Terms and Conditions

GENERAL TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS are entered into on the Operative Date in accordance with the Provisions herein.

These Terms and Conditions set forth the legal relationship between Voice Commerce Ltd, CPC1, Capital Park, Cambridge, United Kingdom, CB21 5XE, a company registered in the United Kingdom under company register number 05428358 (hereinafter "CashFlows", "We", "Our", "Us") and the customer ("You", "Customer") in respect of the provision of services by CashFlows to You.

It sets out the terms on which CashFlows will provide the Services or any of them. Where You have requested any of Our Services and We have agreed to supply them to You such supply will be subject to the general terms and conditions in the body of this document and any relevant specific supplemental terms as set out in the schedules. Where there is any conflict between any supplemental terms and the general terms in this document then the provisions in these general terms shall apply.

1. DEFINITIONS AND INTERPRETATION

In these Terms and Conditions, the following terms shall (unless the context otherwise requires) have the meanings ascribed below. Terms defined in the Schedules shall also apply in these general conditions (and vice versa) where the context admits or requires:

"Acquirer" means a Person who or which is licensed by a Card Scheme and/or has appropriate arrangements in place with a third party relating to the use of a Card Scheme acquiring licence and who or which enters into an agreement with a merchant for the provision of services allowing the merchant to accept payment by Cards pursuant to the Rules and to receive payment from such Person in respect thereof (and "Acquiring" shall be construed accordingly);

"AML Regulations" means the Money Laundering Regulations 2007;

"Ancillary Services" means CashFlows eInvoicing, CashFlows Mobile Marketing Codes, CashFlows Portable and CashFlows Virtual Terminal and each and any of them;

"Application" means Your application to Us for the provision of any of the Services (and "Application Form" shall be construed accordingly);

"Associate Services" means CashFlows Business Loans and CashFlows FX and each and both of them;

"Business Day" means a day on which banks are open for business and dealing in European currencies in England excluding Saturdays, Sundays and public holidays; and where a Transaction is to be made in a currency other than Pounds Sterling, a day on which banks are open for business and dealing in that currency in the principal financial centre of the country of such currency; where a Transaction is to be made to a destination other than England a day on which banks are open for business and dealing in the relevant currency in the principal financial centre of that country;

"Card Issuer" means a financial institution which issues Cards under the authority of the relevant Card Scheme and/or Regulation (and "Card Issuers" and "Issuing" shall be construed accordingly);

"Card Schemes" means Visa Europe, Visa Inc, MasterCard Worldwide, UK Maestro, Solo and/or International Maestro and/or such other schemes governing the issue and use of Cards, as approved and notified by Us to You in writing from time to time (and "Card Scheme" shall be construed accordingly);

"CashFlows Account" means Your account with Us which is designated as a "client account" in accordance with FSA requirements (but which for the avoidance of doubt is not a separate account) which is credited with the value of Transactions that We receive from the Card Schemes (or from other sources which We may approve and enable from time to time) and from which Remittance can be made to Your Customer Bank Account or from which You can initiate payments using Our Pay and Collect service, in relation to which We provide statements either through Our online management facility or as We otherwise elect showing details of the relevant Transactions, Remittances, payments made by You and the amount of the Fees due to Us and for which we maintain records of all credits and liabilities between You and Us and provide technical specifications regarding the interface between Your and Our systems as further described at www.cashflows.com/account;

"CashFlows Acquiring Services" means the services provided to You by CashFlows acting as Acquirer in accordance with these general terms and the supplemental terms contained in the relevant schedule which service shall include procuring payment services in connection with the acceptance of Transactions in electronic form in order to clear such Transactions for Settlement and subject to the requirements of relevant data protection laws, providing access to data capture and passing on the relevant Transaction data for Authorisation and as further described at www.cashflows.com/accepting_payments the terms and conditions for which are set out in the schedule hereto;

"CashFlows Business Card" means the corporate prepaid Visa Card available to holders of a CashFlows Account for which We are the Card Issuer and as further described at www.cashflows.com/prepaid_card the terms and conditions for which are set out in the schedule hereto;

"CashFlows Business Loans" means the secured business loans available from Our associate and as further described at www.cashflows.com/loans;

"CashFlows e-Invoicing" means Our electronic and mobile service that allows You to send invoices to Your customers by email and enables Your customers to pay these invoices into Your CashFlows Account and as further described at www.cashflows.com/e-invoicing the terms and conditions for which are set out in the schedule hereto;

"CashFlows FX" means the foreign exchange and payment service available from Our associate and as further described at www.cashflows.com/fx;

"CashFlows Mobile Marketing Codes" means Our matrix barcodes which You can use on online and offline marketing material for Your customers to use on making purchases from You and as further described at www.cashflows.com/qrcodes;

"CashFlows Portable" means Our iPhone application which enables You to take Card payments using Your iPhone as a terminal for Card data entry and as further described at www.cashflows.com/portable;

"CashFlows Remittance" means a Remittance from Your Remittance Account to Your Customer Bank Account initiated by Us on the Remittance Date;

"CashFlows Virtual Terminal" means Our software application which enables You to take mail order and telephone order Card Transactions by submitting Card data through Our secure payment gateway for Authorisation and as further described at www.cashflows.com/virtual_terminal;

"Confidential Information" means information that is designated as "confidential" or which by its nature is clearly confidential including any information relating to a Cardholder or a Cardholder's use of a Card or information concerning any one of the Card Schemes or information concerning Our or (as the case may be) Your technology, technical processes, procedures, business affairs, finance, security procedures and premises and may take the form of (but is not limited to) documents, technical specifications, unpublished patent specifications, data, drawings, plans, processes, photographs, databases, computer software in disk, cassette, tape or electronic form and items of computer hardware or oral descriptions or demonstrations;

"Contract" means our contract with You which is made up of these Terms and Conditions and the documents referred to in clause 2;

"Control" means the right to control directly or indirectly, the activities of a Person, whether through ownership or the ability to control the voting powers of shares, the ability to control the board or management of such Person or otherwise (and "Controls" and "Controlled" shall be construed accordingly);

"Customer Bank Account" means a separate account maintained by You at a Bank or financial institution acceptable to Us in order to facilitate Remittance and the provision of the Services;

"Customer Due Diligence Measures" means

• (a) identifying the customer and verifying the customer's identity on the basis of documents, data or information obtained from a reliable and independent source;
• (b) identifying, where there is a beneficial owner who is not the customer, the beneficial owner and taking adequate measures, on a risk-sensitive basis, to verify his identity so that the relevant person is satisfied that he knows who the beneficial owner is, including, in the case of a legal person, trust or similar legal arrangement, measures to understand the ownership and control structure of the person, trust or arrangement; and
• (c)obtaining information on the purpose and intended nature of the business relationship;

"Customer Remittance" means a Remittance from Your Remittance Account to Your Customer Bank Account initiated by You using the Pay and Collect service;

"Customer Payment" means any payment initiated by You from Your Remittance Account authorised by Us other than a Customer Remittance (including but not limited to charging value to a CashFlows Business Card or for use in the CashFlows FX service);

"Data" means documents, data and records of any kind relating to Transactions (including, for the avoidance of doubt, data relating to Cards, Cardholders and other payment accounts);

"Dispute" means any issue concerning a Transaction or concerning Your behaviour which is relevant to the Services which is raised with Us by any third party;

"DPA": the Data Protection Act 1998 and all other applicable data protection legislation codes and published guidance in force from time to time;

"Fees" means the fees payable by You to Us for the provision by Us of the Services or any of them, as notified to You by Us from time to time;

"Group Company" means, in respect of a party, any undertaking which, directly or indirectly, Controls or is Controlled by such party or an undertaking which, directly or indirectly, Controls or is Controlled by any aforementioned undertaking;

"Intellectual Property Rights" means any and all intellectual property rights of whatever nature including patents, inventions, know-how, trade secrets and other confidential information, registered designs, copyrights, database rights, rights in software, design rights, rights affording equivalent protection to copyright, trademarks, service marks, logos, domain names, business names, trade names, moral rights, and all registrations or applications to register any of these, rights in the nature of unfair competition rights and rights to sue for passing off and all such rights in any country or jurisdiction;

"KYCSecure" means Our voice biometric identity verification service whereby We confirm the identity of an individual using recognized positive verification methods and match these records to the individuals biometric voice print which is stored on Our servers and can be used in accordance with that individuals instructions to confirm his or her identity by telephone as part of the Customer Due Diligence Measures that a business may be required to undertake on its customers and as further described at http://www.kycsecure.com/;

"On4 Storebuilder" means the software we provide under licence and on request which can enable You to create a virtual shop or store for the display of Your goods or services to Your potential customers as further described at www.cashflows.com/on4 the terms and conditions for which are set out in the schedule hereto;

"Operating Instructions" means any operating instructions as communicated to You by Us from time to time, setting out procedures, information and instructions which You must follow in connection with the Services;

"Operative Date" means the date when You first start to use any of the Services;

"Pay and Collect" means Our global remittance service which allows You to send payments throughout the world from Your CashFlows Account as further described at www.cashflows.com/payandcollect the terms and conditions for which are set out in the schedule hereto;

"Person" means any individual, corporation, firm, unincorporated association, government, state or agency of a state and joint venture;

"Regulation" means all laws, statutes, statutory instruments, acts, regulations, orders and directives , and all codes of practice and guidance issued by government agencies, self regulatory bodies and trade associations (whether or not having the force of law) applicable to the conduct of Our or Your businesses or in connection with their rights and obligations under these Terms and Conditions;

"Remittance" means the transfer by You or Us from Your CashFlows Account to Your Customer Bank Account of Transactions and other funds held to the credit of Your CashFlows Account (if any) (and "Remit" and "Remitted" shall be construed accordingly);

"Remittance Account" means that designated part of Your CashFlows Account into which funds are placed when they are approved by Us as being due for Remittance or otherwise free for use by You;

"Remittance Date" means the date as shall be agreed between Us when We shall make a Remittance to You;

"Rules" means the applicable rules, regulations and operating guidelines issued by the Card Schemes or by Us from time to time relating to Cards, Transactions and any payments or processing of Data relating to Cards and Transactions (including all amendments, changes and revisions made from time to time) which We have communicated to you (whether by e-mail, website updates, newsletter or otherwise) or are available to You from Card Scheme websites or other similar sources;

"Services" means the provision of payment and other services by CashFlows to You which may include (as appropriate): the CashFlows Acquiring Service, CashFlows Business Card, On4 Storebuilder, Pay and Collect, the Ancillary Services, the Associate Services, and all matters necessary to ensure the delivery of these services such as the secure capture and storage of data, access to Transaction data, Authentication, Authorisation and Remittance as well as fraud monitoring all of which compromise Your CashFlows Account;

"Transaction" means a Card Transaction or other payment transaction initiated by a payee or payer to place, transfer or withdraw funds;

"Trust Centre" means the aggregate of the voice prints recorded on Our systems and which We and (in accordance with these terms and conditions) others may use as a tool for confirming the identity of the relevant individual;

"VoicePay" means the method by which a person can authorise a Transaction such as loading value onto their CashFlows Business Card or Authorise a Card Transaction by matching their voice to their unique voice biometric signature stored with Us as further described at www.cashflows.com/voicepay the terms and conditions for which are set out in the schedule hereto; and

"You" means the Person which has applied for the Services and been accepted by Us as a customer.

In these Terms and Conditions (unless the context otherwise requires):

the words "including" and "include" and words of similar effect shall not limit the general effect of the words which precede them;

references to the Contract, these Terms and Conditions and any other agreement, contract or document (including the Rules) shall be construed as a reference to it or them as varied, supplemented or novated from time to time;

words importing the singular shall include the plural and vice versa;

words importing any gender shall include a reference to each other gender; and

references to a numbered clause or paragraph are to a clause of these Terms and Conditions or paragraph of the schedule so numbered.

The headings in these Terms and Conditions are for convenience only and shall not affect their construction or interpretation.

