Customer terms and conditions

01/02/17 Merchant Services

Terms and Conditions

IMPORTANT NOTE: THESE ARE THE STANDARD TERMS AND CONDITIONS PURSUANT TO WHICH WE WILL PROVIDE THE CASHFLOWS ACQUIRING SERVICES, AND ANY ADDITIONAL SERVICES TO YOU, AND ON WHICH WE INTEND TO RELY. FOR YOUR BENEFIT AND PROTECTION, YOU SHOULD READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ACCEPTING THEM. IF YOU DO NOT UNDERSTAND ANY POINT PLEASE ASK FOR FURTHER INFORMATION.

THESE TERMS AND CONDITIONS are entered into between CashFlows Europe Limited, CPC1, Capital Park, Cambridge CB21 5XE, United Kingdom, a company registered in the United Kingdom under company register number 05428358 ("CashFlows", "we", "our", "us") and you the merchant ("you", "merchant") and become legally binding on the Operative Date.

CashFlows is authorised and regulated by the Financial Conduct Authority under the Electronic Money Regulations 2011 for the issuing of electronic money and related payment services (firm reference number: 900006).

1. DEFINITIONS AND INTERPRETATION

    1. In these Terms and Conditions, the following terms shall (unless the context otherwise requires) have the following meanings:

"Additional Services" means any product or service provided to you by us or our affiliates from time to time in addition to the CashFlows Acquiring Services including, but not limited to, the CashFlows Business Account;

"Applicable Laws"; means all laws, statutes, statutory instruments, acts, regulations, orders and directives including but not limited to the Banking Act, the Financial Services and Markets Act 2000, the PSRs and the Electronic Money Regulations 2011, and all orders, regulations and rules issued there under, as amended from time to time (including for the avoidance of doubt the Money Laundering Regulations 2007, and related schedules, as well as legislation, regulations and guidance notes relating to money laundering and terrorist financing, including those which implement Directive 2005/60/EC), the Consumer Credit Act 1974, the DPA 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) including, the Information Commissioner, the Direct Marketing Association, the Advertising Standards Authority, the Office of Fair Trading, the Financial Conduct Authority and the Card Schemes or any other relevant trade or industry body applicable to the conduct of our business or in connection with their rights and obligations under this Agreement;

"Application" means your application to us for the provision of any of the Services;

"Approved Products" means the goods and/or services you provide to Cardholders and which we have approved 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, liquidated damages or imposition of liabilities of any nature which a Card Scheme or any other third party levies on you or us at any time, directly or indirectly, in relation to any aspect of our relationship with you under these Terms and Conditions (examples of Assessments can be found on our website at http://support.cashflows.com/merchant-monitoring);

"Authorisation" means the process whereby we obtain at the time of the Transaction (directly or indirectly, for example, where the Gateway Services are provided by a third party) 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 Transaction;

"Bank Account" means an account held in your name maintained at a Bank or financial institution acceptable to us and held in the currencies in which we receive funds for Remittance (which may be any of Pounds Sterling, Euro or US Dollar) in order to facilitate payment of Remittances;

"Card" means a credit, debit, charge, purchase, prepaid or other card issued by a Card Issuer and licensed by a Card Scheme which we have agreed to process in accordance with these Terms and Conditions (as notified by us to you from time to time);

"Cardholder" means a Person who or which is the authorised user of a Card;

"Card Issuer" means a financial institution which issues Cards;

"Card Schemes" means Visa Europe, Visa Inc, MasterCard Worldwide and/or such other scheme that offers a payment method that is accepted by CashFlows for processing;

"Chargeback" means where a Card Issuer or Card Scheme requires repayment in respect of a Transaction previously settled to us and/or Remitted to you, notwithstanding that Authorisation may have been obtained (and for the purposes of this definition a Transaction shall also include a Transaction where a Cardholder has used his Card in order to purchase and/or load value onto a prepaid card or prepaid account issued or provided by us and such prepaid value (or part of it) is used to purchase goods or services from you);

"CashFlows Acquiring Services" means the services allowing you to accept Cards in order to initiate Transactions pursuant to the Rules, to receive payment for Transactions via Remittances, to affect Refunds and any related or supporting services as provided by CashFlows to you under these Terms and Conditions and, where such services are provided by us, the Gateway Services;

"CashFlows Business Account" means a payment account which we may, on request, make available to merchants in accordance with the CashFlows Business Account terms and conditions found on our website;  

"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 for the provision of the Services which is made up of these Terms and Conditions, the Application, the Pricing Plan, and where you have requested us to provide Additional Services, the supplemental terms and conditions relating to the provision of the relevant Additional Services;  

"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);

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

"Credit Transaction" means a Payment Transaction (as defined by MasterCard) or Original Credit Transaction (as defined by VISA) that results in a credit to the account of a Cardholder for a purpose other than processing a Refund;

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

"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 as set out in the Pricing Plan or as notified to you by us from time to time;

"Fixed Fee" means the fixed fee charged as part of the Merchant Service Charge as set out in the Pricing Plan;

"Fraud Report" means a report notified to us by a Card Scheme or Card Issuer relating to a Transaction or Transactions which are believed to be in some way fraudulent as notified by us to you;

"FX Margin" means 3% of the relevant Oanda exchange rate or such other FX margin as may be set out in the Pricing Plan;

"Gateway Services" means the provision of a communication network to transfer Transaction information between the payment page of your online store and the payment processing system we use to deliver the CashFlows Acquiring Services;

"Group Companies" means CashFlows, any subsidiary or holding company from time to time of CashFlows and any company which is a subsidiary from time to time of any holding company of CashFlows;

"Gateway Services Fee" means the fee payable by you to us for the provision of the Gateway Services which, where relevant, will be set out in the Pricing Plan.

"High Risk Warning Fee" means the fee set out in the Pricing Plan payable by you to us each time a fraudulent transaction is reported to us under this Contract;

"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;

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

"Merchant Service Charge" means our Fees excluding the Interchange Fees, the Scheme Fees and any other fees charged to us by the Card Issuer or Card Schemes, and which we charge to you;

"Online Portal" means the secure online system that allows you and us to manage and exchange information in relation to the Services;

"Operating Instructions" means any operating instructions setting out procedures, information and instructions which you must follow in connection with the Services provided by CashFlows and any amendments from time to time;

"Operative Date" means the date when we process your first Transaction;

"PCI DSS" means the Payment Card Industry Data Security Standards published and updated from time to time by the Payment Card Industry Security Standards Council at https://www.pcisecuritystandards.org and which merchants and others processing Data must comply with;

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

“Pricing Plan” means the document setting out the Fees payable by you for the Services and provided to you following submission of your Application;

"Primary User" means your representative (as notified to, and approved by us as part of your Application) authorised by you to access the Online Portal; 

"PSRs" means the Payment Services Regulations 2009 (and any amendments made to the PSRs from time to time);

"Reason Code" means codes designated by some or all of the Card Schemes categorising undesirable or non-compliant acts or omissions of merchants;

"Refund" means the reimbursement of a Transaction to a Cardholder at your request (or as initiated by us in accordance with these Terms and Conditions) by such electronic means as shall have been approved by us which represents the complete or partial reversal of a Transaction with the intention of crediting the Cardholder's account;

"Remittance" means the payment due to you from us in respect of Transactions (and "Remitted" shall be construed accordingly);

"Rules" means the rules, regulations, operating guidelines and procedures issued by the Card Schemes pertaining to Cards, Cardholders, Transactions and any related activity including the processing of Data (as amended or extended from time to time);

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

"Security Credentials" means the password and username that is required for accessing the Online Portal;

"Services" means the CashFlows Acquiring Services, the Gateway Services (where provided by us) and, where relevant, any Additional Services provided to you;

"Trading Limit" means any limit on the aggregate value of Transactions that you may complete in any specified period which we may notify to you from time to time;

"Transaction" means any payment to you for goods or services using a Card, or any Refund, or otherwise to debit or credit the applicable Cardholder's account with the Card Issuer; and

"Void Transaction" means a transaction which is abandoned by you or by the Cardholder or by us after an Authorisation has been obtained but before the Cardholder account has been debited.

  1. In these Terms and Conditions (unless the context otherwise requires):
    1. 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;
    2. words importing the singular shall include the plural and vice versa;
    3. words importing the singular shall include the plural and vice versa;
    4. the headings in these Terms and Conditions are for convenience only and shall not affect their construction or interpretation.
  2. In the event of a conflict between the documents comprising the Contract, the following order of priority will apply, only to the extent of such conflict: (i) these Terms and Conditions; (ii) the Application; (iii) the CashFlows Business Account terms and conditions; and (iv) where relevant any other terms and conditions relating to the provision of Additional Services.

2. SERVICES

  1. Notwithstanding the submission of an Application, we shall not be obliged to provide the CashFlows Acquiring Service or any other Additional Service unless and until we notify you in writing that we have accepted the Application and you have agreed to these Terms and Conditions or any other applicable terms and conditions relating to the requested Additional Services. For the avoidance of doubt, you will be asked to accept and agree to any applicable terms and conditions relating to the requested Additional Service at the time that you apply for, and we agree to provide you with, such Additional Service. 
  2. In consideration of the Fees, CashFlows shall provide the Services with reasonable skill and care, and in accordance with Applicable Laws, the Rules, and the provisions of the Contract.
  3. You may request that we also provide you with the Gateway Services, and if we agree to do so, you shall pay the Gateway Services Fee in accordance with the Pricing Plan.
  4. You shall not use any third party to provide Gateway Services without our prior written consent. Where such consent is provided, you shall ensure that the third party is fully compliant with the Applicable Laws, the Rules, the PCI DSS and, where relevant any Operating Instructions.
  5. 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 all equipment, software, systems and telecommunications facilities (including Gateway Services) which are supplied by you or by third parties and that are required to enable you to use the Services. We accept no liability for any disruption to the Services that is attributable or in any way related to the provision of Gateway Services provided by a third party.

3. REMITTANCE

  1. We may pay Remittances to your CashFlows Business Account or your Bank Account(s) (in either case referred to this section as your "Remittance Account(s)") as agreed by us in writing. We shall not be obliged to make a Remittance to any account other than the Remittance Account(s) nominated by you either under the Application or via the Online Portal. We may at your request, subject to such conditions as we may reasonably consider appropriate, pay Remittances due to you (in whole or in part) to an account held by any of your group companies acting on your behalf, provided always that any such payment shall be deemed to discharge our obligation to pay the Remittance (or the relevant part thereof) to you and that such group company shall not thereby gain any right or entitlement to any sums representing any Transaction nor any right or remedy against us under these Terms and Conditions. We may suspend or withdraw any such facility at our discretion.
  2. Subject to our rights to defer and/or deduct sums from Remittances in accordance with this clause 3, we shall credit your Remittance Account with the relevant Remittance amounts.
  3. You may specify when you wish Remittances to occur and/or apply certain pre-conditions (such as Remittance value) to a Remittance. Such specifications may be notified to us via the Online Portal by the Primary User and will always be subject to our prior consent. For the purposes of the PSRs we will be deemed to have received your order to make a Remittance on the date on which you have specified Remittance to occur.
  4. Remittance shall not fall due until the occurrence of the later of the following:
    1. the next date on which you have specified Remittance to occur following the relevant Transactions; and
    2. the expiry of any period of deferment which we are entitled to impose in accordance with this clause 3.
  5. Subject to our rights under the Contract to deduct sums from, set-off or defer Remittances, we will credit Remittance Accounts located within the European Economic Area within the timescales set out in the PSRs.
  6. We shall be entitled to deduct any or all of the following sums from any Remittance;
    1. any Fees that are due and payable;
    2. any Interchange Fees and Scheme Fees that are due and payable;
    3. any Refunds processed by us;
    4.  any Chargebacks and Assessments;
    5. any amounts required by us to cover any:
      1. potential or reasonably expected Refunds, Chargebacks, Disputes, Void Transactions or Assessments or any liability or potential liability relating to any Transaction, Refund, Chargeback, Void Transaction or Assessment;
      2. any liability or potential liability of yours under the Contract; and
      3. any other charges or amounts due from you to us under the Contract.
  7. In the event that the value of the sums owed by you to us exceeds the aggregate value of the Remittance which would otherwise be due to you, we may elect not to pay any relevant Remittance and the resulting shortfall may be held over by us for deduction (together with interest in accordance with clause 6) against the following (and any subsequent) Remittance. We reserve the right at any time to require payment of all or part of such shortfall (together with interest) forthwith.
  8. In the event that we do not deduct any of the sums set out in clause 3.6 from your Remittances, you agree to pay all such amounts to us or, at our option, we may debit the CashFlows Business Account (where relevant) for such amounts due and payable. 
  9. Throughout the term of the Contract and after its termination for any reason, we shall be entitled to defer payment of any Remittance, in the event that:
    1. we become aware of any Chargebacks or Assessments, any claims or action in connection with the Contract, any liability of yours to us including any liability of yours relating to any Transactions, Chargeback, Chargeback Costs or Assessment (in each case whether actual or potential) or any third party liability arising from the Contract; or
    2. we have a reasonable suspicion that the Remittance relates to a Transaction or series of Transactions that may be fraudulent or involves other criminal activity; or
    3. we have reasonable grounds to believe that you have breached the Contract.
  10. We may defer making any Remittance for such period as we shall in our reasonable discretion consider appropriate, or, if earlier until either:
    1. the relevant liability is incurred (when we shall pay to you the balance of the amount of such sums, if any, after deducting the amount of such liability); or
    2. any breach has been ascertained or the risk of any breach passed; or
    3. we are, acting reasonably, satisfied that no such liability will be incurred or that no fraud or other criminal activity is involved.
  11. You shall not be entitled to any interest or any other compensation whatsoever in respect of any sums held by us prior to being Remitted to you for any period for which payment may be deferred or otherwise withheld.
  12. You have no right or entitlement to or any interest in any sums representing any Transaction until Remittance is due in accordance with these Terms and Conditions.
  13. We will notify you as soon as possible upon exercising any of our rights under this clause 3.
  14. We shall not be liable to you for any Remittance where the Remittance Account unique identifier information provided by you was incorrect. Such transactions shall be deemed to be correctly executed. If requested, we will make reasonable efforts to recover the funds involved in the Remittance and you agree that we may charge you for our actual costs in attempting such recovery.

