PonchoPay Provider Agreement
We are Poncho Care Limited, a company registered in England and Wales with registered company number 12875128 and registered office address at 16 Wadebridge Square, Poundbury, Dorchester, England DT1 3AQ (the “Company”).

PonchoPay is a platform for childcare and children’s activity providers, and their customers, which assists with the processing of booking and payment for activities with Childcare Vouchers, Tax-Free Childcare Funds and Card Payments (“PonchoPay”).

To access PonchoPay, Provider must complete the PonchoPay account online registration procedure and tick the box agreeing to be bound by the terms and conditions contained in this Provider Agreement, which shall govern your use of PonchoPay.  You will be able to access PonchoPay and the Provider Agreement between us shall commence when we email you to confirm that your Provider account on PonchoPay is active.

This Provider Agreement is made up of the following:
(a) The Contract Form that you agree to during the online Sign Up Process; and
(b) The attached Provider Terms and Conditions.

Your attention is drawn in particular to clauses 16 (Indemnity), 17 (Disclaimer) and 18 (Limitation of Liability) of the attached Provider Terms and Conditions, which set out terms applicable to the Company’s liability to you and your liability to the Company.

If you have any questions about Poncho, this Provider Agreement, or PonchoPay, please contact our Customer Services team by email at help@ponchopay.com.

1. Definitions and interpretation
In these Terms the following definitions apply:

the PonchoPay Provider Agreement comprising the Contract Form, and these Provider Terms and Conditions;
AIS provider
GoCardless Ltd with company number 07495895 andregistered address Sutton Yard, 65 Goswell Road, London, England, EC1V 7EN, a licensed payment institution supervised by the the Financial ConductAuthority of the United Kingdom;
Business Day
a day other than a Saturday, Sunday or bank or public holiday in England;
Card payments
means a credit or debit card payment from a Customer to the Provider that is processed by the Payment Provider;
Childcare Vouchers
childcare vouchers paid to the Customer by their employer under a childcare voucher scheme;
means, in respect of each Completed Transaction, a sum equal to the Commission Rate of the Price for the relevant Provider Service;
Commission Rate
means  the percentage commission rate in the Contract Form;
Completed Transaction
means a PonchoPay Booking for which the Provider has received payment infull for the relevant Provider Service;
Contract Form
means the contract form containing the Commission Rate, Services provided, the Initial Term and any other details relating to the provision of PonchoPay, which are agreed to by the Provider during the Sign Up Process;
a customer who orders a Service from the Provider;
Data  Protection Legislation
all privacy and data protection laws applicable in the United Kingdom from time to time including the version of the General Data Protection Regulation ((EU) 2016/679  transposed into UK law pursuant to the European Union (Withdrawal) Act 2018 (“UK GDPR”); the Data Protection Act2018; the Privacy and Electronic Communications (EC Directive) Regulations 2003(as amended); and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Initial Term
the initial term set out in the Contract Form;
Intellectual  Property Rights
patents, trade marks, service marks, design rights (whether registrableor otherwise), applications for any of those rights, copyright (including allrights in software and any database rights), know-how, confidential information, trade or business names and any similar rights or obligations whether registrable or not in any country;
Longstop Payment
a Customer’s payment for a PonchoPay Booking that is made with their debit or credit card because the Customer has failed to make payment in full within 14 days of the date of creation of the PonchoPay Booking, with the amount of the payment being either the full sum (in the event of a total failure to pay) or the shortfall sum (in the event of a partial payment only);
shall have the meaning given to it in clause 3.1;
Payment Interface
the Payment Provider interface through which: (a) a Customer can provide their card details to the Payment Provider for the purpose of making payment for a Provider Service, including a Longstop Payment, (less the Payment Provider Fee);or (b) the Provider can instruct the Payment Provider to collect the Longstop Payment from the Customer and pay it to the Provider (less the Payment Provider Fee);
Payment Provider
Adyen N.V. a company registered in Netherlands under company number 34259528 whose registered office is at Simon Carmiggeltstraat 6-50, 1011 DJ, Amsterdam, The Netherlands.
Payment Provider Fee
the fees charged by the Payment Provider for effecting Card Payments;
Permitted Purposes
means:  in respect of the Provider, enabling Customers to book and manage payment for Provider Services through PonchoPay, and providing Provider Services to Customers;  in respect of the Company, enabling Customers to manage payment for Provider Services through PonchoPay; and in respect of both parties,any other use of a Customer’s personal data required to achieve the purposes of the Agreement;
our PonchoPay platform; including the services available from it;
PonchoPay Booking
an Order in respect of which the Customer has completed all of the steps atclauses 3.2.1 to 3.2.6;
PonchoPay Customer Terms
the terms and conditions applicable to a Customer’s use of PonchoPay, which can be found here;
means the price payable by the Customer for the Provider Service under an Order, which shall be inclusive of any value added tax;
the Provider identified as such during the Sign Up Process;
Provider  Dashboard
the Provider’s dashboard on PonchoPay
Provider Service
means the Provider’s childcare services, after school and holiday clubs, tuition or other services for children;
Provider Service Contract
the contract between the Provider and the Customer for the provision of a ProviderService that is entered into when the Customer creates a PonchoPay Booking;
Renewal  Period
shall have the meaning given to it in clause 20.1;
Sign Up Process
means the process by which the Provider signs up to use PonchoPay via the Website and, which amongst other things, identifies the Provider and their contact information, and the Contract Form (including the Commission Rate);
Start Date
the date upon which the Company emails the Provider to confirm that its Provider account on PonchoPay is active;
Tax-Free Childcare Funds
funds in the Customer’s account with the government-backed Tax-Free Childcare Scheme;
the Initial Term together with any Renewal Periods;
URL Link
the Initial Term together with any Renewal Periods;

