Last update: 19.06.2019

ePayments Merchant Services Limited Terms and Conditions for ePayments Merchant Services

These Terms and each of the documents we refer to in them are our standard customer agreement for providing you services upon which we intend to rely. For your own benefit and protection, you should read these Terms and each of the documents we refer to carefully before signing them. If you do not understand any point please ask for further information.
  1. Interpretation
    1. These Terms (Terms) are a legal agreement between ePayments Merchant Services Limited (we, us, or our) and the legal entity listed as the “Merchant” in the Commercial Schedule (you or your) for us to supply you with the Services.
    2. ePayments Merchant Services Limited is a company limited by shares incorporated in England and Wales with registered number 10507944 whose registered office is at Palladium House, 1-4 Argyll Street, London, United Kingdom W1F 7LD. It is registered with the UK Financial Conduct Authority as an agent of ePayments Systems Limited.
    3. ePayments Systems Limited (EPS) is a company limited by shares incorporated in England and Wales with registered number 08134141 whose registered office is at Palladium House, 1-4 Argyll Street, London, United Kingdom W1F 7LD. EPS is authorised by the UK Financial Conduct Authority under the Electronic Money Regulations 2011 for the issuing of electronic money and providing payment services. EPS is entered on the UK Financial Conduct Authority's Register with reference number 900172.
    4. Our service comprises the ability for you to accept payments using various payment methods, including the ePayments ewallet.
      Documents or information that appear on the ePayments website and that we refer to in these Terms are incorporated into the Terms and form part of your agreement with us. These Terms govern your use of the Services and how we provide you with the Services.
    5. All information and documents we provide or make available to you will be in English.
    6. In these Terms the following words have the meaning set out below:
      • Acquirer means an entity that provides services either directly to you or to us to enable you to (a) accept payment by Payers using Cards or by Alternative Payment Methods; and (b) receive value in respect of such payments, under licence required by any relevant Regulatory Authority;
      • Action Plan means internal regulatory document of yours that contains information and set of activities, which shall be carried out by you to improve the statistics on Chargebacks and fraudulent Transactions under the Agreement. The Action Plan shall include: your business description and future strategy of your business; analysis, that reflects a cause of the increase of the Chargebacks and fraudulent Transactions; if your cooperation with third parties is the reason for negative statistics of the Chargebacks and fraudulent Transactions, such third parties and their detailed description shall be specified; the description of the methods and tools applied by you for definition and prevention of risk, that are used to ensure monitoring of the Transactions; the list of the activities held and planned by you for improvement of negative statistics of the Chargebacks and fraudulent Transactions (enacting of new rules in a range of definition and prevention of risk); the planned timetable for the improvement of statistics of the Chargebacks and fraudulent Transactions;
      • Agreement means together: these Terms and any document referred to in these Terms and any Schedule to these Terms, the Application Form, any Commercial Schedule and our Privacy Statement;
      • Alternative Payment Methods means the payment methods listed in the Application Form or Commercial Schedule or any other payment methods notified by us to you in writing from time to time;
      • Applicable Laws means any and all laws, statutes, orders, rules, directives, regulations or mandatory guidelines applicable to a Party or to any Transaction (including concerning your sale of goods and/or services, and related consumer protection, distance selling and e-commerce regulations) from time to time in force in any applicable jurisdiction;
      • Application Form means each application form that we ask you to submit when applying for the provision of Services;
      • Assessments means any and all assessments, costs, expenses, charges or fines (which, in each case, are not Chargebacks or included as part of the Fees) which: (1) the Card Schemes, Alternative Payment Method providers or Acquirer require you or us to pay, or which are otherwise directly or indirectly recovered from us by the Card Schemes, Alternative Payment Method Providers or Acquirer, in each case under their Relevant Rules, at any time; and (2) relate directly or indirectly to any aspect of our relationship with you and arise as a result of your acts or omissions, including in relation to a Chargeback or Payer's Disputed Sum and any arbitration procedure used to determine responsibility for a Chargeback or Payer's Disputed Sum;
      • Authorisation means the confirmation obtained by us or a third party at the time of the Transaction (directly or indirectly) from the relevant Card Issuer that the Card has not been listed as lost or stolen or as having had its security compromised, or from the relevant Alternative Payment Method provider that the Alternative Payment Method account has not been listed as having had its security compromised, and in each case that there are sufficient funds for the relevant Transaction, (and Authorise and Authorised shall be construed accordingly);
      • Business Day means Mondays to Fridays excluding public holidays in England and in the territory in which your registered office is located;
      • Card means a credit, debit, charge, purchase or other card issued by a Card Issuer and any other cards which we have agreed in writing to process;