4. FEES AND CHARGES

  1. In return for us providing the Services you agree to pay the Fees set out in the Pricing Plan.
  2. Unless otherwise agreed we will charge our Fees on an "interchange ++" basis. This means that in addition to our Fees, you will pay the Interchange Fees, Scheme Fees and any other fees as may be introduced or varied by the Card Schemes or Card Issuers that are levied on us or you in relation to the Services from time to time.
  3. You agree that, unless otherwise stated:
    1. all Fees and, where applicable, Interchange Fees and Scheme Fees will be due and payable by you at the earlier of, the time Transaction sums are settled to us by the Card Scheme or, when the related Services are rendered to you; and 
    2. any related Chargebacks, Refunds, Assessments or similar fines, fees, penalties or charges levied by Card Schemes or other third parties including any liabilities arising in relation to the aforementioned will be due and payable by you when we receive notice thereof from the Card Schemes or otherwise.
  4. The Interchange Fee and Scheme Fee are subject to change and subject to clause 4.5, any changes to the Interchange Fee and/or Scheme Fees will be applied immediately and without prior notice to you. As a guide, we have set out in the Pricing Plan the Interchange Fee and Scheme Fees that apply to Transactions and that are in force at the date we prepare your Pricing Plan.
  5. Where you have requested that we charge our Fees on a "blended" basis, fluctuations in the Interchange Fee and/or the Scheme Fee will not be passed onto you and any such changes will not affect the Fees that you will be charged.
  6. 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 relevant taxes.

5 EXCHANGE RATES

  1. The Fixed Fee is charged in Pounds Sterling. In the event you pay the Fixed Fee in a currency other than Pounds Sterling, we will convert the Pounds Sterling value of the Fixed Fee into the processing currency on the relevant day (being the date that the charge is levied or the date the relevant transaction is processed, which may be different from the date of the transaction).
  2. Unless a particular rate is required by law, CashFlows will apply the mid-point Pounds Sterling exchange rate published by Oanda (the rate is available at www.oanda.com/currency/live-exchange-rates/) on [the business day prior to] the relevant date plus the FX Margin. The relevant Oanda exchange rate plus the FX Margin shall also apply to any other currency exchange undertaken by us under the Contract. Oanda published its mid-point exchange rates daily. Any change in the relevant exchange rate will be applied immediately and without notice to you.
  3. If Oanda ceases to publish exchange rates at all or as regards any specific currency, CashFlows may select and use an alternative third party exchange rate provider.

6. INTEREST

We shall be entitled to charge you interest at the rate of 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. If we charge you interest, we will notify you in the relevant statement of fees that will be provided by us to you from time to time via the Online Portal.

7. AUTHORISATION AND CHARGEBACKS

  1. Unless we have agreed otherwise in writing, you must not process a Transaction unless and until you have obtained notification from us that the Transaction has been Authorised.
  2. You acknowledge and accept that Authorisation and acceptance of any Transaction for processing shall not be taken as an indication by us or the Card Scheme that the Transaction is valid nor does it guarantee that Remittance will be made in respect of that Transaction.
  3. You may receive a Chargeback from a Cardholder or Card Scheme for a number of reasons under the Rules and you will be required to reimburse us for all Chargebacks that relate to Transactions you have submitted to us for processing. To the extent permitted by law, we shall notify you of Chargebacks in your account summary available via the Online Portal.
  4. Where a Chargeback or Assessment occurs, we shall immediately be entitled, at our discretion, to deduct the sum(s) from any pending or future Remittance, debit your Bank Account and/or invoice you to recover the full amount of the Chargeback or Assessment plus any other reasonable costs, expenses, liabilities which we may incur as a result of or in connection with such Chargeback ("Chargeback Costs").
  5. 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.
  6. As Chargebacks may arise after the date of the relevant Transaction, you acknowledge and agree that we shall remain entitled to recover Chargebacks and Chargeback Costs that relate to Transactions processed under the Contract after the termination of the Contract.
  7. 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 Cardholder's account was authorised by such Cardholder.

8. YOUR REPRESENTATIONS AND WARRANTIES

  1. You represent and warrant to us throughout the term of the Contract the following:
    1. All the information provided to us by you in the Application and any other information provided by you prior to the Operative Date or during the term of the Contract, including but not limited to information on the Approved Products, is true, accurate and complete as of the date originally given, properly reflects your business, financial condition and principals, owners or officers and that all changes to such information have been properly notified to us in accordance with clause 9.12;
    2. You, the merchant, and the individual signing or accepting these Terms and Conditions on your behalf is duly authorised to bind you to all provisions of the Contract contained herein and that your acceptance and performance of the Contract will not violate any Applicable Laws or any other agreement to which you are subject; 
    3. You are obtaining and using the CashFlows Acquiring Services for legitimate business purposes only and to facilitate lawful business Transactions between you and your customers and your business and the manner in which you conduct it comply with all Applicable Laws as well as the laws of the jurisdiction in which you and the Cardholder are based; and
    4. You are duly authorised and/or licensed to provide Approved Products and/or services to Cardholders, in the jurisdiction of sale (where you are based) and in the jurisdiction of purchase (where the Cardholder is based).

9. YOUR OBLIGATIONS

Compliance

    1. You shall at all times comply with, and, where relevant, you shall ensure that your agents, sub-contractors or any third parties used by you (including third party providers of Gateway Services) shall comply with:
      1. the terms of the Contract;
      2. all Applicable Laws;
      3. the Rules;
      4. the Operating Instructions;
      5. the PCI DSS: and
      6. your obligations relating to the provision of goods and/or services by you to Cardholders.
    2. You shall be solely responsible for ensuring that all Approved Products comply with all Applicable Laws in both the jurisdiction of sale (where you are based) and the jurisdiction of purchase (where the Cardholder is based).

      PCI DSS

    3. Without prejudice to the generality of the above clause, you shall ensure that your payment systems and related infrastructure complies in all respects with the PCI DSS and you shall submit to us on request (which shall be at least annually) your most recent certification of PCI DSS compliance in accordance with the requirements set out by the Payment Card Industry Security Standards Council and in such a form as is acceptable to us. More information about how to become PCI DSS compliant can be found on our website at   http://support.cashflows.com/support/pcidss.
    4. We reserve the right to audit your information security controls against the most recent version of the PCI DSS at the time of your most recent certification in order to validate the accuracy of your PCI DSS self-assessment.
    5. 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). You shall immediately identify and resolve the cause of the security breach and act on any reasonable instructions or directions we may give including but not limited to the engagement of third parties to analyse your systems and provide forensic reports. Any action that we direct you to take in relation to a Data breach under this clause shall be at your own cost.
    6. We are also responsible for the security of cardholder data that we possess or otherwise store, process, or transmit on your behalf, or to the extent that we could impact the security of your cardholder data environment (CDE).  This is limited to cardholder data that has entered applications / systems owned by us or in connection with the provision of the Services by us.  In order to meet our obligations, we are a PCI DSS level 1 certified service provider and as such, we maintain and are assessed against all mandatory PCI DSS requirements on an annual basis.

      Cardholder Transactions

    7. You shall:
      1. only process Transactions that represent payment or Refund in respect of Approved Products which you supply directly or through your appointed agents;
      2. not submit any Transaction for processing where you know or should reasonably have known that the Transaction, or the goods or services to which the Transaction relates, was illegal with respect to any relevant law; and
      3. only process Transactions in accordance with the Trading Limit.
    8. 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 Approved Products offered by you at the cash price for such Approved Products.
    9. You should not directly or indirectly levy a surcharge for payments made by Cards unless you disclose the surcharge to the Cardholder in advance of payment and do so in full compliance with Applicable Laws, including the UK's Consumer Protection (Payment Surcharges) Regulations 2012 and the Rules.
    10. Where you have requested, and we have agreed, to make Credit Transactions on your behalf, you are required to establish and maintain a CashFlows Business Account. You must ensure there are sufficient funds to cover the amount of such Credit Transactions. We will use funds held by us pending Remittance to you and/or funds in your CashFlows Business Account to make the Credit Transaction. You hereby authorise us to make payments of Credit Transactions from funds held by us pending Remittance to you and/or from funds held in your CashFlows Business Account. In the event there are insufficient funds we reserve the right to defer the payment of any Credit Transactions. Credit Transactions must be requested via the Online Portal by, and with the consent of, your Primary User (or the appointed delegate(s) of the Primary User). We will make Credit Transactions based on the information provided to us and we shall not be liable for any Credit Transactions made where the information you have provided us with is incorrect.

Provision and Disclosure of Information

  1. You shall at all times throughout the term of the Contract (and for such period as may be necessary thereafter) within the timescales that we may specify:
    1. disclose to us such information as we reasonably require relating to the performance of the Contract including any information: (i) required to satisfy our obligations to any governmental or regulatory authority or Card Scheme or otherwise; (ii) relating to any aspect of the processing of Data by you or on your behalf; (iii) required 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 or (iv) to enable us to review any potential risk to our business;
    2. take all reasonable steps to assist us in handling any claim or query raised by a Cardholder, a Card Issuer, a Card Scheme, or any other third party in relation to the Services; and
    3. give us reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of the Services.
  2. To enable us to assess your financial position throughout the term of the Contract, you shall on request and within the timescales set out in any such request:
    1. provide us or our duly authorised representatives with any financial or other information we may require; and
    2. permit us or our duly authorised representatives to have access to any premises where your business trades or where any of its records are kept, to examine such records and those of any other business which we consider is or may be connected to yours, 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.
  3. You shall notify us immediately in writing of any:
    1. act, omission or error which does or may 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);
    2. act, omission or error which does or may adversely affect your ability to perform your obligations under the Contract;
    3. actual or suspected violation or compromise of the security or integrity of any Data or any Confidential Information at any time obtained or held by you;
    4. material change to the information provided to us in your Application, including but not limited to 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;
    5. other agreement that you enter into concerning your acceptance of Transactions; or
    6. change of your Control, or any proposed or reasonably anticipated change of your Control.

    Websites

  4. You are responsible for all material on your website. All material on the website must comply with the Rules and all Applicable Laws in both the jurisdiction of sale (where you are based) and the jurisdiction of purchase (where the Cardholder is based) and you shall ensure that you have all necessary licences and permissions (including those from owners of copyrights, performing rights and any other relevant Intellectual Property Rights).
  5. You must include clearly on your website: (i) your contact details (including e-mail address and postal address); (ii) a consumer data privacy policy; (iii) your security capabilities and policy for transmission of Card details; (iv) your returned goods and refund policy and (v) any other disclosures required under Applicable Laws or the Rules.
  6. 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.
  7. You agree to display the Card Schemes' names, symbols, marks or logos on your website. Your use of such must comply with the requirements of each marks owner.  Your use of Card Scheme marks or promotional materials will not give you an ownership or interest in any such marks or materials.

    Refunds and Void Transactions

  8. You will only process Refunds and Void Transactions where there is a corresponding Transaction and then only up to the value of that Transaction and no more.
  9. Where you wish to process a Refund or a Void Transaction you shall advise us via the Online Portal or by such procedure as we may specify from time to time.
  10. Refunds will only be made to the Card upon which the original Transaction was debited and not to any other Card and shall be processed in the original payment currency.
  11. You agree that we shall be entitled in our reasonable discretion to accept, dispute, compromise or otherwise deal with any Dispute. Specifically, you agree that we shall in our reasonable discretion be entitled to settle any 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.

    Online Portal

  12. You must keep your Security Details safe and you undertake not to disclose your Security Details, or allow your Security Details to be used by anyone other than the Primary User (or the appointed delegate(s) of the Primary User).
  13. You must notify us immediately if you become aware of the misappropriation of your Security Details or any unauthorised use of the Online Portal.  
  14. You must ensure that the Primary User provides their valid consent to any changes made to your Online Portal preferences where required.
  15. You must notify us in good time if you wish to change the Primary User.
  16. You must check the Online Portal regularly for updates, statements, notifications and account history including Remittances received and Fees, Chargebacks and other deductions applied in accordance with these Terms and Conditions. It is your responsibility to ensure that you are able to access the Online Portal and that the device(s) used to access the Online Portal are operational. If you notice a mistake or error in any of the statements provided to you via the Online Portal, you must notify us immediately. We shall not be responsible for rectifying errors that you do not bring to our attention within a period of 90 days from the date the relevant statement was provided to you.