1.2 In the Agreement, unless the context requires otherwise:
1.2.1 the expressions controller, process, personal data, and appropriate technical and organisational measures shall be as defined in Data Protection Legislation.
1.2.2 any clause, schedule or other headings in the Agreement is included for convenience only and shall have no effect on the interpretation of the Agreement;
1.2.3 a reference to a “party” includes that party’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a “person” includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.5 a reference to a “company” includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6 a reference to a gender includes each other gender, and words in the singular include the plural and vice versa;
1.2.7 any words that follow “include”, “includes”, “including”, “in particular” or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.8 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and
1.2.9 a reference to legislation includes all subordinate legislation made from time to time under that legislation.

2. Access to PonchoPay
2.1 The Company grants to Provider a non-exclusive, non-transferable licence during the Term to use PonchoPay to arrange payment for Services, on and subject to the terms and conditions of the Agreement.
2.2 Before granting access to PonchoPay to Provider’s Customers, the Company or its service providers may conduct appropriate identity verification or background checks on Provider, as it considers necessary or as required by applicable law.
2.3 Provider represents and warrants that:
2.3.1 it is entering into the Agreement for the purposes of its trade, business or profession
2.3.2 it is an approved or registered childcare provider;
2.3.3 its Provider Services are eligible to be paid for with Childcare Vouchers and Tax-Free Childcare Funds or by Card Payment; and
2.3.4 if Provider is a natural person, they are 18 years or older.

2.4 The Provider Service Contractis a contract solely between Provider and Customer.  The Company is not involved in, and bears no responsibility for, the Provider Service Contract between Provider and Customer, or for the provision of the Provider Service,and does not act as agent for Provider.  