      • Card Issuer means a person who has issued a Card as approved by the necessary Regulator and the Card Scheme;
      • Card Scheme means the card schemes listed in the Application Form or Commercial Schedule or any other card scheme as may be approved and notified by us to you in writing from time to time;
      • Chargeback means any circumstances where a Card Issuer, Card Scheme or Alternative Payment Method, in accordance with the Relevant Rules refuses to settle a Transaction or part of it, or demands payment from us in respect of a disputed Transaction that has been settled, notwithstanding that the Card Issuer or Alternative Payment Method provider may have given Authorisation;
      • Chargeback Costs means the administrative costs that we charge for a Chargeback, and any costs, expenses, liabilities or Assessments that we may incur as a result of or in connection with a Chargeback or Payer's Disputed Sum as envisaged pursuant to clause 10;
      • Commencement Date means the date on which we provide the Services to you for the first time;
      • Commercial Schedule means the document setting out the commercial terms on which you will receive the Services from us, including the Fees, any Trading Limits and any Rolling Reserve;
      • Confidential Information means information that is designated as "confidential" or which by its nature is clearly confidential including any information relating to the Agreement; a Payer or a Payer's use of a Card or Alternative Payment Method; the Card Schemes; an Acquirer; our or your technology, technical processes, procedures, business affairs, finance or security procedures, however conveyed or presented;
      • Contract Year means a period of 12 months, commencing on the Commencement Date or any anniversary of the Commencement Date;
      • Control means the exercise, or ability to exercise or entitlement to acquire, direct or indirect control over an undertaking;
      • Data means documents, data and records relating to Transactions and Payers and shall include Transaction Personal Data;
      • Data Protection Law means the European Privacy and Electronic Communications Directive (Directive 2002/58/EC), the General Data Protection Regulation (each as in force), and any data privacy and data protection laws and regulations in any territory in which the Services are provided;
      • Data Supervisory Authority means any competent data protection or privacy authority in any jurisdiction in which you are established or your Payers are located or we provide the Services and/or Process Personal Data or who otherwise has lawful authority to regulate any matter relating to Personal Data in connection with the Agreement;
      • EMS API means our application programming interface which enables integration of our payment gateway with Your Website, as may be updated from time to time by us;
      • EMS Website means our website at the url that we will provide to you from time to time;
      • ePayments APM Service means the payment service through which you can receive payment for goods and services from an account holder of an EPS e-wallet account directly from the account holder’s EPS e-wallet account;
      • ePayments Gateway Service means the provision by us of an online portal that supports the processing of Authorisation requests and the transmission of Data by us between you and a Payer and/or between you and an Acquirer to facilitate a Transaction;
      • ePayments PSP Service means the processing of Transactions by us such that, via the EMS API, we receive Payers' requests to pay for your goods and services by Card or Alternative Payment Method, process requests and receipt of Authorisations, receive payment on your behalf, and remit the payment to you;
      • Fees means the fees payable by you to us for the provision of the Services as set out in the Application Form or the Commercial Schedule;
      • Force Majeure Event means events, omissions or accidents beyond a Party's reasonable control, including acts of God, flood, earthquake, storm or other natural disaster, fire, explosion, epidemic, theft, armed conflict, imposition of sanctions, terrorist attack, riots, nuclear, chemical or biological contamination, any changes in Applicable Law, equipment breakdown, system failure, interruption or failure of utility or telecommunications service, hacking attacks, labour disputes, and downtimes of the EMS Website;
      • General Data Protection Regulation means Regulation (EU) 2016/679 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data;
      • KYC means information about you, your business, corporate charter and structure, management and legal and beneficial ownership, requested by us to comply with Applicable Laws, Regulator requirements or Relevant Rules, and information on your finances, audited accounts and business and trade references, reasonably required by us to assess our risk in providing the Services;
      • Micro-Enterprise means an enterprise which, at the time of entering the Agreement, is an enterprise as defined in Article 1 and Article 2(1) and (3) of the Annex to Recommendation 2003/361/EC;
      • Party means you or us (as the context may require) and includes successors and permitted assigns;
      • Payer means a person who uses a Card or Alternative Payment Method to make or propose to make a payment;
      • Payer Data means all Personal Data, which is (i) supplied, or in respect of which access is granted, to us by you or otherwise in connection with the Agreement, or (ii) produced or generated by or on our behalf in supplying the Services, and which shall include the following types of Personal Data in respect of the following categories of data subjects: names, contact details, Transaction Personal Data and other Personal Data relating to Payers;
      • Payer's Disputed Sum (or reclamation) means a sum disputed by the Payer as due to or from you in connection with a Transaction, including arising from a complaint about the quality or delivery of the goods or services the subject of the Transaction;