2. THE CONTRACT

The following documents are incorporated into and form part of the Contract:

• (a) any Application Form (if applicable);
• (b) these Terms and Conditions which are made up of Our general terms and conditions which apply to ever Service We may provide to You and supplemental terms and conditions for individual Services which are set out in the schedules hereto;
• (c) any fee or charge sheet referred to on our Website when applicable ; and
• (d) any Operating Instructions, datasheets or manuals relating to various aspects of the Services which are issued and/or amended by Us from to time to time.

3. OBLIGATIONS OF CASHFLOWS

3.1 Notwithstanding any submission of an Application Form We shall not be obliged to provide any Service unless and until We notify You in writing that We have accepted the Application.

3.2 The Services shall be provided in return for the Fees and upon and subject to the provisions of the Contract.

3.3 The Services shall be provided with reasonable care and skill and in accordance with all applicable laws and regulations (including the Rules and the Operating Instructions).

4. SERVICES

4.1 The Services shall include such of the Services as may be requested by You and agreed to by Us from time to time.

4.2 The Ancillary Services shall be provided in accordance with the terms set out in the schedule hereto entitled "Ancillary Services";

4.3 The Associate Services are provided by Our third party associates. You Will be required separately to enter into their terms and conditions prior to accessing their services. Whilst we have taken all reasonable steps to assure Ourselves of the quality and suitability of these services we cannot be liable in any way for the services supplied to You by another party.

5. INTELLECTUAL PROPERTY

5.1 This Contract does not transfer, and is not intended to transfer, to You any of the Intellectual Property Rights that We own at the date of the commencement of the Contract or any Intellectual Property Rights that We create, acquire or develop during the term of the Contract.

5.2 You shall obtain Our written consent prior to using or referring to any of Our trademarks, logos, copyrighted materials, business names or other similar protected intellectual property in any of Your promotional materials or literature, agreements or on any website.

5.3 On termination of the Contract, You shall remove any reference to Us from any of Your promotional materials or literature, agreements or on any websites.

6. YOUR ACCEPTANCE OF THE CONTRACT AND OBLIGATIONS UNDER IT

6.1 You agree that by proceeding with Your application for the CashFlows Account and/or any of the Services and making use of any of the Services You are accepting the provisions in these terms and conditions. You shall at all times comply with:

• 6.1.1 the provisions of the Contract;
• 6.1.2 all laws, regulations and codes of practice (including the Rules) applicable to any of the Services, any Transaction, the sale of goods and/or services by You in connection with the Transactions and the execution and performance by You of Your obligations under the Contract (including the Operating Instructions); and

6.2 Unless otherwise agreed by Us in writing, You acknowledge and agree that You shall (at Your own cost) be solely responsible throughout the duration of the Contract for the provision of all such equipment, software, systems and telecommunications facilities which are required to enable You to use the Services.

6.3 Customer's Bank Account

• 6.3.1 You shall establish and maintain in a form acceptable to Us an account in Your name at a bank or financial institution acceptable to Us to facilitate Our provision of the Services;
• 6.3.2 You shall maintain sufficient funds in the Customer Bank Account in respect of due liabilities under the Contract;
• 6.3.3 Where permitted by law and local regulations, You shall irrevocably authorise Us to debit the Customer Bank Account for any amounts due to Us under the Contract and shall if requested sign any direct debit or similar form to effect such authority;

• 6.3.4 You must notify Us if You propose changing the Customer Bank Account and where appropriate, initiate a direct debit over the new account if requested by Us in respect of monies owed to Us under these Terms and Conditions.
• 6.3.5 Notwithstanding termination of the Contract, You shall maintain the Customer Bank Account and keep in it enough funds to cover all potential Chargebacks and other liabilities incurred and also for the purpose of receiving any Remittance when due.

6.4 Websites

• 6.4.1 Where We provide the CashFlows Acquiring Service to You, You must operate a suitable website for the sale of Your goods and services.
• 6.4.2 You are responsible for all material on Your website. All material on the website must comply with all relevant laws and regulations and You shall ensure that it has all necessary licences and permissions (including those from owners of copyrights, performing rights and any other relevant intellectual property rights).

• 6.4.3 You must include clearly on Your website:
  • 6.4.3.1 Your contact details (including e-mail address and postal address);
  • 6.4.3.2 a consumer data privacy policy; and
  • 6.4.3.3 Your security capabilities and policy for transmission of Card details.
• 6.4.4 With effect from the Operative Date, We grant You a limited, revocable, and non-exclusive right to create a hyperlink to Our "welcome page" as long as the link does not portray Us, Our other customers, or their products or services in a false, misleading, derogatory, or otherwise offensive manner. You may not use any of Our logos or other proprietary graphics or trademarks as part of the link without Our express written consent.
• 6.4.5 You will include on Your website an inbound link to the CashFlows website.

6.5 Provision and Disclosure of Information

You shall at all times throughout the term of the Contract (and for such period as may be necessary thereafter):

• 6.5.1 disclose to Us such information as We reasonably require relating to the performance of the Contract including any information:
  • 6.5.1.1 required to satisfy Our obligations to any governmental or regulatory authority or Card Scheme or otherwise;

  • 6.5.1.2 relating to any aspect of the processing of Data by You or on Your behalf;
  • 6.5.1.3 to enable us to review any potential risk to Our business; or
  • 6.5.1.5 required for the purposes of any additional services which may be provided under the Contract or by such third party provider with whom We have entered into an introducer agreement ("Introducer Agreement").
• 6.5.2 take all reasonable steps to assist Us in handling any claim or query raised by a Cardholder, a Card Issuer, a Card Scheme, an Acquirer or any other third party in relation to the Services; and
• 6.5.3 give Us reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of the Services.

6.6 To enable Us to assess Your financial position throughout the term of the Contract, You shall on request:

• 6.6.1 provide Us or Our duly authorised representatives with any financial or other information We may require; and
• 6.6.2 permit or procure Us or Our duly authorised representatives to have access to any relevant records regarding Your business, to examine all or any of such records and those of any other business which We consider is or may be connected to it, and to take and retain copies of all or any such records and further to provide to Us or procure that We are provided with honest and comprehensive answers to any enquiries We may make.

6.7 You shall notify Us immediately in writing of any:

• 6.7.1 act, omission or error which does or may:
  • 6.7.1.1 cause material loss or damage to Us (including damage to Our reputation, which for the avoidance of doubt shall be deemed to be material in every instance in which it occurs); or
  • 6.7.1.2 adversely affect Your ability to perform Your obligations under the Contract;
  • 6.7.1.3 actual or suspected violation or compromising of the security or integrity of any Data or any other information relating to any of the Services or any Confidential Information at any time obtained or held by You;
  • 6.7.1.4 material change in the nature of Your business or in the goods and/or services supplied to Your customers or of any additional business commenced by You or of Your cessation of business; or
  • 6.7.1.5 any change of Your Control, or any proposed or reasonably anticipated change of Your Control.

7.YOUR CASHFLOWS ACCOUNT AND REMITTANCE

7.1.Cashflows Account and Remittance Account

• 7.1.1We shall credit Your CashFlows Account with:
  • 7.1.1.1 all sums received by Us for Your benefit from a source approved by Us from time to time through the Pay and Collect service;
  • 7.1.1.2 all sums received by Us from Card Issuers in relation to Your Transactions.
• 7.1.2We shall from time to time credit Your Remittance Account sums designated by Us as available for Remittance.
• 7.1.3Throughout the term of the Contract and after its termination for any reason, We shall be entitled to defer crediting Your Remittance Account (for such period as We shall in Our reasonable discretion consider appropriate) any sum that would otherwise be due (or in Our discretion to withdraw from Your Remittance Account any amount which had previously been credited to it) in order to protect Our position with respect to, any liability of Yours to Us (including any liability of Yours relating to any Chargeback, Transactions or any Assessments) in each case whether actual or anticipated and You hereby irrevocably authorise us to make any such withdrawal. We will notify You as soon as possible upon exercising our rights under this clause.
• 7.1.4If We become aware of any claims or action in connection with the Contract, (whether actual or potential), or We reasonably conclude that any may arise or We have a reasonable suspicion that a Service may be being used or has been used fraudulently or involves other criminal activity or We have a reasonable suspicion that there has been a breach of the Contract, We may delay making any Remittance or block any Customer Remittance until either:
  • 7.1.4.1 the relevant liability is incurred (when We shall pay to You or allow You to initiate a payment from the Remittance Account of the balance of the amount of such sums, if any, after deducting the amount of such liability); or
  • 7.1.4.2 any breach has been ascertained or the risk of any breach passed; or
  • 7.1.4.3 We are, acting reasonably, satisfied that no such liability will be incurred or that no fraud or other criminal activity is involved.
• 7.1.5 We may from time to time by notice to You set a minimum limit below which a Remittance shall not be made because the cost of the transfer would make it commercially impractical.

7.2 Remittance

• 7.2.1 Only sums shown on Our reporting systems as being held in Your Remittance Account shall be treated as available for Remittance or Customer Payments and You shall not attempt to make any Customer Remittance or Customer Payment from Your CashFlows Account exceeding the balance shown as available in Your Remittance Account.
• 7.2.2 If You are not using any of the Pay and Collect, CashFlows Business Card or CashFlows FX services then Customer Remittance will not be available to You and Remittance will only be through the CashFlows Remittance service and will be made on the Remittance Date.
• 7.2.3 Throughout the term of the Contract, We shall be entitled to defer the payment of any relevant Remittance to You to the next Remittance Date if the amount of such Remittance falls below any minimum threshold for Remittance as notified by Us to You in writing from time to time.

7.3 CashFlows Remittance

• 7.3.1 Where Remittance is made as a CashFlows Remittance it will be made subject to Our rights to defer and/or deduct from Remittance and shall be made on the Remittance Date by Us sending by bank transfer to Your Customer Bank Account the relevant amount. We shall not be obliged to make a Remittance to any account other than the Customer Bank Account.
• 7.3.2 CashFlows Remittance shall not fall due until the occurrence of the later of the following:
• 7.3.1 the next Remittance Date following the relevant Transactions; and
• 7.3.2 the expiry of any period of deferment which we are entitled to impose.

7.4 Customer Remittance and Other Payments

• 7.4.1 Customer Remittance shall be made in accordance with the terms of the Pay and Collect service.
• 7.4.2 Other payments initiated by You from Your Remittance Account shall be made in accordance with the terms of the CashFlows Business Card in relation to loading value onto any Card We issue to You or the CashFlows FX services as relevant.

8. KYC SECURE AND OUR CUSTOMER DUE DILIGENCE

8.1 We may as part of Our own Customer Due Diligence Measures (either on Your application with Us for Your CashFlows Account or for any of the Services or as part of any ongoing or updating of Our records) require that You or any of Your principals or employees (where relevant) register their voice print with Us as part of Our Trust Centre.

8.2 Such voice prints may be offered as part of any Introducer Agreement or other arrangement We may make concerning access to the Trust Centre for personal identity services.

8.3 Where You (or where relevant Your principal or employee) authorises it such voice print can be used to help confirm the identity of the relevant individual in relation to any Transaction through Our VoicePay service or for other identity confirmation.

9. CARD SCHEME RULES

9.1 These Terms and Conditions are intended to comply with the Rules. The Rules shall prevail over the terms of these Terms and Conditions in the event of any dispute.

9.2 You agree that the Card Schemes have the right, either in law or in equity, to enforce any provision of the Rules pertaining to the relevant Card Scheme and to prohibit conduct that creates a risk of injury to that Card Scheme or which may adversely affect the integrity of that Card Scheme's systems, information, or both. Upon receipt of notice in accordance with any such matters, You will refrain from taking any action that would have the effect of interfering with or preventing any exercise of such right by any Card Scheme.

9.3 Should any provision of these Terms and Conditions be or become at variance with the Rules, We shall give You notice effecting any change necessary to bring these Terms and Conditions into line with the Rule. You shall have the right to terminate these Terms and Conditions upon receipt of such notice by providing Us with not less than 30 days notice to that effect; otherwise the Rules shall govern the extent of any variation to these Terms and Conditions.