3. Use of PonchoPay
3.1 When a Customer places an order with Provider for aProvider Service (“Order”), Provider shall promptly send a URL Link for such Order to the Customer by email.
3.2 Provider acknowledges and agrees that a Customer can use the URL Link sent by the Provider, or can access the customer portal of PonchoPay, to set up a new PonchoPay Booking by:
3.2.1 notifying the Provider of the Customer’s intention to pay for the Provider Service that is the subject of the Order with Childcare Vouchers, Tax-Free Childcare Funds or a Card Payment;  
3.2.2 entering the Price;
3.2.3 providing a valid set of credit or debit card details to the Payment Provider through the Payment Interface;
3.2.4 authorising the Payment Provider to verify the Customer’s card details;  
3.2.5 if paying with Childcare Vouchers or Tax-Free Childcare Funds authorising the Payment Platform to take the Longstop Payment using the card details provided if the Customer does not pay the amount due under the PonchoPay Booking in full with Childcare Vouchers or Tax-Free Childcare Funds within 14 days; and
3.2.6 if making a Card Payment, authorising the Payment Provider to take payment for the Provider Service immediately using the card details provided.
3.3 If a PonchoPay Booking has not been marked on PonchoPay (either by the Provider or the Customer) as paid in full within 14 days of the date of creation of the PonchoPay Booking:
3.3.1 The Company shall notify the Provider and prompt the Provider to use the Payment Interface on the Provider Dashboard to instruct the Payment Provider to make the Longstop Payment to Provider; and
3.3.2 Provider shall instruct the Payment Provider to make the Longstop Payment to Provider.
3.4 Provider acknowledges and agrees that:
3.4.1 Customer (and not the Company) is solely responsible for the transfer of Childcare Vouchers and Tax-Free Childcare Funds to the Provider notwithstanding the creation of a PonchoPay Booking;
3.4.2 Customers must use their own valid credit or debit cards which have been issued by an authorised third party provider to create a PonchoPay Booking: the Company will not be issuing payment cards to Customers as part of its PonchoPay service;
3.4.3 all payment services are provided by the Payment Provider;
3.4.4 the Payment Provider’s service, including the making of payments and Longstop Payments from a Customer to Provider, shall be provided on and subject to the Payment Provider’s terms and conditions at https://www.adyen.com/en_GB/legal/adyen-terms-and-conditions and the Provider confirms its agreement to such terms and conditions;
3.4.5 Provider is required to have an account with the Payment Provider in order to receive payments from Customers;
3.4.6 the Payment Provider shall deduct its Payment Provider Fee from the payment before transferring the balance to Provider;
3.4.7 any refunds of payments made with Childcare Vouchers or Tax-Free Childcare Funds owing by Provider to a Customer shall be made outside of PonchoPay in accordance with the Provider’s applicable terms and conditions; and
3.4.8 any cash refunds in respect of payments processed by the Payment Provider owing by Provider to a Customer shall be processed in accordance with the Payment Provider’s terms and conditions at https://www.adyen.com/en_GB/legal/adyen-terms-and-conditions.

4. Prices
4.1 Provider shall procure that Provider Services are advertised and agreed with the Customer at  a fixed price and in GBP.  All VAT and any other taxes associated with the fixed price sale of the Provider Services will be paid by the Customer and it is Provider’s responsibility to determine, collect and remit the applicable VAT and any other taxes associated with the sale.  
4.2 The Price shall be the amount agreed between Provider and Customer outside of PonchoPay.  Provider (or, if the Provider has not pre-filled the relevant field, the Customer) shall be responsible for adding the correct price of the Order to PonchoPay and the URL Link.
4.3 The Company shall not be responsible for any errors in the price charged to or paid by the Customer caused by a failure on the part of the Provider or Customer to fill in the correct price or verify that the price included or paid by the Customer is correct.
4.4 The Company reserves the right to refuse PonchoPay Bookings placed with erroneous information.

5. Provider Dashboard
5.1 The Company will grant the Provider access to a Provider Dashboard during the Term.
5.2 The Provider Dashboard will be updated automatically:
5.2.1 when a Customer creates a PonchoPay Booking;
5.2.2 if Provider has provided us with their login details for their accounts with Childcare Voucher providers, when such account is credited with Childcare Vouchers from a Customer;
5.2.3 when a Customer is sent a reminder from PonchoPay for the Customer to arrange payment for a PonchoPay Booking with their Childcare Vouchers or Tax-Free Childcare Funds account within 14 days; and
5.2.4 when a Customer informs the Company that payment for the Provider Service has been made with a Card Payment, or with Childcare Vouchers or Tax-Free Childcare Funds.
5.3 Provider is responsible for maintaining the confidentiality of its PonchoPay account details, including any user identification codes, passwords or any other piece of information that forms part of the Company’s security procedures.
5.4 Provider is responsible for all activity under its account on PonchoPay even if someone else uses it. Provider authorises the Company to act on instructions received under its account and the Company will not be liable for any loss that Provider might suffer through following such instructions whether by Provider or another person.
5.5 The Company has the right to disable any user ID or password, whether chosen by Provider or allocated by the Company, at any time, if in its reasonable opinion Provider has failed to comply with any of the provisions of the Agreement.

