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Merchant Services

Updated 30 November 2021

Important note: these are the standard terms and conditions pursuant to which we will provide the acquiring services to you and on which we intend to rely. by requesting or accepting the acquiring services, you acknowledge and agree that you have read, understand, agree and shall comply with the terms of: (i) these terms and conditions; (ii) the application; (iii) the pricing plan; and (iv) the privacy policy (together “the contract”) and you have been given an opportunity to raise any questions you may have on them.

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:

“3D Secure”
means the Card Scheme approved process to allow issuers to authenticate Online Transactions through Cardholders entering an additional password when purchasing Approved Products through Online Transactions”

“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 Data Protection Laws 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 the Contract;

"Application"
means your application to us for the provision of any of the Acquiring Services and Application Form shall be construed accordingly;

"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;

"Approved Sub-Contractors List"
means the sub-contractors in the link set out at www.cashflows.com/subcontractors or as otherwise notified by Cashflows from time to time;

"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 the Contract and, where such services are provided by us, the Gateway Services;

"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 the Contract (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 the Contract (as notified by us to you from time to time);

“Card Not Present Transaction”
means any Transaction where the Card or the Cardholder is not present at your Retail Location, which may include: (i) telephone orders; (ii) mail orders; (iii) online orders; and (iv) recurring transactions (for example, subscriptions);

“Card Present Transaction”
means a Transaction where the Card and the Cardholder are present at your Retail Location;

"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;

“CashBack”
means providing cash to a Cardholder as part of a Card Present Transaction;

"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);

"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;

“Contactless Transaction”
means a Transaction using Contactless Technology;

“Contactless Transaction Limit”
means the limit set by the Card Schemes for a Contactless Transaction [being £30 per Transaction or such other limit as advised by us or the Card Scheme from time to time];

“Contactless Technology”
means near field communication technology used to complete Transactions to make a payment between a Card and the POS Terminal;

"Contract"
means our contract with you for the provision of the Acquiring Services which is made up of these Terms and Conditions, the Application, the Pricing Plan and our Privacy Policy;

"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);

"Data Controller"
has the meaning set out in the Data Protection Laws;

"Data Processor"
has the meaning set out in the Data Protection Laws;

"Data Protection Laws"
means all laws in any relevant jurisdiction that relate to data protection, privacy, the use of information relating to individuals, and/or the information rights of individual including, without limitation, (until 25 May 2018) the Data Protection Act 1998 and any other laws in force from time to time which implement the Data Protection Directive 1995/46/EC and (from 25 May 2018) the General Data Protection Regulation (EU 2016/679), and the equivalent in any other relevant jurisdictions, the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003, all as amended or replaced from time to time;

"Data Subject"
has the meaning set out in the Data Protection Laws;

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

“Domestic”
means (i) in relation to Visa; if the transaction is in GBP or EUR, merchant, acquirer, and issuer belong to Visa Europe; and/or (ii) in relation to Mastercard; all transactions defined as domestic (transactions that take place at a card acceptor located in the United Kingdom (UK) with a UK-issued card), as amended from time to time.

“Enhanced Business Account”
means the Cashflows account that the merchant will pay out from into their own bank account. However, for Anytime Settlement the merchant will be able to pay out to 3rd party accounts if they opt to. Payments out of this account are the responsibility of the merchant to manage.
“Excessive Fraud/Chargeback Merchant”
means a Merchant that we reasonably believe has exceeded the fraud and/or Chargeback levels disclosed to us as part of the Application or may exceed the Card Scheme Chargeback and fraud thresholds for Transactions;

“External Remittance”
means the payments out of the merchants Cashflows account into their designated bank account. This External Remittance is subject to additional checks in the case the account is different from the account submitted during onboarding.

"Fees"
means the fees payable by you to us for the provision by us of the Acquiring 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 Transaction Fees 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;

“Floor Limit”

means the total value of a Transaction you are permitted to make before you need Authorisation from us. The Floor Limit shall be £0 unless agreed by us or as set out in the Pricing Plan;

“FX Mark-up”

FX Mark-Up has the meaning set out in clause 5.1

"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;

"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;

"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;

"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;

“Illegal Transactions”

means: (i) selling products other than Approved Products; (ii) processing Transactions that do not match the type of transactions you confirmed in your Application Form; (iii) processing Transactions that breach your obligations and requirements under Contract; and (iv) processing a Transaction which may be detrimental to our or the Card Scheme’s reputation and/or goodwill;

"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;

“International”

means (i) in relation to Visa; if transaction is in a currency other than GBP but the merchant or card issuer is outside of Visa Europe; (ii) in relation to Mastercard; if transaction is in a currency other than GBP but the merchant or card issuer is outside of Mastercard Europe.

“Losses”

means any and all losses, charges, claims, damages, expenses and costs, levies, liabilities, fines or penalties (including assessments) suffered by us as a result of a breach by you of your obligations under this Contract;

“Materials”

means any promotional materials provided by us (or the Card Schemes) displaying the Cards you may accept for Transactions;“Merchant Sell Rate” means the rate in which the Partner sells the Anytime Settlement Service to the Partner Merchant based on taking a fee per transaction.

“Mobile Payment Transaction”

means the payment for Approved Products using Card details stored on a smart-phone (or equivalent) device, including Apple Pay, Google Pay and Samsung Pay;

“Minimum Monthly Service Charge (MMSC )”
means the minimum monthly service charge we charge for providing the Acquiring Services”

“Mixed Transaction”
means a mixture of both Domestic and International.

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

“Online Transaction”
means a Transaction where the Cardholder provides Payment or Card details over the internet;

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

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

“Payment”
means a payment for Approved Products which the Cardholder has Authorised;

"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;

“PCI Agent”
has the meaning set out under clause 9.12;

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

"Personal Data"
has the meaning set out in the Data Protection Laws;

“PIN”
means the Cardholder’s personal identification number relating to a Card;

“POS Terminal”
means the point of sale terminal, hardware, equipment, software, and/or any other device (approved by us) used by you to process Transactions;

“Pricing Plan”
means the document setting out the Fees payable by you for the Acquiring 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;

“Privacy Policy”
means our privacy policy on how we use your information which can be located at www.cashflows.com/privacy-policy;

“Procedure Guide”
means a procedure guides or operating manuals provided by us (or a third-party on our behalf) on the procedures and processes you must follow when processing Transactions, as amended, updated or replaced from time to time;

"Processing"
has the meaning set out in the Data Protection Laws;

"PSRs"
means the Payment Services Regulations 2017 (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 the Contract) 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);

“Remittance Scheduler"
means a remittance scheduler which we may, on request, make available to you to manage your remittances to accounts based in the European Union as approved by Cashflows;

“Anytime Settlement Services”
means the additional service that gives the ability for a Cashflows merchant to remit their settled funds from their Cashflows account into their own bank account based on when they require their money. Anytime Settlement allows for hourly remittances where required and the merchant has set this up within their remittance management.

“Retail Location”
means your retail outlet (within jurisdictions authorised by us) from which you provide Approved Products;

"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 Code”
means the security provisions contained within the Card, including the magnetic stripe, the Card verification value in the magnetic stripe or Card chip, the Card security code and the PIN;

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

“T+0”
means the ability to remit funds on the same day as the transaction was processed – based on the Merchants setting up their remittance schedule and having the threshold level of funds available. This can be set up to do as many as a remittance per hour if required.

“T+1”
means the ability to remit funds the day after the transaction was processed – based on the Merchants setting up their remittance schedule and having the threshold level of funds available.

“Trading Account”
means the internal Cashflows account, where transactions are posted before being moved into the enhanced business account ready for the merchant to remit to their external bank account.

"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 Approved Products (including supplying CashBack) using a Card, or any Refund, or otherwise to debit or credit the applicable Cardholder's account with the Card Issuer, which includes a Contactless Transaction, Mobile Payment Transactions, Card Present Transaction and a Card Not Present Transaction;

“Transaction Data”
has the meaning set out under clause 9.13;

“Transaction Fee"
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;

"Transaction Personal Data"
means Personal Data relating to a specific Transaction and which it is necessary to Process in connection with the provision of the Acquiring Services;

“VAT”
means value added tax and or any other similar tax or duty; 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.

2. In the Contract (unless the context otherwise requires):
a. references to the Contract 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;
b. words importing the singular shall include the plural and vice versa;
c. the headings in these Terms and Conditions are for convenience only and shall not affect their construction or interpretation.
3. 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; and (iii) the Pricing Plan.

2. Acquiring services
1. Notwithstanding the submission of an Application, we shall not be obliged to provide the Acquiring Service unless and until we notify you in writing that: (i) you have met our onboarding requirements and we have accepted your Application; (ii) we have successfully carried out and you have met, our due diligence checks on you; and (iii) you have agreed to the terms of the Contract (“Conditions”). We may agree to provisionally provide you with the Acquiring Services while processing your Application. We reserve the right to immediately suspend or terminate the provision of the Acquiring Services if you subsequently fail to meet the Conditions. For the avoidance of doubt where we have agreed to provisionally provide the Acquiring Service in accordance with this clause 2.1 prior to accepting your Application, the provision of the Acquiring Services shall be in accordance with the terms of this Contract.
2. In consideration of the Fees, Cashflows shall provide the Acquiring 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 Acquiring Services. We accept no liability for any disruption to the Acquiring Services that is attributable or in any way related to the provision of Gateway Services provided by a third party.

3. Remittance and Anytime Settlement Services
3.1 Remittance
1. We may pay Remittances through your Cashflows Remittance Scheduler or directly to 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 the Contract. 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:
a. the next date on which you have specified Remittance to occur following the relevant Transactions; and
b. 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;
a. any Fees that are due and payable;
b. any Interchange Fees and Scheme Fees that are due and payable;
c. any Refunds processed by us;
d. any Chargebacks and Assessments;
e. any amounts required by us to cover any:
i. 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;
ii. any liability or potential liability of yours under the Contract; and
(d) any other charges or amounts due from you to us under the Contract. 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.
7. 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 Remittance Account (where relevant) for such amounts due and payable.
8. 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:
a. 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
b. 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;
c. we have reasonable grounds to believe that you have breached the Contract;
d. the information you provided in your Application has changed or is incorrect;
e. you are an Excessive Fraud and/or Chargeback Merchant;
f. the level of fraud of chargebacks on your account materially changes; and/or
g. as a material change in our ongoing risk assessment of your account.
9. We may defer making any Remittance (including the Security Reserve) for such period as we shall in our reasonable discretion consider appropriate, or, if earlier until either:
a. 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
b. any breach has been ascertained or the risk of any breach passed; or
c. we are, acting reasonably, satisfied that no such liability will be incurred or that no fraud or other criminal activity is involved.
10. 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.
11. You have no right or entitlement to or any interest in any sums representing any Transaction until Remittance is due in accordance with the Contract.
12. We will notify you as soon as possible upon exercising any of our rights under this clause 3.
13. 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.
3.15 We shall send you an email each month (to the email address you have registered with us) reminding you to view your transaction history via the Online Portal. You will also have the ability to download/print a copy for your records. In the event you have ended this Contract, you can request a copy of your transaction history for the 6-year period prior to its closure by contacting Customer Service and satisfying the necessary security and identification checks.

3.2 Anytime Settlement Services Description
1. The Anytime Settlement Service enables [Merchants] to remit settled funds to an external bank account on either a T+1 (Next Day) or T+0 (Same Day) timeframe.
2. Cashflows is responsible for the following aspects of the Anytime Settlement Service:
a. Boarding. Cashflows will carry out the standard boarding processes to establish whether the [Merchant] is eligible for a Cashflows Merchant Account to start utilising the Cashflows Acquiring Services. If the [Merchant] has requested the Anytime Settlement Service, an additional set of due diligence checks and risk assessments may be carried out on the [Merchant] to ensure they meet the acceptance criteria to be approved for the Anytime Settlement service. The acceptance criteria for the Anytime Settlement service is the sole responsibility of Cashflows to monitor, maintain and update where necessary. This acceptance criteria will undergo periodic review and is subject to change at the sole discretion of Cashflows. During review, the acceptance criteria will consider details including but not limited to, the nature of the business of the [Merchant], the volume of transactions and the risk profile of the [Merchant]. Cashflows is under no obligation to provide the Anytime Settlement service to any [Merchant] that Cashflows deems to fall outside of its acceptance criteria, internal boarding policies or sector risk appetite.
b. Activation. Once a [Merchant] has been approved for the Anytime Settlement service, a Cashflows Enhanced Business Account will be created for the [Merchant], as part of the standard Cashflows Internal Activation process. Cashflows will ensure that all the necessary parameters and configurations are added for the Anytime Settlement service.
c. Back Office. As part of the boarding process for the Anytime Settlement service, a [Merchant] must select whether it is T+1 or T+0 that they require. Once boarded, if a [Merchant] wishes to change their settlement terms (e.g. from T+1 to T+0), the [Merchant] will notify Cashflows via email, which will start the change process. This change process includes an additional set of due diligence checks and risk assessments which will be carried out on the [Merchant] to ensure they meet the acceptance criteria to be approved for the settlement period. Whilst a change of settlement terms is being reviewed, there will be no disruption to the [Merchants] original service.
d. Funding Maturity. Cashflows will mature funds on a frequency that suits the Anytime Settlement Service that they have been approved for (T+1 or T+0). Cashflows accepts the funding risk when providing Faster Settlement before the funds have been received by the schemes.
e. Remittance. Cashflows will provide a once per day daily remittance for both T+1 and T+0 Services as the default for all [Merchants]. It is the responsibility of the [Merchants] to log into the Cashflows provided system to amend the remittances and set-up any external payments.
f. Commission Disbursement. Cashflows will net-settle to the Merchant, minus the cost of the service as described in clause 3. Cashflows will generate a commission report to indicate the commission due to be paid to the Merchant in accordance with the present terms and conditions.
3. T+1. If the Merchant qualifies for T+1, Cashflows shall:
a. Create a Trading Account allowing the [Merchant] to view the authorisations that have occurred with their customers.
b. Mature funds from the Trading Account once a day, providing once daily remittance to the [Merchant] external bank account.

4. T+0. If the Merchant qualifies for T+0, Cashflows shall:
a. Create a Trading Account and an Enhanced Business Account. The Trading Account will allow the [Merchant] to view the authorisations that have occurred with their customers. The Enhanced Business Account will allow the Merchant to schedule bespoke External Remittance.
b. Mature funds every hour, providing greater than once daily remittance to the merchant external bank account.
c. Give the [Merchant] access to the Enhanced Business Account so that the Merchant will be able to change/add to the remittance schedule, providing it is within the UK Banking window; Monday to Friday 09:00 – 17:00 GMT (excluding banking holidays).

5. Cashflows reserve the right to reject or refuse any applications that do not meet conditions described in this clause 3 at its sole discretion. Any rejection or refusal in relation to Anytime Settlement Service does not reflect the overall application of any Merchant in terms of its overall application for Merchant Services.
6. Anytime Settlement Fees. The Anytime Settlement Pricing Plan will be communicated in writing to the Merchant. By accepting the Anytime Settlement Service, you agree to the terms set out within the present terms, and pricing plan as updated from time to time.

4. Fees and charges
1. In return for us providing the Acquiring Services you agree to pay the Fees set out in the Pricing Plan plus any VAT that may apply).
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. However, you have the option for us to charge our Fees on a “blended cost” basis. This means that the Fees are based on our costs plus a margin applied by us.
3. You agree that, unless otherwise stated: (i) all Fees, 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 (ii) 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. When opting for your Fees on an interchange ++ basis, the Interchange Fee and Scheme Fee are subject to change and any changes to the Interchange Fee and/or Scheme Fees will be applied to your Fee 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 on an interchange ++ basis.
4. When opting for your Fees on a blended basis, we will not pass through any changes to the Interchange Fee and Scheme Fee. As a guide, we have set out in Schedule 1, Appendix B the Fees that apply to Transactions and that are in force at the date we prepare your pricing on a blended basis. In the event you elect blended pricing, you must sign and date Pricing Plan in confirmation.
5. Unless stated otherwise, all Fees, charges and other payments to be made by you under the Agreement 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 FX Mark-Up is applied by us to arrive at the rate we use to provide cross-currency settlement to you.
2. Unless a particular rate is required by law, Cashflows will apply the 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 Mark-up. The relevant Oanda exchange rate plus the FX Mark-up shall also apply to any other currency exchange undertaken by us under the Contract. Oanda published its exchange rates daily. Any change in the relevant Oanda 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 (in line with the Card Scheme requirements) that the Transaction has been Authorised by the Card Issuer (save for Contactless Transactions), in particular:
(i) you may need Authorisation where a Transaction value is below the Floor Limit and/or for a Contactless Transaction where the chip technology on the Card requires Authorisation;
(ii) you must not complete a Transaction where Authorisation is required and not received, and you must not re-submit a Transaction where Authorisation has been declined save as set out under the Rules;
(iii) where you do process a Transaction without Authorisation, you shall be liable for and shall indemnify us against any Losses (including Chargebacks) relating to that Transaction;
(iv) you must cancel any Authorisation where you or the Cardholder decide not to complete the Transaction;
(v) you must not request an Authorisation just to validate a Card; if you want to validate a Card without there being any underlying Transaction then you must process this as an account status check; and/or
(vi) you must not split Transactions in order to obtain Authorisation