9.4 In the event that We cease to be a member of the Card Schemes, We may terminate or suspend the provision of all or any part of the Services or terminate the Contract or any part of the Services at any time with immediate effect by notice as referred to in clause 25.

10. FEES

10.1 In return for Us providing the Services You shall pay the Fees and all other sums payable by You in accordance with the provisions of the Contract.

10.2 Unless stated otherwise, all Fees, charges and other payments to be made by You under the Contract are exclusive of VAT and any other relevant taxes and in addition to paying such Fees, charges or other payments You shall also pay any such taxes.

10.3 We may from time to time:

• 10.3.1 vary the Fees; and
• 10.3.2 introduce new charges in addition to the Fees

by giving You not less than 60 days' written notice of the same.

10.4 We are entitled to immediately and without notice apply changes in exchange rates, interest rates, Interchange and Scheme Fees. Such changes shall be based upon the reference rates notified to You on Our website from time to time.

11. SET OFF

11.1 In addition to any lien or right to which We may be entitled by law, You hereby irrevocably authorise Us from time to time without notice and both before and after demand to set-off by whatever means the whole or any part of Your liabilities to Us under the Contract (whether such liabilities are present, future, actual or contingent or potential, liquidated or unliquidated and irrespective of the currency of its denomination and including without limitation any negative balance on any prepaid or other Card product of Yours of which We are the Issuer) against any sums (whether or not held in Your CashFlows Account or Remittance Account) held by Us which are in Your name. Any credit balance with Us will not be repayable, or capable of being disposed of, charged or dealt with by You until Your liabilities to Us have been met. Our allowing You to make withdrawals or payments from any account You hold with Us will not waive this restriction. We will notify You as soon as possible upon exercising our rights under this clause.

11.2 You are not entitled to set-off any liabilities of Ours under the Contract or otherwise (whether such liabilities are present, future, actual, contingent or potential) against any funds due to Us from You.

11.3 Any exercise of Our rights under this clause 11 shall be without prejudice to any other rights or remedies available to Us under the Contract or otherwise.

12. SECURITY

12.1 We may at any time require You to procure that a Person or Persons satisfactory to Us, provide Us with a guarantee and/or indemnity in respect of Your obligations (including contingent or potential obligations) from time to time under the Contract.

12.2 We may at any time require You to grant to Us, or procure the granting to Us of security in such form, including, for the avoidance of doubt, the requirement to put funds into Your Customer Bank Account and/or any other account which We may specify (including Your CashFlows Account or a trust or deposit account which We may establish for such purpose) and over such assets (and free of other security interests or subject only to such other security interests and other rights as We shall permit) to secure to Our satisfaction the performance of Your obligations (including contingent or potential obligations) from time to time under the Contract.

12.3 We may exercise Our rights under clauses 12.1 and 12.2 either to require additional security or to require the replacement of a previous security which has been withdrawn or which We for any reason require to be replaced.

12.4 Without prejudice to any other provision of the Contract, Your failure to comply with any requirement made under this clause 12 strictly in accordance with the relevant time limits shall constitute a material breach of these Terms and Conditions for the purposes of clause 16.3.

13. INDEMNITY

13.1 You shall indemnify and hold Us indemnified from and against all actions, proceedings, costs, claims, demands, charges, expenses (including legal expenses), liabilities, fines (including Assessments), levies, losses and damages, whether arising in tort, contract or common law, which We may suffer or incur to the extent arising out of or in consequence of or in connection with:

• 13.1.1 any claim (including Assessments) brought against Us by a third party (including any Cardholder, Card Scheme, Card Issuer or Acquirer) arising from a Transaction;
• 13.1.2 any other claim brought against Us arising from any aspect of Our relationship with You (including in connection with any security breach, compromise or theft of Data held by You or on Your behalf irrespective of whether such security breach, compromise or theft of Data was within or outside Your control);
• 13.1.3 the enforcement or attempted enforcement of the Contract (which includes the recovery or attempted recovery of any sum owing to Us under the Contract);
• 13.1.4 the protection of Our interests in connection with any aspect of Our relationship with You (including the cost of any third parties nominated by Us or instructed by Us for this purpose);
• 13.1.5 a material breach by You of any of these Terms and Conditions or any other provisions of the Contract;

• 13.1.6 any Transaction (including a Transaction which is subsequently discovered to be fraudulent); or
• 13.1.7 any other arrangements between You and Your customer,

except, in each case, if and to the extent caused by or contributed to by Our negligence or any material breach of the Contract by Us.

13.2 For the avoidance of doubt, if a claim is brought against Us by a third party We shall be entitled to settle or otherwise deal with it at Our sole discretion.

13.3 If You are a partnership, each partner shall be jointly and severally liable under the Contract.

14. LIABILITY

14.1 We shall not be liable for any delay or failure to carry out any of Our obligations under the Contract if and to the extent that such failure:

• 14.1.1 is due to abnormal or unforeseeable circumstances beyond Our reasonable control (or that of Our agents or sub-contractors); or
• 14.1.2 is due to Our obligations under national or international law.

14.2 Subject to clause 14.6, We shall not be liable to You in contract, tort (including negligence or breach of statutory duty) or otherwise for:

• 14.2.1 any loss of business, loss of reputation, loss of data and loss of opportunity including loss of profits ; or
• 14.2.2 any indirect, special or consequential loss or damage

howsoever caused arising out of, or in connection with, any supply, failure to supply or delay in supplying the Services or otherwise in connection with the Contract.

14.3 Subject to clause 14.7, Our total liability to You in contract, tort (including negligence or breach of statutory duty) or otherwise arising out of, or in connection with, the supply, failure to supply or delay in supplying the Services throughout the term of the Contract or otherwise in connection with or related to the Contract shall be limited to:

• 14.3.1 the Fees paid to Us in the twelve months prior to the date of the first event giving rise to any relevant liability; or
• 14.3.2 where the date of the first event giving rise to any relevant claim arises during the period of 12 months commencing on the Operative Date, the total amount of Fees which have been paid in such period together with an amount equal to the Fees which would be reasonably likely to be payable (having regard to matters such as the amount of Fees which have been paid or are payable, market conditions and general patterns of trading and assuming that the Contract would remain in full force and effect) for the remainder of such 12 month period.

14.4 Without prejudice to either Party's rights to terminate the Contract, Your sole remedy at law, in equity or otherwise in respect of any claim against Us shall be limited to damages.

14.5 You acknowledge and agree that, given the nature of the Services, the availability to You of suitable alternative services (including payment methods for Your customers) and Your ability to choose other providers of similar services before entering into the Contract, the limitations on liability contained in this clause 14 are reasonable in all the circumstances and that the Fees have been calculated taking into account such limitations (which would be higher but for such limitations) and accordingly You have accepted the risk of any losses which You may suffer because of the limitation on Our liability under this clause.

14.6 Nothing in these Terms and Conditions shall operate to exclude or restrict Our liability for fraud or deceit or for death or personal injury resulting from Our negligence.

14.7 We shall have no liability to You in relation to any decision of any regulator, Acquirer, Card Issuer or Card Scheme, save if and to the extent that such decision is made as a direct result of Our negligence or any breach of the Contract by Us.

15. VARIATIONS

15.1 We may amend the Contract at any time. However, we shall usually and where we consider reasonable in the circumstances, give you at least 60 days' prior notice of any changes. For the avoidance of doubt, You will be deemed to have accepted such changes if You do not notify Us to the contrary before the conclusion of the 60 day notice period.

15.2 In the event that amendments are made in order to comply with:

• 15.2.1 the Rules;
• 15.2.2 any Regulation;
• 15.2.3 banking regulation; and
• 15.2.4 currency restrictions from local and/or central banks,

Such amendments will become effective immediately.

15.3 We may from time to time vary the Fees (in addition to changes to reflect changes in exchange rates, interest rates, Interchange and Scheme Fees) and/or introduce new charges at any time in accordance with the provisions of clause 10.

15.4 We may from time to time adjust the content and interfaces of the Services. If such adjustments lead to a change in software, interfaces or operating procedures, We shall notify You as soon as reasonably practicable prior to the implementation of such adjustments.

15.5 In certain exceptional circumstances such as where we have a reasonable belief that fraud is likely to or has occurred, we may implement such amendments prior to notification to You.

15.6 For the avoidance of doubt, these Terms and Conditions will not be deemed to be or be interpreted as having been amended as a result of any oral communication between the Parties or as a result of any practice between the Parties.

16. TERM AND TERMINATION

16.1 The Contract shall commence upon the Operative Date and, subject to earlier termination in accordance with its terms shall continue in force until terminated by You giving Us not less than 30 days' notice or We giving You not less than 60 days' notice.

16.2 In the event that We notify You in writing that We have not accepted Your Application the Contract shall terminate with immediate effect on the service of such notice.

16.3 We shall be entitled to immediately suspend the provision of all or any the Services or to terminate the Contract or all or any of the Services or any part thereof at any time with immediate effect by notice to You if:

• 16.3.1 You materially breach any of the provisions of the Contract and either:
  • 16.3.1.1 that breach is incapable of remedy; or
  • 16.3.1.2 You fail to remedy the breach within 21 days of the date of Our notice requiring you to do so;
• 16.3.2 You fail to pay any amount under the Contract on the due payment date;
• 16.3.3 We consider (in Our reasonable discretion) that the total value of Refunds and/or Chargebacks is unreasonable;
• 16.3.4 You breach the Rules;
• 16.3.5 You present a Transaction to Us in a situation where You do not give to the relevant Cardholder the goods, services or other facilities referred to which they could reasonably expect to receive;
• 16.3.6 You become insolvent or any step is taken for Your liquidation, winding-up, bankruptcy, receivership, administration or dissolution (or anything analogous to the foregoing occurs in any jurisdiction);
• 16.3.7 You make or propose any arrangements with Your creditors generally;
• 16.3.8 anything happens to You or a matter is brought to Our attention which We in Our reasonable discretion consider may affect Your ability or willingness to comply with all or any of Your obligations or liabilities under the Contract;
• 16.3.9 any other change in Your circumstances (including a deterioration in or change to Your financial position) or in the nature of Your business or in the goods and/or services supplied by You to Customers or Cardholders occurs which We, in Our reasonable discretion consider material to the continuance of the Services;
• 16.3.10 You cease to carry on business;
• 16.3.11 We, in Our reasonable discretion, determine that Our relationship with Your business represents increased risk of loss or liability to Us;
• 16.3.12 anything happens to You or comes to Our attention in relation to You or arising from or incidental to Your business or the conduct of Your business (including trading practices and individual activities) or You engage in any business trading practices or individual activity which We in Our reasonable discretion consider disreputable or capable of damaging Our reputation or that of any of the Card Schemes, detrimental to Our business or that of any of the Card Schemes or which may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity;
• 16.3.13 there is any change to the Person, or group of Persons acting together pursuant to an agreement or understanding (whether formal or informal), which Controls You;
• 16.3.14 any claim or action in connection with the Contract or Services is threatened or commenced by You or Us;
• 16.3.15 any Assessments or any other claims are brought against Us by any Card Scheme or any other third party arising from any aspect of Our relationship with You;
• 16.3.16 We are required or requested to do so by any Card Scheme or competent regulatory authority;
• 16.3.17 any Card Scheme introduces additional terms and conditions or amends the Terms and Conditions relating to the Services;
• 16.3.18 We cease to be a member of any Card Schemes;
• 16.3.19 You undertake trading practices which We have not consented to;
• 16.3.20 any security granted to Us by You in connection with the Contract ceases to be enforceable or is withdrawn;
• 16.3.21 We reasonably consider that any act or omission of Yours falls within a Reason Code; or
• 16.3.22 the relevant Service (or relevant part thereof) is suspended or otherwise ceases to be provided by Us.