6. Account Information Services (AIS)
6.1 Provider may elect to connect their bank account with their Provider Dashboard so that theProvider Dashboard can be updated in the event that a Customer makes ananticipated payment for a PonchoPay Booking (“Reconciliation Service”).
6.2  The Company uses the open banking data services of the AIS Provider to provide the Reconciliation Service. The Company will therefore request the Provider’s permission for the AIS Provider to access Provider’s bank account information using open banking and to share the information obtained with the Company. If Provider does not give us their permission, the Company cannot provide the Reconciliation Service to Provider.  Provider may revoke their permission at anytime.  The specific bank accountinformation that is shared with the Company will be limited to periodic reports in read-only format confirming whether or not an anticipated payment from a Customer has been received.
6.3  The AISP’s service shall be provided on and subject to the AISP’s End User terms andconditions for the GoCardless BankAccount Data Service at https://gocardless.com/legal/bank-account-data/ and the Provider must confirm its agreement to such terms and conditions which willcreate a direct contract between Provider and the AISP.

7. Communications with Customers
7.1 Subject to clause 7.2, Provider shall be responsible for:
7.1.1 all communications to Customers regarding the Provider Service and when the Customer’s booking of the Service is confirmed; and
7.1.2 ensuring its terms and conditions with Customers do not conflict with any of the provisions of this Agreement or the PonchoPay Customer Terms.
7.2 The Company shall be responsible for sending email and SMS communications to the Customer regarding:
7.2.1 their payment for the Provider Service (and reminders relating to the same) but only after a PonchoPay Booking has been created by the Customer; and
7.2.2 assistance with completing the payment of a Transaction with Childcare Vouchers or Tax-Free Childcare Funds.

8. Commission and charges
8.1 In consideration for the provision of PonchoPay to the Provider, the Provider shall pay to the Company a Commission at the Commission Rate on each Completed Transaction.
8.2 The Company may from time to time make available certain upgrades, additional functions or features on PonchoPay, the availability of which may be subject to the payment of additional fees or charges over and above the Commission.  Where relevant such fees and charges shall be payable by the Provider in addition to the Commission in accordance with the provisions of this clause 8
8.3 The Company shall invoice the Provider on or after month end for all Commission and other amounts incurred under the Agreement during such month, and the Provider shall pay each invoice within fourteen (14) calendar days of the date on the invoice.
8.4 The Commission and all other amounts due under the Agreement are exclusive of VAT which where applicable Provider shall pay to the Company in addition.
8.5 Time of payment is of the essence. Where sums due under the Agreement are not paid in full by the due date:
8.5.1 the Company may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of the Bank of England from time to time in force; and
8.5.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
8.6 The Provider shall make each payment due and undisputed to the Company under the Agreement in full, free of any set-off, deduction or counterclaim and in cleared funds to a bank account nominated in writing by the Company.
8.7 Any amount that the Company owes to Provider under the Agreement, whether now or at any time in the future, whether it is liquidated or not and whether it is actual or contingent, may be set off from any amount due to the Company from Provider under the Agreement.

9. Reservation of rights
9.1 The Company reserves all rights available to it, if it considers it appropriate, to immediately and without notice toProvider prevent or restrict access to PonchoPay.

10. Data Protection
10.1 The Company’s Privacy Policy [https://www.ponchopay.com/privacy-policy] will apply to the use of PonchoPay by Provider or, if the Provider is a company or other legal entity rather than an individual, their employees or representatives who use PonchoPay on their behalf. The Privacy Policy sets out the terms on which the Company processes any personal data we collect from Provider, or that Provider provides to us. By using PonchoPay, Provider acknowledges the contents of the Privacy Policy and assures the Company that all data provided by Provider is accurate.
10.2 Each party shall perform its obligations under the Agreement in accordance with Data Protection Legislation.
10.3 The parties acknowledge that each party will share personal data relating to Customers pursuant to the Agreement (“Shared Personal Data”).
10.4 Each party shall act as an independent data controller in respect of the Shared Personal Data and shall:
10.4.1 ensure that it has all necessary notices and consents in place to enable it to lawfully process the Shared Personal Data for the Permitted Purposes under the Agreement;
10.4.2 only process the Shared Personal Data received from the other party for the Permitted Purposes; and
10.4.3 ensure that it has in place appropriate technical and organisational measures to protect against accidental loss or destruction of, or damage to, the Shared Personal Data.
10.5 Each party shall assist the other in complying with applicable requirements of Data Protection Legislation. In particular, each party shall:
10.5.1 notify the other party immediately in the event of a personal data breach relating to the Shared Personal Data and provide the other party with such reasonable assistance as it may require in order to notify the personal data breach to a data protection supervisory authority;
10.5.2 notify the other party without undue delay on becoming aware of any other breach of Data Protection Legislation; and
10.5.3 at the written direction of the disclosing party, either delete or return the Shared Personal Data and copies thereof to the disclosing party on termination of the Agreement unless required by law to continue to store the Shared Personal Data.
10.6 In relation to the services of the PaymentProvider, their privacy notice at [https://www.adyen.com/en_GB/policies-and-disclaimer/privacy-policy] will apply.
10.7 In relation to the Reconciliation Service:
10.7.1      the AISP shall process the Provider’s personal data in accordance withthe AISP’s privacy policy at https://gocardless.com/privacy/account-holders/
10.7.2      the Company may acquire certain personal data relating to the Provider (if the Provider is an individual) and Customers from the AISP. The Company shall process such personal data as an independent controller.  