10. TERM AND TERMINATION

  1. The Contract shall commence upon the Operative Date and, subject to earlier termination in accordance with this clause 10 shall continue in force until terminated by you with one month's written notice or by us with two months' written notice.
  2. The Contract shall remain in full force and effect notwithstanding the termination of the Additional Services by you or us for whatever reason. Termination of any Additional Services must be in accordance with the relevant Additional Services terms and conditions.
  3. If you do not submit any Transactions to us for processing within 30 days of us accepting your Application, we will be entitled to withdraw from the Contract with immediate effect. We will contact you before we exercise our right to withdraw and you may indicate whether you wish to continue with the Contract. It shall be at our sole discretion whether or not we agree to proceed with the Contract in these circumstances.
  4. We shall be entitled to terminate the Contract with one month's notice in the event that you do not submit any Transactions to us for processing for a period of 30 consecutive days. If you receive such a notice and would like to continue with the Contract, you must notify us within 7 days, however termination of the Contract shall be at our sole discretion.
  5. We shall be entitled to terminate the Contract at any time with immediate effect by providing written notice to you as a result of any of the following events ("Events of Default"):
    1. you breach the provisions of the Contract and either:
      1. that breach is incapable of remedy; or
      2. you fail to remedy the breach or non-compliance within 21 days of the date of our notice requiring you to do so;
    2. you fail to pay any amount due under the Contract within 30 days of us providing notice to you that payment is due;
    3. we consider (in our reasonable discretion) that the total value of Refunds and/or Chargebacks are likely to breach Card Scheme limits and/or we consider that you are persistently engaged in actions or omissions that are reasonably likely to attract Assessments;
    4. you fail to comply with the Rules, the Operating Instructions, the Applicable Laws or the PCI DSS;
    5. you become, or we reasonably believe that you will become, insolvent or you propose similar arrangements with your creditors 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);
    6. Anything happens to you or comes to our attention in relation to you or the conduct of your business or you engage in any trading practices or individual activity which we consider in our reasonable discretion:
      1. may affect your ability or willingness to meet your obligations under the Contract;
      2. may or does give rise to fraud or any other criminal activity;
      3. may damage the reputation or be detrimental to the business of the Card Schemes or us;
      4. may or do give rise to increased risk of liability or loss for us; 
    7. we are required or requested to do so by any Card Scheme or competent regulatory authority or by reason of the Rules or any Applicable Laws that apply to us or you, or if a Card Scheme or any other third party ceases to provide us with any service that we require in order to provide the Services to you;
    8. any security or Direct Debit authority granted to us by you in connection with the Contract ceases to be enforceable or is withdrawn, or you fail to grant us with such security or Direct Debit authority within the timescales requested by us;
    9. we reasonably consider that any act or omission of yours falls within a Reason Code;
    10. we discover that you have provided false or misleading information in documents or data submitted to us in connection with the Contract including, but not limited to, the Application;
    11. you breach any Trading Limit;
    12. you fail to obtain our prior written consent or fail to provide notification or information to us where required under the Contract; or
    13. a Force Majeure Event occurs as defined in clause 18.
  6. You shall be entitled to terminate the Contract at any time with immediate effect by written notice to us if we are in material breach of any of the provisions of the Contract and either:
    1. that breach is incapable of remedy; or
    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.

11. CONSEQUENCES OF TERMINATION

  1. Termination of the Contract for any reason by you or us will be treated as termination of the Additional Services.
  2. Upon termination of the Contract all rights and obligations of either Party shall cease to have effect immediately, save that:
    1. termination shall not affect accrued rights and obligations under the Contract as at the date of termination, including for the avoidance of doubt, your obligations in relation to Transactions submitted to us prior to termination;
    2. any security, including any guarantee, will remain in place until such time as we are satisfied that all liabilities and sums due from you to us under the Contract have been discharged; and
    3. clauses 3.4 – 3.14 (inclusive) (Remittances), 7 (Authorisation and Chargebacks), 14 (Set Off), 11 Consequences of Termination), 16 (Your Liability), 17 (Our Liability) 19 (Data and Information Sharing), 22- 31 (inclusive) and any other clauses contained in these Terms and Conditions that by their sense and context are intended to survive termination of the Contract, shall continue in force notwithstanding such termination.
  3. Upon termination of the Contract, you must:
    1. cease to accept Card payments for processing by us under these Terms and Conditions (we shall not be obliged to acquire or pay Remittances to you in relation to Transactions completed after termination); and
    2. continue to present Refunds to us in respect of Transactions that occurred prior to termination. The amount of any such Refunds will remain due and owing by you to us notwithstanding the termination of the Contract.
  4. On termination of the Contract, your right to use or display Card Scheme or our logos or marks shall terminate automatically and you shall remove any reference to the Card Scheme or us from your promotional materials or literature, agreements or on any websites.

12. SUSPENSION OF THE SERVICES BY US

  1. In addition to the remedies above and any rights we may have under this Agreement, we may suspend any or all of the Services with immediate effect upon an occurrence of an Event of Default (as defined in clause 10 above).
  2. Where permitted by law we will notify you as soon as practicable if we decide to suspend any of the Services under this clause.

13. VARIATIONS

  1. We may amend these Terms and Conditions at any time, although we will always give you at least two months' prior written notice of any changes. You will be deemed to have accepted such changes if you do not notify us to the contrary before the conclusion of the 2-month notice period. If you do not agree to the changes, you can terminate the Contract with effect at any time before the expiry of the 2-month notice period by notifying us in writing.
  2. We may amend these Terms and Conditions with immediate effect in the event that it is necessary to do so in order to comply with Applicable Laws, the Rules and/or any currency restrictions from local and/or central banks.
  3. We are entitled to immediately and without notice apply changes in:
    1. Interchange Fees and Scheme Fees where we charge our Fees on an "interchange ++" basis; and
    2. exchange rates and interest rates where these are based on changes to the reference interest rate (clause 6) and exchange rates (clause 5) used by us to calculate interest rate and exchange rates accordingly.
  4. We may from time to time adjust the application content and interfaces we use to provide the Services. If such adjustments lead to a change in software, interfaces, or amendments to our Operating Instructions we shall notify you as soon as reasonably practicable prior to the implementation of such adjustments. In certain exceptional circumstances such as where we have a reasonable belief that fraud is likely to or has occurred we may implement such changes prior to notification to you.

14. SET OFF

  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 Card Issuer) against any sums (whether or not a Remittance and whether or not related to any Transaction that may have given rise to the liability) held by us which are in your name, including but not limited to sums held on your CashFlows Business Account. 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 your CashFlows Business Account or any other 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.
  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.
  3. Any exercise of our rights under this clause 14 shall be without prejudice to any other rights or remedies available to us under the Contract or otherwise.

15. SECURITY

  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.
  2. We may at any time require you to grant to us, or procure the granting to us of security in such form and over such assets as we deem appropriate in order to secure to our satisfaction the performance of your obligations (including contingent or potential obligations) under the Contract.
  3. We may exercise our rights under this clause 15 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.

16. YOUR LIABILITY

  1. You agree to indemnify and keep indemnified, defend and hold harmless CashFlows 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 in relation to, arising out of or in consequence of or in connection with:
    1. your non-compliance or breach of the Contract, the Rules, the Operating Instructions, the PCI DSS or Applicable Laws;
    2. the Gateway Services where such Gateway Services are provided by a third party;
    3. any Transaction and/or any Dispute relating to a Transaction whether or not previously Remitted by us to you;
    4. any other claim brought against us arising from any aspect of our relationship with you (including in connection with any security breach, compromise, 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);
    5. any product or service (whether or not an Approved Product) sold or offered for sale by you and/or any other arrangements between you and your customer whether or not relating to a Transaction;
    6. the enforcement or attempted enforcement of the Contract by us (which includes the recovery or attempted recovery of any sum owing to us under the Contract) including 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); or
    7. any Event of Default,
      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.
  2. For the avoidance of doubt, if a claim is brought against us by a Cardholder, Card Issuer, or any other third party, we shall be entitled to settle or otherwise deal with it at our sole discretion.
  3. If you are a partnership, each partner shall be jointly and severally liable under the Contract.

17. OUR LIABILITY

  1. We shall only have liability for any proven direct losses or damage which you suffer or incur as a direct result of our negligence or breach of our obligations under these Terms and Conditions, save and to the extent that such breach is caused or contributed by you.  
  2. If you believe that a Remittance has been made to an account without your proper authorisation in accordance with the provisions of clause 3.15 we will refund the amount of the unauthorised Remittance provided that you notify us without undue delay. We will not be obliged to refund the unauthorised Remittance if you notify us more than 13 months from the date that we made the relevant Remittance. We shall be entitled to investigate your claim that the Remittance was unauthorised and, if we can establish that it was, in fact authorised by you, we may take steps to recover the amount refunded under this clause. We shall not be liable for any losses incurred in respect of an unauthorised Remittance where you have acted fraudulently or with gross negligence have failed to maintain the security of your systems or your Security Credentials.  
  3. 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 is due to a Force Majeure Event or our obligations under Applicable Law.
  4. Subject to clause 17.8, we, our directors, officers, employees or affiliates, shall not be liable to you in contract, tort (including negligence or breach of statutory duty) or otherwise for:
    1. any loss of business, loss of reputation, loss of data and loss of opportunity including loss of profits; or
    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.
  5. Subject to clause 17.8, our total liability to you for our failure to perform our obligations under the Contract (whether arising in contract, tort or otherwise) or as otherwise in connection with or related to the Contract shall be limited to:
    1. the Merchant Service Charge paid to us (which for the avoidance of doubt shall not include Interchange Fees or Scheme Fees) in the twelve months prior to the date of the first event giving rise to any relevant liability; or
    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 Merchant Service Charges which have been paid in such period together with an amount equal to the Merchant Service Charge which would be reasonably likely to be payable (having regard to matters such as the amount of Merchant Service Charge which has 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.
  6. 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.
  7. 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 17 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.
  8. Nothing in the Contract shall operate to exclude or restrict our liability for fraud or deceit or for death or personal injury resulting from our negligence.
  9. We shall have no liability to you in relation to any decision of any regulator, 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.

18. FORCE MAJEURE

  1. A party shall not be in breach of this Contract, nor liable for any failure or delay in performance of any obligations under this agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control, or where relevant, the reasonable control of CashFlows' agents and sub-contractors ("Force Majeure Event").
  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.
  3. Any party that is subject to a Force Majeure Event shall not be in breach of this agreement 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 the Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
  4. If the Force Majeure Event prevails for a continuous period of more than two months, any party may terminate this agreement by giving 14 days' written notice to the other. On the expiry of this notice period, this agreement will terminate. The consequences of such termination shall be in accordance with clause 11.

19. DATA AND INFORMATION SHARING

  1. In this clause 18 the terms "process", "Personal Data", "Data Processor", "Data Subject" and "Data Controller" shall have the same meanings given to them in the DPA.
  2. We and you shall at all times perform their respective obligations under the Contract in such a manner as not to cause the other in any way to breach the DPA.
  3. You shall act as Data Controller and we shall act as Data Processor in relation to all Personal Data supplied to us by you under this Contract.
  4. You warrant, undertake and represent that:
    1. you have complied with and shall comply at all times with the DPA and all other Applicable Laws;
    2. you are authorised to transfer the Personal Data to us and specifically where required by the DPA you shall obtain all necessary consents in order to (i) disclose the Personal Data to us; and (ii) allow us to process the Personal Data for the purposes of providing the services under this Contract.
  5. We shall:
    1. Only undertake processing of Personal Data to the extent reasonably required in connection with our obligations in this Contract and in accordance with your instructions;
    2. Only process the Personal Data in compliance with the DPA and all other relevant Applicable Laws; and
    3. Have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction or, or damage to, the Personal Data.
  6. You acknowledge that we are reliant on you for obtaining the relevant consents for our processing of any Personal Data and/or ensuring that you are entitled to pass the Personal Data to us. Consequently, we shall not be liable for any claim brought by a Data Subject arising from any action or omission resulting from your failure to ensure that the transfer of the Personal Data was lawful under the DPA.
  7. 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 19 or any breach of the DPA attributable to or caused by you, your employees or agents or sub-contractors.
  8. 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.
  9. In order to provide the Services under this Contract, we may use and share your information (including information about Transactions and Personal Data) with certain third parties including, without limitation, our Group Companies, Card Issuers, Card Schemes, credit reference agencies and online monitoring tools to help us and/or them:
    1. assess financial and insurance risks;
    2. recover debt;
    3. develop customer relationships, services and systems; and
    4. prevent and detect crime.
  10. Subject to clause 19.9 and clause 21, we do not and will not disclose your information (including Personal Data) to anyone other than as expressly provided in the Contract except:
    1. where we have your specific permission;
    2. where we are required or permitted to do so by law or regulation (including, without limitation, statutory or regulatory reporting obligations);
    3. to other companies who provide a service to us provided that such information is anonymised and does not include information about identifiable individuals; or
    4. where we may assign, sub-contract or transfer rights and obligations under the Contract.
  11. 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 using the details provided by you to us. If you do not object to the change within 30 days and continue to use the Services, you will be taken to have consented to that change.
  12. In order to provide the Services or if required by Applicable Law, we may transfer the Personal Data and store it outside the European Economic Area ("EEA") to the entities set out in clauses 19.9 and 19.10. 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 will take all steps reasonably necessary to ensure that any Personal Data is treated securely and in accordance with this clause 19.