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 (and not an Illegal Transaction) nor does it guarantee that Remittance will be made in respect of that Transaction and this does not prevent us from recovering a Chargeback or other amounts in relation to the Transaction.
3. You may receive a Chargeback from a Cardholder or Card Scheme for a number of reasons (including Illegal Transactions) 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") on an indemnity basis. Where, in relation to a Transaction that is subject to a Chargeback, we have not provided a Remittance to you, we will not Remit for that Transaction and shall be entitled to deduct or invoice you for any relevant Chargeback Costs.
5. Chargebacks may arise under the following circumstances (this is not an exhaustive list): (i) where there is no genuine evidence that the Cardholder Authorised the Transaction or the Cardholder denies Authorising a Transaction;
(ii) if a Transaction is processed contrary to the terms of this Contract;
(iii) where we receive a claim (from a Cardholder or Card Issuer) connected to a Transaction processed by you, relating to the Approved Products being faulty or not as described, not receiving the Approved Products, or where the Transaction was subsequently cancelled;
(iv) for Card Present Transactions, you fail to obtain the Cardholder’s signature where you are required to manually enter the transaction as a result of the Card being unable to be read;
(v) where the Transaction relates to a non-Approved Product or an Illegal Transaction;
(vi) where you fail to obtain Authorisation for the Transaction in accordance with terms of this Contract;
(vii) a Transaction is processed for someone other than the Cardholder;
(viii) where we treat you as an Excessive Chargeback/Fraud Merchant; and
(viiii) where set out in the Procedure Guide.
6. Where we consider you to be an Excessive Fraud/Chargeback Merchant: (i) we may require you to provide detailed reasons for the number of Chargebacks and/or Fraud relating to Transactions and any mitigating actions you are taking to reduce the same; (ii) we may provide you with instructions on how to reduce your levels of Chargebacks and Fraud; where you have issued a credit to a Cardholder to avoid being captured as an Excessive Chargeback/Fraud Merchant, we will consider such credit as a Chargeback.
7. 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.
8. 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 or that relate to Transactions generally. The provisions of this clause 7.8 shall survive termination.
9. You agree that it is your responsibility to prove to our reasonable satisfaction (or that of the relevant Card Issuer) that the debit of a 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:
a. 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;
b. You, the merchant, and the individual signing or accepting the Contract 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;
c. 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
d. 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:
a. the terms of the Contract;
b. all Applicable Laws;
c. the Rules;
d. the Operating Instructions;
e. the PCI DSS: and
f. 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).
3. You must not process any Transaction which is connected to any person or country that is affected by economic sanctions imposed by the United Kingdom, the European Economic Area, the United States of America or the United Nations.
4. We may ask you to retain Cards, which you shall do in accordance with the Procedure Guide, unless you believe there is a real risk of harm to you. Where you do retain a Card, you must not suggest you are acting on our behalf.
5. You must display at each of your Retail Locations, the Material and you must comply with our reasonable instructions relating to the Materials.
6. If you do not accept all Cards in accordance with the provisions of this clause 9, you shall: (i) for Card Present Transactions, display this information prominently at the entrance of each Retail Location; and (ii) for Card Not Present Transactions, ensure this information is prominently displayed on your Website and provided prior to a Cardholder completing a Transaction.
7. You must provide us with all reasonable help we may require to detect, prevent, and investigate fraud or a Dispute. In addition, if there is a material change in the way you operate your business, (for example, the number of Transactions you undertake is materially different to the number set out in your Application) we may determine this as fraudulent activity. In order to prevent the termination or suspension of the Acquiring Services, you must notify us without undue delay if there is a material change in the nature or size of your business.
PCI DSS and Storing Data
8. 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 standards 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.
9. 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.
10. 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.
11. 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 Acquiring 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.
12. Where you use a third-party to manage your PCI obligations (PCI Agent) (including data-processing, storing/transmitting services) you must ensure such third-party PCI Agent is registered with the Card Schemes and listed on the Card Scheme website.
13. You must keep the original receipts and copies relating to Transactions (Transaction Data) in a safe and accessible place in accordance with the timeframes set out in the Procedure Guide as you may need to evidence a Cardholder authority to debit their account.
14. You must ensure all Transaction Data is kept in a safe and secure manner in order to prevent unauthorised access, loss, theft, or disclosure to any unauthorised third-parties. We may from time to time, provide you with reasonable instructions in order to keep Transaction Data safe, where you fail to do so, we shall be entitled to terminate this Contract with immediate effect.
Audit
15. We or an agent on our behalf, may carry out an audit or inspection of your business to ensure your compliance with the terms of this Contract or to check the security measures you have implemented to meet your responsibilities. You agree to provide us with access to your Retail Locations (including your offices) and any records, data, facilities, equipment and systems (including any hardware and software) used to provide goods and services, to carry out the audit
16. We will provide as much notice as we can prior to any audit and will also ensure we minimise any disruption to your business.
Cardholder Transactions
17. You shall:
a. only process Transactions that represent payment or Refund in respect of Approved Products which you supply directly;
b. 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;
c. not process Transactions made by your directors or employees except for legitimate purchases of Approved Products;
d. not allow any third-party to process or accept Transactions; and
e. only process Transactions in accordance with the Trading Limit, Floor Limit or any other limits set by us under the Contract.
18. Subject to the provisions herein you shall honour all valid and current Cards by supplying to the Cardholder without imposing any financial limit (save where we have agreed to you setting limits in your Application) the full range of Approved Products offered by you at the cash price for such Approved Products. Where a Cardholder presents a Card for a Transaction supported by two (or more) Card Schemes, the Cardholder will decide which Card Scheme shall process the Transaction.
19. 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.
20. 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.
21. When processing a Transaction and where we have approved the provision of CashBack services as part of your Application, you are permitted to provide Cash-Back to a Cardholder or customer as part of the Transaction, subject to any conditions or limits set by us;
22. You must only process Transaction for deposits and/or pre-payments where we have approved the same as part of your Application and subject to our written approval.
23. Where you accept Contactless Transactions exceeding the Contactless Transaction Limit, you will be liable and shall indemnify us against any Losses we may suffer as a result.
24. We will not authorise a Transaction unless the Security Code is provided (save where the Card Scheme does not support a Security Code). You must not record, copy, take or reveal a Security Code, other than for the purposes of processing a Transaction. Save for Contactless Transactions, you must only undertake Card Present Transactions using chip & PIN technology (unless the POS Terminal or Card Scheme does not permit chip & PIN Transactions, in which case you must undertake the Card Present Transaction using the magnetic stripe of a Card).
Card Present Transactions
25. You must only process Transactions using POS Terminals approved by us and you must not modify, substitute or tamper with the POS Terminals (save where authorised by us).
26. We may need to provide maintenance of POS Terminals and software updates from time to time using a telephone link or wireless connection. You must ensure that you maintain a telephone link or wireless connection to the POS Terminal at all times. You will be responsible for any costs relating to the charges or maintenance of the telephone link or wireless connection.
27. Where you receive a new POS Terminal, you must immediately carry out the security changes set out in the Procedure Guide and you will be responsible for any Losses we, you or any third-party may suffer as a result of your failure to do so.
28. You must provide us reasonable evidence (including documentation) confirming you are complying with the obligations relating to POS Terminals and Card Present Transactions.
Provision and Disclosure of Information
29. 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:
a. disclose to us such information and Data 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 including any financial information on your business we may reasonable require to assess any insolvency risk;
b. 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 Acquiring Services; and
c. give us reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of the Acquiring Services.
30. 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:
a. provide us or our duly authorised representatives with any financial or other information we may require; and
b. 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.
31. You shall notify us immediately in writing of any:
a. 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);
b. act, omission or error which does or may adversely affect your ability to perform your obligations under the Contract;
c. 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;
d. 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 or you stop or are planning to stop your business or plan to sell your business, you change your name, you become or are likely to become insolvent, the legal status of your business changes, or you become aware of or suspect fraud;
e. other agreement that you enter into concerning your acceptance of Transactions; or
f. change of your Control, or any proposed or reasonably anticipated change of your Control.
g. any incident of a personal data breach which must be reported to us without undue delay and, where feasible, not later than 72 hours after you become aware of it.
It shall be your responsibility to ensure all Data provided to us is complete and accurate. If you do not provide the information or Data we require, we may withhold the payment of Remittance to you in accordance with clause 14 until such time as we are satisfied there is no risk and you can meet your obligations under this Contract.
Websites (Online Transactions)
32. 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).
33. 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.
34. On or before 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.
35. 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.
36. Where you process an Online Transactions, you must ensure your website has the appropriate 3D Secure software fully installed and updated.
Refunds and Void Transactions
37. 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.
38. 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.
39. 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.
40. 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
41. 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).
42. You must notify us immediately if you become aware of the misappropriation of your Security Details or any unauthorised use of the Online Portal.
43. You must ensure that the Primary User provides their valid consent to any changes made to your Online Portal preferences where required.
44. You must notify us in good time if you wish to change the Primary User.
45. 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 the Contract. 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. Subject to the provisions of clause 17.2, 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.
Mobile Payment Transactions
46. You must accept Mobile Payment Transactions (subject to your POS Terminal configuration) subject to limits set by you, the Card Issuer or the POS Terminal.

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. 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.
3. We shall be entitled to terminate the Contract: (i) with two months’ 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; and (ii) by giving you 2 months’ notice by email to the address you have provided.
4. 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"):
a. you breach the provisions of the Contract and either:
i. that breach is incapable of remedy; or
ii. you fail to remedy the breach or non-compliance within 21 days of the date of our notice requiring you to do so;
b. you fail to pay any amount due under the Contract within 30 days of us providing notice to you that payment is due;
c. we become aware of or reasonably suspect that you are or have been processing Illegal Transactions or providing goods and services other than Approved Products or goods and services which may damage our reputation;
d. 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;
e. you fail to comply with the Rules, the Operating Instructions, the Applicable Laws, the PCI DSS or the Conditions;
f. 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);
g. 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:
i. may affect your ability or willingness to meet your obligations under the Contract;
ii. may or does give rise to fraud or any other criminal activity;
iii. may damage the reputation or be detrimental to the business of the Card Schemes or us;
iv. may or do give rise to increased risk of liability or loss for us;
h. 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 Acquiring Services to you;
i. 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;
j. we reasonably consider that any act or omission of yours falls within a Reason Code;
k. 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;
l. you breach any Trading Limit or Floor Limit;
m. you fail to obtain our prior written consent or fail to provide notification or information to us where required under the Contract;
n. we are unable to provide Acquiring Services because you do not consent to the appointment of a sub-contractor in accordance with clause 19.8(a);
o. a Force Majeure Event occurs as defined in clause 18;
p. we become aware of or suspect fraud by you;
q. you become an Excessive Fraud/Chargeback Merchant;
5. 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:
a. that breach is incapable of remedy; or
b. 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. Upon termination of the Contract all rights and obligations of either Party shall cease to have effect immediately, save that:
a. 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;
b. 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
c. 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 the Contract that by their sense and context are intended to survive termination of the Contract, shall continue in force notwithstanding such termination.
2. Upon termination of the Contract, you must:
a. cease to accept Card payments for processing by us under the Contract (we shall not be obliged to acquire or pay Remittances to you in relation to Transactions completed after termination); and
b. 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.
3. 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.
4. Although we do not charge you any Application or set up fee when you apply for the Acquiring Services, if, however, for any reason you decide to close your account before it has been open for 6 months, or if we close it during the same period because you have breached the terms of the Contract, then we may charge you a fee to cover our costs in approving your Application. Such costs shall reasonably correspond to the actual cost to us in processing your Application and ending the Contract.
5. On termination of this Contract, you will continue to be liable to us for your obligations which arose prior to the date of termination.

12. Suspension of the acquiring services by us
1. In addition to the remedies above and any rights we may have under the Contract, we may suspend any or all of the Acquiring Services with immediate effect upon an occurrence of an Event of Default (as defined in clause 10 above).
2. We may also suspend any or all of the Acquiring Services by giving you notice (where practicable), where we suspect: (i) fraud; (ii) you breach any of the material terms of this Contract; and (iii) you have failed to pay any Fees or Assessments due to us once in any six month period.
3. Where permitted by law we will notify you as soon as practicable if we decide to suspend any of the Acquiring Services under this clause.

13. Variations
1. We may amend the Contract at any time and will give you at least two months' prior written notice of any changes, unless the changes are required due to a change in Applicable Laws and we are prevented from giving you two months’ written notice, in those circumstances we will give you as much written notice as possible. 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 the Contract 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:
a. Interchange Fees and Scheme Fees where we charge our Fees on an "interchange ++" basis; and
b. 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 Acquiring 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 right to which we may be entitled by law, you hereby authorise us from time to time without notice and both before and after demand to set-off (keep any amounts we owe to you) 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 behalf or we may hold in our capacity as an Issuer of an account held by you with us. 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. We reserve the right to set-off against any Illegal Transactions processed by you if we become aware of or reasonably suspect that you have processed Illegal Transactions.
3. We may withhold Remittance (or part thereof) to you in the event that: (i) we reasonably believe there is an exposure or liability to us based on your actions, in-actions or the information you provide us; (ii) we terminate the Contract due to a breach by you of your obligations; (iii) the value of any Refund exceeds any Remittance; (iv) you become or are likely to become insolvent or fail to provide goods or services; (v) you fail to provide any information we request and we are unable to assess your risk profile; (vi) we become aware of or suspect fraud by you, your employees, agents, sub-contractors or third-parties acting on your behalf; (vii) failure to maintain direct debit.
4. 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.
5. 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 reserve the right, at our sole discretion, to determine that it is necessary to have some security from you to meet your obligations to us under this Contract (“Security Reserve”). The Security Reserve will be calculated by us based on a number of factors including: (i) the sector in which you operate; and/or (ii) any additional risk/exposure to us in providing the Acquiring Services. The Security Reserve shall be considered a debt and shall either be offset against Remittances or required as an up-front payment. We shall notify you in advance of applying or changing the Security Reserve either in writing/email or via the Online Portal and you will be able to confirm the amount being held as a Security Reserve at any time via the Online Portal. The Security Reserve shall be held in a segregated account or held with the Card Schemes and shall be repaid to you in accordance with clause 3.9.
4. 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 (which means you will make good the full amount of the Losses we incur) and keep indemnified, defend and hold harmless Cashflows from and against all Losses, 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:
a. Your (including your employees, agents, sub-contractors or third-parties acting on your behalf) failure to do or not to do any actions in non-compliance or breach of the Contract, the Rules, the Operating Instructions, the PCI DSS, Applicable Laws or Procedure Guide;
b. the Gateway Services where such Gateway Services are provided by a third party;
c. any Transaction and/or any Dispute relating to a Transaction whether or not previously Remitted by us to you;
d. 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);
e. 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;
f. 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
g. any Event of Default or fraud by you or your employees, agents, sub-contractors and/or third-parties acting on your behalf),
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 the Contract, 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:
a. any loss of business, loss of reputation, goodwill, loss of data and loss of opportunity including loss of profits/revenue; or
b. any indirect, special, punitive or consequential loss or damage,
howsoever caused arising out of, or in connection with, any supply, failure to supply or delay in supplying the Acquiring 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:
a. the Transaction Fees 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
b. 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 Transaction Fees which have been paid in such period together with an amount equal to the Transaction Fees which would be reasonably likely to be payable (having regard to matters such as the amount of Transaction Fees 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 Acquiring 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.
10. Any claims against us under this Contract must be made in writing (including full details of the claim and alleged Losses) to us and within 9 months of you becoming aware or should have become aware of your claim. You will also provide us with any reasonable information we may require in order to address the claim as soon as possible. We will have no liability to you where you fail to meet the conditions set out under this clause 17.10.

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 the Contract 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 the Contract 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 the Contract by giving 14 days' written notice to the other. On the expiry of this notice period, the Contract will terminate. The consequences of such termination shall be in accordance with clause 11.

19. Data and information sharing
1. We and you shall at all times perform our respective obligations under the Contract in such a manner as not to cause the other in any way to breach the Data Protection Laws.
2. You shall act as the Data Controller of Transaction Personal Data. We acknowledge and agree that we shall act as Data Processor in providing the Acquiring Services relating to Transaction Personal Data supplied to us by you under this Contract.
3. You acknowledge and agree that Cashflows will be a Data Controller in relation to Transaction Personal Data and other Personal Data we may gather and use where we determine the purposes and manner of the Processing, including for the purposes of:
a. risk management including fraud monitoring, prevention, detection and prosecution, as well as authentication and authorisation management, and risk mitigation strategies;
b. regulatory compliance activity including anti-money laundering, financial crime compliance, identity screening and Rules compliance; and
c. our compliance with any other Applicable Law or Rules.
4. You shall ensure that:
a. you have complied with and shall comply at all times with the Data Protection Laws and all other Applicable Laws;
b. in respect of all Transaction Personal Data which you provide to us, all necessary fair processing notices have been provided to the Data Subjects;
c. you are authorised to transfer Personal Data to us; and
(d) where required by the Data Protection Laws you shall obtain all necessary consents in order to: (i) disclose Personal Data to us; and (ii) allow us to Process Personal Data for the purposes of providing the Acquiring Services under this Contract.
5. You have appointed us to Process the Transaction Personal Data on your behalf as is necessary to provide the Acquiring Services. We undertake, in respect of all Transaction Personal Data that we Process as Data Processor on your behalf, that we shall:
a. Process the Transaction Personal Data only on your documented instructions (in particular the Data Processing Register under the Appendix 1), except to the extent that any Processing of Transaction Personal Data is required by Applicable Laws;
b. where Processing of Transaction Personal Data by us is required by Applicable Laws, we shall inform you of the relevant legal requirement before processing, unless such law prohibits us from doing so;
c. notify you where we reasonably believe any documented instructions from you in respect of the Processing of Transaction Personal Data infringe any Data Protection Laws or any other Applicable Laws;
d. ensure that our personnel who are authorised to Process the Transaction Personal Data have committed themselves to confidentiality;
e. implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of Processing;
f. taking into account the nature of the Processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject's rights under Data Protection Laws;
g. notify you without undue delay after becoming aware of: (i) any unauthorised loss, corruption, damage, destruction, alteration, disclosure or access to any Transaction Personal Data; (ii) any unauthorised or unlawful Processing of Transaction Personal Data; or (iii) any breach of Data Protection Law;
h. assist you in your compliance with your obligations under Data Protection Laws in respect of notifying Data Breaches to the Information Commissioners Office and affected Data Subjects, insofar as we are able taking into account the nature of the Processing and the information available to us;
i. ensure that where Transaction Personal Data is transferred out of the European Economic Area ("EEA") we shall do so in a manner which demonstrates compliance with Data Protection Laws and may include taking the following steps, and You hereby authorise Cashflows to take any of the following steps: (i) the transferee entering into a data export agreement with Cashflows in the form of standard contractual and/or model clauses (which are approved by the European Commission as offering adequate safeguards under the Data Protection Laws); or (ii) equivalent protections being in place, or as otherwise allowed or required under the applicable Data Protection Laws;
j. provide reasonable assistance to you with any data protection impact assessment and any prior consultations required with the relevant regulatory authority (including but not limited to the Information Commissioner’s Office) which you may reasonably consider to be necessary;
k. at your discretion, delete or return to you all of the Transaction Personal Data Processed under and delete any copies of such Transaction Personal Data unless any Applicable Laws require that copies are kept; and
l. make available to you all information reasonably necessary to demonstrate compliance with our obligations in this clause 19.
6. In order to provide the Acquiring Services under this Contract, we may use and share 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, fraud prevention agencies and online monitoring tools to help us and/or them (on an ongoing basis):
a. assess financial, fraud and insurance risks;
b. recover debt;
c. develop customer relationships, services and systems; and
d. prevent and detect crime.
For further information on how we use your information, please see our Privacy Policy.
7. Subject to clause 19.6, clause 20 and clause 21, we do not and will not disclose your information (including Personal Data and Transaction Personal Data) to anyone other than as expressly provided in the Contract except:
a. where we have your specific permission;
b. where we are required or permitted to do so by law or regulation (including, without limitation, statutory or regulatory reporting obligations);
c. to other companies who provide a service to us or you relating to the Acquiring Services in accordance with clause 19.8 below;
d. to other companies who provide a service to us provided that such information is anonymised and does not include information about identifiable individuals; or
e. where we may assign, sub-contract or transfer rights and obligations under the Contract.
8. We will provide to you with details of any sub-contractors Processing Transaction Personal Data on our behalf under this Contract. By entering into this Contract, you are deemed to consent to the appointment of all sub-contractors set out in the Approved Sub-Contractors List. Any changes to the Approved Sub-Contractors List shall be notified to you and if you do not object to any change within 14 days you will be deemed to consent to the appointment of that sub-contractor. If you do not consent to the appointment of a sub-contractor:
a. we may, at our sole option and without any liability to you, terminate this Contract or suspend the Service pursuant to clause 10.5;
b. if we do not exercise our right to terminate this Contract pursuant to clause 19.8(a) above, you acknowledge that you may be unable to obtain the full benefit of the Acquiring Services.
9. You shall indemnify and keep us, our Group Companies, our directors, officers, employees and agents indemnified in full against all Losses which we may incur or suffer by reason of any default of you whether under this clause 19 or any breach of the Data Protection Laws attributable to or caused by you, your employees or agents or sub-contractors.
10. From time to time we may change the way we use information from the manner which is set out in this Contract. In such instances we shall write to you using the details provided by you to us. If you do not object to the change within 14 days and continue to use the Acquiring Services, you will be taken to have consented to that change.

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 Acquiring 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 date of the Application 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 Acquiring Services and any subsequent reassessment.