11. Maintenance of PonchoPay
11.1 The Company reserves the right to carry out maintenance and updates to PonchoPay. The Company will endeavour to carry out all maintenance work outside of standard working hours (9am-5pm GMT) on Business Days with as little disruption as possible to Provider and Provider Customers.  However, the Company reserves the right to suspend or interrupt PonchoPay for emergency maintenance or repairs.

12. Intellectual property
12.1 All Intellectual Property Rights in and to PonchoPay including in the Company’s name, logo, and brand shall be and remain vested in the Company(or its licensors).
12.2 The Company may use any feedback and suggestions for improvement relating to the Company’s services provided by the Provider without charge or limitation (“Feedback”).
12.3 Provider hereby assigns (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future intellectual property rights) to the Company at the time such Feedback is first provided to the Company.
12.4 Provider hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any Feedback, to object to derogatory treatment of that Feedback and all other moral rights in the Feedback.

13. Confidentiality
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or Providers of the other party, except as permitted by this clause.
13.2 Each party may disclose the other party's confidential information:
13.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this Agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use the other party's confidential information for any purpose other than to perform its obligations or exercise its rights under this Agreement.
13.4 The provisions of this clause shall not apply to any information that is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its representatives in breach of this clause).
13.5 The Company may disclose or publish that Provider is a PonchoPay Partner and listed on PonchoPay.   In addition, the Company may, with Provider’s prior written consent, create case studies of the collaboration between the Company and Provider.

14. Compliance with law
14.1 Provider may use PonchoPay only for lawful purposes. Provider must not use PonchoPay in any way that breaches any applicable local, national or international law or regulation, or in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect.
14.2 Provider must not use or attempt to use any automated program (including, without limitation, any spider or other web crawler) to access the Company’s system or PonchoPay. You must not use any scraping technology on PonchoPay.
14.3 The Provider shall be solely responsible for compliance with all laws applicable to it in connection with the exercise of its rights and performance of its obligations under the Agreement (including compliance with Data Protection Legislation when sharing Customer information with the Company or sending any marketing or other notifications about PonchoPay to its customers) and shall further be solely responsible for compliance with all published policies, guidelines or industry codes of practice applicable to it but not having the force of law.  
14.4 The Company shall be solely responsible for compliance with all laws applicable to it and its subcontractors and shall further be solely responsible for compliance with all published policies, guidelines or industry codes of practice applicable to it but not having the force of law.
14.5 Regulated payment services are supplied to the Customer and the Provider by the Payment Provider only. The Company supplies the Customer and the Provider with technological and administrative services and the Company does not provide regulated payment services. The Company is not authorised or regulated by the Financial Conduct Authority or the Prudential Regulation Authority in the UK,or internationally by any other financial services regulator.

15. Provider responsible for all Services
15.1 Provider shall be solely responsible for all aspects of the provision, operation and running of Services including:
15.1.1 operating all activities and events in a safe and fun learning environment and for ensuring their appropriateness and safety for children;
15.1.2 performing all relevant, necessary or desirable checks (DBS checks, reference checks) on staff, trainers, teachers and helpers;
15.1.3 complying with all health and safety laws and regulations applicable to the physical or virtual venue of the activity or event and in respect of all equipment to be used; and
15.1.4 having relevant first aid kits and imparting essential first aid training to all staff, trainers, teachers and helpers.
15.2 Provider shall have in place appropriate insurance covering the operation and running of Provider Services.
15.3 Provider shall adhere to any special requirements needed by a Customer such as dietary restrictions or SEND requirements as may be communicated to Provider via the Customer or PonchoPay.