20. CREDIT REFERENCE CHECKS

  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) the home addresses of your directors, shareholders and owners (who together, for the remainder of this clause 20, shall be known as your "principals") and to calculate their 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 by 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.
  2. To enable us to form an accurate view of the existing financial commitments of you and your 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 with you or your principals. 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.
  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.
  4. We may make periodic searches of our Group Companies' 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 Companies.
  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.
  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.

21. CARD SCHEME DATABASES

You acknowledge that if you breach these Terms and Conditions or the Rules we may be required to provide information to the Card Schemes or the Persons nominated by them on the nature of the breach (including where relevant the Reason Code), your business, your conduct relating to the Contract and your principals or officers. You further acknowledge that the Card Schemes may retain and store this information in a database for use by the Card Schemes or related third parties to assist in identifying merchants involved in, amongst other things, fraud or suspected fraud, insolvency, or breaches of a merchant services agreement. You agree and consent to such reporting by us in the event of your breach and you agree that where we have acted in good faith we shall have no liability to you in relation to any of the information we provide to any third parties pursuant to this clause 21.

22. INTELLECTUAL PROPERTY

  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.
  2. You must 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.

23. CONFIDENTIAL INFORMATION

  1. Except as otherwise specified in this clause 23, each party shall treat as confidential all 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.
  2. Each party may disclose Confidential Information to its professional advisers, employees, officers, sub-contractors and agents ("Personnel") who need to know it for the purpose of performing its obligations under the Contract and only where such Personnel agree to act in compliance with the confidentiality requirements of this clause.
  3. For the avoidance of doubt, the obligation in clause 23.1 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 any order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or taxation authority of competent jurisdiction, by the rules of a recognised stock exchange on which a party's shares are listed or by law.
  4. On termination 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.

24. ASSIGNMENT AND SUBCONTRACTING

  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.
  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.
  3. We shall be entitled to assign, novate or otherwise transfer, either in whole or in part, the Contract and/or to sub-contract our obligations or any one of them under the Contract to any Person at any time. You agree to enter into any documents as we may require in order to evidence such assignment, novation or other transfer.

25. WAIVER

  1. Neither the failure nor the delay to exercise by a party, in whole or in part, any of its rights or remedies provided under the Contract or under any Applicable Law 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. 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.
  2. The rights and remedies of a party under the Contract are cumulative and not exclusive of each other or any rights or remedies provided by law.

26. COMMUNICATION AND NOTICES

  1. Unless agreed otherwise all communications in connection with the Contract will be in English.
  2. You may request a copy of these Terms and Conditions at any time during the term by contacting us at the details below.
  3. We will provide you with real time information via the Online Portal in respect of Transactions processed, Remittances, any deductions we have made from the Remittances and, where applicable any interest rates or currency conversion rates applied. Unless otherwise agreed with you, we will aggregate Transaction information (as provided to you via the Online Portal) by brand, application, payment instrument category and the rate of Interchange Fee applicable to the Transaction.
  4. Unless otherwise specified in these Terms and Conditions, you must send all written notices and statements addressed to CashFlows to the following details in order for them to be effective:
    CashFlows Europe Limited
    CPC1, Capital Park, Cambridge CB21 5XE
    Marked for the attention of: General Counsel or such other individual as we may notify you of from time to time.
    Email: support@cashflows.com copied to compliance@cashflows.com
  5. You can also contact customer support on +44 (0)1223 550 920.  
  6. Any written notice to be given under or in connection with the Contract shall be served by:
    1. delivering it personally;
    2. sending it by prepaid first class post;
    3. email (but only where sent to you by us)
      to the address of the other party as set out in this Contract or as otherwise notified by such party from time to time.
  7. Any notice given in accordance with this clause 26 shall be deemed to have been received:
    1. if delivered personally, at the time of delivery;
    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
    3. in the case of email, on the date it is transmitted (provided in the case of email that no "bounce back" message is received).

27.ENTIRE AGREEMENT

  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.

28. SEVERABILITY

  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:
    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
    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.

29. MISCELLANEOUS

  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.
  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.
  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 29.3 does not affect any right or remedy of any Person which exists or is available otherwise than pursuant to that Act.

30. COMPLAINTS

  1. If you have any complaints in relation to the Services provided, please contact us on complaints@cashflows.com and we will try to resolve your complaint. If we are not able to resolve any complaint to your satisfaction, you may be able to refer your complaint to the UK's Financial Services Ombudsman ("FOS") which provides a free complaints resolution service to individuals, micro-enterprises, small charities and trustees of small trusts.
  2. You can contact the FOS:
    1. by telephone on 0800 023 4567 (from 8am to 8pm Monday to Friday and from 9am to 1pm on Saturday);
    2. by post to The Financial Ombudsman Service, Exchange Tower, London, E14 9SR; or
    3. by email to complaint.info@financial-ombudsman.org.uk.

31. GOVERNING LAW AND JURISDICTION

  1. The Contract and any matter arising from or in connection with it shall be governed by and construed in accordance with English law.
  2. 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. We may also bring proceedings against you in connection with the Contract at the place of your registered office.

11/03/13 CashFlows Business Account 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 govern the relationship between (i) CashFlows Europe Limited of CPC1, Capital Park, Cambridge, United Kingdom, CB21 5XE, a company registered in the United Kingdom under company registration number 05428358 (CashFlows", "We", "Us, "Our"), and (ii) You (the CashFlows Business Account holder) which:

  • explain Our obligations to You and Your obligations to Us; and
  • may be added to or amended by the terms and conditions for specific CashFlows Business Accounts or other services which may be provided to You.

The CashFlows Business Account is available to customers based in the EEA. Money held in these accounts is held by CashFlows Europe Limited in its capacity as an E-Money Institution authorised by the Financial Conduct Authority (FCA) in accordance with the provisions of the E-Money Regulations 2011 (FCA reference number 900006). It is held in designated accounts which are segregated from CashFlows' own assets at one or more banks, as selected by CashFlows.

We are also licensed by Visa Europe and Mastercard to accept payments from merchants (acting as an "Acquirer"). If You wish to benefit from Our Acquiring Services, our Acquiring Services, please see our Website for further details.

The following documents are incorporated into and form part of the CashFlows Business Account Terms and Conditions:

  1. any Application Form (if applicable);
  2. these Terms and Conditions, together with any additional terms and conditions which apply in relation to any of other services We may provide to You (together with the CashFlows Business Account "the Services");
  3. any fee or charge sheet referred to on Our Website where applicable; and
  4. any Operating Instructions, information sheets or manuals relating to various aspects of the Services which are issued and/or amended by Us from to time to time.

Any terms and conditions implied by law will also apply to Our relationship with you except to the extent that the law permits Us to amend them by any particular terms and conditions relating to a CashFlows Business Account, the Services and these Terms and Conditions.

We may amend these Terms and Conditions by giving You at least 2 months' prior notice in accordance with Clause 14. If You do not accept the change, the provisions of Clauses 14 and 17 below will apply. If We do not hear from You before the change comes into effect, then You will be deemed to have accepted it and it will take effect on that date. We may also agree separate terms with You in writing.

Every Application is considered individually and the provision of these Terms and Conditions do not guarantee or imply acceptance by Us of any Application. We reserve the right to reject an Application should it be considered appropriate to do so.

1 Definitions and interpretation

  1. In these Terms and Conditions, the following terms shall (unless the context otherwise requires) have the meanings ascribed below. Terms defined in any terms and conditions which apply for the purposes of any of Our other Services 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 applicable rules and to receive payment from such Person in respect thereof:

    "Acquiring Services": means those services provided to You by Us, acting as an Acquirer in accordance with the relevant Acquiring terms and conditions which can be found on Our Website;

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

    "BIC": means a Bank Identifier Code;

    "Business": means a sole trader, Limited Company, Partnership, Limited Liability Partnership (LLP), Charity or Trust;

    "Card Scheme": 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 Schemes" shall be construed accordingly);

    "CashFlows Business Account": means Your current account which shall be provided to you in accordance with these Terms and Conditions;

    "Charges": means those charges which apply to Your CashFlows Business Account, as set out on Our Website;

    "Contract": means the contract entered into between Us and You in accordance with these Terms and Conditions and any terms and conditions applying to any of the Services, as applicable;

    "EEA": means the European Economic Area;

    "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;

    "IBAN": means an International Bank Account Number;

    "Instruction": means any instruction given to Us by You or any of Your authorised representatives/signatories, as referred to in Clause 7;

    "Operative Date": means the date upon which Your CashFlows Business Account is opened;

    "Online Services Management System" means the services management system made available by Us on the Website and accessible by You which enables You to manage the information and functionality relating to Your CashFlows Business Account;

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

    "Operative Date": means the date upon which Your CashFlows Business Account is opened;

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

    "Prepaid Card": means the prepaid card which may be issued by Us to You upon the opening of Your CashFlows Business Account, as referred to in clause 9.6;

    "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;

    "Rules": means the applicable rules, regulations and operating guidelines relating to your CashFlows Business Account;

    "Transaction: means a payment transaction issued by a payee or payer to place, transfer or withdraw funds;

    "Website": means Our website which is available at www.cashflows.com;

    "Working Day": means Monday to Friday, excluding Bank Holidays; and

    "You": means the Person which has applied for the Services and been accepted by Us as a customer.
  2. In these Terms and Conditions (unless the context otherwise requires):
    1. the words "including" and "include" and words of similar effect shall not limit the general effect of the words which precede them;
    2. references to the Contract, 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;
    3. words importing the singular shall include the plural and vice versa;
    4. words importing any gender shall include a reference to each other gender; and
    5. references to a numbered clause or paragraph are to a clause of these Terms and Conditions or paragraph of the schedule so numbered.
  3. The headings in these Terms and Conditions are for convenience only and shall not affect their construction or interpretation.

2 Our obligations to You

  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.
  2. The Services shall be provided in return for the Charges and upon and subject to the provisions of these Terms and Conditions.
  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).

3 Term

Your CashFlows Business Account shall be opened for an initial period of 12 months (the "Initial Term") and will continue automatically for subsequent periods of 12 months unless notice to terminate is served by Us or You before the end of the Initial term or any subsequent renewal period in accordance with clause 17.

4 Services

  1. The Services shall include the services provided by Us in respect of the CashFlows Business Account, together with any other Services which may be requested by You and agreed to by Us from time to time.

please see Our Website for the applicable terms and conditions.

5 Opening Your CashFlows Business Account

Identity Verification

    1. When You apply to open a CashFlows Business Account, We are required by law to verify Your identity and address. This helps to protect Our customers and members of the public against fraud and misuse of the Our systems.
    2. We will not open a CashFlows Business Account until We have verified the identity and address of You (being a Sole Trader, Limited Company, Partnership, Limited Liability Partnership (LLP), charity or trust, as the case may be) and of each director, partner, trustee, beneficial owner or other signatory of the CashFlows Business Account and any shareholders with a holding of 25% or more of the relevant entity.
    3. If we are unable to verify identity through an electronic search, or require further documentation according to individual circumstances, We will contact You and ask You to provide such documents and You agree to provide such documents.
    4. We also have an obligation to maintain up to date identification for all Our customers. This means that We may require additional information from time to time, even for customers who currently receive or have previously received services from Us and You will, upon request, provide such additional information.
    5. For the avoidance of doubt, We may share information which We receive from You during our initial assessment. For further information on how We use Your personal information, please refer to Clause 20.

Credit Reference Checks

  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 CashFlows Business Accounts to be opened quickly and reduces the need to obtain third party references.
  2. To enable Us to form an accurate view of the existing financial commitments of You and Your 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.
  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.
  4. We may make periodic searches of Our Group Company records, credit reference agencies, and fraud prevention agencies to manage Your CashFlows Business Account, and to take decisions regarding Your CashFlows Business 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 Companies.
  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 written request.
  6. By proceeding with the Application, You and Your authorised representatives are confirming that as at the Operative Date You and 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.