21. Card scheme databases
You acknowledge that if you breach the Contract 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 the Contract 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: Head of Legal 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:
a. delivering it personally;
b. sending it by prepaid first-class post;
c. 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:
a. if delivered personally, at the time of delivery;
b. 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
c. 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
If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable:
a. such illegality, invalidity or unenforceability shall not affect the other provisions of the Contract, which shall remain in full force and effect; and
b. 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 the Contract 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 the Contract 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 Acquiring Services provided, please contact us on complaints@cashflows.com and we will try to resolve your complaint.
2. We will try and resolve a formal complaint about the provision of the Acquiring Services immediately, but where this isn’t possible, we will send you a prompt acknowledgement confirming the name of the person dealing with the matter.
3. We aim to resolve complaints within 15 business days upon receipt of your complaint. However, if we need longer to carry out a detailed investigation, we will send you an update on the progress of your complaint which will include the deadline by which you should receive a final reply which should be within 35 business days.
4. If we are not able to resolve any complaint to your satisfaction or within the timeframes above, 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.
5. You can contact the FOS:
a. by telephone on 0800 023 4567 (from 8am to 8pm Monday to Friday and from 9am to 1pm on Saturday);
b. by post to The Financial Ombudsman Service, Exchange Tower, London, E14 9SR; or
c. 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.

Appendix 1
Data Processing Register

Data Subjects

The Personal Data to be processed by Cashflows pursuant to this Contract concerns Merchants who are individuals, individual cardholders and payees.
Nature and purposes of the Processing
a. The Transaction Personal Data to be Processed under this Contract shall be processed for the purpose of delivering Acquiring Services to you.
b. The other Personal Data to be Processed under this Contract shall be processed for the purposes set out in Clause 19.3 of this Contract.

Categories of Personal Data
The Personal Data to be Processed under this Contract concerns payment and account information and identity verification information.

Recipients
Personal Data to be processed under this Contract may be transferred to the recipients and categories of recipients set out in clause 19 of this Contract.

Special Categories data
We may process special categories of Personal Data under this Contract relating to criminal convictions, where necessary for the purposes set out in clause 19.3 of this Contract.

Cashflows Payment Gateway Services

Updated 4 November 2021

Important note: these are the standard terms and conditions pursuant to which we will provide the gateway services to you and on which we intend to rely. By requesting or accepting the gateway services, you acknowledge and agree that you have read, understand, agree and shall comply with the terms of: (i) addendum or agreement; (ii) these terms and conditions; (iii) the application; (iv) the pricing plan; and (v) the privacy policy (together “the contract”) and you have been given an opportunity to raise any questions you may have on them.

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 or partner ("you", "merchant", “partner”) and become legally binding on the Effective 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
1.1. The following definitions shall apply to these Gateway Services Terms and Conditions.

“API”
means the Application Programming Interface software to be used for integration into the Cashflows system for the Services.

“Appendix”
means the appendix to these Gateway Services Terms and Conditions.

“Authentication Method”
means any unique username and/or password combination allocated by Cashflows to the Merchant from time to time or any alternative or supplemental authentication method that Cashflows may from time to time use or arrange in advance with the Merchant.

“Business Day”
means a day (other than a Saturday or Sunday) when banks are open for the transaction of normal banking business in London, United Kingdom.

“Contract”
means as defined above.

“Effective Date”
means the date on which both parties have entered into these Gateway Services Terms and Conditions as evidenced by signature of the Contract by both parties.

“Fees”
means the charges payable by the Merchant for the Services as set out in the Pricing Plan.

“Initial Term”
means the period of twelve months from the Effective Date or the date on which Cashflows commences providing the Services whichever is later.

“Intellectual Property Rights”
means all or any copyright, registered designs, design rights, trademarks, trade names, logos, rights to prevent passing-off, rights in domain names, database rights, rights in software, APIs, know-how, trade secrets and confidential information, patents and applications for any of the foregoing or the right to apply for any of the foregoing and all other forms of intellectual property right having equivalent or similar effect to any of the foregoing which exist anywhere in the world.

“Merchant Environment”
means that environment in which the Merchant interfaces with the cardholder to both physical and virtual solutions.

“Network Attack”
means any attempt (whether successful or otherwise) to try to breach the security of, or gain unauthorised access to, Cashflows’ network, systems, and/or software and/or any computing facilities owned by or within Cashflows’ control (“Systems”) where such attempt is not made for bona fide purposes and/or any denial of service attack which is designed or intended to reduce, or which does reduce, the efficiency of the Systems and/or the introduction by whatever means of any software, virus, trojan horse, time bomb or other code that is harmful or disabling to or that enables unauthorised access to the Cashflows systems.

“Parties”
means Cashflows and the Merchant.

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

“Schedules”
means the schedules to these Gateway Services Terms and Conditions.

“Services”
means the services set out in Schedule 1 as amended from time to time.

“Term”
has the meaning given to it in clause 2.

“Gateway Services Terms and Conditions”
means these terms and conditions including the Schedules, User Guide and Appendix.

“Transaction”
means any payment using a card, cashback or any refund, or otherwise to debit or credit the applicable cardholder's account with the card issuer.

“User Guide”
means the Gateway User Guide and Integration document as provided to you by Cashflows and as available on www.cashflows.com from time to time.

2. Duration and Notice
2.1 These Gateway Services Terms and Conditions shall commence on the Effective Date and shall continue (unless terminated in accordance with clause 2.3, 2.4 10 or 15) for the duration of the Initial Term.
2.2 Upon expiry of the Initial Term, the Agreement shall automatically renew for successive periods of one year (each a “Term”) on the terms set out in these Gateway Services Terms and Conditions.
2.3 The Merchant shall be entitled to terminate these Gateway Services Terms and Conditions by giving Cashflows not less than 90 days prior written notice of termination to take effect at the end of the Initial Term or of any subsequent Term.
2.4 Cashflows shall be entitled to terminate these Gateway Services Terms and Conditions by giving Merchant not less than 30 days prior written notice of termination.

3. The Cashflows Services
3.1 In consideration for the Fees, Cashflows agrees to provide to the Merchant:
3.1.1 the Services;
3.1.2 online access to the User Guide supplied or made available by Cashflows from time to time relating to the Services and the API.
3.2 Cashflows warrants that:
3.2.1 it is entitled to grant the licence for the Merchant to use the API; and
3.2.2 the API will (subject to the Merchant complying with its obligations under these Gateway Services Terms and Conditions, including the provisions of the relevant Appendix) provide in all material respects access to the functionality relevant to the Services;
3.2.3 all the Services shall comply with the standards outlined in the Payment Card Industry Data Security Standard (“PCI DSS”) published on the website www.pcisecuritystandards.org from time to time; and
3.2.4 it holds PCI DSS certification in relation to the Services.
3.3 In the event of a breach of the terms of these Gateway Services Terms and Conditions, the Merchant agrees that its sole and exclusive remedy shall be for Cashflows to use its reasonable endeavours to correct the non-conformance, including without limitation by replacing or altering the API.

4. The Merchant’s Responsibilities
4.1 In order to enable Cashflows to provide the Services, the Merchant will co-operate with Cashflows, provide Cashflows with information, access to equipment and to the Merchant’s personnel in each case as reasonably requested, and carry out the Merchant’s obligations and responsibilities as described in these Gateway Services Terms and Conditions.
4.2 The Merchant will follow the instructions set out in the User Guide or as made available on the Cashflows website, or as such instructions may be updated from time to time by and at the discretion of Cashflows which: (i) outline the means of integrating/linking the Merchant’s Merchant Environment to the Cashflows payment server; and (ii) provide details of the required format for required data. Cashflows will endeavour to notify the Merchant in advance of such changes to such instructions, but otherwise will notify the Merchant within 20 Business Days of such changes being made.
4.3 The Merchant acknowledges and accepts that it is responsible for properly integrating and maintaining its systems environment for use with the Services and it has sole responsibility for the legality, reliability, integrity, accuracy and quality of the data inputted by the Merchant in its use of the Services.
4.4 The Merchant shall be responsible for properly completing any Authentication Methods in order to use the Services. Any Authentication Methods may be changed from time to time for the Merchant’s security, and Cashflows will inform the Merchant of any such changes in writing. Cashflows and the Merchant each agree not to disclose any Authentication Method to any third party except on a need-to-know basis pursuant to an obligation under these Gateway Services Terms and Conditions.
4.5 The Merchant shall:
4.5.1 use all reasonable endeavours to prevent any unauthorised access to or use of the Services and if such access or use occurs, the Merchant shall notify Cashflows immediately.
4.5.2 verify that it has received the revenue it ought to have received as a result of processing of transactions by Cashflows pursuant to these Gateway Services Terms and Conditions. The Merchant shall notify Cashflows of any failure to receive, or delay in receiving, such revenue as soon as it becomes aware of such failure or delay and in any event within 5 Business Days of the date when the relevant transaction data was submitted to Cashflows by the Merchant.
4.5.3 perform any obligations specified in these Gateway Services Terms and Conditions, including without limitation in any of the Schedules or Appendices relevant to the Services, as the Merchant’s obligation or the Merchant’s responsibility.
4.5.4 provide written notice to Cashflows of any change of control or proposed change of control of the Merchant (within the meaning of section 1124 of the Corporation Tax Act 2010) or of any of the Merchant’s shareholder(s) who own 10% or more of the Merchant’s issued share capital.
4.6 The Merchant warrants that it shall comply with the standards outlined in the Payment Card Industry Data Security Standard (“PCI DSS”) published on the website www.pcisecuritystandards.org from time to time; and shall hold PCI DSS certification applicable to merchants.

5. Fees
5.1 The Merchant shall pay to Cashflows the Fees for the Services specified in the Pricing Plan which shall be due and payable on the date of Cashflows’ invoice. Unless otherwise agreed in writing, Cashflows shall commence charging the Fees from the date of the commencement of the Initial Term and in any case, within two months from the Effective Date.
5.2 The Merchant agrees that following submission of a Cashflows invoice from time to time, Cashflows shall be entitled to deduct the full amount of such invoice by direct debit from an account of the Merchant’s election and the Merchant shall provide its bank with an instruction to that effect, in a form supplied by Cashflows. In the event of Cashflows not receiving settlement of its invoices submitted by direct debit for any reason whatsoever or howsoever the Merchant shall pay Cashflows’ invoices submitted from time to time within 28 days of invoice date. Where the Merchant has any dispute on a Cashflows invoice, it shall make any such query known to Cashflows in writing within 5 Business Days of receipt of the relevant invoice.
5.3 If the Merchant defaults in the payment of any of the Fees as and when they fall due in accordance with this clause 5, the amount unpaid shall bear interest from the due date until payment is made in full (irrespective of whether the date of payment is before or after any judgment or award in respect of the same) at 3 per cent per annum over Barclays Bank plc base rate from time to time.
5.4 Cashflows has the right to suspend the Services without notice and/or terminate these Gateway Terms and Conditions with immediate effect by giving the Merchant notice in writing if the Merchant does not pay any of the amounts due to Cashflows in accordance with these Gateway Services Terms and Conditions from time to time within the period specified in clause 5.2 unless they are the subject of a bona fide dispute which has been notified to Cashflows in accordance with clause 5.2.
5.5 All Fees are exclusive of all taxes, including without limitation sales, use, excise and/or value added taxes where applicable. The Merchant shall pay all taxes and duties (including without limitation applicable sales, use, excise and/or value added taxes at the prevailing rate on the date of invoice) associated with the provision of the Services, excluding taxes on Cashflows’ net income.

6. Intellectual Property
6.1 Any and all Intellectual Property Rights in the API and the Services and related goodwill, know-how and other proprietary rights are and shall remain the absolute exclusive property of Cashflows and/or its licensors. For the avoidance of doubt, Cashflows reserves the right to grant licences to use the API to third parties and the right to permit third parties to use the Services.
6.2 The Merchant shall not acquire any Intellectual Property Rights and/or any goodwill, knowhow or any other proprietary rights in any form whatsoever or howsoever in the API or the Services.
6.3 The Merchant shall not use the API, the Services and/or any materials provided to the Merchant by Cashflows to build a product or services which competes with any of the Services or uses the API, the Services or any materials provided to the Merchant by Cashflows to provide a product or services which competes with any of the Services to any third party.
6.4 The Merchant will use the API to connect its systems with Cashflows’ network in order to access the Services. If the Merchant wishes to do so it may use an alternative method to connect with Cashflows’ network, subject to Cashflows’ prior written approval to be given at Cashflows’ absolute discretion.

7. Limitation of Liability
7.1 Without prejudice to any specific limitation or exclusion of liability set out in these Gateway Services Terms and Conditions, the following provisions set out each Party’s entire liability (including without limitation any liability for the acts and omissions of its officers, employees, agents or sub-contractors) to the other Party howsoever arising including without limitation in respect of:
7.1.1 any breach of its contractual obligations arising under these Gateway Services Terms and Conditions; and
7.1.2 any breach of any of the warranties expressly given by Cashflows in these Gateway Services Terms and Conditions; and
7.1.3 any representation, statement, act or omission (including without limitation negligence) arising under or in connection with these Gateway Services Terms and Conditions; and
7.1.4 any claim under any indemnity in these Gateway Services Terms and Conditions,
AND THE MERCHANT’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 7.
7.2 Any act, omission, statement or representation on the part of either Party or its respective officers, employees, agents or sub-contractors falling within clause 7.1, any breach by Cashflows of any of the warranties it expressly gives in these Gateway Services Terms and Conditions and any event giving rise to a claim under any indemnity in these Gateway Services Terms and Conditions shall for the purposes of this clause 7 be known as an “Event of Default”.
7.3 Each Party’s liability to the other Party:
7.3.1 for death or injury resulting from its negligence or its officers’, employees’, agents’ or sub-contractors’ negligence; or
7.3.2 for fraudulent misrepresentation; or
7.3.3 under any Merchant indemnity set out in these Gateway Services Terms and Conditions,
shall not be limited or excluded by these Gateway Services Terms and Conditions.
7.4 Subject to the provisions of clause 7.3, Cashflows’ entire liability to Merchant in respect of all Events of Default in the twelve month period shall be limited to damages not exceeding the fees actually paid by the Merchant under these Gateway Services Terms and Conditions to Cashflows in the six months preceding the claim.
7.5 Subject to clause 7.3 and without prejudice to the Merchant’s duty to pay the Fees, neither Party shall be liable to the other Party in respect of any Event of Default for:
(a) loss of profits;
(b) loss of business;
(c) loss of revenue;
(d) loss or depletion of goodwill;
(e) loss of, or corruption or damage to, data or information, other than as provided for in clause 8 below; or
(f) any type of special, indirect or consequential loss,
in each case, even if such loss was reasonably foreseeable or the relevant Party had been advised of the possibility of the other Party incurring the same.
7.6 The Merchant acknowledges that Cashflows does not underwrite or agree to compensate the Merchant for the value of any transaction as a result of any failure or delay in processing of any such transaction pursuant to these Gateway Services.
7.7 If any Event of Default by Cashflows results in a failure or delay in processing of any transaction between the Merchant and any customer of the Merchant, then prior to the Merchant exercising any rights or remedies under these Gateway Services Terms and Conditions, the Merchant shall have complied with its obligations under clause 4.5.2 and Cashflows shall have the right to use reasonable endeavours to complete processing of the relevant transaction as soon as practicable after receipt of notification from the Merchant of the relevant failure or delay.
7.8 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under these Gateway Services Terms and Conditions.
7.9 Except in the case of an Event of Default arising under clause 7.3.1 or 7.3.2, neither Party shall have any liability to the other Party in respect of any Event of Default unless the other Party shall have served notice of the same upon the first Party within six months of the date the other Party became aware of the circumstances giving rise to the Event of Default or the date when the other Party ought reasonably to have become so aware.
7.10 Each Party shall comply with applicable law, statutory regulations, or local by-laws, but Cashflows shall not be responsible for complying with those laws, statutory regulations, or local by-laws, or the fulfilment of any special regulations affecting the Merchant, the Merchant’s business, the Merchant’s customers or the Merchant’s use of the Services.
7.11 The Merchant acknowledges that receipt by it of payments as a result of processing of transactions pursuant to these Gateway Services Terms and Conditions is dependent upon and subject to settlement in accordance with the rules of any relevant payment scheme and the Merchant’s compliance with any such rules. The Merchant undertakes to comply with the rules, bylaws and regulations, as they exist from time to time, of any card payment scheme.
7.12 The provisions of this clause 7 shall remain in full force and effect notwithstanding the expiration or any termination of these Gateway Services Terms and Conditions for any reason whatsoever and each of the provisions of this clause 7 shall operate separately in itself and survive independently of the others.

8. Data and Information Sharing
8.1 We and you shall at all times perform our respective obligations under the Gateway Services Terms and Conditions in such a manner as not to cause the other in any way to breach the Data Protection Laws.
8.2 You shall act as the Data Controller of Transaction Personal Data. We acknowledge and agree that we shall act as Data Processor in providing the Gateway Services relating to Transaction Personal Data supplied to us by you under these Gateway Services Terms and Conditions.
8.3 You acknowledge and agree that Cashflows will be a Data Controller in relation to Transaction Personal Data and other Personal Data we may gather and use where we determine the purposes and manner of the Processing, including for the purposes of:
(a) risk management including fraud monitoring, prevention, detection and prosecution, as well as authentication and authorisation management, and risk mitigation strategies;
(b) regulatory compliance activity including anti-money laundering, financial crime compliance, identity screening and Rules compliance; and
(c) our compliance with any other Applicable Law or Scheme Rules.
8.4 You shall ensure that:
(a) you have complied with and shall comply at all times with the Data Protection Laws and all other Applicable Laws;
(b) in respect of all Transaction Personal Data which you provide to us, all necessary fair processing notices have been provided to the Data Subjects;
(c) you are authorised to transfer Personal Data to us; and
(d) where required by the Data Protection Laws you shall obtain all necessary consents in order to: (i) disclose Personal Data to us; and (ii) allow us to Process Personal Data for the purposes of providing the Gateway Services under this Contract.
8.5 You have appointed us to Process the Transaction Personal Data on your behalf as is necessary to provide the Gateway Services. We undertake, in respect of all Transaction Personal Data that we Process as Data Processor on your behalf, that we shall:
(a) Process the Transaction Personal Data only on your documented instructions (in particular the Data Processing Register under the Appendix 1), except to the extent that any Processing of Transaction Personal Data is required by Applicable Laws;
(b) where Processing of Transaction Personal Data by us is required by Applicable Laws, we shall inform you of the relevant legal requirement before processing, unless such law prohibits us from doing so;
(c) notify you where we reasonably believe any documented instructions from you in respect of the Processing of Transaction Personal Data infringe any Data Protection Laws or any other Applicable Laws;
(d) ensure that our personnel who are authorised to Process the Transaction Personal Data have committed themselves to confidentiality;
(e) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of Processing;
(f) taking into account the nature of the Processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject's rights under Data Protection Laws;
(g) notify you without undue delay after becoming aware of: (i) any unauthorised loss, corruption, damage, destruction, alteration, disclosure or access to any Transaction Personal Data; (ii) any unauthorised or unlawful Processing of Transaction Personal Data; or (iii) any breach of Data Protection Law;
(h) assist you in your compliance with your obligations under Data Protection Laws in respect of notifying Data Breaches to the Information Commissioners Office and affected Data Subjects, insofar as we are able taking into account the nature of the Processing and the information available to us;
(i) ensure that where Transaction Personal Data is transferred out of the European Economic Area ("EEA") we shall do so in a manner which demonstrates compliance with Data Protection Laws and may include taking the following steps, and You hereby authorise Cashflows to take any of the following steps: (i) the transferee entering into a data export agreement with Cashflows in the form of standard contractual and/or model clauses (which are approved by the European Commission as offering adequate safeguards under the Data Protection Laws); or (ii) equivalent protections being in place, or as otherwise allowed or required under the applicable Data Protection Laws;
(j) provide reasonable assistance to you with any data protection impact assessment and any prior consultations required with the relevant regulatory authority (including but not limited to the Information Commissioner’s Office) which you may reasonably consider to be necessary;
(k) at your discretion, delete or return to you all of the Transaction Personal Data Processed under and delete any copies of such Transaction Personal Data unless any Applicable Laws require that copies are kept; and
(l) make available to you all information reasonably necessary to demonstrate compliance with our obligations in this clause 8.5.
8.6 In order to provide the Gateway Services under these Gateway Services Terms and Conditions, we may use and share 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, fraud prevention agencies and online monitoring tools to help us and/or them (on an ongoing basis):
(a) assess financial, fraud and insurance risks;
(b) recover debt;
(c) develop customer relationships, services and systems; and
(d) prevent and detect crime.
For further information on how we use your information, please see our Privacy Policy.
8.7 Subject to clause 8.6, we do not and will not disclose your information (including Personal Data and Transaction Personal Data) to anyone other than as expressly provided in these Gateway Services Terms and Conditions except:
(a) where we have your specific permission;
(b) where we are required or permitted to do so by law or regulation (including, without limitation, statutory or regulatory reporting obligations);
(c) to other companies who provide a service to us or you relating to the Gateway Services in accordance with clause 8.8 below;
(d) to other companies who provide a service to us provided that such information is anonymised and does not include information about identifiable individuals; or
(e) where we may assign, sub-contract or transfer rights and obligations under the Contract.
8.8 We will provide to you with details of any sub-contractors Processing Transaction Personal Data on our behalf under this Contract. By entering into this Contract, you are deemed to consent to the appointment of all sub-contractors set out in the Approved Sub-Contractors List. Any changes to the Approved Sub-Contractors List shall be notified to you and if you do not object to any change within 14 days you will be deemed to consent to the appointment of that sub-contractor. If you do not consent to the appointment of a sub-contractor:
(a) we may, at our sole option and without any liability to you, terminate this Contract or suspend the Service pursuant to clause 10.5;
(b) if we do not exercise our right to terminate this Contract pursuant to clause 8.8(a) above, you acknowledge that you may be unable to obtain the full benefit of the Gateway Services.
8.9 You shall indemnify and keep us, our Group Companies, our directors, officers, employees and agents indemnified in full against all Losses which we may incur or suffer by reason of any default of you whether under this clause 8 or any breach of the Data Protection Laws attributable to or caused by you, your employees or agents or sub-contractors.
8.10 From time to time we may change the way we use information from the manner which is set out in this Contract. In such instances we shall write to you using the details provided by you to us. If you do not object to the change within 14 days and continue to use the Gateway Services, you will be taken to have consented to that change.