16. Indemnity
16.1 Provider agrees that it will compensate the Company (and the Company’s employees, officers, agents and Providers) in full for any damages, losses, costs and expenses, including reasonable legal fees Poncho incur that arise out of any breach by Provider of the Agreement (including as a result of any material that Provider posts to PonchoPay or any actions Provider take which disrupt access to and/or the functioning of PonchoPay).

17. Disclaimer
17.1 While the Company shall use commercially reasonable endeavours to make PonchoPay available 24 hours a day, seven days a week and to correct any errors in PonchoPay, the Company does not warrant: (a) that the operation or use of PonchoPay will be error-free or uninterrupted or that any defect will be corrected; or (b) that PonchoPay or any information or results obtained by Provider or Provider Customers through the use of PonchoPay will meet Provider's (or any Provider Customer’s) requirements.
17.2 The Company shall not accept any liability or responsibility for any use of or reliance on PonchoPay, the content of PonchoPay,or outputs from it.  
17.3 In relation to the Reconciliation Service,Provider is aware that neither the Company nor its service providers have any control over the account information accessed by the AISP (which is maintained by third parties) and acknowledges that no representation, condition or warranty is made in respect of the data quality of the account information, nor of it being up-to-date, accurate or complete.
17.4 Save as expressly set out in this Agreement, to the maximum extent permitted by law, the Company disclaims any and all representations, conditions and warranties whether express or implied by statute or common law or otherwise that PonchoPay is or will be of satisfactory quality, fit for a particular purpose, provided with reasonable care and skill or non-infringing.

18. Limitation of liability
18.1 Nothing in this Agreement shall be deemed to limit or exclude the liability of the Company for:
18.1.1 death or personal injury caused by its negligence;
18.1.2 fraud or fraudulent misrepresentation; or
18.1.3 any other liability that cannot by law be limited or excluded.
18.2 Subject to clause 18.1, the Company shall not in any event be liable whether in contract (by way of indemnity or otherwise), tort (including negligence), misrepresentation, restitution or otherwise under or in connection with this agreement for:
18.2.1 any special, indirect or consequential loss or damage;
18.2.2 any direct or indirect loss of profit, turnover, business, revenue, contracts, goodwill, reputation, anticipated savings or management time;
18.2.3 loss of data;
18.2.4 any third party claims.
18.3 Subject to clause 18.1, the Company’s total aggregate liability to Provider in any calendar year under or in connection with this Agreement whether in contract (including by way of indemnity), tort (including negligence), misrepresentation, restitution or otherwise will be limited to the greater of (a) a sum equivalent to the total Monthly Fee paid by Provider under this Agreement in the calendar year in which the cause of action first arose, and (b) £100.

19. Anti-bribery
19.1 Each party shall comply with the Bribery Act 2010 and other applicable laws in connection with bribery or anti-corruption including ensuring that it has in place adequate procedures to prevent bribery and shall use all reasonable endeavours to ensure that all of that party’s personnel and all others associated with that party and all of that party’s sub-contractors involved in performing the Agreement so comply.

20. Term and Termination
20.1 The Agreement shall commence on the Start Date and, unless terminated earlier in accordance with this clause, shall continue for the Initial Term. Thereafter, the Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period.
20.2 Either party may terminate this Agreement at any time with immediate effect by giving written notice to the other party if:
20.2.1 the other commits a material breach of any of its obligations under the Agreement which (if the breach is capable of remedy) it has failed to remedy within 30 days after the receipt of a notice in writing from the terminating party requiring the defaulting party to do so;
20.2.2 a provisional liquidator is appointed to the other or the other goes into liquidation either compulsorily or (except for the purpose of reconstruction or amalgamation) voluntarily;
20.2.3 a receiver is appointed in respect of the whole or any part of the assets of the other;
20.2.4 an administration order is made in respect of the other; or
20.2.5 the other enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors.
20.3 The Company may terminate the Agreement by notice in writing to Provider having immediate effect if Provider defaults in payment of any Company invoice and such invoice remains outstanding fourteen (14) calendar days after the Company has issued a demand in writing for payment.

21. Consequences of Termination
21.1 The termination of the Agreement will be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.
21.2 On termination of the Agreement for any reason whatsoever:
21.2.1 Provider shall no longer have access to  PonchoPay;
21.2.2 no refund will be due to Provider in respect of any Commission paid;
21.2.3 the provisions of clauses 1 (Definitions and Interpretation), 10 (Data Protection), 12 (Intellectual Property), 13 (Confidentiality), 18 (Limitation of Liability), 21 (Consequences of Termination), 28 (Law and Jurisdiction) and any other provision which expressly or by implication is intended to come into or remain in force on or after termination will continue in full force and effect.