6 Instructions

  1. All Instructions given by You shall be sent to Us via email. Such Instructions will be actioned in accordance with the time periods set out herein (and otherwise in accordance with these Terms and Conditions) and as soon as reasonably possible after the Instruction is received.
  2. We may treat all apparently valid Instructions purporting to be given by, or on behalf of, You, as Instructions properly authorised by You. We shall be under no obligation to check the authenticity of such Instructions or the authority of the person or persons giving them.
  3. Where We reasonably believe that an Instruction purporting to come from You has not been properly authorised by You or that any other breach of security has occurred in relation to Your Use of the Services, we reserve the right not to act, or to delay acting upon the Instruction and, in that event, We will inform You as soon as reasonably practicable. We will not have any liability to You if You suffer loss as a result of Our decision not to act or to delay in acting on an Instruction in these circumstances.
  4. You shall ensure that all Instructions sent to Us are complete and accurate. We will not be liable for any loss if an Instruction is not actioned or is actioned incorrectly due to inaccurate or incomplete Instructions or if an Instruction is not received by Us.
  5. You may request Us to cancel or modify any Instruction but We are only required to use reasonable efforts to comply with such request. We will not be liable for any failure to cancel or modify such an Instruction.
    1. We may refuse, at Our discretion and without liability, to act or delay acting on Your Instruction if:
      1. it is a request or Instruction, the effect of which would be to exceed a general limit imposed by Us in relation to Your CashFlows Business Account; or
      2. it is an informal overdraft request that if agreed by Us, would cause Your CashFlows Business Account to go overdrawn or above an existing overdraft limit.
    2. You shall indemnify and keep Us indemnified against all actions, proceedings, costs, loss or damage of any kind We and Our subsidiaries and associate undertakings may suffer as a result of acting on Your Instructions in relation to the Services or as a result of Your failure to comply with Your obligations under these Terms and Conditions.
  6. You should be aware (and unless You indicate differently in Your Application You are deemed to accept) that any signatory of Your CashFlows Business Account can withdraw the entire balance of the CashFlows Business Account.

7 Paying into Your CashFlows Business Account

  1. The following items are acceptable for payment into Your CashFlows Business Account:
    1. forms of electronic payment which We accept, for which You must provide the sender with the BIC, IBAN and account number for Your CashFlows Business Account;
    2. standing order payments by a third party sender, for which You must provide the sender with the payment details for Your CashFlows Business Account; and
    3. standing order payments, internal transfers and currency account transfers, for which Your Instructions must contain the payment details specified in these Terms and Conditions.
  2. Balances received by Us for You will be credited to Your CashFlows Business Account once We believe that those funds are no longer required to be held by Us as security against any liability You might owe to Us.
  3. We shall be entitled to defer crediting Your CashFlows Business Account (for such period as We shall in Our reasonable discretion consider appropriate) any sum that would be due in order to protect Our position with respect to, any liability of Yours to Us, whether actual or anticipated.

8 Payments from Your CashFlows Business Account

  1. We will make any type of payment set out in this Clause 8 from Your CashFlows Business Account with Us if:
    1. We have been authorised to do so further to Your Instructions; or
    2. We are authorised to make them (without specific Instructions from You) under these Terms and Conditions or any other agreement or arrangement between You and Us.
  2. For the avoidance of doubt, cheques cannot currently be issued on Your CashFlows Business Account.
  3. Payments from Your CashFlows Business Account can be made to a third party recipient in the UK or overseas by SEPA Credit Transfer, Electronic Fund Transfer or other methods notified to You from time to time.
  4. We will process and be responsible for processing payments from Your CashFlows Business Account solely on the basis of the BIC, sort code or national bank code of the recipient's bank and the recipient's bank account number (or IBAN) included in the payment Instructions We receive from You, regardless of any additional information provided to Us.
  5. If incorrect payment details have been provided, the payment may be delayed or credited to a wrong account and We will not be liable for any loss incurred by anyone and/or for any delay to the payment being made.
  6. Prepaid Card
    1. You may be issued with a Prepaid Card upon the opening of Your CashFlows Business Account. Please see Our Website for full details on how to Use Your Prepaid Card.

9 Processing payments into Your CashFlows Business Account

  1. Payments into Your CashFlows Business Account will be processed:
    1. on the same day - for payments received on a Working Day (on any day for faster bill payments and internal transfers) by the relevant cut-off time;
    2. on the following Working Day - for payments (other than for faster bill payments and internal transfers) received after the relevant cut-off time or on a day that is not a Working Day; or
    3. on the following day - for faster bill payments and internal transfers received after the relevant cut-off time.
  2. Balances received by Us for You will be credited to Your CashFlows Business Account once We believe that those funds are no longer required to be held by Us as security against any liability You might owe to Us.
  3. We shall be entitled to defer crediting Your CashFlows Business Account (for such period as We shall, in Our reasonable discretion, consider appropriate) any sum that would otherwise be due in order to protect Our position with respect to, any liability owing by You to Us, whether actual or anticipated.
  4. To the extent that monies are owing by You to Us in relation to services which You have received from Us (such as any Acquiring Services), You authorise Us to transfer funds from Your CashFlows Business Account to satisfy any amount owed by You to Us for the purposes of those Services provided to You by Us and You authorise Us to effect such transfer immediately without notice.
  5. If a payment is (i) fraudulently or mistakenly paid into Your CashFlows Business Account or (ii) refused by any competent authorities or if We are obliged to return a payment to the payer for any reason after it has been credited to Your CashFlows Business Account, You agree that the amount of the payment may subsequently be deducted by Us. This may occur even if (i) the funds are included in Your CashFlows Business Account balance,(ii) You have used the funds to make a payment or (iii) You have transferred or withdrawn all or part of them. If the deduction of the payment from Your CashFlows Business Account would make Your CashFlows Business Account go overdrawn, You acknowledge that the amount by which Your CashFlows Business Account is in debit, shall constitute a debt owing by You to Us. Following notification by Us to You that You have a debit balance on Your CashFlows Business Account, You shall promptly reimburse such sum to Us and in any event within 2 Working Days of notification by Us. To the extent that You do not reimburse Us within 2 Working Days following notification by Us, You shall be required to pay interest at a rate of 8% over the current Bank of England Base Rate.

10 Uncleared Balances

  1. When funds received by Us for Your account have been cleared by Us as free for Your use we shall credit them to Your CashFlows Business Account.
  2. Only sums in Your CashFlows Business Account shall be treated as available for payments initiated by You and You shall not attempt to make any payments from Your CashFlows Business Account exceeding the balance shown as available. Uncleared funds shall be held by Us subject to rights of set off or other security rights as specified in the terms relevant to those funds such as in the terms relevant to Our Acquiring Services.

11 Liability

  1. Except to the extent that loss or damage is caused directly by Our negligence or wilful misconduct, and as otherwise set out in this Clause 11, We will not be liable to You for any loss or damage which You may suffer as a result of Your use of the Services.
  2. We will not be liable to You or any third party for:
    1. any loss suffered if You give Us an Instruction which is incorrect including but not limited to incorrect payment details;
    2. any loss of information, profit, goodwill, business or anticipated savings nor for any indirect loss or damage in each case whether reasonably foreseeable or not and even if We have been advised of the likelihood of such loss or damage and whether arising from negligence, breach of contract or otherwise;
    3. any loss suffered if We are prevented from or delayed in providing You with payment or other services due to Us complying with its other obligations under applicable law or Regulation or due to abnormal or unforeseeable circumstances beyond Our reasonable control (which may include but is not limited to the action of any government or government agency, strikes or other industrial action not involving Our staff, failure of third party equipment, interruption to third party power supplies and/or disruption to the international banking systems to and/or through which payments are sent); or
    4. any losses resulting from third party services outside Our reasonable control (including, but not limited to, telephone and browser services or any act or failure to act by any other financial institution or third party), whether such services are used by You to access the Services or used by Usin order to provide the Services or to comply with Your Instructions. We shall not be liable for errors, delays or failures in the transmission or receipt of Instructions.
  3. Nothing in these Terms and Conditions shall limit Our liability for death or personal injury resulting from its negligence.
  4. You are responsible for the security of any information which You communicate to Us in the course of using the Services.
  5. You are liable for any telephone or other communication charges and any charges made by Your internet service provider or any third party as a result of its use of the Services.
  6. You shall be liable, without limitation or exclusion, to Us for any loss suffered by Us as a result of Your breach of these Terms and Conditions or any act of negligence by You, Your employees, agents or sub-contractors.
  7. We will be responsible for losses resulting directly from payments which You tell Us that You have not authorised unless You have acted fraudulently or You or one of the authorised signatories on the CashFlows Business Account has allowed an unauthorised person to give payment instructions.
  8. For the avoidance of doubt, You are liable without any limit for all losses relating to payments where You or one of Your authorised signatories have acted fraudulently or failed to comply with these Terms and Conditions.
  9. You shall indemnify and keep UR indemnified against all actions, proceedings, costs, loss or damage of any kind We and any of Our subsidiaries and associate undertakings may suffer as a result of acting on Your instructions in relation to the Services or as a result of the Your failure to comply with Your obligations under these Terms and Conditions.

12 Foreign Exchange

  1. Where any Service requires Us to make any exchange of currency held in Your CashFlows Business Account this shall be done at Our then current rates.

13 Charges

  1. Our Charges for providing the Services to You are set out on Our Website and You agree that they may be deducted from Your CashFlows Business Account either when the Services are provided or at the end of the applicable charging period (as appropriate). Our Website sets out Our Charges as follows:
    1. CashFlows Business Account charges;
    2. additional payment/transaction charges; and
    3. payment transmission charges (in the event that there are insufficient funds in Your CashFlows Business Account and the transaction is not processed as a result),
    and such other Charges as may apply from time to time, including but not limited to annual and monthly charges as detailed on Our Website.
  2. We may amend Our Charges at any time in accordance with Clause 14 below.

14 Variation of terms and conditions

  1. Except as is otherwise set out herein, We may, at Our discretion, amend these Terms and Conditions at any time (including amendments and additions to Our Charges, as referred to in Clause 13 above) and We may also agree separate terms with You in writing.
  2. In certain exceptional circumstances such as where:
    1. We have a reasonable belief that fraud is likely to or has occurred; or
    2. the amendments are made in order to comply with the Rules or any Regulation,
    We may implement such amendments prior to notification to You.
  3. If We apply a change that is in Your favour, We will apply the change immediately and notify You via Your statement of account or in writing. If We wish to make a change that is not in Your favour, We will provide You with at least 2 months' notice in writing.
  4. We may upgrade Your CashFlows Business Account or enhance the Services We provide to You at any time where You will incur no extra cost and We consider this to Your advantage.
  5. 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.
  6. If You do not agree to changes to these Terms and Conditions which are unfavourable to You, You have a right to terminate the Contract. If You do not write to Us to terminate the Contract on these grounds, We are entitled to assume You have accepted the changes to the terms of this Contract on the date the change comes into force.
  7. 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.

15 Statements

  1. Statements (including such information relating to payments made out of the CashFlows Business Account as is required under the Payment Services Regulations 2009) will be made available through the Online Services Management System.
  2. You are expected to check each statement and notify Us immediately of any errors or queries.
  3. Interim statements may also be issued on an ad hoc basis at Your request - for which Charges may apply as referred to on Our Website.

16 Contact

  1. We may contact You by post, telephone, fax or email using the latest address, telephone number or email address You have given Us. It is Your responsibility to ensure that We have Your current contact details. By law We are required to continue sending information to You at the last known address We have for You. If You do not inform Us promptly of a change to Your details, the security of Your information could be put at risk.
  2. If We believe that there is any doubt about the address which You have provided, We may suspend the operation of Your CashFlows Business Account (without liability for the consequences of so doing) until Your address is confirmed to Our satisfaction.
  3. We will normally contact only the CashFlows Business Account holder or signatory named first in Our records subject to any legal requirements or unless You request otherwise. The first named CashFlows Business Account holder or signatory is responsible for passing information We send to the other CashFlows Business Account holders or signatories.
  4. You can contact Us at the appropriate address and telephone number We give You, or by email. For further information You may visit Our Website.
  5. We may record or monitor telephone calls and monitor electronic communications (including emails) between Us so that We can check Instructions and make sure that We are meeting Our service standards and complying with all applicable laws and Regulations.
  6. More details regarding the transactions on Your CashFlows Business Account can be provided at Your request, please contact us on + 44 (0)1223 550920.
  7. We only provide information to You in the English language.

17 Closing Your CashFlows Business Account

  1. Subject to other provisions of this Clause, You have the right to close Your CashFlows Business Account immediately by written notice to Us. In the event that You close Your CashFlows Business Account or if We close Your CashFlows Business Account for the reasons described in Clauses 17.2 and 17.3.1 prior to 12 months after Your CashFlows Business Account is opened, termination charges shall apply and such charges will be as set out on Our Website.
  2. We may take action to close Your CashFlows Business Account immediately in exceptional circumstances such as if We reasonably believe that:
    1. You are not eligible for a CashFlows Business Account;
    2. You have given Us any false information at any time;
    3. You or someone else is using the CashFlows Business Account illegally or for criminal activity;
    4. it is inappropriate for a person authorised to give Instructions on Your CashFlows Business Account to operate it;
    5. Your behaviour or that of any of the signatories means that it is inappropriate for Us to maintain Your CashFlows Business Account;
    6. Your conduct in relation to Your CashFlows Business Account has been consistently unacceptable.
    7. by maintaining Your CashFlows Business Account We may break a law, regulation, code or other duty which applies to Us;
    8. by maintaining Your CashFlows Business Account We may damage Our reputation; or
    9. You have been in serious or persistent breach of this agreement or any additional conditions which apply to Your CashFlows Business Account.
  3. In addition to Our rights to close Your CashFlows Business Account set out above, We may also close Your CashFlows Business Account where:
    1. any minimum balance in place from time to time of the CashFlows Business Account has not been maintained; or
    2. You do not accept a change which is unfavourable to You, of which notice has been given in accordance with Clauses 14 above. You should tell Us in writing before such change comes into effect. Telling Us that You do not accept the change will be deemed to be Your request to close Your CashFlows Business Account immediately and without any additional charge for closing Your CashFlows Business Account.
  4. When Your CashFlows Business Account is closed it is Your responsibility to cancel any direct payments to Your CashFlows Business Account. Where someone attempts to make a payment into a CashFlows Business Account which has been closed, We will take reasonable steps to return the payment to the sender.
  5. If We want You to close the CashFlows Business Account We will write to You specifying the period of time within which You are required to comply with this request. If, at the end of that period the CashFlows Business Account has not closed, We will be entitled to refuse to accept any more payments into the CashFlows Business Account and may return any existing balance to You.
  6. We will return any funds to You within 30 calendar days of the CashFlows Business Account closure (unless they are reasonably required by Us as security against any liability owed by You to Us). Any sums payable under this Clause on closure of the CashFlows Business Account are owed as simple contract debts and may be set off against each other.
  7. Other than in the circumstances mentioned above, we will not close your CashFlows Business Account without giving at least 30 days’ notice.
  8. You agree to repay any amounts You owe Us which have not been taken out of Your CashFlows Business Account at the date of closure, and any charges incurred.