16.4 You shall be entitled to terminate the Contract at any time with immediate effect by notice to Us if:

• 16.4.1 save where permitted or authorised to do so pursuant to these Terms and Conditions, We fail to pay any undisputed sums due to You from Us under the Contract within 30 days of notice from You to Us that We have failed to make such payment;
• 16.4.2 We become insolvent or any step is taken for Our liquidation, winding-up, bankruptcy, receivership, administration, or dissolution (or anything analogous to the foregoing occurs in any jurisdiction); or
• 16.4.3 We make or propose any arrangements with Our creditors generally;
• 16.4.4 We are in material breach of any of the provisions of the Contract and either:
  • 16.4.4.1 that breach is incapable of remedy; or
  • 16.4.4.2 We fail to remedy the breach within 21 days of the date of Your notice to Us stating the existence and nature of the breach.

17. CONSEQUENCES OF TERMINATION

17.1 Upon termination of the Contract all rights and obligations of either Party shall cease to have effect immediately, save that:

• 17.1.1 the clauses of these Terms and Conditions which expressly or by implication have effect after termination will continue to be enforceable notwithstanding such termination; and
• 17.1.2 termination shall not affect accrued rights and obligations of either Party under the Contract as at the date of termination.

17.2 Upon or at any time after termination of the Contract, You shall immediately pay Us all amounts owed by You under the Contract and We shall immediately pay You all amounts owed by Us under the Contract, save for any sums which We are entitled to withhold, set-off and recover pursuant to the provisions of these Terms and Conditions.

18. DATA AND INFORMATION SHARING

18.1 It is acknowledged that the Parties may act in the capacity of both "data processor" and "data controller" in the performance of their respective obligations under these Terms and Conditions and shall at all times perform the services in such a manner as not to cause the other in any way to breach the DPA.

18.2 You warrant that:

• 18.2.1 You are registered to deal in data (as contemplated in these Terms and Conditions) under the DPA and have complied with and will for the duration of the Contract and these Terms and Conditions continue to adhere to the provisions of the DPA including the Data Protection Principles;
• 18.2.2 You will maintain any licence or registration needed to comply with DPA and/or any legislation or regulation that applies or may apply to the performance of the Contract.

18.3 In relation to personal data disclosed and/or processed in connection with these Terms and Conditions You warrant that You:

• 18.3.1 shall process personal data in accordance with the DPA;
• 18.3.2 shall process the personal data only in so far as is necessary for the purpose of performing its obligations under these Terms and Conditions;
• 18.3.3 except as required by Regulations or a regulator, not disclose personal data obtained under these Terms and Conditions or allow access to it other than to employees and to ensure that such employees are subject to written contractual obligations concerning personal data which are no less onerous than those imposed by these Terms and Conditions;
• 18.3.4 shall use all reasonable efforts to assist the other to comply with all obligations under the DPA including providing reasonable assistance in complying with any subject access request made under the DPA;
• 18.3.5 use appropriate technical and organisational security measures against unauthorised or unlawful processing of the Cardholder data and against accidental loss or destruction of, or damage to, such Cardholder data;
• 18.3.6 shall not transfer personal data outside the European Economic Area without Our written approval unless You are able to demonstrate to Our reasonable satisfaction that the country or territory of destination provides adequate security in accordance with the Eighth Principle of the Data Protection Act 1998;
• 18.3.7 shall ensure that consent is obtained from each applicant for a Card and Cardholder to the use by Us of their personal data for all of the purposes set out or contemplated by these Terms and Conditions.

18.4 You shall indemnify and hold Us, Our Group Companies, Our directors, officers, employees and agents in full against all losses, liabilities, damages, claims, costs (including reasonable legal costs) and expenses which it may incur or suffer by reason of any default of You whether under this clause 18 or any breach of the DPA attributable to or caused by You, your employees or agents or sub-contractors, including without limitation, the failure to prevent disclosure thereof in contravention of the DPA.

18.5 You shall give Us reasonable assistance on Our request to assist in the successful collection and delivery of all Data. We shall assist You, upon Your request, where We are able to gain access to the Data, but reserve the right to make charges for doing so.

18.6 Notwithstanding any other provision of these Terms and Conditions, each Party shall ensure the security, integrity and confidentiality of Data regardless of any similar or superior obligations imposed by the operation of any contract or law, or otherwise.

18.7 We accept responsibility for Data You or Cardholders deliver to Us, upon receipt of such Data by Us.

18.8 We may refuse to accept Data from You where the requirements specified in any instructions issued by Us from time to time are not satisfied and Our processing of the Data shall not preclude Us from subsequently requiring its replacement, deletion or correction.

18.9 If You contact Us electronically, We may collect Your electronic identifier (for example, Internet Protocol (IP) address or telephone number) supplied by Your service provider.

18.10 We may use and share Your information (including information about Transactions) with Our Group Companies, Card Issuers, Card Schemes and credit reference agencies to help Us and/or them:

• 18.10.1 assess financial and insurance risks;
• 18.10.2 recover debt;
• 18.10.3 develop customer relationships, services and systems; and
• 18.10.4 prevent and detect crime.

18.11 We do not and will not disclose Your information to anyone other than as expressly provided in the Contract except:

• 18.11.1 where We have Your specific permission;
• 18.11.2 where We are required or permitted to do so by law;
• 18.11.3 to other companies who provide a service to Us or You relating to the Services; or
• 18.11.4 where We may assign, sub-contract or transfer rights and obligations under the Contract.

18.12 From time to time We may change the way We use Your information. Where We believe You may not reasonably expect such a change We shall write to You. If You do not object to the change within 60 days, You will be taken to have consented to that change.

18.13 The information which We collect from You may be transferred to, and stored at, a destination outside the European Economic Area ("EEA"). It may also be processed by staff operating outside the EEA who work for Us or for one of Our sub-contractors or suppliers in connection with the Contract. We shall ensure that an adequate level of protection is given to any of Your information which is transferred or processed outside of the EEA in accordance with this clause.

19. CREDIT REFERENCE CHECKS

19.1 You accept that during Our initial assessment of You or any re-assessment during the term of the Contract, We may use the services of credit reference agencies to confirm (amongst other things) Your principals' home address and calculate personal credit scores. Information held by the credit reference agencies is used by Us and others to help verify the identity of customers and to assess their ability to meet financial commitments. Checks on these credit reference agencies may leave an identity footprint on Your and/or Your principals' credit file as a record. This process enables accounts to be opened quickly and reduces the need to obtain third-party references.

19.2 To enable us to form an accurate view of the existing financial commitments of merchants and their principals', credit reference agencies may link the records of "financial associates" (such as spouses, family members, or cohabiters) who have entered into joint financial obligations. Once linked, this association means that each of the records will be taken into account in all future applications for credit by either financial associate and will continue until one of them successfully files a "disassociation" with the credit reference agencies by establishing that this financial link no longer exists.

19.3 Information held about You by the credit reference agencies may already be linked to records relating to one or more of Your "financial associates". If so, for the purposes of any Application You or Your principals may be treated as financially linked and if so Your application will be assessed with reference to any associated records. Further details about financial "association", "disassociation" and credit reference agencies are available by contacting the credit reference agencies directly.

19.4 We may make periodic searches of Our Group records, credit reference agencies, and fraud prevention agencies to manage Your account, and to take decisions regarding Your account and the terms under which We have opened it, including whether or not to confirm or extend the Services to You. These searches will not be seen or used by companies outside of Our Group of companies.

19.5 Your principals have the right of access to their personal records held by credit reference and fraud prevention agencies. We will supply the names and addresses of the agencies We use upon request.

19.6 By proceeding with the Application, Your authorised representatives are confirming that as at the Operative Date they have read the foregoing and agreed on behalf of You and Your principals to Us obtaining the aforementioned information during Our assessment of Your application for the Services and any subsequent reassessment.

20. INTEREST

20.1 Either party shall be entitled to charge the other interest at the rate of three percent (3%) per annum over the Bank of England Base Rate on all amounts due in accordance with the terms of the Contract for the period they remain payable but unpaid. Any such interest will be stated on the relevant Statement.

20.2 You have no right or entitlement to or any interest in any sums representing any Transaction or otherwise held to the credit of Your CashFlows Account or Your Remittance Account

21. FORCE MAJEURE

21.1 A party shall not be in breach of these Terms and Conditions, nor liable for any failure or delay in performance of any obligations under these Terms and Conditions arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event).

21.2 The corresponding obligations of the other party will be suspended to the same extent as those of the party first affected by the Force Majeure Event.

21.3 Any party that is subject to a Force Majeure Event shall not be in breach of these Terms and Conditions provided that it promptly notifies the other parties in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance and it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under these Terms and Conditions in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.

21.4 If the Force Majeure Event prevails for a continuous period of more than two months, any party may terminate these Terms and Conditions by giving 14 days' written notice to the other. On the expiry of this notice period, these Terms and Conditions will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of these Terms and Conditions occurring prior to such termination.

22. CONFIDENTIAL INFORMATION

22.1 Except as otherwise specified in this clause 22, each Party shall treat as confidential all Confidential Information obtained from the other under the Contract, will protect such Confidential Information and will not, without the prior written consent of the other, disclose or use such Confidential Information except for the purposes of the Contract.

22.2Each Party may disclose Confidential Information to its professional advisers but otherwise will only disclose Confidential Information to those of its employees, officers, sub-contractors and agents who (i) need to know it for the purpose of exercising or performing its rights and obligations under these Terms and Conditions; (ii) have been informed of the confidential nature of the Confidential Information divulged; and (iii) agree to act in compliance with the confidentiality requirements of these Terms and Conditions.

22.3 The obligation in clause 22.1 above does not apply to information which the receiving Party can reasonably show:

• 22.3.1 was rightfully in its possession prior to its disclosure to it by the other Party;
• 22.3.2 is already public knowledge otherwise than as a result of breach of this clause 22;
• 22.3.3 is received from a third party who is not under an obligation of confidentiality in relation to the information; or

  22.3.4 is developed independently without access to, or use or knowledge of, the Confidential Information.

22.4 For the avoidance of doubt, the obligation in clause 22.1 shall not apply if and to the extent that any Confidential Information is required to be disclosed to any governmental or other regulatory authority, by the rules of a recognised stock exchange or by law.

22.5 Other than as expressly permitted under these Terms and Conditions, on termination or expiry of the Contract for whatever reason, each Party shall forthwith cease to use any Confidential Information of the other and shall return on demand, or at the request of the other, destroy or permanently erase all copies of that Confidential Information in its possession or control, save that either Party will be permitted to retain one copy of such part of the Confidential Information for the purposes of and for so long as required by any law or by judicial or administrative process or its legitimate internal compliance issues.

23. ASSIGNMENT AND SUBCONTRACTING

23.1 The Contract is personal to You and You may not assign it or transfer it or any of Your rights under it without Our consent, such consent not to be unreasonably withheld or delayed. If You are an individual, the Contract shall be binding upon Your personal representatives.

23.2 You may only use an agent or subcontractor in relation to the performance of Your obligations under the Contract (including Your obligations relating to the supply of goods and/or services which are the subject of Transactions) with Our prior written consent and We may withdraw that consent at any time. If You do use an agent or subcontractor for such purposes, You shall remain responsible for complying with these Terms and Conditions as though You were not using such agent or sub-contractor.

23.3 We shall be entitled to assign or transfer the benefit of the Contract and/or to sub-contract Our obligations or any of them under the Contract to any Person at any time.

24. WAIVER

24.1 No failure or delay by a Party in exercising any of its rights or remedies provided under these Terms and Conditions or under any relevant law or regulation shall be construed as a waiver or release of that right or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. The parties agree and acknowledge that the doctrine of affirmation shall have no application under the Agreement.

24.2 No single or partial exercise of any of a Party's rights or remedies under these Terms and Conditions or under any relevant law or regulation shall preclude or restrict the further exercise of such right or remedy. A waiver of any breach of any provisions of the Contract shall not constitute a waiver of any other breach and shall not affect the other provisions of the Contract.