      • Payment Delay means the length of time by which we will delay Settling funds to you under this Agreement;
      • Payment Services Regulations means the UK Payment Services Regulations 2017 (Statutory Instrument 2017 No. 752), as amended from time to time;
      • PCI DSS Standards means the Payment Card Industry Data Security Standard, Payment Application Data Security Standard and the PIN Transaction Security Standard as updated from time to time and published by the PCI Security Standards Council at https://www.pcisecuritystandards.org;
      • Prohibited Items means the list of goods or services which you are prohibited from selling using the Services, notified by us to you from time to time and set out in schedule 1;
      • Reason Code means a code or category used by any Card Scheme to classify a specific activity, act or omission, including any code in the Visa Merchant Alert Service and Merchant Alert to Control High Risk Merchants;
      • Refund means a return of a Transaction amount, including any Payer's Disputed Sum, to a Payer's account pursuant to a request or instruction from you to us;
      • Regulator means any governmental or regulatory authority (including the United Kingdom's Financial Conduct Authority, the United Kingdom's Payment Services Regulator, the United Kingdom's Office of Fair Trading, the United Kingdom's Office of the Information Commissioner and any body which succeeds or replaces any of the foregoing) having jurisdiction over any of the Parties and/or their businesses in the territories in which the Services are made available;
      • Relevant Rules means all applicable rules, regulations and operating guidelines, issued from time to time by the Card Schemes or the providers of Alternative Payment Methods, relating to Cards, Transactions and any payments or processing of Data relating thereto, and any waivers or exceptions agreed with the Card Schemes or providers of Alternative Payment Methods;
      • Rolling Reserve means such amount as specified in the Application Form or the Commercial Schedule or as notified by us to you from time to time (at our discretion) for the purpose of securing any claims by us against you (including claims for payment of Chargebacks and Refunds due);
      • Sanctions means any economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: (i) the United States government; (ii) the United Nations; (iii) the European Union; (iv) the United Kingdom; or (v) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (OFAC), the United States Department of State, and Her Majesty’s Treasury;
      • Security means any form of security requested by us from you including (i) a Rolling Reserve (ii) a bank guarantee (iii) a Payment Delay, (iv) a Security Deposit or other such security;
      • Security Credentials means log-ins, passwords, or other credentials provided to or set up by you in relation to or to access the Services;
      • Security Deposit means such amount as you shall deposit to a bank account in our name as requested by us;
      • Services means the ePayments APM Service, the ePayments PSP Service and/or the ePayments Gateway Service;
      • Settlement means the crediting or remitting to Your Current Account of the Settlement Amount determined by us (and Settle and Settled shall be construed accordingly);
      • Settlement Amount means the amount of Transactions successfully Authorised and credited to Your EMS Account reduced by the amount of Chargebacks, Refunds, Assessments, Fees and Security; and which is to be Settled to Your Current Account within the Settlement Frequency;
      • Settlement Frequency means the frequency with which we shall transfer the Settlement Amount to Your Current Account and specified in the Application Form or the Commercial Schedule;
      • Small Charity means a body whose annual income is less than £1 million and is in England and Wales, a charity as defined by section 1(1) of the Charities Act 2006; in Scotland, a charity as defined by section 106 of the Charities and Trustee Investment (Scotland) Act 2005; and in Northern Ireland, a charity as defined by section 1(1) of the Charities Act (Northern Ireland) 2008;
      • Term means the period starting on the Commencement Date and ending on termination under clause 12;
      • Trading Limit means the trading limits set out in the Application Form or the Commercial Schedule;
      • Transaction means any Refund or any payment for goods and/or services processed under the Agreement via Your Website, made by use of a Card, a Card number, an Alternative Payment Method or otherwise to debit or credit the Payer's Card, Alternative Payment Service account or bank account;
      • Transaction Details means the details as required from time to time by the Card Scheme or Alternative Payment Method provider which must be collected and recorded for a relevant Card or Alternative Payment Method Transaction;
      • Transaction Personal Data means Personal Data in respect of individuals to whom Transactions relate which is provided to or otherwise Processed by us in the provision of the Services;
      • VAT means value added tax imposed pursuant to the Value Added Tax Act 1994;
      • Your Current Account means the account in your name and under your control, as set out in the Application Form or the Commercial Schedule (which may be an electronic money account held with EPS);
      • Your EMS Account means your account with us (and to be held in our client account with separate records for Transaction payments, Chargebacks refunds and the Rolling Reserve) for the receipt of Transaction payments and Chargeback refunds; the holding of the Rolling Reserve; and paying (or having debited) the Fees (and any interest on them), Assessments and Chargeback Costs, such account to be an "account of record"; and
      • Your Website means the ecommerce website specified in the Application Form.