9. Indemnities
9.1 Cashflows shall indemnify the Merchant against all amounts paid in damages for or in settlement of any suits, claims or demands made by any third party that the normal use or possession of the API or the provision of the Services infringes the Intellectual Property Rights of any third party together with reasonable legal costs and expenses related to the defence or settlement of such suits, claims or demands if the Merchant notifies Cashflows in writing within five Business Days of becoming aware of any allegations of infringement and comply with the terms of clause 9.2.
9.2 A Party that grants an indemnity under these Gateway Services Terms and Conditions (the “Indemnifying Party”) shall only be obliged to indemnify the Party that benefits from such indemnity (the “Indemnified Party”) if the following conditions are met:
9.2.1 the Indemnified Party will not make any admissions or take any steps that would prejudice the defence of such suits, claims or demands without the Indemnifying Party’s prior written consent; and
9.2.2 the Indemnifying Party shall have sole conduct of the defence and settlement of any suit, claim or demand to which the indemnity relates and over all negotiations in relation thereto and, in particular, the Indemnified Party shall not make or attempt to make any settlement or admit any liability in relation to such suit, claim or demand without the prior written consent of the Indemnifying Party which may be withheld in its sole and absolute discretion; and
9.2.3 the Indemnified Party shall provide all such documents, information and assistance and do all such acts and things as the Indemnifying Party may reasonably require to assist it in relation to any such suit, claim or demand subject to the Indemnifying Party paying the Indemnified Party’s reasonable and actual expenses in relation to providing any such documents, information and/or assistance; and
9.2.4 the Indemnified Party shall take reasonable steps to mitigate all loss, damage, costs and expenses incurred by it as a result of any such suit, claim or demand; and
9.2.5 the Indemnified Party shall not be entitled to indemnification to the extent the suit, claim or demand arises as a consequence of any breach of these Gateway Services Terms and Conditions by it and/or from its negligence or misconduct.
9.3 The indemnity set out in clause 9.1 shall not extend to any infringements resulting from:
9.3.1 modification by the Merchant or any third party of the API and/or any other materials provided by Cashflows; or
9.3.2 use of the API and/or the Services with other items where, but for such combination, infringement would not have occurred; or
9.3.3 use of the API or the Services in a manner, or for a purpose, not disclosed to Cashflows before the date of these Gateway Services Terms and Conditions or in a manner contrary to any instructions or operating manuals given to the Merchant or made available to the Merchant by Cashflows.
9.4 The provision of this clause 9 states the entire liability of Cashflows to the Merchant in respect of the infringement or alleged infringement of the Intellectual Property Rights of any third party and/or breach of the warranty set out under these Gateway Services Terms and Conditions.
9.5 The Merchant shall indemnify Cashflows against all proceedings, claims, demands, damages, losses, expenses and costs (including without limitation reasonable legal costs and expenses) and any liability suffered or incurred by Cashflows:
9.5.1 in connection with any third party Intellectual Property Rights claim based on modification of the API and/or any other materials provided by Cashflows to the Merchant or any third party or on the combination of the API and/or the Services by the Merchant with any unauthorised product; or
9.5.2 arising out of Cashflows correctly processing transaction on the Merchant’s behalf in accordance with these Gateway Services Terms and Conditions; or
9.5.3 in connection with any Network Attack which is traced to the Merchant or any of the Merchant’s employees, officers, agents or sub-contractors.

10. Cashflows’ Right to Make Changes
10.1 Cashflows has the right to make changes to the Fees at any time provided Cashflows gives the Merchant at least 20 Business Days prior notice in writing. In the event that the Fees are to be increased by an amount in excess of the then relevant RPI then the Merchant has the right to give 20 Business Days notice to terminate these Gateway Services Terms and Conditions provided such notice is received no later than the end of 20 Business Days from the date of Cashflows’s relevant notification to the Merchant. In the event of termination the relevant Fees payable by the Merchant during the 20 Business Days notice period shall be the Fees being charged to the Merchant by Cashflows prior to the said notice of increase and the provisions of clause 15.4 shall apply.

11. Publicity
11.1 Except as required by law neither Party shall make any announcement, or comment upon, or originate any publicity, or otherwise provide any information to any third party (other than its legal advisors or financial advisors) concerning these Gateway Services Terms and Conditions or any relationship or arrangement between the Parties and/or any dispute or disagreement relating to these Gateway Services Terms and Conditions without the prior written consent of the other Party.

12. Export Controls
12.1 Neither Party shall export, re-export or otherwise transfer (or permit any third party to export re-export or otherwise transfer), directly or indirectly, any technical data acquired from the other Party under these Gateway Services Terms and Conditions (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations, including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval. Without prejudice to the generality of the foregoing, neither Party shall, or shall permit a third party to, export, re-export or otherwise transfer any technical data acquired from the other Party under these Gateway Services Terms and Conditions (or any products, including software, incorporating any such data) to any US sanctioned or embargoed nation or person.

13. Anti-Corruption
13.1 Each of the Parties shall comply with all laws, regulations, codes and sanctions applicable to it and relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010.

14. Delays to Cashflows’ Service which are beyond its Control
14.1 Cashflows will not be responsible if the Services are delayed or suspended or if it cannot provide the support or maintenance because of any cause beyond Cashflows’ reasonable control including without limitation:
14.1.1 Acts of God, flood, earthquake, windstorm or other natural disaster, or fire or explosion;
14.1.2 war, riot, civil commotion or terrorist act;
14.1.3 epidemic or pandemic or nuclear, chemical or biological contamination;
14.1.4 a strike or labour dispute (other than one affecting its own employees); or
14.1.5 a failure or delay caused by arising from a cause affecting any third party equipment or systems which are outside of Cashflows’ system boundaries as described in Schedule 1; or
14.1.6 any Network Attack,
provided that Cashflows notifies the Merchant as soon as reasonably possible of the occurrence of such event, and resumes performance hereunder as soon as reasonably possible following cessation of such event.
14.2 If Cashflows is prevented from performing or delayed in performing its obligations due to a force majeure event for a continuous period in excess of fifteen (15) days after the date of the occurrence of the force majeure event, Cashflows and the Merchant shall meet and seek to agree in good faith actions to be taken by the Parties in order to minimise or avoid the effect of the force majeure event.
14.3 If Cashflows is prevented from performing or delayed in performing its obligations due to a force majeure event for a continuous period in excess of one hundred and twenty (120) days after the date of the occurrence of the force majeure event, the Merchant may terminate these Gateway Services Terms and Conditions in relation to any affected Services by notice to Cashflows, in which case Clause 15.4 shall apply.

15. Termination
15.1 Either Party shall be entitled forthwith to terminate these Gateway Services Terms and Conditions in relation to any particular Service (“Relevant Service”) by notice to the other Party if the other Party commits:
15.1.1 any material or persistent breach of any of the provisions of these Gateway Services Terms and Conditions in relation to the Relevant Services which is capable of remedy and fails to remedy the same within thirty (30) days after receipt of a written notice giving full particulars of the breach and requiring the same to be remedied; or
15.1.2 a non-remediable breach of these Gateway Services Terms and Conditions in relation to the Relevant Service.
15.2 Either Party shall forthwith be entitled to terminate these Gateway Services Terms and Conditions (which for the avoidance of doubt shall mean the termination of all the Services) by notice to the other if:
15.2.1 in the case of termination by Cashflows, any Network Attack is traced to the Merchant or the Merchant’s officers, employees, agents or sub-contractors; or
15.2.2 an encumbrancer takes possession or a receiver, administrative receiver or manager or trustee in bankruptcy is appointed over any of the property or assets of that other Party or the other Party makes a voluntary petition of bankruptcy; or
15.2.3 the other Party makes a voluntary arrangement with its creditors or becomes subject to an administration order; or
15.2.4 the other Party goes into liquidation (except for the purposes of solvent amalgamation or a solvent reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under these Gateway Services Terms and Conditions); or
15.2.5 anything analogous to any of the foregoing under the law of any jurisdiction, occurs in relation to the other Party; or
15.2.6 the other Party ceases or threatens to cease to carry on its business.
15.3 For the purposes of clause 15.1, save with respect to payment obligations, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to a reasonable period for performance.
15.4 Upon the termination or expiration:
15.4.1 of a Relevant Service pursuant to clause 15.1 (or as otherwise stated in these Gateway Services Terms and Conditions) the Merchant shall cease being provided the Relevant Service and have no right to use the same. For the avoidance of doubt the Agreement shall continue in full force and effect in respect of any and all the other Services (other than the Relevant Service); or
15.4.2 of these Gateway Services Terms and Conditions pursuant to clause 15.2: (i) the Merchant shall cease being provided the Services and have no right to use the same; and (ii) the terms of these Gateway Services Terms and Conditions shall continue to bind the Parties after the expiration or termination to such extent and for so long as may be necessary to give effect to the rights and obligations embodied in it including without limitation clauses 5.2, 7, 9,15 and 17.
15.5 In the event that these Gateway Services Terms and Conditions are terminated for any reason, without prejudice to any other terms of these Gateway Services Terms and Conditions, where Cashflows holds any funds in the Merchant Account at such date of termination or thereafter, such funds shall be paid by Cashflows into the Merchant’s nominated bank account. If Cashflows is unable to make such payment for any reason, Cashflows will use reasonable endeavours to seek confirmation from the Merchant of where such funds should be sent and the Merchant undertakes to provide such confirmation promptly to Cashflows. If after a period of 24 months from the date of termination, Cashflows has not received or the Merchant has failed to provide, such confirmation, Cashflows may pay the funds held in the Merchant Account (including any interest) to a charity of its choice having first deducted any fees and expenses incurred by Cashflows in seeking confirmation from the Merchant referred to above. The Merchant acknowledges and agrees that making such payment to charity absolves Cashflows of any liability to pay such amounts to the Merchant.

16. Confidentiality
16.1 Subject to clause 16.2, each Party undertakes to the other Party to treat as confidential and not to use or exploit any information supplied or made available by the other Party under these Gateway Services Terms and Conditions which is designated as confidential by it or which is by its nature clearly confidential (“Confidential Information”) provided that this clause shall not extend to any information which was rightfully in the possession of the other Party prior to the commencement of the Services or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
16.2 Either Party may use Confidential Information provided by the other Party to the extent necessary in order to perform its obligations and exercise its rights under these Gateway Services Terms and Conditions. Either Party may disclose Confidential Information provided by the other Party to its own employees, sub-contractors or agents who need to know the same in relation to the performance of that Party’s obligations and exercise of its rights under these Gateway Services Terms and Conditions provided that that Party shall ensure that those employees, sub-contractors or agents comply with the obligations of confidentiality set out in this clause 16. Either Party may disclose Confidential Information received from the other Party to the extent that it is required to do so by order of a court of competent jurisdiction.
16.3 Neither Party shall divulge any confidential information to any person except as provided in clause 16.2.

17. General
17.1 Neither the Merchant nor Cashflows shall assign, transfer, sub-license, sub-contract, delegate or in any other manner make over to any third party any of its rights or entitlements hereunder without the other Party’s prior written consent in writing, such consent not to be unreasonably withheld or delayed, provided that Cashflows shall be entitled to assign or subcontract any or all of its rights and obligations under these Gateway Services Terms and Conditions to any of its Affiliates.
17.2 These Gateway Services Terms and Conditions represents the entire agreement between the Parties in relation to the subject matters hereof and shall supersede any previous agreement or understanding between all or any of the Parties in relation to all or any such matters. No amendment or change to the terms of these Gateway Services Terms and Conditions will be effective unless it is in writing and signed by persons authorised on behalf of both Parties.
17.3 The Merchant acknowledges that in entering into these Gateway Services Terms and Conditions on the terms set out herein it is not relying upon any representation, warranty, promise or assurance made or given by or on behalf of Cashflows or any other person, whether or not in writing, at any time prior to the signature of these Terms and Conditions or subsequently prior to any Additional Services Amendment which is not expressly set out herein.
17.4 No provision of these Gateway Services Terms and Conditions shall operate to:-
17.4.1 exclude any provision implied into these Gateway Services Terms and Conditions by English law and which may not be excluded by English law; or
17.4.2 limit or exclude any liability, right or remedy to a greater extent than is permissible under English law including in relation to (i) death or personal injury caused by the negligence of a party to these Gateway Services Terms and Conditions or (ii) fraudulent misrepresentation or deceit.
17.5 These Gateway Services Terms and Conditions shall operate for the benefit of and be binding on the respective successors in title and permitted assignees or transferees of each Party.
17.6 None of the rights of either Party shall be prejudiced or restricted by any indulgence or forbearance extended to the other Party and no waiver by either Party in respect of any breach shall operate as a waiver in respect of any subsequent breach.
17.7 In addition to any right to which we may be entitled by law, you hereby authorise us from time to time without notice and both before and after demand to set-off (keep any amounts we owe to you) 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 behalf or we may hold in our capacity as an Issuer of an account held by you with us. 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.
17.8 If any of the provisions of these Gateway Services Terms and Conditions is found by any court, arbitrator or other competent authority to be void or unenforceable, the provision shall be deemed to be deleted from these Gateway Services Terms and Conditions and the remaining provisions shall continue in full force and effect. The Parties shall nevertheless negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision which is void or unenforceable.
17.9 Any notice which has to be given under these Gateway Services Terms and Conditions, must be posted by first class mail or sent by email or facsimile to the address of the other Party listed in these Gateway Services Terms and Conditions, or any other address or number given after the Agreement has been signed. Any notice sent in this way will be treated as being given 48 hours after the time it was posted or four hours after it was faxed or emailed. Either Party will only have to show proof of postage or sending to prove notice was given. Any notice to Cashflows to terminate the Agreement must be copied to the Legal Department.
17.10 Nothing in these Gateway Services Terms and Conditions will be deemed to constitute a partnership between the Parties nor constitute either Party the agent of the other Party for any purpose.
17.11 A person who is not a party to these Gateway Services Terms and Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provisions of these Gateway Services Terms and Conditions.
17.12 These Gateway Services Terms and Conditions and any dispute or claim arising out of its subject matter, formation, validity or performance (including without limitation non-contractual obligations arising out of or in relation to it) shall be governed by and interpreted in accordance with English law and the Parties hereby submit to the exclusive jurisdiction of the English courts in respect of any dispute or claim that arises out of or in connection with these Gateway Services Terms and Conditions or its subject matter, formation, validity or performance (including without limitation non-contractual disputes or claims).

SCHEDULE 1 - SERVICES
PAYMENT GATEWAY SERVICE

As part of our Service Cashflows will provide the Merchant with services such as the following:
(a) Enabling of Transactions to be routed to Cashflows as the “Acquirer” of the Transactions according to our routing and cascading methodology;
(b) Technical reception of the information regarding the status of Transactions provided by the Acquirer;
(c) Information reporting including information related to Transactions, Merchant Service Fees, Chargebacks, Refunds, disputes;
(d) Dashboard allowing merchants to view their transactions and balances in real-time. The Dashboard can be configured to search in time periods (i.e. Days, Weeks, Months and even Years) and can be compared against each other to determine performance compared to a previous time period.
(e) Transaction page is a one-stop-view for all transactions. The Transactions page allows for a customisable view to suit Merchant information needs. This is a real-time transactions page that updates to display all incoming transactions alongside their statuses and the status changes a payment goes through during its lifecycle.
(f) Reporting - The API supports reporting views in portal, and the Merchant can choose to download reports in both CSV, XLS and PDF formats. Merchant can configure the reports to display all sales and settlements of all its Cashflows Accounts. Merchant can also configure the report by date and transaction amount which can help with bookkeeping.
(g) The API’s Business Details page displays all information Merchant provided as part of the boarding process. This page also displays any Merchant Accounts associated with that Business Account. It’s here that a Business level user can see all their Merchant Accounts.
(h) Configuration allows Merchant to view and amend some of the settings. Merchant can also decide if they opt-in to any of our additional products and services.
(i) The API also provides an option to save cardholder details for returning customers. This is great for if Merchant processes recurring transaction or has loyal customers with repeat purchases.
(j) The API offers a fully configurable Virtual Terminal - Merchant can decide to keep its Virtual Terminal Orders as simple as possible and just include the customer’s name alongside their card details. Merchant can also choose to use and add further information from the Virtual Terminal Settings tab.
(j) The API supports 3D Secure as part of Strong Customer Authentication within the European Economic Area.
(k) Payee Management allows Merchant to alter where money gets paid.
(l) The API’s User Management Pages allow for fully self-serve User Management.
(m) Technical integration support.

Appendix 1
Data Processing Register

Data Subjects
The Personal Data to be processed by Cashflows pursuant to these Gateway Services Terms and Conditions concerns Merchants who are individuals, individual cardholders and payees.
Nature and purposes of the Processing
a) The Transaction Personal Data to be Processed under these Gateway Services Terms and Conditions shall be processed for the purpose of delivering Gateway Services to you.
b) The other Personal Data to be Processed under these Gateway Services Terms and Conditions shall be processed for the purposes set out in Clause 8.3 of these Gateway Terms and Conditions.