24.3 The rights and remedies of a Party under these Terms and Conditions are cumulative and not exclusive of any rights or remedies provided by law.

25. NOTICES

25.1 Any notice to be given under or in connection with the Contract shall be in writing and shall be served by:

• 25.1.1 delivering it personally;
• 25.1.2 sending it by prepaid first class post ;
• 25.1.3 by facsimile;
• 25.1.4 by email (but only where sent to You by Us)

to the address of the other Party as set out in the Contract or as otherwise notified by such Party from time to time.

25.2 Any notice given in accordance with clause 25.1 shall be deemed to have been received:

• 25.2.1 if delivered personally, at the time of delivery;
• 25.2.2 in the case of prepaid first class post, 48 hours from the date of posting for addresses in the United Kingdom and in the case of addresses outside the United Kingdom, seven days from the date of posting;

and

• 25.2.3 in the case of facsimile and email, on the date it is transmitted (provided in the case of email that no "bounce back" message is received).

25.3 For the avoidance of doubt, You may not serve notices by email without Our prior written consent. Where such consent is given, notices which emanate (or reasonably appear to emanate) from any member of Your staff shall be deemed to be validly given by You, even if such member of staff did not have actual authority to send the relevant email and/or the relevant email in fact emanated from another member of staff or anyone else who may have had access to Your email systems.

25.4 We may specify (by giving notice to You in accordance with this clause25) a particular individual or office holder to whom any notices served on Us are to be addressed, in which case a notice shall not be validly given unless so addressed.

26. ENTIRE AGREEMENT

26.1 The Contract and the documents referred to in it constitute the entire agreement and understanding between Us and You in respect of the matters dealt with in it and supersedes and invalidates all other prior representations, arrangements, understandings and agreements relating to the subject matter of the Contract which may have been made between You and Us either orally or in writing prior to the date of the Contract, other than any securities or written pledges, undertakings or assurances which You may previously have given to Us and, subject to and together with such securities etc sets out the entire agreement and understanding You and We have.

26.2 Each Party warrants that it has not relied on any representations, arrangements, understanding or agreements (whether written or oral) not expressly set out or referred to in the Contract or the documents referred to in it. The only remedy available to either Party in respect of any such representations, arrangement, understanding or agreement shall be for the breach of contract under the provisions of these Terms and Conditions.

26.3 Nothing in this clause 26 shall operate to exclude any liability for fraud.

27. SEVERABILITY

27.1 If any provision of these Terms and Conditions is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable:

• 27.1.1 such illegality, invalidity or unenforceability shall not affect the other provisions of these Terms and Conditions, which shall remain in full force and effect; and
• 27.1.2 if such provision would cease to be illegal, invalid or unenforceable if some part of the provision were modified or deleted, the provision in question shall apply with such minimum modification or deletion as may be necessary to make it legal, valid and enforceable.

28. MISCELLANEOUS

28.1 Nothing in these Terms and Conditions is intended to create a partnership or joint venture or legal relationship of any kind that would impose liability upon one Party for the act or failure to act of the other Party, or to authorise either Party to act as agent for the other. Save where expressly stated in the Contract, neither Party shall have authority to make representations, act in the name or on behalf of or otherwise to bind the other.

28.2 Nothing in these Terms and Conditions shall render either Party or any of their respective employees an employee of the other or render either Party or any of its employees capable of incurring any liability or obligation on the other's behalf, and neither Party shall hold itself out as such.

28.3 A Person who is not party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provisions of the Contract. This clause 28.3 does not affect any right or remedy of any Person which exists or is available otherwise than pursuant to that Act.

29. GOVERNING LAW AND JURISDICTION

29.1 The Contract and any matter arising from or in connection with it shall be governed by and construed in accordance with English law.

29.2 You may be entitled to refer a complaint or dispute with Us in relation to the Contract to the UK's Financial Ombudsman Service. See Our Complaints Policy for details.

29.3 You and We irrevocably agree that, for Our benefit only, the English courts shall have exclusive jurisdiction over any claim or matter arising from or in connection with the Contract, or the legal relationships established by or in connection with it. Accordingly, any proceedings by or against Us in respect of such claim or matter must be brought in the English Courts, but We shall not be prevented from taking proceedings against You either in the English courts or in any other court of competent jurisdiction. To the extent permitted by law, We may take concurrent proceedings in any number of jurisdictions.

29.4 In the event of any conflict between the English version of the Contract (or any part thereof) and any version which has been translated into any language other than English, then the English version shall prevail.

 

Schedule 1

CashFlows Acquiring Services

These terms set out the legal relationship between Us and You in respect of the Acquiring service provided by CashFlows that enables You to receive credit and debit card payments for Your goods and services ("the Service").

These terms are supplemental to and additional to the general terms and conditions.

In this Schedule and (if the context admits or requires also in the general terms and any other schedule or schedules) the following words and phrases shall have the meanings ascribed to them:

"Approved Products" means the goods and/or services to be provided by You to Cardholders using the Services which have been agreed to by Us in writing either as part of the Application or from time to time thereafter;

"Assessments" means any and all assessments, fines, levies, costs, expenses, charges or imposition of liabilities of any nature which are directly or indirectly demanded or recovered by Us from You at any time and which relate to any aspect of Our relationship with You (including the Transactions and the provision of the Services) and which may or may not relate to any actual or potential liability of Us to an Issuer, Acquirer or a Card Scheme whether in accordance with the Rules or otherwise. Examples of the calculations of Assessments can be found on our website or elsewhere as notified to You from time to time;

"Authentication" means the process of verifying the identity of a Cardholder;

"Authorisation" means the process whereby We obtain at the time of the Card Transaction (directly or indirectly) from the Card Issuer confirmation that the Card has not been listed as lost or stolen and that there are sufficient funds for the relevant Card Transaction in the Card account;

"Card" means a credit, debit, charge or purchase or other card issued by a Card Issuer and licensed by a Card Scheme which We are able to process (as notified by Us to You from time to time) and which We have agreed to process (and "Cards" shall be construed accordingly);

"Card Account Number" means a primary account number that is embossed and/or encoded on a Card;

"Cardholder" means a Person who or which is the authorised user of a Card (and "Cardholders" shall be construed accordingly);

"Card Transaction" means any payment for goods or services, or any Refund made by use of a Card, a Card Account Number or otherwise to debit or credit the applicable Cardholder's account with the relevant Card Issuer;

"Chargeback" means the event where a Card Issuer or Card Scheme refuses to Settle a Card Transaction or requires repayment in respect of a Card Transaction previously Settled and/or Remitted, notwithstanding that Authorisation may have been obtained;

"Copy Request" means a request from a Card Scheme or Card Issuer which We pass on to You or a direct request to You from Us for information regarding a Card Transaction which is the subject of a potential Chargeback or a Dispute;

"Fraud Report" means a report notified to Us by an Acquirer, Card Scheme or Card Issuer relating to a Card Transaction or Transactions which are believed to be in some way fraudulent as notified by Us to You via your statement;

"Interchange" means the fees charged to the Acquirer by the Card Issuer which relate to the processing of a Transaction;

"PCI DSS" means the Payment Card Industry Data Security Standards developed by the leading Card Schemes which merchants and others processing Card data must comply with;

"Reason Code" means codes designated by some or all of the Card Schemes categorising undesirable acts or omissions of merchants which may lead to a Card Scheme requiring that an Acquirer terminates the merchant agreement or the Acquiring deciding so to terminate;"Refund" means the reimbursement of a Card Transaction to a Cardholder at Your request (or as initiated by Us in accordance with the terms of the Contract) by such electronic means as shall have been approved by Us which represents the complete or partial reversal of a Card Transaction with the intention of crediting the Cardholder's account;

"Scheme Fees" means the fees charged by the Card Schemes which We incur and which relate to the processing of a Transaction;

"Settlement" means the crediting to Us of the proceeds of Card Transactions from the relevant Card Scheme or Acquirer (and "Settle" and "Settled" shall be construed accordingly);

"Trading Limit" means any limit on the aggregate value of Card Transactions or Transactions in any specified period above which You will not process with Us without first obtaining Our prior written consent which We may notify to You;

"Void Transaction" means a Card Transaction which is abandoned by You or by the Cardholder after an Authorisation has been obtained but before the Cardholder account has been debited;

YOUR OBLIGATIONS

1 Transactions

1.1 You shall at all times comply with Your obligations relating to the provision of goods and/or services by You to Cardholders.

1.2 You shall:

• 1.2.1 only process Transactions in connection with Approved Products which You have supplied either directly or through Your appointed agents;
• 1.2.2 only process Transactions which relate to Approved Products which fall within Your business as identified in Your Application;
• 1.2.3 not submit any Transaction for processing where You know or should reasonably have known that the Transaction was illegal with respect to any relevant law;
• 1.2.4 not submit any Transaction for processing where You know or should reasonably have known that the Transaction would breach and Trading Limit without Our prior written approval (to be given at Our discretion); and
• 1.2.5 only process Transactions in respect of goods or services that the Cardholder would reasonably expect to receive and only supply the relevant goods or services in accordance with the laws of any jurisdiction within which a Card Scheme, Card Issuer, Cardholder, Acquirer or any party to this Contract operates.

1.3 You shall not complete a Transaction without obtaining an Authorisation without Our prior written approval (to be given at Our discretion).

2. Display of Our and Card Scheme Symbols

2.1 You agree to display and exhibit (and keep displayed and exhibited) to the general public at each worldwide point at which Cards are accepted for payment such of Our and Card Scheme identification symbols or decals as are approved or supplied by Us with effect from the date of such notification and in accordance with any requirements which may be specified.

2.2 You will include on Your website an inbound link to the CashFlows website and display Our logo at the point of payment.

3. Honour of Cards

Subject to the provisions herein You shall honour all valid and current Cards by supplying to the Cardholder without imposing any financial limit the full range of goods and services offered by You at the cash price for such goods and services (subject to any local regulations concerning surcharging) and to obtain Authorisation in respect of all Card Transactions.

4. Refunds and Void Transactions

4.1 You will only process Refunds and Void Transactions where there is a corresponding Card Transaction and then only up to the value of that Card Transaction and no more.

4.2 Where You wish to process a Refund or a Void Transaction You shall advise Us by such automated systems as We may make available to You from time to time.

4.3 Refunds will only be made to the Card upon which the original Card Transaction was debited and not to any other Card and shall be processed in the original payment currency.

5. Settlement of Disputes

5.1 You agree that We shall be entitled in Our reasonable discretion to accept, dispute, compromise or otherwise deal with any claim, alleged claim, loss or liability relating to any Transaction. Specifically You agree that We shall in Our reasonable discretion be entitled to settle any claim or dispute between a Cardholder and You or between a Cardholder and Us by initiating a Refund to a Cardholder's account and You irrevocably authorise Us to take such action in this regard as We deem appropriate.

5.2 You shall at all times throughout the term of the Contract (and for such period as may be necessary thereafter) to enable Us to deal with any Chargeback, Dispute or Fraud Report, such information to include (but not be limited to) information required in any Copy Request

5.3 You shall notify Us immediately in writing of any other agreement that You enter into concerning Your acceptance of Card Transactions;

6. REMITTANCE ACCOUNT

6.1 We shall be entitled to deduct any or all of the following sums from any amounts We receive in Settlement prior to making any credit to Your Remittance Account;

• 6.1.1 the Fees in respect of the Transactions which We have not yet charged You for (which Fees for the avoidance of doubt shall include and Interchange and Scheme Fees in relation to the CashFlows Merchant Service);
• 6.1.2 any Refunds processed by Us since the previous Remittance Date (or, in the case of the first Remittance Date, since the date Operative Date);
• 6.1.3 any Chargebacks and Assessments;
• 6.1.4 any amounts required by Us to cover any:
  • 6.1.4.1 potential or reasonably expected Refunds, Chargebacks, Disputes, Void Transactions or Assessments or any liability or potential liability relating to any Transaction or Assessment;
  • 6.1.4.2 any liability or potential liability of Yours under the Contract; and
  • 6.1.4.4 any other charges or amounts due to Us under the Contract.

or at Our option invoice You separately for each or any such sums.