    7. In these Terms (unless the context otherwise requires), the words including, include and includes shall be construed without limitation to the generality of the preceding words or the words following; the terms Personal Data, Data Controller, Data Processor, Processing and Data Subject, shall bear the meaning ascribed under Data Protection Law, and the terms Process, Processed and Processes shall be construed accordingly; references to Clauses and Schedules are references to clauses and schedules of and to these Terms; an 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 a reference to what most nearly approximates in that jurisdiction to the English legal term; and, in the event of any conflict, the provisions of the Schedules shall prevail over the clauses.
    8. The headings and sub-headings in these Terms are for convenience only and shall not affect the construction or interpretation of these Terms.
  2. Scope of the Agreement

    We will provide the Services to you in consideration of your payment of the Fees and performance of your other obligations under the Agreement.

  3. Warranties
    1. We warrant that we act as agent for EPS, which has and will have, during the Term, the necessary authorisations from the relevant Regulator to provide the Services; we are duly organised and validly existing under the laws of England and Wales; and we have (and will have) undertaken all requisite corporate and other actions to approve the terms of the Agreement.
    2. You warrant that you are duly organised and validly existing under the laws of your country of establishment; you have (and will have) undertaken all requisite corporate and other actions to approve the terms of the Agreement; and all KYC provided by you to us in connection with the Agreement is accurate and complete.
  4. Service Commencement
    1. The Agreement is conditional upon you providing satisfactory KYC to us and our confirmation that your application for receipt of the Services has been successful. You shall provide KYC to us promptly following our request from time to time.
    2. We shall provide the EMS API to you. Following receipt of the EMS API, you will take the necessary steps to integrate Your Website with our system. On our request from time to time, you shall install or update the EMS API and your systems with which the EMS Website is to be integrated.
    3. You shall not, and shall not permit any third party to, work around any of the technical limitations of the EMS API, use any tool to enable features or functionalities that are otherwise disabled in the EMS API, or decompile, disassemble or otherwise reverse engineer the EMS API, except to the extent that such restriction is expressly permitted by any applicable law; nor perform or attempt to perform any actions that would interfere with the proper working of the Services.
  5. Our Obligations
    1. Subject to clause 4.1, after receiving confirmation from you that you have installed the EMS API on Your Website, we shall provide you with the Services until the end of the Term in accordance with the Agreement.
    2. We shall provide the Services with reasonable care and skill, in compliance with Applicable Laws and in compliance with the Relevant Rules and, where relevant, PCI DSS Standards.
    3. We may enter into agreements with one or more Acquirers in order to provide the Services to you. In such event:
      • if so required by us, you will enter into a tripartite agreement with us and the relevant Acquirer for the provision of the Services in relation to that Acquirer's services (pending which we shall not be obliged to provide any Services); and
      • you will indemnify us and hold us indemnified from and against all actions, proceedings, costs, claims, demands, charges, expenses (including legal expenses), losses and damages, which we may suffer or incur arising from or in connection with the agreement between you and an Acquirer save to the extent arising due to our breach of these Terms.
    4. The express provisions of these Terms are in place of any and all terms and conditions which would otherwise be implied. Save as expressly set out in the Agreement, we give no representations, terms, conditions or warranties of any kind, statutory or otherwise, regarding the Services, and specifically disclaim any implied warranties and/or terms of satisfactory quality or fitness for a particular purpose.
    5. You acknowledge that you are responsible for maintaining your own records related to the Transactions, Chargebacks or Refunds and for reconciling these with your own banking records. Upon the termination of these Terms we shall have no obligation to retain, store or make available to you any Data, records or other information in connection with any of the Services, or Transactions, Refunds or Chargebacks.