18 Confidentiality

  1. We will take reasonable care to ensure that information We hold about You and Your representatives is not disclosed to anyone, except where:
    1. We are required to disclose information to Our Group Companies, professional advisers employees, officers, sub-contractors and agents (on a need to know basis);
    2. We are required to disclose information in connection with the sale, acquisition or restructuring of Our Group Companies, provided that the recipient of the information uses it for the same or similar purposes for which it was supplied or used by Us;
    3. We are legally required to disclose;
    4. We have a public duty to disclose;
    5. Our legitimate business purposes require disclosure;
    6. the disclosure is made with Your consent; or
    7. it is disclosed in accordance with Clause 19 below and such other provisions of these Terms and Conditions.

19 Information and information sharing

  1. We accept responsibility for information You provide to Us, upon receipt of such information.
  2. We may refuse to accept information from You where the requirements specified in any instructions issued by Us from time to time are not satisfied and Our processing of the information shall not preclude Us from subsequently requiring its replacement, deletion or correction.
  3. If You contact Us via email, We may collect Your electronic identifier (for example, Internet Protocol (IP) address or telephone number) supplied by Your service provider.
  4. We may share information which We receive from You during our initial assessment, with such associated organisations as is necessary for the purposes of providing the Services.
  5. We reserve the right to pass information about You or Your CashFlows Business Account to third parties for administrative purposes, fraud prevention or where We are required to do so by law.
  6. We have legal obligations regarding the detection, reporting and prevention of fraud, money laundering and terrorist activity.
  7. The Data Protection Act 1998 protects individuals from improper use of information held about them. All personal information that You provide to Us will be treated as private and confidential even when You cease to be a customer.
  8. You are entitled to enquire about information that We hold about You by making a "Subject Access Request" in writing to Our trading address. You may be asked to provide evidence of Your identity and You may required to pay a fee before We can comply with Your request.
  9. You can tell Us if You do not want to receive any marketing materials from Us by emailing Us at the address shown on Our Website or by phoning Us at +44 (0)1223 550920.
  10. 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 30 days, You will be taken to have consented to such change.
  11. Please see Our Privacy Policy for further information as to how We use Your information.
  12. The information which We may collect from You will be transferred to, and stored at, a destination outside the European Economic Area ("EEA") and this is necessary for Us to satisfy our obligations to You under these Terms and Conditions. Information may also be processed by staff operating outside the EEA who work for Us or for one of its sub-contractors or suppliers in connection with the Terms and Conditions. We shall ensure that the adequate level of protection required by law is given to any of Your information which is transferred or processed outside of the EEA in accordance with this Clause.

20 Security

  1. You should make all reasonable attempts to protect Your CashFlows Business Account. If You change any of Your Business details such as Your name, address or telephone number, please let Us know immediately in writing to Our trading address. We may require evidence of a change of address or name.
  2. You must immediately advise Us if You become aware of any breach of security relating to Your CashFlows Business Account. Please contact Us by telephone on + 44 (0)1223 550920 at the earliest opportunity and no later than the next Working Day. You will be required to confirm this in writing to Us.
  3. If You become aware of a transaction on Your CashFlows Business Account which You have not authorised, please contact Us by telephone on + 44 (0)1223 550920 in the first instance at the earliest opportunity.

21 Assignment and subcontracting

  1. This Contract is personal to You and You may not assign it or transfer any rights in relation to Your CashFlows Business Account or any of Your rights under it without Our consent.
  2. We shall be entitled to assign or transfer the benefit of all or any of Our rights in relation to Your CashFlows Business Account and/or to sub-contract all or any of Our obligations herein to any Person at any time.

22 Governing law and jurisdiction

  1. These Terms and Conditions and any matter arising from or in connection with Your CashFlows Business Account shall be governed by and construed in accordance with English law.
  2. We and You 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 Your CashFlows Business Account, 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.

23 Complaints

  1. Our aim is to provide the highest possible standard of service to all Our customers. If, however, You wish to make a complaint about Our service or another issue, please contact Us at +44 (0)1223 550920 with full details of Your complaint. We will then investigate the situation and if necessary try and resolve the issue as quickly as possible.
  2. If You require further details as to how We deal with complaints in relation to Your CashFlows Business Account, please refer to Our Complaints Policy for details.

17/07/12 CashFlows Prepaid Card

Terms and Conditions

These terms and conditions apply to your reloadable Prepaid 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 Business Account will be operated by CashFlows Europe Limited ("we", "us" or "our").

"CashFlows Business Account" means your account with us into which payments are received (including where relevant from your customers though our CashFlows Acquiring Service) or as otherwise authorised by us from time to time and from which you can use funds to make payments and also to load value onto your Card, and "Website" means our website at www.cashflows.com

1. Your Prepaid Card

You can use the Card at any location that displays the Visa/Mastercard 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 in accordance with the terms of this agreement.

Your Card is not a credit card. It is for use in association with your CashFlows Business Account. It 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 be eligible for a Card you must be a UK based business with a CashFlows Business 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 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 Business 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 Business Account or Cards we have issued to you;
  • we suspect your CashFlows Business Account or Cards are being used in an unauthorised or fraudulent manner;
  • or we need to do so to comply with the law or the requirement of Visa.

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 retailer 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:
    • entering your PIN or providing any other security code;
    • signing a sales voucher;
    • providing the Card details and/ or providing any other details as requested;
    • waving or swiping the Card over a card reader;
  • 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 Business 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. A Refund Fee may be charged unless you have arranged to transfer any unused funds to another Card managed by us.

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 (01223 550920) 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 which our investigations show are not authorised by you.

However, if the investigations show that any disputed transaction was authorised by you, or you have acted 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 Business 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 card in 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 Business 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 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 Conduct Authority (FCA), 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 CashFlows Europe Limited whose principal office is at First Floor, CPC1, Capital Park, Cambridge CB21 5XE and is authorised by the Financial Conduct Authority (FCA) (registered number 900006) as an issuer of e-money. Your Prepaid Card is the property of CashFlows Europe Limited and is not transferable to anyone else.

CashFlows is a registered trading name of CashFlows Europe Limited.

17/07/12 Additional Services

Terms and Conditions

"Additional Services" means CashFlows eInvoicing and CashFlows Virtual Terminal and each and any of them

  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 Additional Services for the purposes of (as the case may be):
    1. sending invoices to Your customers by email and enabling them to pay those invoices by making payment directly into Your CashFlows Business Account;
    2. producing matrix bar codes for Your products;
    3. enabling Card payments to be made to Your iPhone;
    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 Additional CashFlows services.
  2. You acknowledge that all Intellectual property rights in the Additional Services and associated documentation throughout the world belong to Us and that rights in the use of the Additional Services are licensed (not sold) to You, and that You have no rights in, or to, the Additional 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 Additional Services in source code form or in unlocked coding or with comments.
  3. You acknowledge that the Additional 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 Additional Services 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 (either in relation to all or any of the Additional Services) for any reason all rights granted to You under this licence shall cease and You must immediately delete or remove the Additional Services or any of them from all computer equipment in Your possession.
  5. Fees
    1. You shall pay the Fees (if any) in accordance with and otherwise comply with the requirements of the provisions relating to Fees set out on Our website.
    2. All payments to be made by You shall be paid free and clear of any deductions.
    3. You agree that unless otherwise specified on Our website any banking fees or charges incurred in relation to the use of the Additional Services or any of them are Your responsibility.

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 with CashFlows Europe Limited of CPC1, Capital Park, Cambridge, United Kingdom, CB21 5XE, a company registered in the United Kingdom under company registration number 05428358. CashFlows Europe Limited ("CEL") and the Partner being the entity which has applied to CEL and been accepted by it as an introduction partner in accordance with these Terms and conditions and whose authorised representative has read and agreed to these Terms and Conditions on its behalf.

1. Recitals

WHEREAS CEL provides Transaction Processing Services (as defined below) to various entities worldwide; and

WHEREAS Partner desires to offer certain of its clients the option to complete transactions where payment is made or received by means of a credit card; and

WHEREAS Partner desires to offer the CEL Transaction Processing Services to its clients;

NOW THEREFORE FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES ACCEPT THE FOLLOWING:

2. Definitions

In addition to any other capitalised term elsewhere defined in these Terms & Conditions, the following capitalised terms shall have the meaning given them below for purposes of these Terms & Conditions and any addenda or amendments relating thereto.

2.1.1 "Account" means a unique and individually referenced trading account set up by CEL for a Customer where the Partner has acted as intermediary in accordance with CEL's then standard practice in order to facilitate the creation of the Account and through which the Card payments made to a Customer are processed by CEL and to which Transaction funds are credited in accordance with the terms of the relevant Transaction Processing Services agreement.

2.1.2 "Account Data" and "Customer Data" means any and all personally identifying information, including information about usage of the Transaction Processing Services, supplied by or collected about an Account or Customer.

2.1.3 "Account Application" means an application made by a Customer or by a Partner on behalf of the Customer for an Account.

2.1.4 "Affiliated Entities" means an individual or entity controlling, controlled by or under common control with a Party to these Terms & Conditions during the Term hereof where control means ownership or control, directly or indirectly, of more than 50% of the voting power of all the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.

2.1.5 "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 CEL from Customers at any time and which relate to any aspect of CEL's relationship with Partner or any Customer (including the Transactions and the provision of the services) and which may or may not relate to any actual or potential liability of CEL to any bank or a card scheme.

2.1.6 "Terms & Conditions" means the body of these Terms & Conditions, including its schedules and any and all addenda or amendments thereto.

2.1.7 "Card" means any credit, debit, charge, purchase, store or other value card issued and processed by a Visa or Mastercard member bank (or such other card scheme as CEL may accept), and for which CEL performs certain Transaction Processing Services.

2.1.8 "Confidential Information" means these terms and conditions, and all information about the disclosing Party's business or activities that would be reasonably considered to be proprietary or confidential, including: business, operational, customer, financial and technical information; business plans and forecasts; techniques, programs, formulae and computer programs; information about such Party's products and services (e.g., launch and release dates, product development plans, new or improved features, technical architecture and system design; preliminary versions of software or online services; know-how and processes); and other information of a Party that is marked or designated by such Party as "confidential" or "proprietary" at the time of disclosure.

2.1.9 "Customer" means the seller of approved products or services that is a Party to a Transaction Processing Services agreement with CEL.

2.1.10 "Customer Sign Up" means the process of CEL assessing and if approved accepting an application made by a Prospective Customer introduced by a Partner or an application made by a Partner on behalf of the Prospective Customer and with its authority to become a Customer.

2.1.11 "Fees" means the amounts charged to, and subsequently paid by, Customers for the Transaction Processing Services pursuant to an agreement between CEL and the Customer.

2.1.12 "Operative Date" means the date nominated by CEL and notified to the Partner; from which these Terms and Conditions comes in to force.

2.1.13 "Partner" means the Partner which is a party to these Terms and Conditions or where the context admits any other partner of CEL which is acting for a Customer or Prospective Customer in relation to Account Applications and applications for Customer Sign Ups.

2.1.14 "Party" means one of the entities that have signed and are bound by these Terms & Conditions. "Parties" means all entities that have signed and are bound by these Terms & Conditions.

2.1.15 "Partner Marks" means those logos, trademarks, service marks and trade names specified in Schedule 4.2.1 as belonging to Partner, including any updates to such schedule provided by Partner to CEL from time to time.

2.1.16 "Partner Rebates" are the amounts owed to, and subsequently paid to, the Partner for trade processed through an Account. For the avoidance of doubt a CEL Customer may have multiple accounts each with different Partners and Partner Rebates will only be payable to the Partner linked to each account and no other Partner.

2.1.17 "Prospective Customer" means a business that is qualified to be introduced to CEL and which, if accepted and enters an agreement for Transaction Processing Services, could become a Customer.