6.2 If We become aware of any Chargebacks or Assessments, any claims or action in connection with the Contract, (whether actual or potential), or We reasonably conclude that any may arise or We have a reasonable suspicion that a Transaction may be fraudulent or involves other criminal activity or We have a reasonable suspicion that there has been a breach of the Contract, We may delay making a credit to Your Remittance Account until either:

• 6.2.1 the relevant liability is incurred (when We shall then credit the balance of the amount of such sums, if any, to Your Remittance Account after deducting the amount of such liability); or
• 6.2.2 any breach has been ascertained or the risk of any breach passed; or
• 6.2.3 We are, acting reasonably, satisfied that no such liability will be incurred or that no fraud or other criminal activity is involved.

7. AUTHORISATION AND CHARGEBACKS

7.1 All Transactions must be Authorised by the Card Issuer or Card Scheme unless otherwise agreed in writing with Us and where they are so Authorised You will receive notification from Us.

7.2 Acceptance of any Transaction for processing shall not be taken as an indication by Us that Remittance will be made in respect of that Transaction. We can give You no assurance that the Card Scheme or Card Issuer will not exercise any right of Chargeback or that We will not utilise Our rights of set-off under these Terms and Conditions or defer or delay Remittance even where the relevant Transaction has been Authorised.

7.3 You acknowledge and agree that under the Rules, You may be required to reimburse Us for Chargebacks in circumstances where You have accepted payment in respect of the relevant Transaction and even if You are under no legal liability for the supply or performance of the goods or services concerned. To the extent permitted by law, We shall notify you of Chargebacks through the information on Your account summary which will be available to You via a link to a URL.

7.4 Where a Chargeback occurs, We shall immediately be entitled to debit Your Customer Bank Account and/or make a deduction from any Remittance or invoice You to recover the full amount of the relevant Chargeback and any other reasonable costs, expenses, liabilities or Assessments which We may incur as a result of or in connection with such Chargeback ("Chargeback Costs").

7.5 A Chargeback represents an immediate liability from You to Us and where the full amount of any Chargeback and/or any Chargeback Costs is not debited by Us from Your Customer Bank Account or deducted from any Remittance or invoiced, then We shall be entitled to otherwise recover from You by any means the full amount of such Chargeback and Chargeback Costs (or the balance thereof, as the case may be). We can recover Assessments from You in the same way as Chargebacks and in any event they represent an immediate liability from You to Us. We will notify you as soon as reasonably practicable of any Assessments which are deducted from any Remittance.

7.6 We shall not be obliged to investigate the validity of any Chargeback by any Card Issuer or Card Scheme, whose decision shall be final and binding in respect of any Chargeback.

7.7 As Chargebacks may arise a considerable period after the date of the relevant Transaction, You acknowledge and agree that, notwithstanding any termination of the Contract for any reason, We shall remain entitled to recover Chargebacks and Chargeback Costs from You in respect of all Chargebacks that occur in relation to Transactions effected during the term of the Contract.

7.8 We reserve the right to immediately pass on to You and recover from You any Assessments incurred and/or imposed and impose further reasonable charges on You and/or terminate the Contract forthwith if We consider that the total value of Refunds and/or Chargebacks is unreasonable.

7.9 You agree that it is Your responsibility to prove to Our reasonable satisfaction (or that of the relevant Card Issuer) that the debit of a Customer's or Cardholder's account was authorised by such Customer or Cardholder.

8. CARD SCHEME DATABASES

8.1 We may disclose information concerning You to third parties for use in their or any Card Scheme's or Acquirer's fraud prevention programmes for the purpose of assisting in identifying merchants involved in, amongst other things, fraud or suspected fraud, insolvency, breach of a merchant services agreement and any other such matter which would assist Us or other third parties in their efforts to prevent fraud. We may also disclose information concerning You to law enforcement bodies where We suspect that fraud or other criminal activity may have occurred.

8.2 You acknowledge that the viability and availability of the Card Schemes depends upon effective and reliable information regarding, and effective management of, information security, the risk of fraud and sector and credit risk. Accordingly, You acknowledge and agree that We shall notify the Card Schemes or Persons nominated by them and, where We consider appropriate, crime enforcement authorities, of all information regarding You, Your business and Your conduct relating to the Contract or the operations and activities contemplated by it which We consider relevant to such matters. The Persons who We notify and the information notified may well vary from time to time as legal requirements and industry practices change.

8.3 In particular, You acknowledge that:

• 8.3.1 some or all of the Card Schemes may operate databases containing information regarding the conduct of Card transactions by merchants;
• 8.3.2 We may disclose information to the Card Schemes pursuant to this clause; and
• 8.3.3 some or all of the Card Schemes categorise undesirable acts and omissions of merchants under a Reason Code.

8.4 If We consider that any act or omission of Yours falls within a Reason Code then We may immediately terminate the Contract. Where applicable, details of any such act or omission shall be advised to You and shall also be available on request. In that event, the fact of termination and the Reason Code forming the grounds for termination shall be notified to (and may be recorded by) Visa and MasterCard or other Card Scheme and thereafter be maintained by them in accordance with their normal practice. The aforementioned database records are available for enquiry by any Acquirer and Card Issuer. In certain circumstances, they are also made available to crime prevention authorities.

8.5 You agree that where We have acted in good faith We shall have no liability to You for any inaccuracy in the information We provide to any third parties pursuant to this paragraph 8.

9. PCI DSS

9.1 You acknowledge and agree that You (and Your agents, sub-contractors or any third parties used by You) shall abide by the PCI DSS. The PCI DSS require You and Us to observe standards of due care with regard to the protection of Cardholder information or authentication data and to ensure that any relevant system is compliant with those standards. Accordingly, without prejudice to the generality of the foregoing, You shall ensure that Your payment systems comply in all respects with the PCI DSS, including the following requirements:

• 9.1.1 to build and maintain a secure network (to include the installation and maintenance of a fire wall configuration to protect Data and not to use vendor supplied defaults for system passwords and other security parameters);
• 9.1.2 to protect Data (to include protecting stored Data and encrypting transmission of Data across open, public networks);
• 9.1.3 to maintain a vulnerability management programme (to include the use of and regularly updating anti virus software and developing and maintaining secure systems and applications);
• 9.1.4 to implement strong access control measures (to include restricting access to Data by business need-to-know, assigning a unique ID to each person with computer access and restricting physical access to Data);
• 9.1.5 to regularly monitor and test networks (to include tracking and monitoring all access to network resources and Data and regularly testing security systems and processes); and
• 9.1.6 to maintain an information security policy (to include maintaining a policy that addresses information security).

9.2 You shall notify Us immediately if You become aware of or suspect any security breach relating to Data (whether or not You have complied with the PCI DSS). As soon as reasonably practicable, You shall also (and without prejudice to any other remedy We have in respect thereof) immediately identify and block the source of such security breach and take any steps that We require of You including but not limited to the employment (at Your cost) of third parties recommended by Us to analyse Your systems and provide forensic reports.

9.3 You shall not at any time or in any format store:

• 9.3.1 Card verification value in the magnetic stripe;
• 9.3.2 Card verification value printed on the Card in or next to the signature pane;
• 9.3.3 Card verification value contained in the magnetic stripe image in a chip application;
• 9.3.4 PIN verification value contained in the magnetic stripe;
• 9.3.5 the full contents of any track from the magnetic stripe (on a Card, in a chip or elsewhere); or
• 9.3.6 any other Data that the Card Schemes mandate from time to time.

9.4 Your obligations under this paragraph 19 shall survive termination of the Contract and shall continue in full force and effect until all Data obtained under the Contract has been destroyed or as otherwise agreed in writing by Us.

 

Schedule 2

On4 Storebuilder Software Licence

1. With effect from the Operative Date, We grant to You a revocable, non-exclusive, non-transferable licence to use the On4 Software for the purpose of displaying and making available for purchase or hire through the Services Your goods or services to Your Customers. Our technical support staff will endeavour to answer by telephone any queries which You may have regarding the use or application of the On4 Storebuilder.

2 You acknowledge that all Intellectual property rights in the On4 Storebuilder and associated documentation throughout the world belong to Us and that rights in the On4 Storebuilder are licensed (not sold) to You, and that You have no rights in, or to, the On4 Storebuilder or the documentation other than the right to use them in accordance with the terms of this licence. You acknowledge that You have no right to have access to the On4 Storebuilder in source code form or in unlocked coding or with comments.

3 You acknowledge that the On4 Storebuilder has not been developed to meet Your individual requirements and that it is therefore Your responsibility to ensure that the facilities and functions of the On4 Storebuilder meet Your requirements. You acknowledge that the On4 Storebuilder may not be free of bugs or errors and You agree that the existence of any minor errors shall not constitute a breach of this licence.

4 Upon termination of the Contract or these supplemental terms for any reason all rights granted to You under this licence shall cease and You must immediately delete or remove the On4 Storebuilder from all computer equipment in Your possession and immediately destroy all copies of the On4 Storebuilder then in Your possession, custody or control.

5. Fees

• 5.1 You shall pay the Fees in accordance with and otherwise comply with the requirements of the provisions relating to Fees set out on Our website.
• 5.2 All payments to be made by shall be paid free and clear of any deductions.

 

Schedule 3

Pay and Collect

These terms set out the legal relationship between Us and You in respect of the international payment service that enables You to make payments via national and international banking networks from Your CashFlows Account ("the Service").

These terms are supplemental to and additional to the general terms and conditions agreed to by You when You applied for Your CashFlows Account.

1. USE OF THE SERVICE

• 1.1 You may use the Service in accordance with these supplemental and the general terms and conditions to send funds from Your CashFlows Account to recipients in such countries as We notify to You from time to time that We can make payments to.
• 1.2 You shall not allow any third party access to or use of the Service.
• 1.3 You shall only make payments from Your CashFlows Account using funds designated by Us on Your online reports as free for use.
• 1.4 You shall only accept transfers into Your CashFlows Account from payees to which or to whom you have provided goods or services through the CashFlows Acquiring Service or who You know to be bona fide business. In particular:
  • 1.4.1 Transfers into Your CashFlows Account from third party payments systems, including eWallets and stored value cards, are not allowed; and
  • 1.4.2 We reserve the right to refuse to release for Your use sums paid in to Your CashFlows Account which We consider to be material where You have not provided the identity of the payee either prior to the transfer being made into Your CashFlows Account or on Our subsequent request.
• 1.5 In the event of an overpayment of funds to You, You shall provide Us with all reasonable assistance in recovering such overpayment.
• 1.6 You shall keep all password and access codes that You need in order to be able to use the Service safe and confidential. We shall not be liable for the transfer of any funds not authorised by You where Your password or access codes have fallen into the hands of a third party because You have failed to ensure their security.
• 1.7 We shall use reasonable endeavours to provide the Service with reasonable skill and care and in accordance with good industry practice.
• 1.8 We shall be entitled to withhold funds or pay money to a third party if We have reasonable suspicion of fraudulent or criminal activity concerning those funds and if We have a reasonable belief that We are required to do so by law, or at the direction of any regulatory or other competent authority. We shall inform You of actions taken pursuant to this paragraph unless We have a reasonable belief that We are precluded from doing so by law.

2. REMITTANCES

Once You have been approved for the Service We shall no longer make the usual Remittance from Your CashFlows Account to Your Customer Bank Account, and will assume that You will make those Remittances using the Service (provide always that You do not attempt to Remit more than the funds available for Remittance in Your CashFlows Account).