22. Assignment and Subcontracting
22.1 The Provider shall not assign, sub-license, transfer, mortgage, charge, declare a trust of, subcontract or deal in any other manner with any or all of its rights or obligations under this Agreement, without the Company's prior written consent (such consent not to be unreasonably withheld or delayed).
22.2 The Company may without Provider’s prior written consent:
22.2.1 assign or transfer the benefit of, and any of its rights under, this Agreement together with any cause of action arising in connection with any of them to its successor in title, to any of its group companies or to any purchaser or transferee from it or any of them; or
22.2.2 sub-contract any or all of its obligations under this Agreement so long as the Company remains responsible for the obligations performed by any such subcontractor to the same extent as if such obligations were performed by the Company.
22.3 Any attempted assignment, transfer or other dealing in violation of this clause 21 will be void and without effect.

23. Notices
23.1 A notice or other communication required to be given under the Agreement shall be sent by email to the Company at help@ponchopay.com and to Provider at the email address for Provider as per Poncho records.
23.2 A notice or other communication sent by email shall be deemed duly received on the next Business Day after transmission if sent to the correct email address and no notice of delivery failure is received.
23.3 Any change to a party’s email address for the purposes of this clause shall be notified to the other party in accordance with clause 23.1
23.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

24. Force Majeure
24.1 A “Force Majeure Event” means any circumstance not within a party's reasonable control including, without limitation:
24.1.1 acts of God, flood, drought, earthquake or other natural disaster;
24.1.2 epidemic or pandemic;
24.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions or embargo;
24.1.4 nuclear, chemical or biological contamination or sonic boom;
24.1.5 failure of or interruption in internet or telecommunications services;
24.1.6 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, sanction, quota or prohibition.
24.2 Provided it has complied with clause 24.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
24.3 The Affected Party shall:
24.3.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
24.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
24.4 A Force Majeure Event shall not relieve the Affected Party from its obligation to make payment of any sum due under the Agreement.
24.5 If the Force Majeure Event prevents the Affected Party's performance of its obligations under the Agreement for a continuous period of more than two months, the other party may terminate the Agreement by notice in writing to the Affected Party without liability to the Affected Party as a result of exercising the right of termination.

25. Amendments to these terams and conditions
25.1 The Company may update or modify the Agreement to reflect changes to PonchoPay or updates to its business practices and policies, or for other reasons.
25.2 If the Company updates or modifies the Agreement, it shall give notice to Provider. Unless Provider notifies the Company within thirty days of the date of the Company’s notice, Provider will be deemed to have accepted the new terms. Notwithstanding any such notice from Provider, Provider’s continued use of PonchoPay after the expiry of such thirty day period will signify its agreement to the new terms.

26. Entire Agreement
26.1 The Agreement represents the entire agreement between the parties in relation to the subject matter of the Agreement and supersedes any previous agreement whether written or oral between all or any of the parties in relation to that subject matter. Accordingly, all other conditions, representations and warranties which would otherwise be implied (by law or otherwise) shall not form part of the Agreement.
26.2 Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the Agreement.
26.3 Nothing in this clause shall limit or exclude any liability for fraud.

27. General
27.1 If any provision or part of any provision of the Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, then the provision or part shall be severed and the remainder of the provision and all other provisions of the Agreement shall remain valid and in full force.  If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
27.2 Subject to clause 25, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
27.3 The Company is an independent contractor. Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
27.4 No delay in exercising or failure to exercise by any party of any of its rights under or in connection with the Agreement shall operate as a waiver or release of that right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.
27.5 Each party shall pay its own costs incurred in connection with the negotiation, preparation, and execution of this agreement and any documents referred to in it.
27.6 Except as otherwise expressly provided in this Agreement, none of the terms and conditions of this Agreement shall be enforceable by any person who is not a party to it, and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply in relation to this Agreement.

28. Law and Jurisdiction
28.1 The Agreement, and any non-contractual rights or obligations arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with English law.
28.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to hear and determine or otherwise settle all and any claims, proceedings, suits or action (including arbitration) arising out of or in connection with the Agreement or its subject matter.

Last updated : 11th October 2023