Categories of Personal Data
The Personal Data to be Processed under these Gateway Services Terms and Conditions concern payment and account information and identity verification information.

Recipients
Personal Data to be processed under these Gateway Terms and Conditions may be transferred to the recipients and categories of recipients set out in clause 8 of these Gateway Terms and Conditions.

Special Categories data
We may process special categories of Personal Data under this Contract relating to criminal convictions, where necessary for the purposes set out in clause 8.3 of these Gateway Services Terms and Conditions.

Business Account

Updated 11 March 2013

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,

    3. 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.

 

 

Prepaid Card and Account Services

Updated 26 May 2022 (Clause 11.1 Administration Fee effective from 26 July 2022)

Terms and Conditions

Important note: these are the standard terms and conditions pursuant to which we will provide the prepaid card and account services to you and on which we intend to rely. by requesting or accepting the services, you acknowledge and agree that you have read, understand, agree and shall comply with the terms of: (i) these terms and conditions; (ii) the application; (iii) the pricing plan; and (iv) the privacy policy (together “the contract”) and you have been given an opportunity to raise any questions you may have on them.

These terms and conditions are entered into between Cashflows Europe Limited (formerly Voice Commerce 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 partner ("you", "partner") 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).

 

BACKGROUND:

  • CASHFLOWS is authorised as an e-money issuer and in the provision of payment services by the Financial Services Authority in accordance with the provisions of the E-Money Regulations 2011 (http://www.legislation.gov.uk/uksi/2011/99/contents/made ) (FCA Reference 900006) and is an Acquirer (as defined below) of credit and debit card transactions for merchants and a Card Issuer (as defined below) of prepaid cards.
  • CASHFLOWS is licensed as an Acquirer and Card Issuer by Visa and MasterCard to operate in certain regions and is a principal member of each of those Card Schemes.
  • Partner wishes to be able to provide prepaid Cards and Prepaid Accounts to its customers and wishes CASHFLOWS to provide the services indicated in this Agreement in order to facilitate that.

 

AGREEMENT:

 

  1. Agreement and definitions

          1.1  The background section and schedules form part of this Agreement and shall have the same force and effect as if set out in the body of this Agreement. Any reference to this Agreement includes the background section and schedules.

          1.2 In this Agreement, the following words and expressions have the following meanings (unless the context requires otherwise):

“Acquirer” means an entity licensed by a Card Scheme and/or having 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 Card Scheme Rules and to receive payment from such in respect thereof (and “Acquiring” shall be construed accordingly);

Applicable Laws” means, in respect of a Party, all applicable laws and regulations and, if applicable, the prevailing rules and regulations of any Regulatory Authority in any jurisdiction to which that party is subject in respect of the performance of its obligations under this Agreement in each case for the time being in force;

“Assessments” means any fines, charges or imposition of liabilities demanded or recovered from CASHFLOWS at any time by any Card Schemes relating to any Transaction or Transactions;

“BIN” means “Bank Identification Number” as used by the Card Schemes to identify the member submitting the Transaction;

“Business Continuity Plan” means the business continuity plan and disaster recovery plan of each Party as updated from time to time;

“Business Day” means any day (other than a Saturday or Sunday) on which banks are open for business in London;

Card” means any stored value or prepaid card issued by CASHFLOWS (either as a member of MasterCard or Visa and which complies with the applicable Rules of MasterCard or Visa as the case may be or as a Closed System Card) and includes “virtual” cards where stored value is associated with a customer and an account but no physical Card is issued in relation to that account;

“Card Account” means the Cardholder’s account associated with a Card (or virtual card) showing the balance of E-Money held;

Cardholder” means where relevant the person in whose name a Card is issued and whose name is embossed or imprinted on the face of a Card or any authorised user of a Card;

“Cardholder Data” means any data in CASHFLOWS’s possession or control (whether personal data or otherwise) which relates to Cardholders or Prepaid Account Holders;

Card Issuer” means a financial institution that issues Cards to Cardholders;

Card Scheme” means MasterCard, Visa or any other Card payment scheme as agreed in writing by the Parties from time to time;

“Card Scheme Fees” means the fees of the Card Schemes which relate to the services to be provided by CASHFLOWS in accordance with the terms of this Agreement and which in relation to the Iceland Prepaid Card Programme are as set out in the PID for that Programme;

Card Scheme Rules” means all current and future by-laws, rules and regulations promulgated by Card Schemes which are applicable, to the extent applicable, to Issuing and Acquiring;

“Change Control and Management Process” means the processes defined in Schedule 1;

Chargeback” means where a Card Issuer or Card Scheme refuses to Settle a Transaction to CASHFLOWS or requires repayment from CASHFLOWS in respect of a Transaction previously Settled to CASHFLOWS, notwithstanding that Authorisation may have been obtained from the Card Issuer or Card Scheme;

“Client Account” means an account associated with one or more Programmes, maintained by CASHFLOWS in accordance with clause 4 with such bank or banks as CASHFLOWS may deem appropriate and from which CASHFLOWS settles all Transactions initiated by use of a Card or Card Account;

“Closed System” means a Card or Prepaid Account which does not carry a Card Scheme brand, such as a store card or restricted use ewallet;

“Commencement Date” means the date on which this agreement is signed;

“Confidential Information” means all information disclosed by one Party to another which is marked as or has been otherwise indicated to be confidential or which would be regarded as confidential by a reasonable business person (including, without limitation, Cardholder Data, models, software and computer outputs);

“Control” means the acquisition of either:

the voting rights attaching to more than 50% of the voting shares in the relevant entity; or

the power to direct or cause the direction and management of the policies of the relevant entity in accordance with the acquirer's wishes, whether as a result of the ownership of shares, control of the board of directors, contract or any powers conferred by the articles of association or other constitutional documents of the relevant entity.

“Distributor” has the meaning ascribed to it in the Electronic Money Regulations 2011;

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

“E-Money” means electronic money as defined in the Electronic Money Regulations 2011;

“Exit Management Plan” means the agreed plan set out in Schedule2;

“Fees” means the fees payable by the Parties in relation to each Programme as set out in section 11 and the relevant Programme PID;

“Force Majeure” means any event beyond the reasonable control of either Party and shall include (but not by way of limitation) national strikes, riots, sabotage, terrorism, acts of war, hostilities or piracy, fire, explosion, storm, flood or earthquake, and delay caused by failure of communications or power supplies or transport or shortages of materials or labour or supplies of any kind;

“FSA” means the UK Financial Services Authority (and its successor regulatory authorities), 25 The North Colonnade, Canary Wharf, London E14 5HS;

“FSA Rules” means the applicable rules contained in the FSA’s Handbook of Rules and Guidance and any other applicable guidance as issued from time to time by the FSA;

“Group” means in relation to the relevant Party, that Party, any Subsidiary of that Party, any Holding Company of that Party and any Subsidiary of any Holding Companies of that Party from time to time, and any reference to a “member of the group” shall be construed accordingly. For these purposes, “Subsidiary” and “Holding Company” shall have the meanings ascribed thereto in s 1159 of the Companies Act 2006;

“ICA” means the number assigned by MasterCard to a financial institution, third party processor or other member to identify its members;

“Insolvency Event” means a person or entity:

(a) stops or suspends payment of any of its debts, or is unable to (or admits inability to) pay its debts as they fall due; or

(b) begins negotiations (because of actual or anticipated financial difficulties) with, or enters into any composition or arrangement with one or more of its creditors with a view to rescheduling any of its indebtedness; or

            (c) suffers any of the following events:

(i) a moratorium of any indebtedness, winding-up, dissolution, suspension of payments, administration, reorganisation (as a voluntary arrangement, scheme of arrangement or otherwise), petition for bankruptcy, composition, compromise, assignment or arrangement with any creditor; or

(ii) any liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer is appointed in respect of that person or any of its assets; or

(iii) any event occurs in relation to that person that is analogous to the events listed in this definition.

If an entity carries out a solvent, voluntary winding up that is solely for the purpose of reconstruction or amalgamation, that entity does not suffer an Insolvency Event;

“Intellectual Property” means patents, petty patents, utility models trademarks, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, moral rights, database rights, know-how, secret processes, inventions, trade or business names, domain names, website addresses and any similar rights in any country whether currently existing or created in the future, together with the right to sue for and recover damages or other relief in respect of infringements of any of them;

“Interchange” means (i) the fee payable to the Card Issuer by the Acquirer for Transactions, or (ii) the fee payable by the Card Issuer to the Acquirer of Transactions through ATMs, as members of the Card Schemes, in return for the provision or supply of goods or services which a Cardholder obtains using the Card and the payment services of the Acquirer;

“Issuer” means the entity authorised by the FSA in relation to the provision of E-Money and against which the Cardholder has a claim in respect of the monetary value provided, holding a contractual relationship with the Cardholder in relation to the Card and Card Account or the Prepaid Account Holder in relation to the Prepaid Account and bearing responsibility to the FSA in relation to Card value and management of any Programme (and “Issuing” shall be construed accordingly);

KYC Procedures” means the current policies and procedures of CASHFLOWS relating to its compliance with the relevant anti-money laundering requirements of Regulatory Authorities and other processes to be followed by third parties assisting potential Cardholders when applying for Cards amendments to which shall be notified by CASHFLOWS to Partner from time to time;

“Materials” means any terms and conditions relating to a Card, any promotional materials connected with a Programme including a Programme website, the Cards, the Prepaid Account, inception, marketing and fulfilment materials enclosed with Cards, and all correspondence and other communications to be sent to, made available to, or communicated to, Cardholders, Prepaid Account Holders or the public in connection with the Issuing and distribution of a Card and servicing of a Card Account;

Marks” mean the name, trademarks, trade names, service marks or logos of Visa, MasterCard and any other Card Scheme and those of CASHFLOWS;

“Operative Date” means the date on which the parties have entered into an agreement including the date of signing of any agreement or document or acceptance of the Services;

“PCI DSS” means the Payment Card Industry Data Security Standards;

“Prepaid Account” means a stored value account requiring E-Money to be issued to it which is not associated with a Card;

“Prepaid Account Holder” means the holder of a Prepaid Account who has contracted with CASHFLOWS for the issuing of E-Money;

“Processing Services” means services necessary to process a Transaction, process Card or Prepaid Account order requests, maintain and store Transaction and Card Account and Prepaid Account data and to provide Settlement and reconciliation information in relation to Card Account or Prepaid Account balances and Transactions and associated Interchange and Transaction Fees (and “Processor” means a person providing Processing Services);

“Programme” means any scheme or programme involving the issue of Cards or Prepaid Accounts in accordance with the terms of this Agreement;

“Programme Sponsor” means any third party whose name is intended to appear on any Card or in association with any Card Account with the intention that its name and/or brand is associated with the particular Programme, and/or who may be paying for certain aspects of the Programme and/or promoting the Programme, whose customers may be (or be intended to be) Cardholders or who is responsible for the delivery of any material element of any Programme;

“Project Initiation Document” or “PID” means the detailed specification for each Programme to be agreed by the parties and set out in the format then used by CASHFLOWS for the purpose and to be signed by each Party prior to the commencement of that Programme;

“Project Scope Document” or “PSD” means the basic details identifying a new Programme in the form used by CASHFLOWS (the current version of which has been provided to Partner) to be signed by each Party prior to the commencement of that Programme;

Refund” means a Transaction where a payment to the merchant is reversed with the intention of crediting the Card Account or Prepaid Account;

Regulatory Authorities” means the FSA, Card Schemes and any governmental or other body having jurisdiction over a Party to this Agreement or any Merchant Agreement;

“Security Payment” means a sum required either (a) by CASHFLOWS from Partner and/or Programme Sponsor as security against Partner’s obligations under this agreement and/or (b) the relevant Card Scheme or Card Schemes from CASHFLOWS as security against CASHFLOWS’s obligations under the Card Scheme Rules including its Settlement Liability for each Programme;

“Services” means Issuing; making transfers of money for the purposes of enabling Transactions; managing the processing of funds in accordance with data received from the Processor; Acquiring (where relevant) and such other services as may be identified and agreed in any Project Initiation Document or Project Scope Document;

“Settlement Liability” means the amount CASHFLOWS is required to pay to the Card Schemes for Transactions carried out by Cardholders or Prepaid Account Holders;

“Settled Transaction” means a Transaction where the related Settlement Liability has been paid by CASHFLOWS to the relevant Card Scheme;

Transaction” means, in relation to a Card or Prepaid Account, any payment or Refund made by the use of the Card, the Card number, the Prepaid Account or otherwise to debit or credit the Card Account or Prepaid Account;

“Transaction Based Fees” mean those pence per Transaction fees payable by Partner to CASHFLOWS which (when applicable) are set out in the relevant PID; and

“Transaction Based Card Scheme Fees” means that element of the Transaction Based Fee which relates to fees charged by the Card Schemes relating to a Transaction.

         1.3  In this Agreement (unless the context requires otherwise)

              1.3.1  the singular shall include the plural and vice versa;

1.3.2 any reference to a statute, statutory provision or subordinate legislation (“legislation”) shall (except where the context requires otherwise) be construed as referring to:

1.3.2.1 such legislation as amended and in force from time to time and to any legislation which (either with or without modification) re-enacts, consolidates or enacts in rewritten form any such legislation; and

                             1.3.2.2 any former legislation which it re-enacts, consolidates or enacts in rewritten form

1.3.3 any reference to “in writing” or “written” shall include written or produced by any legible and non-transitory substitute for writing (including in electronic form) or partly in one manner and partly in another;

1.3.4 any reference to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established;

1.3.5 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

1.3.6 any reference to the introduction, a clause or schedule is to the introduction, a clause or schedule (as the case may be) of or to this Agreement; and

1.3.7 any reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include what most nearly approximates in that jurisdiction to the English legal term.

1.4  The table of contents and Clause headings in this Agreement are included for convenience only and do not affect the interpretation of this Agreement.

 

 

  1. Term

2.1  This Agreement shall be deemed to have commenced on the Commencement Date and will unless terminated earlier in accordance with clause 17 below continue for a period of three years (“the Initial Term”).

2.2 After the Initial Term has expired either Party shall be entitled to terminate this Agreement without cause by giving six (6) months’ notice in writing to the other.

2.4 The parties shall be entitled to terminate this Agreement at any time for cause as specified in clause 17.

 

  1. The Services

3.1 In consideration of the Fees CASHFLOWS shall act as Issuer in relation to each Programme and provide the Services.

              3.2 CASHFLOWS will make available BINs and/or sub-BINs for sole use by Partner in each approved Programme.

             3.3 CASHFLOWS shall provide the Services with reasonable skill and care in accordance with best industry practice.

3.4 CASHFLOWS acknowledges that it is not being appointed as an exclusive supplier of any of the Services and Partner may at any time procure similar or identical services from a third party

 

  1. Client Account

4.1  All payments made for the [purchase of Cards and] loading of value on to Card Accounts will be paid to CASHFLOWS for crediting into the relevant Client Account associated with the Programme (after deduction by CASHFLOWS of relevant Fees).

              4.2 The sums held in the Client Account from time to time shall be applied by CASHFLOWS first:

                     4.2.1 in Settlement to the Card Schemes for Transactions;

                     4.2.2 in payment of liabilities and fees due to the Card Scheme arising from Transactions;

                     4.2.3 any Fees due to CASHFLOWS as they become due.

4.3 CASHFLOWS shall ensure that the sums held in the relevant Programme Client Account shall only be used in accordance with clause 4.2.

 

  1. Security

5.1 The Parties will seek to agree in writing an initial Security Payment in relation to each Programme prior to its commencement. Any Security Payment requested by CASHFLOWS shall reflect any reasonable requirement of CASHFLOWS or the requirement of any Card Scheme or Regulatory Authority.

5.2 The initial Security Payment relating to each Programme shall be as set out in PID relating to that Programme.

5.3 CASHFLOWS will notify Partner from time to time where any additional Security Payment is required in relation to any Programme.

5.4 If any requirement for an additional Security Payment is not satisfied within 3 Business Days of written notice being provided by CASHFLOWS to Partner CASHFLOWS may as Issuer require Partner and the Processor to suspend the distribution of Cards and/or the crediting of value to Card Accounts in relation to that Programme until such time as Partner has made the additional Security Payment.

5.5 Where Security Payments are required by a Card Scheme they will be held by the relevant Card Scheme in the name of CASHFLOWS and in accordance with the terms of the relevant Card Scheme Rules. Where Security Payments are held by CASHFLOWS they shall be held in segregated and designated client accounts.

5.6         

5.6.1 Where any Security Payment is held by CASHFLOWS it shall be returned by CASHFLOWS within 10 Business Days of the termination or expiry of the relevant Programme with any accrued interest provided all potential liabilities of CASHFLOWS have been met.

5.6.2 Where any Security Payment is a requirement of any Card Scheme it shall be repaid by CASHFLOWS within 3 Business Days of CASHFLOWS’s receiving it from the Card Scheme provided all potential liabilities of CASHFLOWS have been met.

 

  1. Programmes

6.1 No Programme shall be commenced without the prior written consent of CASHFLOWS and Partner indicated by them signing the relevant PSD and PID. Where in CASHFLOWS’s reasonable discretion it deems it necessary CASHFLOWS shall as part of the PID process for the relevant Programme enter into an appropriate contract direct with any Programme Sponsor in order to be able to directly enforce its rights under this Agreement and meet its obligations to the FSA, the Card Schemes or any other regulator.

Project Scope Document

6.2 Prior to the commencement of a new Programme the parties shall enter into a Project Scope Document.

              6.3 In developing each Programme the parties shall ensure that:

     6.3.1 when the Programme involves Card Scheme branded Cards:

(a) the Programme shall be and remain fully compliant with any rules or requirements of the relevant Card Scheme;

(b) Partner shall only use Cards produced by approved Card Scheme manufacturers;

                  6.3.2 there shall be incorporate minimum service level standards for Cardholders;

                  6.3.3 the Programme shall be fully compliant with all Applicable Laws; and

   6.3.4 Partner shall only use Card Materials approved by CASHFLOWS and shall implement any changes reasonably required by CASHFLOWS to any Cardholder Materials to ensure compliance with any applicable requirements of Regulatory Authorities (any such changes will be made within the timescales reasonably specified by CASHFLOWS in order to ensure on-going compliance with applicable Regulatory Authorities and where applicable relevant Card Scheme Rules).

 

Project Initiation Document

6.4 Partner shall provide full details of each proposed Programme to CASHFLOWS in good time for the proposed launch such details to include (inter alia):

                   6.4.1 the agreed rules relating to the Programme;

                   6.4.2 the proposed design of the Card;

                  6.4.3 the purposes and objects of the Programme and proposed marketing plans;

                 6.4.4 the projected volumes and turnover of the Programme;

                 6.4.5 plans for the provision of customer support; and

                 6.4.6 such other information as CASHFLOWS may from time to time reasonably require.

6.5 The above information shall be collated into the relevant Project Initiation Document which shall include an estimated launch date for the Programme.

 

Customer support

6.6 First line customer support will be provided by Partner with Cardholders and Prepaid Account Holders having the right to require access to CASHFLOWS as Issuer in accordance with any relevant requirements of Regulatory Authorities.

 

Sale and loading of value on Cards

6.7 Where agreed on a Programme by Programme basis CASHFLOWS shall act as Acquirer for Transactions relating to the purchase of Cards and the purchase of Prepaid Accounts and the payment by relevant instrument for any loading of stored value such Acquiring to be in accordance with the then current terms and conditions of CASHFLOWS. Partner hereby confirms that its use of the Acquiring Services and its entering in to this Agreement are and shall be confirmation of its acceptance of CASHFLOWS’s then current terms and conditions for its Acquiring Services which are accessible from CASHFLOWSs website.