3. UNAPPLIED CREDITS

• 3.1 "Unapplied Credits" are any funds received by Us and:
  • a) are allocated to a segregated account; and
  • b) in respect of which We are unable to identify the intended beneficiary or the sender; and
  • c) in respect of which no other user of the Service has requested return of the funds within a period of six months from the date of receipt of such funds by Us.
• 3.2 Any present or future Unapplied Credits will without notice be transferred to an account held in Our name and will be held for Our account.
• 3.3 We will honour any documented claim against Unapplied Credits that is either agreed by Us or which is determined by a court of competent jurisdiction, and made by a user, and which is received by Us within six (6) years from the date of receipt of the Unapplied Credit and will, for such period maintain adequate reserves against possible claims.

• 3.4 We shall maintain all records pertaining to Unapplied Credits for a period of six (6) years or such period as may be required by applicable regulations.
• 3.5 In order to deter fraud, We may impose a limit on the value and/or the volume of transactions processed through the Service. This limit (if applied) may be changed by Us, from time to time.
• 3.6 You shall comply with and shall do all things requested by Us to enable Us to comply with any money laundering obligations applicable in the territory or relevant part thereof including, the "Customer Due Diligence" requirements of the UK Money Laundering Regulations 2007 and any and all applicable guidelines of the UK Joint Money Laundering Steering Group (JMLSG) or other locally applicable and equivalent regulations

4. FEES

• 4.1 You shall pay the Fees in accordance with and otherwise comply with the requirements of the provisions relating to Fees set out on Our website.
• 4.2 All payments to be made by You under these Terms and Conditions shall be paid free and clear of any deductions.
• 4.3 You agree that unless otherwise specified on Our website any banking fees or charges incurred in relation to the use of the Service are Your responsibility.
• 4.4 We shall at any time We deem it appropriate review and amend (at Our discretion) the Fees. All amendments will be posted on the website and You should check the relevant website page regularly.

5. FOREIGN EXCHANGE

We only support payments in the currency of your CashFlows Account.

6. PROHIBITED PAYMENTS

Restrictions may apply, including those depending on regulations in the user's home country. The user is responsible for ensuring that any payments made or received by Us or instructions of the user comply with applicable regulations.

7. LIABILITY

We are not responsible for checking that the details You provide regarding the payee of any transaction are accurate and correct. Provided We have arranged for a transfer of funds in accordance with Your instructions We shall not be liable for any loss.

 

Schedule 4

Ancillary Services

1. With effect from the Operative Date, We grant to You a revocable, non-exclusive, non-transferable licence to use the software, documentation and other associated collateral required for the Ancillary Services for the purposes of (as the case may be):

• 1.1 sending invoices to Your customers by email and enabling them to pay those invoices into Your CashFlows Account;
• 1.2 producing matrix bar codes for Your products;
• 1.3 enabling Card payments to be made to Your iPhone;
• 1.4 enabling Your business to take mail and telephone orders by entering card data into a secure application on Your computer.

Our technical support staff will endeavour to answer by telephone any queries which You may have regarding the use or application of these Ancillary CashFlows services.

2 You acknowledge that all Intellectual property rights in the Ancillary Services and associated documentation throughout the world belong to Us and that rights in the use of the Ancillary Services are licensed (not sold) to You, and that You have no rights in, or to, the Ancillary Services other than the right to use them (or any of them) in accordance with the terms of this licence and the General Terms and Conditions. You acknowledge that You have no right to have access to the Ancillary Services in source code form or in unlocked coding or with comments.

3 You acknowledge that the Ancillary Services have not been developed to meet Your individual requirements and that it is therefore Your responsibility to ensure that their facilities and functions meet Your requirements. You acknowledge that the Ancillary Services may not be free of bugs or errors and You agree that the existence of any minor errors shall not constitute a breach othis licence.

4 Upon termination of the Contract or these supplemental terms (either in relation to all or any of the Ancillary Services) for any reason all rights granted to You under this licence shall cease and You must immediately delete or remove the Ancillary Services or any of them from all computer equipment in Your possession.

5. Fees

• 5.1 You shall pay the Fees in accordance with and otherwise comply with the requirements of the provisions relating to Fees set out on Our website.
• 5.2 All payments to be made by You shall be paid free and clear of any deductions.
• 5.3 You agree that unless otherwise specified on Our website any banking fees or charges incurred in relation to the use of the Ancillary Services or any of them are Your responsibility.

 

Schedule 5

CashFlows Business Card Terms and Conditions

These terms and conditions apply to your reloadable prepaid Corporate Card. You must read them carefully. In these terms and conditions "you" means the named primary Cardholder and Additional Cardholder and anyone properly authorised as a user of the Card.

The Card and, any Additional Cards and the CashFlows Account will be operated by Voice Commerce Limited ("we", "us" or "our").

"CashFlows Account" means your account with us into which payments are received from your customers though our CashFlows Acquiring service or as otherwise authorised by us and from which you can use funds to load value onto your Card, and "Website" means our website at www.voicecommercegroup.com

Your Prepaid Card

1. Your Prepaid Card

You can use the Card at any location that displays the Visa acceptance mark, including shops, restaurants, online, or on the telephone. You can also use your Card overseas. Before using the Card you need to make sure there are enough funds loaded on it. You will not be able to use your Card after its expiry date. However we will issue you with a new Card prior to expiry.

Your Card is not a credit card and is not in any way connected to your bank account. You will not earn any interest on any funds loaded on your Card.

Where you have requested additional cards for your account, you authorise us to issue such Cards ("Additional Cards") and a PIN to the designated Cardholder(s) ("Additional Cardholders") and you authorise each Additional Cardholder to authorise transactions on your behalf.

In these terms and conditions the term "Card" shall include "Additional Cards" where the context admits or requires.

2. Applying for and activating your Prepaid Card

To apply for your Card you must be a UK based business with a CashFlows Account with us. Sole traders, partnerships, limited companies and other approved entities as specified by us from time to time are eligible. We will require evidence of who you are and your address. We may ask you to provide some documentary evidence to prove this and/or we may carry out checks on you electronically.

Cards and Additional Cards will be issued in our absolute discretion and subject to availability.

You and any Additional Cardholders will be asked to enrol in our VoicePay system to provide secure authorisation of transactions.

You must sign the signature strip on the back of the Card as soon as it is received. You will also need to activate your Card before you will be able to use it. Details of the Card activation process are on our Website. Please refer to our Website >for all Card loading options and to the "Loading your Prepaid Card" section below.

By using the Prepaid Card you are agreeing to these terms and conditions.

3.Loading your Prepaid Card

Funds can be loaded to your Card from your CashFlows Account. Follow the instructions at the Website.

The maximum initial load on your Card is £10,000.

Your Card cannot be loaded more than twice in any one day.

The balance on your Card can never exceed £10,000 at any time.

We reserve the right to refuse to accept any particular loading transaction.

Please see the fee summary table on the Website for loading timescales.

4. Using your Prepaid Card

Detailed instructions on how to use your Card are found on the Website.

We will deduct the value of your transactions from the balance on Your Card as soon as they are made. We will also deduct any applicable fees as soon as they become payable by you. See the Fees section of our Website for details of our fees.

The Card and any Additional Cards belong to us. We may ask you to stop using your Card and any Additional Card and return it to us or destroy it. We may at anytime suspend, restrict or cancel your Card or refuse to issue or replace a Card for because:

• we are concerned about the security of your CashFlows Account or Cards we have issued to you;
• we suspect your CashFlows Account is being used in an unauthorised or fraudulent manner;
• or we need to do so to comply with the law.

If we do this, we will tell you as soon as we can or are permitted to do so after we have taken these steps.

Like other payment cards, we cannot guarantee that a supplier will accept your Card. We may also refuse to pay a transaction:

• if we are concerned about security of your Card or we suspect your Card is being used in an unauthorised or fraudulent manner;
• if sufficient funds are not loaded on your Card at the time of a transaction to cover the amount of the transaction and any applicable fees;
• if there is an outstanding Shortfall on the Card in accordance with condition 12;
• if we have reasonable grounds to believe that you are acting in breach of this agreement;

• if we believe that a transaction is potentially suspicious or illegal (for example, if we believe that a transaction is being made fraudulently); or
• because of errors, failures (whether mechanical or otherwise) or refusals by merchants, payment processors or payment schemes processing transactions.

If we refuse to authorise a transaction, we will, if practicable, tell you why immediately unless it would be unlawful for us to do so. You may correct any information we hold and which may have caused us to refuse a transaction by contacting us, using the Website.

5. Authorising Transactions

Subject to the features of the particular Card, the authorisation of a transaction can include authorising any single transaction, a series or recurring transactions (including transactions for an indefinite period) or pre-authorising future transactions of a certain or uncertain amount.

A Card transaction will be regarded as authorised by you where you;

• authorise the transaction at the point of sale by following the instructions provided by the merchant or retailer to authorise the transaction, which may include:
  • a)entering your PIN or providing any other security code;
  • b)signing a sales voucher;
  • c)providing the Card details and/ or providing any other details as requested;
  • d)waving or swiping the Card over a card reader;
  • e)using your voice signature in accordance with our VoicePay service.
• insert a Card and enter your PIN to request a cash withdrawal at an ATM;
• make a request for a cash advance at any bank counter;

Authorisation for a transaction may not be withdrawn (or revoked) by you after the time it is received.

A transaction (the payment order) will be received as follows>:

• for purchases and ATM transactions, at the time we receive the transaction instruction from the merchant acquirer or ATM operator;
• for other transactions which are communicated directly to us, at the time you ask us to complete the transaction.

It is your personal responsibility to ensure you do not spend more than the amount of the funds you load.

When you carry out a transaction the company involved will take a 'pre-authorisation' to reserve the amount they intend to collect. Some companies will pre-authorise a higher or lesser amount than the cost of the transaction. The funds are usually collected from your account when the company has requested a settlement for the transaction following completion of the transaction.

Pre-authorisation reserves the funds from your available balance for generally a maximum of 30 days. After this time if the monies have not been collected by the merchant they will return to your available balance again. This is because if the transaction did not take place you may want to re-spend the funds elsewhere.

Please be aware that the amount £50 has been reserved on your Card for offline transactions (where the transaction is taken as authorised even though the merchant has not at the time of sale been able to contact the card schemes). This amount is not available as part of your loaded funds for internet transactions.

It is important to consider that although transactions are pre- authorised at the time an order is placed, for some purchases such as mail order, your account may not be debited until the goods are despatched, which may be longer than 30 days. Therefore you must make allowances for this in your spending to prevent your account falling into a debit balance. The same would apply to car hire companies who will take a pre-auth upon your collection of the hire vehicle but will only debit your account at the end of the hire period.

6. Cancellation and expiry of your Prepaid Card

This agreement will continue indefinitely unless terminated. You have the right to cancel your Card at any time without notice and any balance will be returned to you within 5 days subject to satisfactory checks being completed.

We may also cancel your agreement for any reason by giving you at least 2 month's notice:

• if this agreement or your card expires on a set date and we have not agreed to renew this Agreement;
• if you break an important part of this agreement, or repeatedly break the agreement and fail to resolve the matter in a timely manner;
• if you act in a manner that is threatening or abusive to our staff, or any or our representatives or which we reasonably believe could damage our reputation;
• if you fail to pay fees or charges that you have incurred or fail to put right any shortfall;
• in the event of your death.

We may also cancel this agreement or suspend your Card or CashFlows Account immediately if we believe your Card is deliberately being used by you to commit fraud or for other illegal purposes. If we do this we will tell you as soon as we are permitted to do so.

If we or you cancel your Card you must tell us what you want us to do with any unused funds within 3 months of the date your Card is cancelled.

If your Card is cancelled, we will immediately block your Card so it cannot be used.

You will not be entitled to a refund of money you have already spent on transactions authorised, or pending or any fees for use of the Card before the Card is cancelled or expires. You can cancel your Card by sending an email to us using the "contact us" function on the Website, and confirming that you have destroyed your Card.

If you cancel your Card, once all transactions and fees have been deducted, we will arrange for any unused funds to be refunded to you, see "Your Right to a Refund" section below for further information.

Your Card will be valid for three years. When it expires, unless we are told otherwise, we will issue you with a replacement card.