2.1.18 "Risk Level" means the relative degree of economic, business or legal risk that CEL (or any relevant bank, card scheme or financial institution) may incur as a result of providing or being associated with the Transaction Processing Services. The risk level will be determined at CEL's total discretion and communicated to the Customer in such manner as CEL may determine from time to time.

2.1.19 "Transaction Processing Services" means a combination of: (i) enabling the secure transmission of card information across the Internet or a similar communications network, (ii) the screening of such information to reduce or prevent fraud by purchasers, (iii) the authorisation of purchases by the purchaser's issuing bank, (iv) the delivery of confirmation of the purchase to the purchaser, (v) the delivery of notification of the transaction to the Customer, (vi) the preparation and presentment of transaction records for Customer administration, (vii) the electronic transfer of funds between the purchaser's card account and the Customer's merchant account or similar account designated by the Customer, and (viii) technical and general support provided to the Customer.

2.1.20 "CEL Mark(s)" means those logos, trademarks, service marks and trade names specified by CEL to Partner from time to time.

2.1.21 "CEL Properties" means VoicePay and any CEL Web sites used in connection with rendering the Transaction Processing Services.

2.1.22 "VoicePay" means the CEL proprietary software, including source code and object code, which is used to provide Transaction Processing Services.

2.2 Where the context admits or requires reference in these Terms and Conditions to CEL shall also include reference to its Affiliated Entities and anything to be done by CEL in accordance with these Terms and Conditions may at CEL's discretion be undertaken by any of its Affiliated Entities.

3. General Terms & Conditions

3.1 General Terms & Conditions. During the term of these Terms & Conditions, each Party shall perform its respective obligations as set forth in these Terms & Conditions. Nothing contained in these Terms & Conditions, or acts by either Party, shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture between the parties hereto, other than the relationship of independent Partners contracting for services. Neither Party to these Terms & Conditions has, and shall not hold itself out as having, any authority to enter into any contract or create any obligation or liability on behalf of, in the name of, or binding upon the other Party to these Terms & Conditions.

3.2 Partner and Customer Relationships. CEL understands that the Partner may introduce a Prospective Customer initially or may re-introduce an existing Customer to CEL that is already known to CEL. So far as CEL is concerned, when a Prospective Customer or Customer is introduced to CEL by a Partner in relation to an Account Application CEL will ensure that the Partner is associated with the specific Account resulting from that introduction so long as the Account is activated within the required timescale and the Partner facilitated the activation by managing the Prospective Customer or Customer through the Account Application approval process. Rebates relating to that Account (or Accounts) will then be paid to the Partner. For the avoidance of doubt the Prospective Customer or Customer will not be associated with the Partner, only Accounts can be associated with a Partner. Any Prospective Customer or Customer has the right to apply for additional subsequent Accounts using either the Partner or another Partner or direct itself at any time and it is the Partner's responsibility to ensure that the Prospective Customer or Customer remains satisfied with the Partner and its service and continues using the Account associated to them.

3.2 Project Management. Each Party shall assign an Account Manager, who shall have primary responsibility for managing the resources dedicated to perform such Party's responsibilities pursuant to these Terms & Conditions and act as the principal liaison between them on matters relating hereto. Each Party may change its Account Manager at its sole discretion upon reasonable written notice to the other Party hereto.

3.3 Products and Services. Subject to any express exceptions set forth in these Terms & Conditions, each Party will have sole responsibility for providing resources as needed to timely and continuously perform its obligations set forth in these Terms & Conditions. Subject to any express exceptions set forth in these Terms & Conditions, CEL will have sole control over the "look and feel," material and information of VoicePay and the CEL Properties.

3.4 Intellectual Property Rights. CEL shall own all rights, title and interest in and to the CEL Marks and the intellectual property associated with the CEL Site, the CEL Properties and VoicePay including, but not limited to, the related look and feel, copyrights, patent rights (including patent applications and disclosures), rights of priority, mask work rights, trade secrets, trademarks or service marks except for the following proprietary rights which are retained by Partner: (1) any Partner Marks displayed on the CEL properties as Marks or links (2) any Confidential Information disclosed to CEL by Partner.

4. Grant of Rights

4.1 Partner License to CEL. CEL shall grant to Partner a limited license to be the non-exclusive reseller/marketer of Transaction Processing Services.

4.2 Limited License of Trademarks

4.2.1 License. Each Party (a "Licensor") hereby grants to the other Party hereto (a "Licensee") a royalty-free, non-exclusive, worldwide, non-transferable and limited license to use its Marks for the Term of these Terms & Conditions solely in connection with offering and promoting the Transaction Processing Services in accordance with the terms of these Terms & Conditions. The Licensor, in its sole discretion from time to time, may change the appearance and/or style of is Marks, provided that it shall give the Licensee sufficient advance notice to implement any such changes (which implementation shall be at Licensor's expense to the extent that any creative materials have already been created by Licensee using the previous Marks in accordance with these Terms & Conditions). All such usage shall be in accordance with each Party's reasonable policies regarding advertising and trademark usage as shall be established or changed from time to time in each Party's sole discretion upon written notice to the other Party. Partner shall supply CEL with guidelines for use of the trademarks pertaining to the Partner Properties. The CEL guidelines for use of the CEL Marks that are current as of the Operative Date are as set out on its website or as notified to Partner from time to time. All usage by Licensee of Licensor's Marks shall include the appropriate registered or unregistered trademark symbol and, where space reasonably permits, a legend stating that the "[Licensor's Mark] is a registered trademark of [Licensor]" or a reference to the effect that third Marks are owned by their respective owners.

4.2.2 Restrictions and Acknowledgements. The Licensee hereby acknowledges and agrees that (i) the Licensor's Marks are owned solely and exclusively by the Licensor, (ii) except for the limited license granted pursuant to 4.2.1, the Licensee has no rights, title or interest in or to the Licensor's Marks, and (iii) all use of the Licensor's Marks by Licensee shall ensure to the benefit of Licensor. Licensee shall not apply for registration of the Licensor's Marks (or any mark confusingly similar thereto) anywhere in the world, and shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the Marks. Upon the expiration or termination of these Terms & Conditions, each Party will cease using the Marks of the other except as the parties may agree in writing.

5. Financial Terms

5.1 Rebates Payable by CEL.

  • 5.1.1 In consideration for its services rendered under these Terms & Conditions, Partner shall receive from CEL during the term of these Terms & Conditions compensation (the "Partner Rebates") based upon the value of transactions processed for each Account linked with the Partner and in accordance with the rates notified by CEL to Partner from time to time.
  • 5.1.2 Rebates will be paid for such period as the relevant Account remains in operation and shall be calculated on the value of transactions accepted for processing by CEL and paid to the Customer, less all adjustments for unpaid fees, chargebacks, credits, voided transactions and Assessments.
  • 5.1.3 CEL shall have the right, upon 30 days' written notice to Partner, to adjust the Rebates.
  • 5.1.4 All Partner Rebates set out in this Section 5 shall be payable on the 15th day of each month (for transactions made between 1st day and the last day of the previous month). Should the 15th day of the month fall on Sunday or Bank Holiday, the Partner Rebates shall be paid on the first working day following Sunday or Bank Holiday. Payments will be remitted within 5 working days of these dates on trade through the Account in the relevant period, via direct deposit to Partner's bank designated depository account.

5.2 Reporting. CEL shall provide Partner with complete and accurate reports on its payment obligations under Section 5 and the volume of Account transactions

5.3 Transaction Processing Agreement. Prospective Customers desiring to use Transaction Processing Services must enter into a Transaction Processing agreement with CEL to which the Partner will not be a Party.

6. Obligations of CEL

6.1 Customer Sign Up and Account Applications: Partner will be responsible for collecting such information as CEL may require in order to allow it to accept a Prospective Customer as a Customer and to accept an Account Application from a Customer or a Partner on behalf of a Customer. Upon receipt of a completed application for a Customer Sign Up or Account Application, CEL will conduct a timely review of the information submitted and make a determination to accept or reject the application. If a Prospective Customer is accepted as a Customer CEL will further establish agreements, pricing and terms for the Customer's relationship with CEL. CEL shall have the right, in its sole discretion, to approve or reject any Prospective Customer introduced by the Partner or any Account Application and to determine all legal terms and services pricing. CEL will provide timely notice to the Prospective Customer (or Customer as the case may be) and the Partner of the approval or disapproval of their application.

6.2 Service Development and Delivery. CEL shall develop and deliver reliable Transaction Processing Services as necessary to fulfil its obligations to Customers introduced by Partner. CEL shall provide all the necessary technical and human resources for Customers to achieve operational and technical integration to CEL's Services. CEL shall provide, host and maintain the CEL Properties as necessary to support the Transaction Processing Services specifically including the maintenance and management of all servers, telecommunications and operations necessary to support Transaction Processing Services for the benefit of Customers.

6.3 Integration. CEL shall provide all the necessary technical and human resources to achieve integration to permit Customers access to the Transaction Processing Services.

6.4 Application Processing. CEL shall promptly respond to applications for Customer Sign Ups and Account Applications.

6.5 Approval.

6.5.1 CEL will compensate Partner for creation of approved Accounts of Customers by the payment of Rebates.

6.5.2 A Customer shall be entitled to use the Partner which introduced it to CEL as a Prospective Customer or at the Customer's discretion any other Partner to act as its Partner in the process of applying for an Account. Where more than one Partner is involved in the creation of an Account, CEL shall decide in its reasonable discretion which Partner is the Partner that shall be associated with that Account and shall receive the relevant Partner Rebates.

6.5.3 Prospective Customer approval and Account approval processes shall expire after 30 days unless CEL is in receipt of all relevant information from the Customer or Prospective Customer (as the case may be) and/or its acting Partner.

6.6 Privacy and Security. With respect to the operation of the Transaction Processing Services and any other dealings with Customers, CEL shall abide by any and all applicable federal and provincial privacy legislation. CEL shall furthermore maintain the highest standards for customer data security customary within the industry of processing online credit card transactions, and shall comply with all applicable legislation and regulations regarding the security of financial transactions.

7. Obligations of Partner

7.1 Customer Introduction. From time to time during the term of these Terms & Conditions, Partner may, but shall not be obligated to:

  • 7.1.1, introduce Prospective Customers to enter into a Transaction Processing Services Agreement with CEL or to request Accounts for Prospective Customers (or Customers as the case may be).
  • 7.1.2 act for Customers in securing the approval of CEL to Account Applications

and in respect of each activity Partner such use its best endeavours to obtain such information as CEL may require.

7.2 No Exclusivity. Nothing in these Terms & Conditions shall preclude Partner from (i) soliciting Prospective Customers to enter into a contract with a service provider other than CEL or (ii) offering or promoting to Customers other client services, data processing services, or software products by entities other than CEL.

7.3 Information Accuracy. Partner warrants that the information supplied in relation to applications for Customer Sign Ups and Account Applications is accurate to their knowledge and belief. Partner shall report any information to CEL that could appear to be a misrepresentation of material fact. Partner shall be advised of any missing information in relation to any application for a Customer Sign Up or Account Application and will reasonably assist the Prospective Customer or Customer (as the case may be) in submitting any and all information required to complete the application process. In no instance may Partner fabricate, delete or change information, initial or sign any document in relation to any application for Customer Sign Up or Account Application.

7.4 Non-Solicitation. Partner shall not during the term of these Terms and Conditions and for a period of six months after their termination attempt to persuade any Customer to use Transaction Processing Services provided by any party other than CEL or its Affiliated Entities.

7.5 Branding and Link. Partner shall prominently display CEL's authorised decal and/or logo so as to provide a link from the Partner's website to the designated website of CEL when requested by CEL.

7.6 Taxes on Partner Rebates. The Partner is responsible for all tax payments of any kind on the Partner Rebates received.

7.7 Partner Responsibility for other Parties. The Partner is responsible for any costs or fees owed to other parties, including any other parties that may claim to have assisted in any way with initiating the introduction of Prospective Customers to CEL. CEL will pay no portion of compensation owed to any other Party, nor is CEL obligated in any way to reimburse expenses or pay compensation to any other Party related to the introduction of Prospective Customers.

7.8 Best Practices. Partner at all times will conduct himself or herself in an ethical, truthful, professional and courteous manner consistent with the current best practices and policies of Visa, Mastercard, CEL and any relevant banks and financial institutions and will not perform any act or make any statements that in any way will or may harm CEL, or the Customer. It is Partner's obligation to know what the industry best practices are, whether or not a written document listing best practices has been provided by CEL. Further, Partner is responsible for proper conduct of all its affiliates who may have contact with Prospective Customers or Customers.