6.8 CASHFLOWS shall only authorise the load of value onto Cards, Card Accounts or Prepaid Accounts when it is holding sufficient cleared funds in the relevant Client Account for that purpose.

6.9 Funds representing the value to be loaded onto Cards, Card Accounts or Prepaid Accounts that are paid through third party service providers such as PayPoint.net Limited or the Post Office (or any other similar service provider) are typically subject to a delay of four Business Days before they are credited to the Issuer’s account. The parties shall agree in relation to each Programme where such services apply one of the following options to deal with this delay:

6.9.1 that CASHFLOWS shall not authorise the crediting of value onto a Card, Card Account or Prepaid Account for the relevant Programme until it has received the relevant cleared funds from the relevant third party service provider; or

6.9.2 that a suitable Security Payment shall be made by Partner to CASHFLOWS prior to the commencement of the relevant Programme security for any loss CASHFLOWS might make as a result of it authorising the crediting value to any Card, Card Account or Prepaid Account prior to it receiving cleared funds.  

 

  1. CASHFLOWS’s Obligations Regarding Programmes

7.1 CASHFLOWS shall work with Partner to develop Programmes that meet CASHFLOWS and Partner’s strategic objectives and Partner’s customers’ goals. Any Programmes proposed by Partner shall be reviewed and assessed by CASHFLOWS, and shall be approved or declined in CASHFLOWS’s sole discretion.

7.2 CASHFLOWS shall procure and permit the use of BINs and/or sub-BINs and will maintain a programme whereby it Issues Cards, Card Accounts and Prepaid Accounts marketed and promoted by Partner pursuant to this Agreement.

7.3 CASHFLOWS will work with Partner (any relevant Programme Sponsor) and Card Scheme approved manufacturers to approve all Card designs in a timely and efficient manner.

7.4 CASHFLOWS shall be responsible for completing due diligence on all potential Cardholders according to the requirements of its then current KYC Procedures and Applicable Laws. Where Partner and/or any Programme Sponsor are required to assist CASHFLOWS in this process this relationship will be detailed in the appropriate PID.

7.5 CASHFLOWS will comply with all rules, Applicable Laws and the requirements of Regulatory Authorities and ensure that it has all necessary authorisations or licences that relate to CASHFLOWS’s performance of its duties and obligations pursuant to this Agreement.

              7.6 CASHFLOWS will adopt and comply with the Change Control and Management Process.

7.7 CASHFLOWS will comply with the terms of the Project Initiation Document and Project Scope Document for the relevant Programme.

              7.8 CASHFLOWS will invoice Partner monthly for the relevant costs, expenses and Fees referred to in clause 11.

7.9 CASHFLOWS will notify Partner of the Card Scheme Rules that it must comply with and any changes in those Card Scheme Rules including any changes to Card Scheme Fees. Where possible, CASHFLOWS will provide at least thirty (30) days written notice of such changes prior to their implementation but if lesser notice is given to CASHFLOWS it will provide notification to Partner on its receipt of notice from the Card Schemes.

7.10 CASHFLOWS will perform its obligations under this Agreement with reasonable skill and care in accordance with best industry practice.

 

  1. Partner’s Obligations Regarding Programmes

            8.1  Partner shall be responsible for:

                 8.1.1 all costs related to the Issue, manufacture and printing of Cards;

  8.1.2 all costs related to the provision of Processing Services (if those services are not provided by and charged for by CASHFLOWS);

  8.1.3 Card Scheme Fees;

               8.1.4 the Fees payable by it as set out in relevant PID;

 8.1.5 any Assessments relating to the Issuing and Processing of Transactions which are the result of any wrongful or negligent act or omission of Partner.

         8.2 In relation to each Programme Partner shall:

8.2.1 (when relevant) maintain or procure the maintenance and keeping of records of interviews or other interaction with Cardholders or Prepaid Account Holders or information collected by it or any representative from Cardholders or Prepaid Account Holders for at least seven years following the final Card use for each Programme;

8.2.2 immediately notify CASHFLOWS if it reasonably believes that a Programme has been or is likely to be operated in a way which contravenes any duty that it or any representative owes to any Cardholder or Prepaid Account Holder or which breaches any term of this Agreement;

8.2.3 take reasonable steps to ensure that its agents and representatives cannot procure, connive or be party to any Cardholder fraud, point of sale fraud, or other Card or Prepaid Account fraud in relation to any Programme;

8.2.4 comply with all relevant requirements of Regulatory Authorities in relation to the performance of its obligations and duties under this Agreement;

8.2.5 comply with the terms of the Project Initiation Document and Project Scope Document for the relevant Programme; and

8.2.6 not launch or advertise a Programme until a Project Initiation Document and Project Scope Document have been agreed and signed by both Parties.

8.3 Where agreed Partner (and/or any Programme Sponsor) shall act as Distributor in relation to specific Programmes and as such shall comply with all relevant requirements of Regulatory Authorities in relation to the performance of their obligations and duties under this Agreement and the relevant PID and PSD and shall assist CASHFLOWS as reasonably required in fulfilling their role as Distributors. 

              8.4 Partner will adopt and comply with the Change Control and Management Process.

 

  1. Processors

9.1 For each Programme either Partner shall identify and contract directly with a Processor or Processors for the provision to it of the Processing Services or the Processor will be retained by CASHFLOWS and have entered into a Processing Services agreement with CASHFLOWS such arrangement to be agreed by the Parties in writing prior to the commencement of the Programme.

9.2 Where Partner contracts directly with a Processor for the provision of relevant Processing Services then:

     9.2.1 Any Processor shall be approved by the Card Schemes for the provision of Processing Services (unless the Programme relates to a Closed System) and shall be subject to the approval of CASHFLOWS (such approval not to be unreasonably withheld or delayed).

     9.2.2 Partner shall assist CASHFLOWS and procure so far as it is able that its Processor shall assist CASHFLOWS in working with the Processor to agree reports and reconciliation processes necessary to enable the delivery of the Services.

     9.2.3 Partner shall not request the Processor to change any parameters regarding any agreed Programme (such as the maximum value that can be loaded onto a Card or Card Account during a given period or the number of times a load can be made to a Card or Card Account) that are agreed in the PID with CASHFLOWS without the prior written consent of CASHFLOWS. Further Partner shall use its best endeavours to ensure that the Processor does not make any such changes without it having received the prior written instructions of CASHFLOWS and shall indemnify and hold CASHFLOWS indemnified against any loss it may incur as a result of a breach of the requirements of the section.

     9.2.4 Partner confirms that CASHFLOWS is entitled to rely on all information passed to it by its Processor as agent for Partner and Partner shall indemnify and hold CASHFLOWS indemnified against any loss it may incur as a result of such data proving inaccurate.

      9.2.5 Should CASHFLOWS not have an existing relationship with the Processor and in its reasonable opinion require a direct contractual relationship so as to protect its position as Issuer, Partner shall assist CASHFLOWS in its approach to the Processor with a view to it formalising arrangements by way of a written agreement.

9.3 Where CASHFLOWS contracts directly with a Processor for the provision of relevant Processing Services then:

     9.3.1 CASHFLOWS will ensure that Transactions are processed using Processing Services operated by a reputable Processor which is (where relevant) approved by the relevant Card Schemes, and shall ensure that the Processor carries out the Processing Services in accordance with the Service Levels.

     9.3.2 PARTNER shall participate at its own cost in discussions and other interaction as required by CASHFLOWS with the Processor and Card manufacturer in order to facilitate the objects of this Agreement.

     9.3.3 As soon as reasonably practicable following agreement in the Processor, the Parties will use their reasonable endeavours to formulate a plan to establish the necessary links between PARTNER’s website and the Processor’s and CASHFLOWS’s systems so as to enable Cardholders to apply for Cards and for Transactions to be Processed.

 

  1. Suspension of Services and Step in Rights

10.1 CASHFLOWS may (subject at all times to such action being permitted under the applicable Cardholder terms and conditions) suspend the Services or terminate any Programme on notice to Partner where:

     10.1.1 a Card Scheme or any Regulatory Authority so requires; or  

     10.1.2 Partner is in material breach of the terms of this Agreement and having been notified of such breach has failed to remedy it within a reasonable period; or

     10.1.3 CASHFLOWS has the reasonable belief that any Programme may expose it to liabilities in excess of any Security Payment and such a shortfall is not rectified within 1 working day. This right is additional to CASHFLOWS’s right under the terms of clause 5.4 to require additional Security Payments from time to time to replenish the funds it has dispersed to meet on going Settlement Liability ;

     10.1.4 the operation of that Programme is or may become conducted in breach of any Card Scheme Rules or the requirements of any Regulatory Authorities;

     10.1.5 that Programme is in CASHFLOWS’s reasonable opinion being operated in such a way as to compromise or infringe the statutory rights of Cardholders or their rights under any relevant Card Scheme.

10.2 Where it is able to do so, prior to any suspension or termination under section 10.1 Partner will be provided within seven days of such proposed suspension or termination with written notice by CASHFLOWS setting out in reasonable detail the circumstances that have occurred to give rise to the proposed suspension or termination and after receiving this notice Partner shall have such period as CASHFLOWS feels in its reasonable discretion it is able to agree and being not less than 28 days (the “Remedy Period”) to remedy or procure the remedy of those circumstances or to seek to agree a remediation plan with CASHFLOWS PROVIDED ALWAYS that it is understood and accepted by Partner that there may be circumstances where CASHFLOWS is unable to provide notice prior to any suspension or termination as contemplated under this section in which case CASHFLOWS will provide as much notice as it is able or will notify Partner of suspension or termination as soon as possible following its implementation.

10.3 If the circumstances giving rise to the proposed suspension or termination are not remedied within any agreed Remedy Period or such other time agreed in any remediation plan, then CASHFLOWS may suspend or terminate the Programme and will send a further written notice to Partner confirming the action it is taking.

10.4 If the circumstances giving rise to any suspension are remedied to the reasonable satisfaction of CASHFLOWS the suspension shall end and the Services will recommence as soon as reasonably practicable for that Programme.

10.5 In the event of any Programme being suspended then without prejudice to any other rights or remedies available to the Parties, the Parties shall then have the right to terminate the relevant Programme by giving not less than 5 Business Days’ notice in writing to the others. Termination of the relevant Programme shall take effect on expiry of such notice.

10.6 CASHFLOWS may at any time review any Programme, its operation and its terms and conditions to determine whether it is compliant in all respects with the obligations of Partner under the terms of this Agreement, the Card Scheme Rules and the requirements of any Regulatory Authority. Any reasonable assistance CASHFLOWS requires from Partner in relation to such review shall be notified in advance in writing. If such a review reveals that there is a material non-compliance by Partner of the terms of this Agreement, or that the Programme is not complying in any material respect with Card Scheme Rules or the requirements of any Regulatory Authority then CASHFLOWS will inform Partner accordingly, giving reasons and will (save in so far as this may be inconsistent with any Regulatory Authority requirements or requirements of a Card Scheme) give Partner a reasonable opportunity to remedy any such non-compliance failing which it shall be entitled to suspend or terminate the Programme in accordance with the provisions of section 10.1.

 

Step In Rights

10.7 If CASHFLOWS reasonably believes that it needs to take material action in connection with any Card Programme for any of the reasons listed in section 10.1 or following a review as specified in section 10.6 above then (at CASHFLOWS’s option and in its sole discretion) it shall be entitled instead of suspending or termination a Card Programme to exercise the Step In Rights set out below.

10.8 Where CASHFLOWS elects to exercise its Step In Rights it shall deliver a notice (“Step-in Notice”) to Partner (and/or the Programme Sponsor as appropriate), specifying (a) the action that CASHFLOWS or such other third party nominated by CASHFLOWS proposes to take; (b) the reason for such action; (c) the date it wishes to commence such action; and (d) the estimated time period for such action save that such estimated time period shall not exceed thirty (30) days.

10.9 Following service of a Step-in Notice, CASHFLOWS shall be entitled to take such action as specified in the Step-in Notice and any additional action which is reasonably required (“Required Action”) and Partner shall provide all reasonable assistance to and shall co-operate fully and in good faith with CASHFLOWS and/or its nominated sub-contractor while it is taking the Required Action.

10.10 Where CASHFLOWS considers it to be necessary or expedient to do so, the steps which CASHFLOWS may take pursuant to this section 10 shall include the partial or total suspension of the right and obligation of Partner to operate all or any part of the Card Programmes but only for so long as the circumstances referred to in section 10.1 subsist or until such time as Partner shall have demonstrated to the reasonable satisfaction of CASHFLOWS that it will perform (and is capable of performing) its obligations in respect of the Card Programmes’ required standard.

10.11 Before ceasing to exercise its step in rights hereunder, CASHFLOWS shall deliver written notice (“Step-Out Notice”) to Partner specifying in reasonable detail (to the extent that it is reasonably practicable in the circumstances):

     10.11.1 the action it has taken in exercising the Step In Right; and

     10.11.2 the date on which, subject to CASHFLOWS being satisfied with the plan Partner is required to develop under section 10.12 and Partner’s ability to perform to that plan, it intends to conclude that action ("Step-Out Date").

10.12 Partner shall, following receipt of a Step-Out Notice and not less than ten (10) days in advance of the Step-Out Date, develop a plan to restore the operation of the Card Programme or the affected services under the Card Programme to the standards required by this Agreement by the Step-Out Date which it shall agree with CASHFLOWS in writing. Following agreement of that plan, CASHFLOWS shall implement it and shall devote sufficient resources to ensure that delivery of the services under the Card Programme is restored to the required standard under this Agreement from the Step-Out Date or as otherwise agreed by the Parties in writing.

 

  1. Fees

11.1 In consideration of CASHFLOWS agreeing to act as Issuer in accordance with the terms of this Agreement Partner shall pay to CASHFLOWS a set up fee of £10,000 on signature of this Agreement. Fees relating to any individual Programmes shall be agreed as part of the PID for that Programme. Partner shall also pay directly to CASHFLOWS a minimum monthly administration fee (“Administration Fee”) of £10 per calendar month for each Card that has remained inactive for a period of more than 6 months. In the absence of any payment, the monthly Administration Fee may be deducted directly from any balances outstanding on the relevant Card Accounts.

11.2 Subject to clause 11.4 the parties agree that CASHFLOWS may review and increase the Fees (including the Transaction Based Fees), provided that they cannot be increased more than once in any 12 month period and that no increase shall exceed as a percentage that of the Retail Price Index published by the Office for National Statistics or its successor from time to time for the previous 12 month period. CASHFLOWS shall give Partner written notice of any such increase two months before the proposed date of that increase. If such increase is not acceptable to Partner, it may, within two months of such notice being received, terminate the agreement giving not less than one month’s written notice to CASHFLOWS.

11.3 Where for any Programme projections prove to be materially different from those indicated by Partner (in terms of number of Cards, Card Accounts or Prepaid Accounts in use, number of Transactions made or similar projections) then either CASHFLOWS or Partner shall be entitled to review the pricing agreed and request revised pricing and if the parties are unable to agree revised pricing then either Party shall be entitled to terminate the Programme upon giving the other Party not less than 2 months’ notice during which time the existing pricing shall apply.

11.4 Known Card Scheme Fees and other direct Programme costs to be borne by Partner are as stated in the relevant PID. However, should any Card Scheme amend its Card Scheme Fees during the Programme or introduce additional Card Scheme Fees relating to the Programme, or should other direct costs apply, which are substantially different from those previously agreed as to be borne, the Parties will discuss in good faith how these fees are to be borne and these discussions will be conducted within the framework of the Change Control and Management Process. Failing agreement within a reasonable period of time CASHFLOWS will be entitled to terminate the Programme so as to avoid incurring direct costs which have not been budgeted for.

 

  1. Record Keeping and Audit

Record Keeping

12.1 Partner shall maintain all material, financial and non-financial documentary records relating to this Agreement in a form which is reasonably accessible.

12.2 Partner shall keep such documentary records as are required to be maintained by regulatory requirements, applicable tax legislation or other relevant laws for a period of two years after the end of the Term. After such period, Partner shall at its sole discretion either (i) keep such documentary records for such periods as required by regulatory requirements, applicable tax legislation or other relevant laws or (ii) send such documentary records at the cost of CASHFLOWS to CASHFLOWS.

 

Audit Rights

12.3 Each Party shall grant to the other and Regulatory Authorities (acting pursuant to and in accordance with their supervisory powers under Applicable Law and any required authorisation) such access to the others premises, staff and documentary records as is necessary in order to comply with regulatory requirements and in order to evidence its compliance with the terms of this Agreement, and shall provide such assistance as may be reasonably necessary in relation thereto.

12.4 Without prejudice to any other provisions of this Agreement, CASHFLOWS from time to time on reasonable notice and at its cost may audit Partner’s compliance with this Agreement, in accordance with this section 12 including inspection of any and all related records, on Business Days during usual business hours and on no more than one occasion in each year.

 

  1. Regulatory Compliance

13.1 CASHFLOWS shall be responsible for all communications with any applicable Regulatory Authority in connection with the provision of the Services and Partner shall provide all necessary assistance to CASHFLOWS to enable it to do so.

13.2 Partner shall provide CASHFLOWS with information reasonably required by CASHFLOWS and/or any Regulatory Authority which is in Partner’s possession or control and shall provide CASHFLOWS with all reasonable assistance to enable it to comply with applicable law and regulatory requirements (including the FSA Rules), including any investigation or review by an applicable regulatory body.

 

 

  1. Limitation of Liability

14.1  Neither Party shall be liable to the other Party for any loss of profit or loss of revenue which in each case arises out of or in connection with: (i) this Agreement or (ii) any breach or non-performance of this Agreement, in each case no matter how fundamental (including by reason of that Party’s negligence).

14.2 Neither Party shall be liable to the other Party for:

     14.2.1 any loss of goodwill, reputation or opportunity; or

     14.2.2 any loss of or corruption of data; or

     14.2.3 any loss of anticipated savings in each of the foregoing whether direct or indirect; or

     14.2.4 any indirect or consequential loss, which in each case arises out of or in connection with this Agreement or any breach or non-performance of this Agreement no matter how fundamental (including by reason of that Party’s negligence) whether or not that Party had been informed of or was aware that there was a serious possibility of such loss.

14.3 CASHFLOWS’s total liability arising under or in connection with this Agreement or any breach or non-performance of this Agreement no matter how fundamental (including by reason of that Party’s negligence) in contract, tort or otherwise shall be limited to the sums received by CASHFLOWS in aggregate under this Agreement in the 12 months preceding the act or omission giving rise to the liability.

14.4 Notwithstanding any contrary provision in this Agreement, neither Party limits or excludes its liability in respect of:

     14.4.1 any death or personal injury caused by its negligence;

     14.4.2 any fraud; and

     14.4.3 any other statutory or other liability which cannot be excluded under applicable law.

14.5 The Parties agree that each of sections 14.1 to 14.4 inclusive are separate and independent terms of this Agreement.

 

  1. Intellectual Property

15.1 Each Party acknowledges that it has no rights and will obtain no rights in the Intellectual Property Rights belonging to the other (or any goodwill associated with such rights) except as may be necessary to fulfil its obligations under this Agreement.