7. Keeping your Prepaid Card secure

You should treat your Card like cash. If it is lost or stolen, you may lose some or all of your money on your Card, in the same way as if you lost cash in your wallet or purse. As a result, you must keep your Card safe and not let anyone else use it. If you are issued with a PIN, you should memorise the PIN, then destroy the notification. You must keep your PIN secret at all times. You should not write your PIN down or reveal it to anyone. You can change you PIN to something more memorable at most ATM machines by following the on screen instructions.

We recommend that you check the balance on your Card regularly online at the Website. We will provide you with your Card balance and a statement of recent transactions on our secure webpage at any time.Your statement will show:

• information relating to each Card transaction which will enable it to be identified;
• the amount of the Card transaction;
• the amount of charges for the transaction;
• the date the transaction is authorised or posted on to the account.

8. Lost and stolen Cards and unauthorised or incorrectly executed payments

You must tell us without undue delay by calling us on our 24 hour lost and stolen card helpline (details on the Website) if you know or suspect that a Card is lost or stolen or that the PIN or password is known to an unauthorised person or if you think a transaction has been incorrectly executed.

Provided you notify us and you have not acted fraudulently or with gross negligence we will refund the amount of any transactions whichour investigations show are not authorised by you.

However, if the investigations show that any disputed transaction was authorised by you, or you haveacted fraudulently or with gross negligence (for example by failing to keep your Card or PIN secure), you may be liable any loss we suffer because of the use of the Card.

9. Liability

We will not be liable for any loss arising from:

• any cause which results from abnormal or unforeseen circumstances beyond our control, consequences which would have been unavoidable despite all our efforts to the contrary; or
• a supplier refusing to accept your Card; or
• our compliance with legal and regulatory requirements;
• loss or corruption of data unless caused by our wilful default.

We are also not liable for:

• business interruption, loss of revenue, goodwill, opportunity or anticipated savings;>
• any indirect or consequential loss.

You are responsible for the use your Card and any Additional Cards by anyone authorised by you and for any fees and charges that they may incur. You may cancel any Additional Card at any time.

10. Your Right to a Refund

The Funds on your Prepaid Card

You may request a refund of the funds on your Card provided the balance is greater than the Refund Fee. To do so, send us an e-mail using the "contact us" facility on the Website requesting a refund and confirming that you have destroyed your Card by cutting it up. When we process your refund, we may charge a Refund Fee (as stated in the fee table on our website).

We will credit any refund to the balance on your CashFlows Account. However, to enable us to comply with our legal obligations, we may ask you to provide us with certain information before we can process your refund request.

Refunding Transactions

You may be entitled to claim a refund in relation to transactions where:>

• the transactions was not authorised under this agreement;
• we are responsible for a transaction which was incorrectly executed and notified us in accordance with section 8 above;
• a pre-authorised transaction did not specify the exact amount at the time of its authorisation and the amount charged by a supplier is more than you or an Additional Cardholder could reasonably have expected taking into account normal spending patterns on the Card or the circumstances of the transaction;

A claim for a refund in the circumstances set out above will not be accepted if the amount of the transaction was made available to you at least 4 weeks before the transaction date or it is made more than 8 weeks after being debited to your account.

11. Changes to these Terms

We may change these terms at any time by notifying you by e-mail or other agreed means at least two months before the change is due to take effect (unless any change is solely to your advantage when it can be effected immediately). The up-to-date version of the Card terms and conditions will always be available on the Website. Any change will automatically take effect and you will be taken to have accepted the notified change unless you tell us that you do not agree to the change. In that event, we will treat that notice as notification that you wish immediately to terminate. In such circumstances we will refund any balance on the cardin accordance with section 10 above and you will not be charged a Refund Fee.

12. The Fees

A table of our relevant fees is available on the website.

We do not charge any fees for checking your on-line balance and transactions. However when you use your Card at an ATM, you may be subject to applicable fees, surcharge rules and regulations of the relevant ATM, or other financial institution or association.

If we decide to increase or impose any new fees, we will tell you by e-mail, text, or notice on the website, at least two months before any changes take effect. Authorisation will be requested for all transactions at the time of each transaction. In the unlikely event, for any reason whatsoever, a transaction is completed when there are insufficient funds on the Card for that transaction (a "Shortfall"), the Shortfall shall be reimbursed by you unless it is due to an error on the part of the retailer where the Card was presented, in this circumstance we may seek the Shortfall from the retailer.

You agree that once we make this Shortfall known to you, we may charge you for the Shortfall amount. We may charge the amount of the shortfall from any Card or Additional Card, to any other payment method which you may designate at that time, or against any funds which you may subsequently load onto your Card or any Additional Card or to your CashFlows Account. Until we are reimbursed the Shortfall amount, we may suspend your Card and any Additional Card. In addition, we reserve the right to charge you an administration fee for each transaction that you make using your Card that results in a Shortfall or increases the Shortfall amount on your Card.

13. Your Details

You must let us know as soon as possible if you change your name, address, phone number or e-mail address. If we contact you in relation to your Card, for example, to notify you that we have cancelled your Card or to send you a refund, we will use the most recent contact details you have provided to us. Any e-mail to you will be treated as being received as soon as it is sent by us. We will not be liable to you if your contact details have changed and you have not told us.

14. Data Protection

In purchasing the Card and using it, you agree that we can use your personal information in accordance with our Privacy Policy. Our Privacy Policy is set out on our website, it includes details of the personal information that we collect, how it will be used, and who we pass it to. You can tell us if you don't want to receive any marketing materials from us.

If we suspect that we have been given false or inaccurate information, we may record our suspicion together with any other relevant information. Personal data may also be transferred confidentially to other organisations involved in issuing or operating your Card so that we can administer your Card correctly.

We may obtain information about you to help us verify your identity for fraud prevention and/or money laundering. Scoring methods may be used in the verification process. A record of this process may be kept and used to help other companies to verify your identity. All personal information given by you may be checked with fraud prevention agencies and other organisations involved in crime prevention and may be used for the investigation of fraudulent activity and crime prevention to meet our obligations under the card scheme regulations, and if you have given false or inaccurate information and we suspect fraud we will record this.

We may monitor and/or record telephone calls we have with you or any Additional Cardholder to help us maintain and improve the quality of our Customer Service or as required by applicable law.

15. Disputes with Retailers

If you have any disputes about purchases made using your Card, you should settle these with the person you bought the goods or services from. We are not responsible for the quality, safety, legality or any other aspect of any goods or services purchased with your Card. Remember that once you have used your Card to make a purchase we cannot stop that transaction.

16. Communication

If you have an enquiry relating to your Card, you can use the "Contact Us" facility on the Website. We will deal with your enquiry promptly. If you do not wish to enquire in this way you can alternatively call our Customer Service telephone line on (0)1223 550920. The customer services telephone line is a chargeable service. Calls will be charged at standard rates. Call costs may vary between networks.

17. Complaints

The Card programme is managed by FIS Metavante. If you are unhappy in any way with your Card or the way it is managed, tell us by using the e-mail enquiry facility on the Website so we can investigate the circumstances for you. Any complaints you have will be dealt with quickly and fairly. You may be able to take unresolved complaints to the Financial Ombudsman Service at South Quay Plaza, 183 Marsh Wall, London E14 9SR. Telephone: 0845 080 1800 and e-mail: enquiries@financial-ombudsman.org.uk

18. Compensation

The Card is an electronic money product and although it is a product regulated by the Financial Services Authority, it is not covered by the Financial Services Compensation Scheme. No other compensation scheme exists to cover losses claimed in connection with the Card. This means that in the unlikely event that we become insolvent your funds may become valueless and unusable and as a result you may lose your money.

19. Assignment

We may assign the benefit and burden of these terms and conditions to another company at any time, on giving you two months prior notice of this. If we do this, your rights will not be affected.

20. Transfer to a new Prepaid Card

We may transfer your unused balance to a new Card provided by another prepaid Card issuer other than us at any time. Before we do this, we will give you two month's notice of the new prepaid Card arrangements and the new prepaid Card terms and conditions. Unless you advise us within the two month period that you do not want a new prepaid Card from the new prepaid Card issuer, you agree that we can automatically transfer the unused balance on your prepaid Card to a new prepaid Card provided by the new prepaid Card issuer.

21. Governing Law

This Agreement is concluded in English. All communications with you will be in English. These terms and conditions will be construed in accordance with English law and subject to the jurisdiction of the English Courts.

22. Fund Protection

As a responsible e-money issuer, we ensure that once we have received your funds they are deposited in a secure account, specifically for the purpose of redeeming transactions made by your Card. In the unlikely event that we become insolvent funds that you have loaded which have arrived with and been deposited by us are protected against the claims made by creditors.

23. Prepaid Card Issuer

Your Prepaid Card is issued by Voice Commerce Limited whose principal office isat First Floor, CPC1, Capital Park, Cambridge CB21 5XE and is authorised by the Financial Services Authority (registered number 900006) as an issuer of e-money. Your Prepaid Card is the property of Voice Commerce Ltd and is not transferable to anyone else.

CashFlows® is a registered trading name of Voice Commerce Limited.

 

Schedule 6

VoicePay Terms and Conditions

1. By registering for the service you agree as follows:

• 1.1 You will only use the voice signature registration service of VoicePay for the legitimate purpose of depositing Your voice signature in our Trust Centre, to enable a biometric voiceprint to be made, retained and linked with other data obtained from You and other parties to facilitate organisations and third parties with whom you have an agreement ("linked agreements") to verify Your identity, accept payments and authorise other transactions (including Card Transactions) which You may initiate.
• 1.2 You are at least 18 years old and resident at the address provided in Your application.
• 1.3 You accept all the uses of Your personal information, including Your voice signature, as set out in the "How we will use your data" paragraph and in our Privacy Policy and as agreed to by You in these supplemental terms and conditions.
• 1.4 You authorise Us to use Your voiceprint and to make it available to other organisations nominated by You for the purposes of verifying your identity, authorising payments and other transactions, entering into binding agreements and any other purposes made available to You by Your linked agreements for which a voiceprint is accepted as proof of identity or authorisation.
• 1.5 You agree that You are the holder of the mobile phone number which You register in order to access the service. You agree to inform Us promptly of any changes to Your personal information, including but not limited to Your name, postal and email addresses and mobile phone number.
• 1.6 You agree to take all reasonable precautions to safeguard any PIN, password and any other personal information relating to the service against loss, theft or misuse by a third party.

1.7 You undertake to tell Us immediately, by contacting Our Customer Service department, if You become aware that any of Your information has been accessed or used fraudulently or without Your consent or if Your phone is lost or stolen. You agree that we may suspend or terminate Your use of the service in such circumstances.

• 1.8 You will pay Us any applicable fees and charges for using the service, as set out in the tariff of charges published on the website. If We amend the tariff of charges or add a new charge, We will inform you by giving you 60 days' advance notice by SMS text or email, or posting the changes in a prominent place on the Website.
• 1.9 You agree We may make changes to these terms and conditions by giving you 60 days' advance notice by SMS text or email.
• 1.10 You may terminate this agreement at any time by accessing Your registration details online and following the instructions for termination or by contacting Us as indicated on the website.

2. We will provide the service as follows:

2.1 We agree to provide the service subject to the terms and conditions in return for Your performance of Your obligations.

• 2.2 The voice signature registration service consists of the capture and secure storage of Your personal information together with a digital representation of the unique biometric characteristics of Your voice (Your "voice signature") so that it can be used alone or in combination with other personal information for the purposes set out at 1.1 and 1.3 above.
• 2.3 The service enables You to make and accept payments, verify Your identity, enter into binding agreements and any other purpose made available to You by your linked agreements for which a voice signature is accepted as proof of identity or authorisation. We do not have control of or accept liability for any products or services accessed or paid for by You using our service.
• 2.4 We may at any time, with or without notice to You and without incurring any liability suspend, block, limit or cancel Your right to use the service.