order as necessary. The Merchant shall not change an Order without agreement with the Customer.
- Repeated failure to acknowledge or fulfil Orders within the time frames specified by the Merchant through the OMF may result in termination of the contract.
5.0 VOICE CLICK THROUGH
In the event that a Customer is using MiShop and wishes to speak to Merchant (for any reason), the Customer can click on a "Call Merchant" button within the MiShop application which will result in a telephone call being made from the Customer to the Merchant.
A "Voice Click Through Fee" will be charged for this service irrespective of whether the Customer submits an order following the call.
6.0 CATALOGUE MANAGEMENT
The Merchant shall provide MiShop with full details of the products, services and prices offered by Merchant ("Catalogue Information") including (but not limited to) structure, item descriptions, pricing, delivery rules and the hours when the Merchant is able to fulfil Orders.
The Merchant shall ensure that the Catalogue Information (as provided to MiShop) is kept up-to-date and correct. MiShop accepts no responsibility for the accuracy of the information as provided by the Merchant. Merchant shall supply the Catalogue Information in a Microsoft Excel file format and in the template format provided by MiShop. Merchant shall update the Catalogue Information on a regular basis as required to provide accurate details of products, services and prices via the Web Site.
The Merchant shall not contact a Customer directly to change a price on any Order submitted through MiShop. The price provided in the Catalogue Information shall be binding upon Merchant and is the price that must be charged to the Customer. For the avoidance of doubt, if Merchant changes its prices but does not update the MiShop Catalogue, then the price held in the MiShop Catalogue shall take precedence. In the event that MiShop assists the Merchant in configuring and uploading Catalogue Information, any changes in price shall not be applicable until MiShop has published the new catalogue to Customers (i.e. typically 1 week after submission to MiShop).
All prices in the Catalogue Information must be inclusive of VAT (if applicable) and must include full details of all charges including any delivery costs.
MiShop reserves the right to refuse or block any Catalogue content at its sole discretion, for example should Catalogues contain products or services that are illegal, pornographic or are not within keeping of the brand image that MiShop wishes to maintain or are restricted by any relevant statute(for example age consent).
7.0 LOGO/ BRANDING
Merchant grants MiShop the right to use Merchant's company logo and name in the MiShop Application held on Customer Phones, the MiShop website, and any other MiShop promotional facilities.
Merchant shall make reasonable efforts to publicise the MiShop Service (including the Merchant's catalogue) to its customers. Such publicity shall include but not be limited to raising awareness of the Service, display of the MiShop decal (specific to the Merchant), inclusion of the MiShop decal in its menus and (as applicable) website.
MiShop will provide Merchant with electronic files containing its logo, the MiShop decal (specific to the Merchant) and other information required to promote the Service and support customer activation.
For the avoidance of doubt MiShop is under no obligation to provide marketing services or contribute to the costs of any promotion campaign undertaken by or for the Merchant except for those explicitly stated within this Agreement.
8.0 FEES/ CHARGES
Merchant shall pay to MiShop the fees described in the MiShop Pricing Schedule attached to these Terms ("Fees").
The Merchant shall remain responsible for all operational / network costs of accessing and using the Service which includes receiving and sending messages.
The Merchant is responsible for all costs in operating any mobile device on which the MOMF resides. In the event that a temporary Mobile Device is supplied by MiShop, the Merchant may be requested for a deposit of £100, which will be returned on satisfactory return of the Mobile Device.
MiShop may introduce new or updated pricing schedules. MiShop shall notify Merchant of any proposed changes to the Pricing Schedule 4 weeks prior to it coming into effect.
9.0 BILLING AND PAYMENT
9.1 THE MERCHANT BILLING CUSTOMERS
For Customer billing purposes, MiShop will provide to Merchant (in the OMF) and the Customer (in the MiShop Application) details of the total amount owed to Merchant by the Customer according to the prices provided by Merchant in the Information Catalogue.
9.2 THE MERCHANT COLLECTING PAYMENT FROM CUSTOMERS.
The MiShop Service does not include a collection method for payment from the Customer. The Merchant is therefore solely responsible for collection of any payments due from Customers in respect of an Order.
9.3 MISHOP BILLING THE MERCHANT
The Merchant will receive an electronic monthly statement available for download from the Website detailing all transactions that have taken placed during the previous month using the MiShop Services and setting out any fees and/or adjustment levied against the account in accordance with the MiShop Pricing Schedule and any credits made by the Merchant to the account. The Merchant will be notified by e-mail when a statement is ready for download.
9.4 COLLECTING PAYMENT FROM THE MERCHANT
Merchant shall be required to pre-pay an amount to cover the fees for the Service and maintain a positive credit sufficient to reasonably cover the projected month of charges.
For example, should the total value of transactions for a month be projected to be £20 (based upon the Price Schedule), Merchant will credit their MiShop account with £20 at the start of each month.
The Merchant will be notified via e-mail or SMS when the credit balance has dropped to a point that may require topping up to cover projected transaction volumes.
Should the Merchant incur a greater value of charges than have been processed than have been pre-paid for, the Merchant will be notified by MiShop requesting immediate payment to clear the debit. If the account remains in debit balance for more than 7 days, the Service to the Merchant may be suspended. Such suspension will be removed when the debit balance has been cleared by the Merchant. A debit balance of more than 4 weeks with no reasonable intent to clear it shown by The Merchant to pay will result in termination of the Services.
10.0 LICENSING.
Merchant is licensed to use and administer the Service and MiShop Software for the purposes set out in these Terms and Conditions. This license is non-transferable and cannot be used by any 3rd Parties. Merchant may not alter, copy or distribute any MiShop Software and upon termination of the Services, Merchant shall return or destroy any copies of the MiShop Software in its possession.