15.2 Each Party agrees not itself to infringe any Intellectual Property Rights belonging to the other and shall promptly notify the other of any actual, threatened or suspected infringement of any Intellectual Property Rights which comes to its notice, and of any claim by any third party so coming to its notice that the material used in connection with any Programme infringes any rights of any other person, and each Party shall at the request and expense of the other do all such things as may be reasonably required to assist the other in taking or resisting any proceedings in relation to any such infringement or claim.

15.3 Each Party grants the other a non-exclusive royalty free licence for the Term to use the Intellectual Property Rights of the other for the purpose of this Agreement provided that each Party only uses the Intellectual Property Rights of the other in a manner from time to time approved in writing by the other.

 

  1. Confidentiality

16.1 The parties shall at all times both during and after the Term keep the Confidential Information confidential and not to disclose it to any other person and shall not use any Confidential Information for any purpose other than the performance of their obligations under this Agreement provided that this restriction shall not extend to any Confidential Information which:

     16.1.1 is at the date of this Agreement or becomes hereafter, public knowledge through no fault of the disclosing Party; or

     16.1.2 can be shown by the disclosing Party, to the reasonable satisfaction of the other Party, to have been known to the disclosing Party prior to its being disclosed to the disclosing Party by the other Party; or

     16.1.3 was developed or created independently by or on behalf of the recipient Party or any member of its Group without reference to the Confidential Information of the disclosing Party.

16.2 A disclosure by a Party which is required by any governmental or other authority or regulatory body shall not be a breach of this section 16.

 

  1. Termination
    17.1  Either Party may serve written notice on the other to terminate this Agreement immediately if;
          17.1.1  the other Party suffers an Insolvency Event;

    17.1.2 the other Party is in material breach of this Agreement (which breach is incapable of remedy);

     17.1.3 the other Party is in material breach of this Agreement (which breach is capable of remedy but the other Party has failed to remedy that breach within 30 (thirty) days of its receipt of a written notice from the terminating Party notifying it of the breach and requiring that breach to be remedied);

     17.1.4 the other Party ceases to have capacity to perform its obligations under this Agreement;

     17.1.5 any Card Scheme or Regulatory Authority requires the termination of this Agreement; or

     17.1.6 the other Party suspends or ceases or threatens to suspend or cease to carry on its business.

17.2  The parties agree that subject to clause 10 multiple breaches of the terms of one or more Programmes may, when aggregated, constitute a material breach of this Agreement. The parties further agree that material breach of the terms of an individual Programme may not of itself constitute a material breach of this Agreement.

17.3  Partner shall be entitled to terminate this Agreement by written notice where it considers at its sole discretion that any requirement of any of the Regulatory Authorities imposed after the Commencement Date is unduly onerous or would be too costly to implement.

17.4 Termination of this Agreement shall result in the termination of all Programmes then in force. Termination of a Programme is a termination of this Agreement in part only and shall not result in termination of any other Programmes or this Agreement as a whole unless those other Programmes are terminated in accordance with its terms or this Agreement, or this Agreement is terminated in accordance with its terms.

 

Consequences of Termination

17.5 If this Agreement is terminated in whole or in part for any reason (including its expiry) the provisions of the Exit Management Plan shall come into effect and CASHFLOWS shall co-operate with Partner to ensure an orderly migration of the Services to Partner or, at Partner’s request, a new service provider. If Partner terminates this Agreement pursuant to clause 17.1.1, clause 17.1.2, clause 17.1.3, 17.1.4, 17.1.6, 17.2 Partner shall not be responsible for CASHFLOWS’s reasonable costs of implementing the Exit Management Plan. If this Agreement is terminated for any other reason Partner shall be responsible for CASHFLOWS’s reasonable costs of implementing the Exit Management Plan.

17.6  Termination of this Agreement (in whole or in part when individual Programmes are being terminated) shall not affect the Party’s accrued rights and obligations at the date of termination.

17.7 The sections in this Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.

 

  1. DPA

18.1  Each Party confirms and undertakes that it has notified under and otherwise does and will comply with its obligations under the DPA.

18.2 Where under this Agreement one Party is acting as a data processor and another Party is acting as a data controller, the data processor:

     18.2.1 shall process personal data in respect of which another party is the data controller only in accordance with the instructions of the data controller; and

     18.2.2 warrants that it has in place and undertakes to maintain appropriate technical and organisational measures against unauthorised or unlawful processing of such personal data and against accidental loss or destruction of or damage to such personal data and that it has adequate security programmes and procedures in place to ensure that unauthorised persons do not have access to personal data or to any equipment used to process personal data.

18.3 In this section 18, the terms “data processor”, “data controller” and “personal data” shall have the meanings set out in the DPA.

18.4 CASHFLOWS acknowledges that the Cardholder Data is the property of Partner and CASHFLOWS hereby assigns by way of present and future assignment all rights it may have in the Cardholder Data to Partner.

18.5 Partner hereby grants to CASHFLOWS a non-exclusive licence to use the Cardholder Data for the purpose of performing its obligations under this Agreement.

18.6 CASHFLOWS acknowledges that, except as expressly provided in this Agreement, it shall not acquire any rights whatsoever in the Cardholder Data.

18.7 CASHFLOWS acknowledges that the Cardholder Data constitutes Partner’s Confidential Information.

 

  1. Assignment and sub-contracting

19.1 Partner shall not without the prior written consent of CASHFLOWS (such consent not to be unreasonably withheld or delayed) assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it, or purport to do any of the same.

19.2 CASHFLOWS may assign its rights under this Agreement to its other Group Companies.

19.3 CASHFLOWS may sub-contract its obligations under this Agreement to suitable third parties provided that it shall retain primary liability for the acts and omissions of its sub-contractors as if they were its own.

     19.3.1 Each Party is entering into this Agreement for its benefit and not for the benefit of another person.

19.4 A Party which has the right to assign and/or transfer any of its rights and obligations under this Agreement may take all such steps as may be reasonable to perfect such assignment and transfer and to allow the assignee to receive the benefit of such rights and carry out such obligations and this Agreement including in particular section 16 (Confidentiality) and section 18 (DPA), shall be interpreted so as to allow it and the assignee to take such steps.

 

  1. Force Majeure

20.1  Subject to section 20.2, a Party shall not be obliged to perform its obligations under this Agreement to the extent that it is prevented, hindered or delayed by reason of Force Majeure save to the extent that it would have been able to perform such obligations had it complied with sections 20.3.2 and 20.3.3. Performance may cease during the continuation of the Force Majeure event and for such time after that event ceases as is necessary for the Party concerned to start satisfying its obligations again.

20.2 Where a Party does not perform its obligations pursuant to section 20.1, the corresponding obligations of the other Party, including any obligation to pay for obligations not performed by reason of Force Majeure shall be suspended to the same extent.

20.3 If either Party is prevented, hindered or delayed in the performance of any of its obligations under this Agreement by Force Majeure, that Party shall:

     20.3.1 promptly (and in any event within 2 Business Days) notify the other Party specifying the nature and extent of the circumstances giving rise to Force Majeure;

     20.3.2 take all reasonable steps to:

          20.3.2.1 mitigate the consequences for the other Party of such prevention, hindrance or delay; and

          20.3.2.2  find a solution by which the relevant obligations can be performed despite the continuance of the Force Majeure event; and

          20.3.2.3  cause the circumstances constituting the Force Majeure event to cease; and

          20.3.2.4  recommence performance as soon as reasonably possible after the cessation of the circumstances constituting the Force Majeure event.

20.4 If the affected Party is prevented, hindered or delayed from performance of its material obligations under this Agreement for a continuous period in excess of six months by reason of Force Majeure, either Party may terminate this Agreement immediately on service of written notice upon the other Party, in which case neither Party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.

 

  1. Business Continuity Plan

21.1  Each Party shall be responsible for the establishment of their own Business Continuity Plan for the purposes of this Agreement and fulfilment of any applicable law or regulatory requirements (including the FSA Rules).

21.2 Each Party shall rehearse the Business Continuity Plan at least once in each year and shall then review such rehearsal and shall report to the other on the results of such review. The relevant Party shall then promptly amend the Business Continuity Plan to the extent necessary to remedy any potential shortcomings identified in such review. Such amendment shall include purchasing any relevant assets, putting in place appropriate contracts and providing any necessary training to implement such amendments. Each Party shall then deliver to the other an updated version of the Business Continuity Plan.

 

  1. Anti-Corruption

Each Party warrants to the other that it will comply with a suitable and robust anti-bribery and corruption policy which it will produce to the other on request and which meets the reasonable requirements of the other. Such policy shall contain sufficient processes and controls to ensure that Party’s compliance with the Bribery Act 2010 (the “Act”) supplemented by the supporting guidance published by the Ministry of Justice in March 2011 (the “Guidance”) and the Bribery Act 2010: Joint Prosecution Guidance of the Director of the Serious Fraud Office and the Director of Public Prosecutions.

 

  1. Other provisions

23.1 Further assurance

Each of the parties shall use all reasonable endeavours to do or procure to be done all such further acts and things and execute or procure the execution of all such other documents as may from time to time be reasonably required for the purpose of giving the other Party the full benefit of the provisions of this Agreement and the documents referred to in it.

 

23.2 No partnership or agency

Nothing in this Agreement, and the documents referred to in it, is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise any party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

 

23.3 Waiver and remedies

The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement does not constitute a waiver of any other breach or default and shall not affect the other terms of this Agreement. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement will not prevent a Party from subsequently requiring compliance with the waived obligation. The rights and remedies provided by this Agreement are cumulative and (subject as otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law.

 

23.4 Severance

23.4.1 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.

23.4.2 If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.

23.4.3 The parties agree, in the circumstances referred to in sections 23.4.1 and if section 23.4.2 does not apply, to attempt in good faith to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possi­ble the same effect as would have been achieved by the invalid or unenforceable provi­sion.

 

23.5 Variation

No variation of this Agreement, and the documents referred to in it, shall be effective unless and until it is in writing and signed by (or by some person duly authorised by) each of the Parties.

 

23.6 Entire agreement

23.6.1 Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement.

23.6.2 Each of the parties acknowledges and agrees that the only remedy available to it for breach of this Agreement shall be for breach of contract under the terms of this Agreement. Nothing in this Agreement shall, however, operate to limit or exclude any liability for fraud.

23.6.3 This Agreement, and the documents referred to in it constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.

 

  1. 7  Costs and expenses

Each Party shall pay its own costs relating to the negotiation, preparation, execution and implementation by it of this Agreement and of each document referred to in it.

 

23.8  Third party rights

No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.

 

23.9 Counterparts

This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.

 

 

  1. Notifications

          24.1 CASHFLOWS will notify Partner in the event that it:

               24.1.1 commits any irremediable breach of any provision of this Agreement;

               24.1.2 for whatever reason becomes unable to provide the Services;

               24.1.3 ceases to have the ability, capacity or any other authorisation as required by law to perform the Services and/or the terms of this Agreement;

               24.1.4 is liable to do so pursuant to any of its obligations in this Agreement; or

 24.1.5 becomes aware of anything in relation to which Partner would reasonably expect to receive notice.

          24.2 Partner will notify CASHFLOWS in the event that it:

               24.2.1 commits any irremediable breach of any provision of this Agreement;

               24.2.2 ceases to have the ability, capacity or any other authorisation as required by law to perform the its obligations under the terms of this Agreement;

               24.2.3 is liable to do so pursuant to any of its obligations in this Agreement; or

24.2.4 becomes aware of anything in relation to which CASHFLOWS would reasonably expect to receive notice.

24.3 Any notification made pursuant to this section shall be in writing and signed by or on behalf of the Party giving it and shall be served by delivering it personally or sending it by email, special delivery (or international signed-for airmail, in the case of an address for service outside the United Kingdom) or fax to the address and for the attention of the relevant Party as notified by the parties from time to time.

 

  1. Governing law and jurisdiction

25.1 This Agreement is governed by and shall be construed in accordance with the laws of England.  Non-contractual obligations (if any) arising out of or in connection with this Agreement (including its formation) shall also be governed by the laws of England.

25.2 The parties submit to the exclusive jurisdiction of the courts of England and Wales as regards any claim, dispute or matter (whether contractual or non-contractual) arising out of or in connection with this Agreement or any of the documents to be entered into pursuant to this Agreement (including their formation).

Signed by the duly authorised representatives of the parties.

 

Signed by

for and on behalf of Voice Commerce Limited

 

Date: ……………………………………………

 

.......................................

Director

 

 

 

Signed by

for and on behalf of [             ]

 

Date: ……………………………………………..

 

 

 

.......................................

Director

 

 

 

 

 

Schedule 1

Change control

 

For the purposes of this Agreement a Change Request is:

a request to change (including to cease) any Service or add new services to the Services; or

a request to amend this Agreement or any document attached to it or referred to in this Agreement.

A Change Request shall become a "Change Order" when the requirements of this Change Control Procedure have been satisfied and the Change Request is signed by the authorised representatives of both parties to signify their approval to the change.

 

Origin of Change Requests

Change Requests may be originated either by Partner or by CASHFLOWS.

Where CASHFLOWS originates a Change Request it shall provide Partner with the Change Request, details of the impact which the proposed change will have upon the Services; any systems or operations of Partner which communicate with, or are otherwise affected by, the Services; the Fees; and the other terms of this Agreement.

Where Partner originates a Change Request, CASHFLOWS shall provide Partner, within 20 Business Days of receiving the Change Request, details of the impact which the proposed change will have upon the Services; any systems or operations of CASHFLOWS which communicate with, or are otherwise affected by, the Services; the Fees; and the other terms of this Agreement.

 

Agreement of Change Orders

Save where otherwise stated herein, neither Party shall be obliged to agree a Change Request originated by the other Party unless the originator can show to the reasonable satisfaction of the other that such Change request is necessary in order to ensure that the Services continue to meet the requirements of any Card Scheme or any Regulatory Authority.

 

Implementation costs

The costs of implementing a Change Order shall be borne as set out therein.

 

Management Process

The parties shall jointly develop a process for the management of this Agreement and this process shall be documented and shall include as a minimum the following procedures and documents which may be amended from time to time by agreement:         

review meetings held at least quarterly attended by the representatives for each Party and such other individuals as the parties shall from time to time agree, with agenda items to include the performance of the Programmes, opportunities for improvement of the Services and any other items required by either Party;

Service Level reports;

The following minimum procedures shall apply for all meetings:

standard agendas shall be made available by CASHFLOWS to all attendees at least two (2) days prior to any meeting and shall be effective as notification of a meeting;

all meetings shall be formally minuted by CASHFLOWS and minutes shall be sent to all attendees within ten (10) working days of the meeting; and

attendees at meetings shall include the representatives agreed by the parties from time to time.

 

 

Schedule 2

Exit Management Plan

 

General obligation

On termination of this agreement for any reason, CASHFLOWS will provide all reasonable assistance to Partner to enable another party chosen by Partner (in this Schedule, a New Service Provider) to take over the provision of all or part of the Services. The remaining provisions of this Schedule will not prejudice or restrict the generality of this obligation.

 

Plans and procedures

On notification of termination of this agreement, CASHFLOWS will produce and maintain plans and procedures demonstrating the manner in which it will fulfil its obligations under this Schedule, which plans and procedures shall be subject to the reasonable approval of Partner.

 

Continuation of the provision of services

CASHFLOWS shall agree to continue to provide the Services for six months after termination or expiry of this Agreement upon the same payment where if such continuation is required in order to allow for the orderly wind down of then current Programmes and/or the orderly transfer of the Services to a New Service provider.

CASHFLOWS shall answer all reasonable questions about the Services which may be asked by Partner for the purpose of adequately understanding the manner in which the Services have been provided or for the purpose of allowing any New Service Provider (or potential New Service provider) to conduct 'due diligence' PROVIDED ALWAYS it shall not be required to provide any information which may reasonable be considered to be business sensitive or to breach any duty of confidentiality.

 

Assets

Shared equipment

Where the Services are dependent on equipment which is not used exclusively for the provision of the Services to Partner then CASHFLOWS will ensure the necessary migration of data and other materials from such equipment to similar equipment owned by Partner or a New Service Provider. Implementation of the change shall be carried out by CASHFLOWS in such a way as to cause the minimum possible disruption to the supply of the Services.

 

Contracts, software, and know-how

Upon CASHFLOWS ceasing to provide the Services it will, at the request of Partner where it has entered into contracts with third parties for the sole purpose of providing the Services to Partner, use all reasonable endeavours to procure that those contracts are assigned to Partner or a New Service Provider.

 

Premises

All rights of access and occupation granted to CASHFLOWS in respect of premises owned or occupied by Partner will cease when the provision of Services ceases in accordance with this agreement.

Additional Services

Updated 17 July 2012 

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.

Updated 4 May 2022

IMPORTANT NOTE: THESE ARE THE STANDARD TERMS AND CONDITIONS THAT APPLY WHEN YOU HIRE A POS TERMINAL FROM US AND ARE SUPPLEMENTAL TO THE TERMS OF THE MERCHANT ACQUIRING AGREEMENT.

By requesting or accepting POS terminal hire from us, you acknowledge and agree that you have read, understand, agree and shall comply with the terms of: (i) these terms and conditions; (ii) the application; (iii) the pricing plan; and (iv) the privacy policy (together “the contract”) and you have been given an opportunity to raise any questions you may have on them.

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).

Terms used in this Terminal Hire Agreement but not otherwise defined shall have the meaning set out in the Cashflows Merchant Acquiring Services Terms and Conditions:

“Airtime Services”

means provision by us of a SIM Card and connectivity to a Network;

"Consumables & Accessories"

means starter packs, batteries, paper rolls, cleaning cards, supervisor cards, mounting stands, all power supplies, cables and other accessories required or desired for operation of the POS Terminal;

"Consumables Fees"

means the fees payable by you in connection with any supply of Consumables & Accessories (other than Initial Consumables) in accordance with paragraph 10.3;

“Customer Support”

means our dedicated customer support team available on 01223 550920 available in accordance with the provisions of paragraph 3.1.6;

“Delivery Date”

means the date on which we deliver the POS Terminal to you (or, where applicable, the date on which delivery is deemed to have taken effect pursuant to paragraph 1.2);

"Fees"

means the Rental Fees, the Consumables Fees and any and all other fees or charges payable by you in connection with this Terminal Hire Agreement (in each case, as may be varied from time to time by us pursuant to paragraph 9.1);

“Initial Consumables”

means any Consumables & Accessories which we supply with the initial delivery of the POS Terminal (as set out in the Specification);

“Instructions”

means any user manuals, operating and installation instructions, documentation and instructions which may be provided to you by us (on or on behalf) from time to time;

“Merchant Acquiring Agreement”

means the agreement between you and us for the provision of acquiring services;

"Minimum Term"

means the minimum duration of this Terminal Hire Agreement, which shall commence on the 1st of the go live month or if after the 15th of the month, the 1st of the following month. It shall be a minimum of 12 months with early cancellation fees payable (in the amount of the fees payable for the remainder of the Term under the Terminal Hire Agreement);

"Network"

means the mobile communication network, connection to which is enabled by the SIM Card;

 

“Operative Date”

"Renewal Term"

 

means the date on which you accept a POS terminal from us or enter into the contract whichever is earlier.

means a period of twelve (12) months commencing on the expiry of the Minimum Term or (as the case may be) commencing on the date on which the previous such twelve-month period expires;

“Relevant Terms”

means the following clauses of the Merchant Acquiring Agreement: clauses: 5, 6, 8, 9.30, 9.31, 9.32, 10.4, 13, 14, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29 and 31;

"Rental Fees"

means the fees (as set out under the Application Form and/or the Pricing Plan) payable by you in respect of the supply of the POS Terminal, the SIM Card, the Services and the Initial Consumables;

“Replacement Value ”

means £300;

“Services”

means the services provided under this Terminal Hire Agreement including, without limitation, the Airtime Services and POS Terminal support services set out in paragraph 3.1;

"SIM Card"

means the card supplied by us (if applicable) within a POS Terminal which enables a Network to route Transactions;

“Software”

means the software provided with the POS Terminal;

“Specification”

means any applicable specification for the POS Terminal, as set out in the Pricing and Specification Plan;

"Terminal Hire Agreement"

means these terms and conditions, including the Relevant Terms (which, for the avoidance of doubt, shall be incorporated into and be deemed to form part of this Terminal Hire Agreement) and any applicable terms set out in the Application Form and Pricing Plan;

“Territory”

means the United Kingdom; and

“User Guide”

means the POS Terminal user guide supplied with the POS Terminal/    

 

If you are: (a) a sole trader, (b) a partnership of 2 or 3 individuals or (c) an unincorporated body of persons which is not a partnership and does not consist entirely of bodies corporate, this Terminal Hire Agreement shall not apply to you and you shall be required to enter into a separate agreement with us relating to the supply of any POS Terminal.