8. Covenants, Representations and Warranties

8.1 Confidentiality

8.1.1 Each Party acknowledges that in the course of the performance of these Terms & Conditions, it may obtain Confidential Information from the other Party. The Party receiving such Confidential Information ("Receiving Party") shall, at all times, both during the Term of these Terms & Conditions and thereafter, keep in confidence and trust all of the Confidential Information of the other Party ("Disclosing Party"). The Receiving Party shall not use the Confidential Information of the Disclosing Party other than for the purposes of performing its obligations pursuant to these Terms & Conditions or as described in a separate written agreement. The Receiving Party shall take reasonable steps to prevent unauthorised disclosure or use of the Disclosing Party's Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorised persons, but in any case not less than those steps it takes to protect its own Confidential Information. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its Affiliated Entities, officers, employees, consultants, auditors and attorneys who need access to such Confidential Information, and who are subject to confidentiality obligations with such person's employer or the Receiving Party, which would protect the Confidential Information of the Disclosing Party. The Receiving Party shall not make any copies of the Disclosing Party's Confidential Information except as reasonably required to perform its obligations under these Terms & Conditions, and shall return (or delete in case of electronic copies of such information) any and all Confidential Information, and all copies thereof, upon Disclosing Party's request and, in any event, within thirty days after the termination or expiration of these Terms & Conditions. The Receiving Party shall immediately give notice to the Disclosing Party of any unauthorised use or disclosure of Disclosing Party's Confidential Information, and agrees to assist the Disclosing Party to remedy such unauthorised use or disclosure of its Confidential Information.

8.1.2 The obligations set forth in Section 8.1.1 shall not apply to the extent that Confidential Information includes information which: (a) is already known to the Receiving Party at the time of the disclosure, which knowledge the Receiving Party shall have the burden of proving; (b) is or, through no act or failure to act of the Receiving Party, becomes publicly known; (c) is received by the Receiving Party from a third party that is not subject to a restriction on the disclosure of such information; (d) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party, which independent development the Receiving Party will have the burden of proving; or (e) is approved for release by written authorization of the Disclosing Party, or is required to be disclosed by a government agency or by a subpoena, order or decree of a court of competent jurisdiction or a governmental agency or self-regulatory organization having jurisdiction over the Receiving Party, provided that the Receiving Party shall notify the Disclosing Party of such circumstances and reasonably cooperate with Disclosing Party in limiting the amount of Confidential Information disclosed or obtaining confidential treatment of such disclosures to the maximum extent reasonably possible. Notwithstanding any provision to the contrary, Partner may provide pre-release or other limited distribution versions of the Partner Products to third parties, such as press reviewers, that include content about Company relating to the performance of these Terms & Conditions.

8.2 Performance. Each Party shall provide any services required by it pursuant to these Terms & Conditions in a workmanlike manner.

8.3 Mutual Representations and Warranties. Each Party hereto represents and warrants to the other Party hereto that: (i) the execution, delivery, and performance of these Terms & Conditions by such Party shall not conflict with or result in any breach of, or constitute a default under, any material agreement, instrument or undertaking to which it is a party or by which any of its property is bound; (ii) it has the power to make and carry out the terms of these Terms & Conditions and each has taken, and shall take, all actions, corporate or otherwise, necessary or advisable to authorize the execution, delivery and performance of, and to perform, its respective obligations under these Terms & Conditions; (iii) that the use, reproduction, distribution, transmission, or display of its respective Marks provided to the other Party pursuant to these Terms & Conditions shall not constitute an infringement of any intellectual property rights of any third party or be defamatory or violate any third party's rights of publicity, privacy or personality; (iv) its performance under these Terms & Conditions is in compliance with any and all applicable laws; and (v) it has acquired and will comply with any and all material licenses and approvals required under rules and regulations of any governmental entity or agency applicable to the performance of its obligations under these Terms & Conditions, that it has paid or will pay any necessary fees, costs or expenses associated therewith, and that it has made all disclosures required by such rules and regulations.

9. Indemnification

9.1 Mutual Indemnity. Each Party (an "Indemnifying Party") agrees to defend at its expense, indemnify, and hold the other Party and its Affiliated Entities, and its and their directors, officers, employees and agents (the "Indemnified Party"), harmless from and against losses resulting from any claims, suits, actions or other proceedings (collectively, "claims") made by a third party to the extent that such claims arise from or relate to: (i) a violation of law asserted against the Indemnified Party to the extent caused by the acts or omissions of the Indemnifying Party in the course of its performance of these Terms & Conditions, (ii) a breach of or inaccuracy in the Indemnifying Party's representations and warranties set forth in these Terms & Conditions, or (iii) the Indemnifying Party's error or omission in the performance of or failure to perform its covenants set forth in these Terms & Conditions; except to the extent such claims result from the Indemnified Party's acts or omissions, or materials provided by it.

9.2 Infringement Remedies. In the event of a claim relating to an infringement, the Indemnifying Party may at its option and sole expense: (i) procure for the Indemnified Party the right to continue to perform these Terms & Conditions without the claimed infringement, or (ii) modify its performance to eliminate any claimed infringement so long as such performance of these Terms & Conditions is not materially degraded below the level that existed prior to such modification. If the Indemnifying Party is unable to settle, correct or avoid such infringement to the Indemnified Party's reasonable satisfaction and such infringement continues to materially degrade the performance of these Terms & Conditions within thirty (30) days of the receipt of the claim, then the Indemnified Party may terminate these Terms & Conditions pursuant to Section 12.

9.3 Related Matters. The Indemnified Party shall promptly give written notice to the Indemnifying Party of its receipt of any claim for which it would be indemnified pursuant to Section 9.1 provided, however, that the failure of the Indemnified Party to provide prompt notice shall only relieve the Indemnifying Party from its obligations hereunder to the extent that such late notice prejudiced its defence or resulted in increased losses. The Indemnifying Party shall have the right to control and direct the investigation, defence and settlement of such matter, provided that the Indemnified Party may, at its own cost, participate in such investigation, defence and settlement of such matter and any appeal arising therefrom. Upon request, the Indemnified Party shall cooperate in all reasonable respects, at the Indemnifying Party's cost and expense, with the Indemnifying Party and such attorneys in the investigation, trial and defence of such claim, and any appeal arising therefrom. The Indemnified Party has the right to review and approve any counsel selected by the Indemnifying Party to defend the Indemnified Party and the terms and conditions of any settlement affecting the Indemnified Party, which approvals shall not be unreasonably withheld.

10. Disclaimers and Limitation of Liability

10.1 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS & CONDITIONS, NEITHER PARTY MAKES ANY WARRANTIES OR CONDITIONS EITHER EXPRESS, IMPLIED, OR STATUTORY AS TO THE SERVICES, PRODUCTS, MATERIALS, OR INFORMATION PROVIDED HEREUNDER, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS INCLUDING THOSE OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.

10.2 Limitation on Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY (INCLUDING SUCH PARTY'S AFFILIATED ENTITIES) FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, UNINTERRUPTED ACCESS, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR RELATED TO THESE TERMS & CONDITIONS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. EXCLUDING AMOUNTS THAT ARE PAID OR PAYABLE IN THE ORDINARY COURSE PURSUANT TO THE TERMS OF THESE TERMS & CONDITIONS (INCLUDING ANY ADDENDA ISSUED HEREUNDER), THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED THE AMOUNT OF FEES GENERATED UNDER SECTION 5 DURING THE MOST RECENT SIX (6) MONTH PERIOD. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY.

11. Ownership and Use of Customer and Account Data

To the extent that Customer and Account Data is stored or otherwise in the possession of CEL during the Term, CEL shall not use any such Data for either direct or indirect solicitation of the Customers, other than to provide the Transaction Processing Services as requested by Customers and the technical and customer support customarily related thereto.

12. Term and Termination

12.1 Term. The initial term of these Terms & Conditions ("Term") shall commence on the Operative Date and continue in force until either party gives the other at least 30 days notice of Termination.

12.2 Termination of Rights. After giving notice to the defaulting Party and following the expiration of a cure period set forth in Section 12.5, a non-defaulting Party may declare the other Party to be in default of these Terms & Conditions and may immediately terminate these Terms & Conditions where the defaulting Party is in material breach. Further, either Party may terminate these Terms & Conditions where the other Party (1) becomes insolvent or makes an assignment for the benefit of its creditors; or (2) has filed a petition or application under any bankruptcy act, receivership or like law or statute as they now exist or may subsequently be amended or had such petition or application filed by a third Party against it and such petition is not dismissed or discharged or otherwise favourably resolved within sixty (60) days.

12.3 CEL may terminate, upon five (5) days' notice, these Terms & Conditions, if there is a material change in the nature of Partner's business.

12.4 CEL may terminate these Terms & Conditions automatically if the regulations of any relevant bank, financial institution or card scheme are amended in any way that the continued existence of these Terms & Conditions would cause CEL to be in breach of such regulations.

12.5 Notice and Cure Period. Upon receipt of a notice of default delivered pursuant to Section 12.2 containing a reasonably detailed statement of the alleged default, the alleged defaulting Party shall have a period of thirty (30) days in which to cure the alleged default. If the alleged default has not been cured during the foregoing period, then the non-defaulting Party may terminate these Terms & Conditions immediately following expiration of the foregoing cure period upon further written notice to the defaulting Party. During any notice and cure period, both parties shall continue to be bound by all the terms and conditions of these Terms & Conditions.

12.6 Licenses. Upon termination of these Terms & Conditions, any licenses or intellectual property rights granted by one Party to the other shall automatically be terminated, unless otherwise agreed by the parties in writing.

12.7 Survival. Notwithstanding anything to the contrary contained herein, the rights and obligations of the parties pursuant to any provision which by its nature or express terms should survive termination, shall survive any termination or expiration of these Terms & Conditions.

13. Future Collaboration

The parties agree to work collaboratively during the Term of these Terms & Conditions to explore further areas of mutual benefit, which may include bank acquiring and fraud/risk management.

14. General

14.1 Entire Terms & Conditions. These Terms & Conditions shall not be effective unless and until the parties have fully executed and delivered it. These Terms & Conditions, including all schedules, exhibits and addenda, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings, letters of intent or other agreements, written or oral, regarding such subject matter. The headings used in these Terms & Conditions are for convenience only and shall not be considered in its interpretation. Each Party has reviewed the provisions of these Terms & Conditions and had the opportunity to participate fully in any negotiations relating to its terms and conditions. Any additional or conflicting terms in the parties' communications, whether acknowledegments, invoices or otherwise, are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. These Terms & Conditions may be executed in any number of counterparts, all of which taken together will constitute a single instrument. Execution and delivery of these Terms & Conditions may be evidenced by facsimile transmission.

14.2 No Agency. Partner at all times will act solely as an independent entity. Neither the Partner, nor any of its employees or affiliates are employees of CEL nor entitled to any benefits, workspace, expenses reimbursement, or reimbursement or other privileges and authorities. Partner is not authorised to obligate CEL to Customers, Prospective Customers or to any other parties on behalf of CEL.

14.3 Waiver and Modification. No failure of either Party to exercise or enforce any of its rights under these Terms & Conditions will act as a waiver of such rights, nor will a failure by either Party to enforce any provision of these Terms & Conditions be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of these Terms & Conditions will be effective upon notice from CEL to the Partner.

14.4 Applicable Law. These Terms & Conditions shall be governed by and construed in accordance with the laws of England and Wales in connection with any action to enforce the provisions of these Terms & Conditions or otherwise arising under or by reason of these Terms & Conditions.

14.5 Severability. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms & Conditions to be unenforceable, that provision of these Terms & Conditions will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms & Conditions will continue in full force and effect.

14.6 Notices. The Partner agrees that CEL may act on email notices or instructions that reasonably appear to emanate from the Partner or an authorised employee of the Partner.
All notices required by these Terms and Conditions to be given by either Party to the other Party should be in English, unless otherwise specifically agreed between the Parties. CEL may assign these Terms and Conditions, in whole or in part, without the Partner's written consent, at any time upon a written notice to Partner.

14.7 No Assignment. CEL may assign these Terms & Conditions, in whole or in part, without the Partner's written consent, at any time upon a written notice to Partner. Partner may assign these Terms & Conditions with CEL's written consent. Any attempt to assign these Terms & Conditions, other than in accordance with this provision, will be null and void. These Terms & Conditions shall be binding on all successors and permitted assigns of the parties.

14.8 Relationship of Parties. The parties acknowledge and agree that each Party has entered into these Terms & Conditions as an independent Partner, and nothing herein will be construed as creating an agency, partnership or any other form of legal association (other than as expressly set forth herein) between the parties.

14.9 No Third Party Beneficiaries. Except for any indemnified parties set forth in Section 9 or permitted assigns, no provisions of these Terms & Conditions, express or implied, create, and shall not be construed as creating, any rights enforceable by any person or entity not a Party to these Terms & Conditions.

14.10 Expenses. Except as specified elsewhere within these Terms & Conditions, Partner and CEL will be solely responsible, without any right of reimbursement, for all internal and third party costs and expenses incurred by it in connection with the performance of such Party's performance obligations under these Terms & Conditions.

14.11 Force Majeure. Neither Party shall be liable to the other for a failure or delay in its performance of a required obligation pursuant to these Terms & Conditions (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by events such as fire, riot, flood, labour disputes, natural disaster, regulatory action, Internet or telecommunications failures, or other causes beyond such Party's reasonable control, provided that the non-performing Party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible and, provided further, that either Party may terminate these Terms & Conditions upon delivery of written notice to the other Party if such condition continues for a period in excess of sixty (60) days.

14.12 Currency. All references to payments in these Terms & Conditions are understood to be in Pounds Sterling, unless otherwise specified.

THE PARTIES HERETO HAVE EXECUTED THESE TERMS AND CONDITIONS ON THE OPERATIVE DATE.