11.0 ACCOUNT DETAILS AND SECURITY
The Merchant must keep secure all usernames and passwords used to access the Service. Only Merchant employees authorised and trained to use the Service may access the Service. Merchant is entirely responsible for all activities in relation to access and use of the Service using Merchant's usernames and passwords.
Merchant shall immediately notify MiShop of any unauthorised use or any other breach of security and Merchant shall be liable to MiShop for any losses, costs or damage caused by Merchant's failure to comply with the above provisions or from any other unauthorised use. MiShop shall have no liability to Merchant in relation to any unauthorised use of the Services
The Merchant shall ensure that the download and use of the Software and Service is permitted under the Merchant's operator's network terms and conditions and MiShop shall have no responsibility or liability in this regard.
MiShop shall not be responsible for any loss of business resulting from any Customer or Merchant related technical issues relating to their telecom network, PC, Mobile Phone/Device or any hardware or software, or access issues which are outside of the control of MiShop.
12.0 TERMINATION
Merchant may terminate the Service at any time by contacting MiShop through the Website subject to fulfilling any outstanding Orders. MiShop may terminate the Merchant's use of the Service immediately at any time without notice if Merchant breaches any of these terms or if Merchant or its Customers have not used the Service for a period of 6 months or more.
Termination entails the instant removal of the Merchant's Catalogue and logo from every Customer mobile phone that holds the Merchant's Catalogue and the MiShop Web Site. Termination of the Service shall not affect any accrued rights and liabilities of the parties or any obligations, which are intended to survive termination.
At Termination, any monies owed to MiShop shall be immediately due and payable and any refunds due to Merchant shall be repaid within 30 days.
MiShop may at its discretion discontinue the Service at any time. In such event, MiShop shall give the Merchant 2 weeks notice of the proposed discontinuation and the Services shall cease be terminated in accordance with this clause.
13.0 DATA PROTECTION AND PRIVACY
13.1 MiShop shall take all necessary steps to ensure that all data and information provided by Merchant which comes into its possession or control in the course of providing the Services is protected and remains confidential and in particular MiShop shall not:
- (a) use the data or information nor reproduce the data or information in whole or in part in any form except as may be required for the provision of the Services or
- (b) disclose the data or information to any third party or persons not authorised by Merchant to receive it, except with the prior written consent of Merchant; or
- (c) alter, delete, add to or otherwise interfere with the data or information (save where expressly required to do so by the terms of this agreement).
14.0 LIMITATIONS/AVAILABILITY OF SERVICE
The Service is subject to any limitations as stated on our Website including but not limited to incompatibility with certain models of mobile phone and lack of Network connectivity in relation to certain network providers, for which MiShop shall have no responsibility.
MiShop shall make its best efforts to ensure availability at all times however MiShop cannot and do not offer a continuous, uninterrupted or error free service and no warranty is given in respect of this.
Without limitation, MiShop may at any time temporarily suspend/restrict access for back up, maintenance, repairs and improvements and/or give instructions to Merchant regarding the use of the Service which are necessary for security or to maintain or improve the quality of the Service to Merchant and to Customers.
15.0 LIABILITY
Except as expressly provided herein, the Service and MiShop Software are provided "as is" and MiShop gives no representations or warranties whether express or implied relating to the performance, quality, security or fitness for a particular purpose of the Service. Without prejudice to the generality of the foregoing, The Merchant acknowledge that certain aspects of the Service are dependent upon third parties, including but not limited to other Service users, retailers and third party payment service providers and telecommunications providers and We cannot accept any responsibility or liability for their failings including without being limited to any failure to deliver or supply the goods or services. For the avoidance of doubt, we shall not be held liable (except where we have been grossly negligent) for any loss caused by failure to receive a message or incorrect processing of details for a purchase transaction, whether this is caused by a technical failure in our systems or by a failure of third party systems.
MiShop excludes liability to the maximum extent permitted by law whether under contract, tort (including negligence) or otherwise and in no circumstances (other than when we have been grossly negligent) shall MiShop be liable for any loss or damage whether direct or indirect of any nature. MiShop shall not be held liable (except where we have been grossly negligent) for any loss of or disruption to any other application or service stored on the Merchant Device due to it being incompatible with the Service.
Notwithstanding the above, if we should be found liable for any reason, such liability shall (insofar as it may be limited by law) not exceed the total cost of the products or services purchased by Merchant using the relevant aspect of the Service, which is the subject of the claim.
16.0 INDEMNITY
The Merchant shall indemnify MiShop and any subsidiaries, parent, affiliates, and respective successors and assign harmless from and against all claims, actions, suits, proceedings, demands, losses, damages, costs and expenses incurred by MiShop relating to or arising from any breach by Merchant of these terms and conditions or due to any action or failure by Merchant towards any Customer.
17.0 DISPUTES
The Merchant is responsible for fulfilling all Orders in accordance with the Merchants published terms of business and any UK and European trading laws etc and in connection with any Customer.
The Merchant is responsible for responding to and rectifying all disputes between itself and the Customer. i.e. MiShop will play no part in disputes between the Merchant and the Customer for Orders placed using the Service unless it is proven categorically that MiShop was negligently at fault.
18.0 GENERAL
This Agreement constitutes the entire agreement between Merchant and MiShop relating to the use of the Service and the MiShop Software and supersedes all other agreements or understandings between MiShop and Merchant. MiShop shall have the right to revise the terms of this Agreement at any time. Notices to be given by MiShop under this Agreement may be given by email or otherwise sent to the details provided on the Website. This Agreement is governed by the Laws of England and Wales.