  1. Supply of the POS Terminal and Services
    • We shall provide you with the POS Terminal set out on in the Pricing and Specification Plan (and any applicable Initial Consumables), the SIM Card (where applicable) and the Services, for the Minimum Term and each Renewal Term thereafter unless and until this Terminal Hire Agreement is terminated in accordance with paragraph 7.
    • You agree to accept delivery of the POS Terminal within 28 days of us notifying you that it is ready for delivery. If you do not accept delivery of the POS Terminal within such period then delivery shall be deemed to have taken place on the expiry of such 28 day period (even if you do have not have possession of the Terminal) and you shall be liable to pay the Rental Fees accordingly. If you subsequently request delivery of the POS Terminal then you shall be liable to pay a re-delivery fee of £50.
    • You must install the POS Terminal as soon as reasonably practicable after you have received delivery of it, in accordance with any Instructions.
    • We shall supply to you the POS Terminal (and any applicable Initial Consumables), the SIM Card (where applicable) and the Services, upon and subject to the terms and conditions of this Terminal Hire Agreement. We shall not, other than in the exercise of our rights under this Terminal Hire Agreement or Applicable Laws, interfere with your quiet possession of the POS Terminal.
    • The POS Terminal and any Initial Consumables shall remain the sole and exclusive property of ours at all times and you shall have no right to or interest in the POS Terminal or any Initial Consumables, except for the right to possession and use of it in accordance with and subject to the provisions of this Terminal Hire Agreement.
    • We warrant that:

 

  • the POS Terminal shall be of satisfactory quality, conform in all material respects to the Specification and be fit for any purpose expressly held out by us; and
  • we shall provide the Services with reasonable care and skill.
  1. Fees
    • In return for us supplying you with the POS Terminal, the SIM Card, the Services and/or the Consumables & Accessories, you agree to pay the Fees. You will be invoiced and pay for the Fees on a net settlement basis in accordance with clause 4 of the Merchant Acquiring Agreement. The Fees shall be payable on a monthly basis and for these purposes the monthly periods are consecutive calendar months from and including the date of this Terminal Hire Agreement until the corresponding date falling in each subsequent calendar month.
    • There will be an additional service charge in relation to the Airtime Service where (at our reasonable discretion) we believe you have exceeded a reasonable usage amount. Any such additional charges will be invoiced and become due the following month and will be collected together with the next regular payment falling due.
    • There will be an additional service charge of £25.00 for re-activation of the SIM Card where reactivation is necessary in connection with any default of yours, which will be invoiced and become due the following month and will be collected together with the next regular payment falling due.
    • You will pay the Fees applicable for each respective period throughout the duration of this Terminal Hire Agreement whether or not you use the POS Terminal or any Services. You acknowledge and agree that (without prejudice to paragraph 1.7) you will remain liable to pay the Rental Fees in full notwithstanding any period where the POS Terminal is not functioning, including where due to the unavailability of the Airtime Services or other communication network or pending any repair or replacement of the POS Terminal in accordance with this Terminal Hire Agreement.
    • Without prejudice to paragraph 2.5 or to any other rights we may have, should any Transactions be processed via the POS Terminal using a SIM Card outside of the Territory, you shall be liable to pay variable itemised charges for such use in addition to the Rental Fees which shall be collected together with the next regular payment falling due.
    • All Fees are exclusive of VAT. You will pay us VAT where applicable on any sums due under this Terminal Hire Agreement at the prevailing rate from time to time.
    • If any Fees are not paid when due, we will consider this a material breach and we may suspend or terminate part or all of any Services (including barring the SIM Card), suspend the delivery of any further Consumables & Accessories (where applicable) and charge you interest on any sums due to us under this Terminal Hire Agreement but unpaid at 2% per month from the due date to the date of payment, such interest to run day to day and after as well as before any judgement, with a minimum charge of £5.00. These rights are in addition to any other legal rights we may have, which we may also rely upon.
  2. Services
    • We agree:
      • if required for the operation of a POS Terminal, to provide the Airtime Services;
      • to replace, within a reasonable period after any request, any SIM Card which is not working;
      • to provide support (via the Customer Support) relating to your installation of the POS Terminal in accordance with paragraph 3;
      • to configure the POS Terminal with software for the processing of Transactions by any Card which we authorise you to accept under the terms the Merchant Acquiring Agreement;
      • to provide software upgrades from time to time and you shall provide us with all such reasonable assistance in the same;
      • to provide the Customer Support, which shall be available between such hours and on such days as we may determine in our discretion from time to time, as a telephone advice bureau for operational difficulties relating to the POS Terminals and for general enquiries; and
      • that, in addition to the Customer Support (but subject to paragraph 2), if the POS Terminal develops a fault, we will, unless prevented by circumstances outside our control, use best endeavours to provide a replacement POS Terminal as soon as reasonably practicable (but excluding delivery on Sundays and bank holidays). Any replacement POS Terminal shall be provided configured for your use and will be of a similar or improved specification but may be new or refurbished.
    • Unless selected as an enhanced service in the Application Form, our services under paragraph 1.7 shall not extend to accidental damage to the POS Terminal (as determined by us acting reasonably), or for theft or loss of the POS Terminal, nor to faults in respect of batteries or battery packs which are not replaced by you where required pursuant to paragraph 10.4, or to any third party device or attachment that is not part of the POS Terminal provided by us. Where any POS Terminal is swapped out and, upon inspection, it is found to be faulty due to accidental damage or any act or omission of yours then you shall be liable to pay a maximum charge of £400.
    • You must not edit, alter or reverse engineer the Software or the POS Terminal in any way, not attempt to do so. Any attempt to edit, alter or reverse engineer the Software or the POS Terminal will result in activation of anti-tamper technology and will render the device unusable and will be considered a material breach of the Agreement.
    • You are solely responsible for ensuring, at your own cost, that there is a suitable environment for the safe and proper use of the POS Terminal at all times, including (without limitation) that there is connection to a suitable power supply and, where applicable, telephone line or internet connection.
  3. Service Limitations
    • Routing for Authorisations and Transactions for Acquiring Services may be affected by things beyond our control, including inter alia the failure or non-availability of the Network or any other communication network or any other system used for the processing of Transactions. We shall not be liable for any non-availability of the routing for Authorisations and Transactions to and from us as your acquirer as these are beyond our control. Merchant must complete end of day banking reconciliation and ensure that all transactions are sent to the host for settlement.
    • We hereby grant you a non-transferable, revocable, non-exclusive licence to execute the Software in the Territory for the duration of this Terminal Hire Agreement, but you shall not copy, adapt, modify, develop, add to or in any way alter the Software.
    • The POS Terminal, Services and Airtime Services are made available subject to you complying with the following:
      • any software, upgrades or other intellectual property relating to the POS Terminal not being copied, adapted, modified, developed, added to, altered in any way or sub-licensed by you without our specific written consent;
      • the POS Terminal and SIM Cards being used only for the valid processing of Transactions under and in accordance with the provisions of the Merchant Acquiring Agreement;
      • SIM Cards being used only with the POS Terminal (and not being transferred from one POS Terminal to another or to any other device) for use with the Network;
      • all Applicable Laws being followed relating to their use;
      • without prejudice to paragraphs 3.2 and 4.3.3 or to any other provision of this Terminal Hire Agreement, the POS Terminal not being used for or to access anything illegal, immoral or improper;
      • the SIM Card not being used for any purpose other than as part of the POS Terminal for processing Transactions and not being modified or removed from the POS Terminal; and
      • all Instructions being followed.
    • Any SIM Card or POS Terminal delivered to you shall at all times remain our property or that of the SIM Card provider.
    • We can at our discretion and without notice disconnect your SIM Card from the Network:
      • in the event of loss or theft of the POS Terminal;
      • if we have reasonable cause to suspect any use of the SIM Card is contrary to the terms of this Terminal Hire Agreement; or
      • if you do anything or permit anyone else to do anything which we or the Network provider reasonably think may adversely affect the Network.
    • As the POS Terminal is not manufactured or produced by us, we do not give any warranties beyond those contained in paragraph 6. In particular, but without prejudice to the foregoing, we do not warrant that the POS Terminal:
      • will be error-free or be free of defects;
      • will achieve any particular performance criteria; or
      • will be suitable for your use or purposes or, in relation to any POS Terminal which has GPRS or CSD connectivity, that it will receive sufficient signal or achieve any connectivity at your business premises or elsewhere to enable it to work without interference (or at all).
  1. Exclusions of Liabilities
    • In addition to our rights under the Merchant Acquiring Agreement, we are only liable to you in respect of our supply (or contemplated supply) of the POS Terminal to the extent set out in this Terminal Hire Agreement and we shall have no other duty or liability to you in respect of such supply or contemplated supply.
    • Nothing in this Terminal Hire Agreement removes or limits our liability for:
      • fraud (including deception, dishonesty and fraudulent misrepresentation);
      • death or personal injury caused by our negligence;
      • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; or
      • any other liability if and to the extent that such liability cannot be limited or excluded by law.
    • Except as set out in paragraphs 2 and 5.4, our entire aggregate liability to you arising under, as a result of or in connection with this Terminal Hire Agreement (including any liability for breach of this Terminal Hire Agreement and any liability for the acts or omissions of our employees, agents or subcontractors) whether in tort (including negligence), for breach of contract, for misrepresentation, for breach of statutory duty or otherwise, will be limited to Fees paid under this Terminal Hire Agreement in the preceding 12 months.
    • We shall have no liability to you in any way for any indirect, consequential, special or punitive damages and losses (including, without limitation, any indirect loss of income, business or profits, indirect loss or corruption of data), even if advised of the possibility of the same.
    • We will not be liable to you if we cannot carry out our duties or provide the Service because of any matter beyond our control, including (without limitation) Force Majeure events.
    • We shall have no liability to the extent any failure or incorrect functioning of the POS Terminal is caused by:
      • use of any unauthorised attachment, hardware, software or device used in connection with the POS Terminal;
      • misuse of the POS Terminal or any use of the POS Terminal that is not in accordance with this Terminal Hire Agreement or applicable Instructions; or
      • your failure to provide a suitable environment for the POS Terminal pursuant to paragraph 4.
    • Without prejudice to paragraphs 3 and 6.7.2, you shall be solely liable for any failure of, or damage to, the POS Terminal caused by Consumables & Accessories which are not provided by us or our approved suppliers.
    • All telephone or other connection numbers allocated by us to you for use on the Network or otherwise are and shall remain at all times our property or those of our suppliers and you shall not be entitled to use such numbers after termination of this Terminal Hire Agreement. We reserve the right to reallocate or change any such numbers during the term of this Terminal Hire Agreement and shall have no liability to you on account of any such change.
    • We shall have no liability in relation to the acts or omissions of any third party (save for any of our sub-contractors acting in their capacity as such) including, without limitation, any fraudulent acts or omissions of any such third party.
  2. Your Other Obligations
    • You shall allow us reasonable access to your premises (or, without prejudice to any other provision of this Terminal Hire Agreement, any other premises where the POS Terminal may be located) to inspect the POS Terminal.
    • You hereby agree throughout the duration of this Terminal Hire Agreement (and after its termination where applicable):
      • to use the POS Terminal and the SIM Card in accordance with the User Guide provided from time to time only for the purpose of effecting Transactions in accordance with the Instructions;
      • to keep the POS Terminal in good repair and condition (fair wear and tear excepted) and, save as provided for herein, to be responsible for any loss or damage to it and not to remove or add any identifying marks or labels;
      • to insure the POS Terminal for loss or damage for an amount not less than the Replacement Value;
      • to keep the POS Terminal and the SIM Card in your own possession in the Territory;
      • not to move the POS Terminal from your business premises specified in the Application Form (save that where the Specification includes GPRS or CSD connectivity, you may take the POS Terminal away from those business premises on a temporary basis from time to time, if and to the extent reasonably required for proper purposes associated with processing Transactions for your business but subject always to paragraph 2.4);
      • not to alter, sell, lend or otherwise deal with it nor to allow any charge or lien or similar right to be created over the POS Terminal;
      • (without prejudice to paragraph 5 or any other provision of this Terminal Hire Agreement) not to claim or to attempt to claims any capital allowances on the POS Terminal; and
      • to comply with all Applicable Laws or recommendations of Ofcom or any other relevant body, including any Network provider, relating to your use of the POS Terminal and the SIM Card.
    • You agree that any request for a replacement terminal due to loss or theft shall be made via Customer Support and we may require full details of the date, time and circumstances of the loss or theft, and be accompanied by a Police crime reference number and be made as soon as practicable after the loss or theft has taken place.
    • Where we supply a replacement of the POS Terminal and/or the Initial Consumables due to loss, theft or damage beyond repair, you shall be liable to pay the Replacement Value.
    • You agree that we are providing the SIM Card and the POS Terminal solely for your own use within your business and that you will not re-sell or otherwise act as any form of distributor in respect of the SIM Card or the POS Terminal.
    • You shall ensure that the POS Terminal and SIM Card is kept in good and proper working condition (fair wear and tear excepted) and shall use and care for the POS Terminal and SIM Card in accordance with any Instructions.
    • You shall be liable for and shall indemnify us against any Losses we may suffer relating to:
      • your use of the POS Terminal including any Initial Consumables other than in accordance with the provisions of this of this Terminal Hire Agreement;
      • your use of any Consumables & Accessories which are not provided by us or our approved suppliers; and/or
      • any breach by you of any provisions of this Terminal Hire Agreement.
  1. Termination
    • You can terminate this Terminal Hire Agreement at any time on the expiry of the Minimum Term or any applicable Renewal Term, by giving us not less than three months’ notice in writing. If you do not give such notice three months before the expiry of the Minimum Term (or any Renewal Term, as applicable), the duration of this Terminal Hire Agreement shall automatically be extended for each Renewal Term unless and until this Terminal Hire Agreement is terminated in accordance with its terms.
    • We can terminate this Terminal Hire Agreement at any time, by giving you not less than three months’ notice in writing.
    • We can terminate this Terminal Hire Agreement immediately, if any of the following happens:
      • you fail to pay any Fees when due (including where we are unable to effect net settlement in accordance with clause 4 of the Merchant Acquiring Agreement);
      • you breach any other condition of this Terminal Hire Agreement and where the breach is capable of being remedied you fail to remedy it to our reasonable satisfaction within 7 days of us asking you to;
      • you become bankrupt or make any arrangement with your creditors or are liquidated or have an Administrator or receiver appointed or suffer any other form of insolvency event;
      • you are unable to pay your debts as they fall due;
      • if you are a body corporate and there is a change of control or ownership of your issued share capital resulting in a third party holding 50% or more of your issued shares.
    • This Terminal Hire Agreement shall terminate automatically without notice if your Merchant Acquiring Agreement terminates for any reason.
  2. Consequences of Termination
    • Termination of this Terminal Hire Agreement shall have no effect on the rights, obligations and remedies of either party which have arisen prior to termination.
    • Upon termination of this Terminal Hire Agreement for any reason, you must:
      • pay us immediately any and all sums then due and owing including any SIM card cancellation charge or (where applicable) any Fees payable pursuant to paragraph 3; and
      • immediately return the POS Terminal and any applicable Initial Consumables to us, in accordance with any applicable Instructions, in good order, repair and condition, failing which you will be liable for the cost of a replacement terminal.
    • You shall pay us immediately all Fees which would have been payable for the remainder of the Term or any relevant Renewal Term (as applicable) where:
      • you terminate this Terminal Hire Agreement (or you purport to do so), for any reason other than pursuant to paragraph 2, at any time before expiry of the Minimum Term or the expiry of the applicable Renewal Term (as the case may be); or
      • we terminate this Terminal Hire Agreement pursuant to paragraph 3 at any time before expiry of the Minimum Term or the expiry of the applicable Renewal Term (as the case may be); or
      • this Terminal Hire Agreement terminates automatically pursuant to paragraph 4 save where termination is as a result of a breach by us of the Merchant Agreement.
    • Where you do not return the POS Terminal and/or any applicable Initial Consumables to us pursuant to paragraph 2.2, we may attend your premises to collect the same and in which case you shall pay a collection charge, regardless of whether we succeed in collecting the same.
    • Where you do not, for any reason, return the POS Terminal and/or any applicable Initial Consumables to us (or, where applicable, we are unable to collect POS Terminal and/or the Initial Consumables from you after visiting your premises in accordance with paragraph 3), you shall be liable to pay the Replacement Value on demand.
  3. Variations in Fees
    • We may change the amount of Fees at any time by giving you not less than one month’s written notice, in our absolute discretion, to reflect any pro-rata increase in our costs which is connected with any changes to Applicable Laws.
    • Where we serve any notice pursuant to paragraph 1 then you may, at any time prior to the expiry of the period of such notice, terminate this Terminal Hire Agreement on giving us 30 days’ written notice..
  4. Miscellaneous
    • If you are more than one person, each person shall be jointly and severally liable under this Terminal Hire Agreement.
    • You may not assign, mortgage, charge or sub-let this Terminal Hire Agreement or any of the rights hereunder.
    • You are responsible for procuring all Consumables & Accessories necessary for the operation of the POS Terminal provided hereunder. Unless otherwise agreed by us in writing, you must purchase (save for the Initial Consumables) all Consumables & Accessories from us or a supplier approved by us. Consumables & Accessories can be purchased from us, at such cost as shall be advised by us at the time, by calling Customer Support.
    • Without prejudice to paragraph5 10.3, you must, at your own cost, replace any re-chargeable batteries in the POS Terminal when the battery pack is 3 years old.
    • You must advise us in writing about any change in your address, contact name or contact telephone number supplied to us. You must comply with all and any requests for information by any regulator in respect of the POS Terminal.
    • Any concession or extra time that we allow you only applies to the specific circumstances in which we give it. It does not affect our rights under this Terminal Hire Agreement in any other way.
    • This Terminal Hire Agreement does not confer any benefit on any third party under the Contracts (Rights of Third Parties) Act, 1999 or otherwise and the parties may vary, rescind or terminate this Terminal Hire Agreement without consent of any other person.
    • You shall, at our request and at no cost, execute such documents and do or procure the doing of such acts and things as we may reasonably require for the purpose of giving us the full benefit of all the provisions of this Terminal Hire Agreement.
    • We shall be entitled to assign, novate or otherwise transfer, either in whole or in part, this Terminal Hire Agreement and/or to sub-contract our obligations or any one of them under this Terminal Hire Agreement to any Person at any time. Where we use a sub-contractor then we shall remain responsible for complying with our obligations under this Terminal Hire Agreement as though we were not using such agent or sub-contractor.