    6. At your request to our customer services team, we will make reference data available to you on a monthly basis for each of your Transactions, showing, where relevant, the value of each Transaction in the same currency in which we have credited your account and the level of interchange payable on each Transaction displayed separately from the rest of your Fees. (Interchange is the fee passed through to Card Issuers). The data will be made available to you on a monthly basis following your request. We reserve the right to charge for this provision and no historic or backdated data will be available.
    7. In respect of the ePayments Gateway Service when we are not providing the ePayments PSP Service, you acknowledge and agree that:
      • you are solely responsible for obtaining the services of an Acquirer before the ePayments Gateway Service is provided to you;
      • the relevant Acquirer shall be solely responsible for providing its services to you, including authorising and settling Transactions and paying to you any such sums due in respect of Transactions;and
      • we may not be able to ascertain whether there are any errors in the transmission of Data and accordingly you shall be responsible for notifying us in the event there are discrepancies between the amount you actually receive in connection with Transactions and the amount you expect to be paid. Such notice must be given within 30 days of the date of the relevant Transaction.
  6. Your Obligations
    1. You shall at all times comply with:
      • the Relevant Rules applicable to you (including those which we may notify to you) and Applicable Laws;
      • the rules of the Acquirer that are applicable to you as provided by us to you from time to time;
      • PCI DSS standards;
      • your contracts with Payers connected with the sale of goods and/or services related to the Transactions;
      • your delivery, returns and refunds policies;and
      • any processes related to use of the Services required by us from time to time as posted on the EMS Website.
    2. You shall:
      • accept the Cards and the Alternative Payment Method payments only as regards goods and services described in the Application Form, which are sold via Your Website, and which are not on the list of Prohibited Items. If you intend to accept such payments for any additional goods and services, you shall give us at least 30 days advance notice and acknowledge that we have sole discretion whether or not to provide Services relating to such additional goods and services;
      • upon receiving a request from us, provide access to us to the membership area of Your Website, to the extent Your Website has such membership area;
      • upon receiving a request from us, provide us with evidence of your observation of Applicable Laws, in particular those relating to consumer protection, distance selling and e-commerce regulations;
      • notify us of any website where you accept payments by Card or Alternative Payment Method;
      • inform your employees, officials and involved persons promptly and in an appropriate manner of the main features of the Agreement, the Relevant Rules applicable to you and the rules of the Acquirer that are applicable to you as provided by us to you from time to time, and shall monitor and procure those individuals' ongoing compliance;
      • on Your Website, display prices for your goods and/or services in the approved currencies specified in the Application Form;
      • not impose any minimum limit on the amount of Transactions save as set out in the Application Form or the Commercial Schedule;
      • not represent yourself as a member of a Card Scheme;
      • not artificially split a Transaction into parts including so as to circumvent any maximum limits on the amount of Transactions set out in the Application Form or the Commercial Schedule;
      • not transfer or attempt to transfer your financial liability by asking or requiring Payers to waive their dispute rights;
      • subject to these Terms, not discriminate between Card and Alternative Payment Method purchases on the one hand and purchases by other means on the other hand, such that the Transaction amount or price is different save that you may impose a surcharge for the use of a Card subject to Applicable Laws and the Relevant Rules and provided that you notify the Payer of the surcharge;
      • only accept payments from, and/or process the payment of Refunds to, Payers, under the Agreement, in connection with an underlying transaction for the sale of goods and/or services which you have in good faith supplied to the relevant Payer and not for any purposes which you know or should know are fraudulent or unlawful, and only pay such Refund to the Payer using the payment method used by the Payer for the original Transaction;
      • only accept payments, and submit any Data to us, in respect of any Transaction under the Agreement (including any recurring Transaction (such as subscriptions or instalments)), where a Payer has authorised such Transaction in accordance with Applicable Laws, the Agreement and any other reasonable information or instructions by us from time to time, provided that compliance with this obligation does not require you to independently confirm the Payer's identity at the time of the Transaction except as required by the Relevant Rules, and the use of any secure code, process and/or application to make a Transaction, provided by a Card Scheme or Alternative Payment Method, shall be sufficient evidence of authorisation by the relevant Payer;
      • adhere to any security protocols required by the Card Scheme, Alternative Payment Method provider or Acquirer, without adopting any stand-in process;
      • await Authorisation from us, the Card Scheme or Alternative Payment Method provider before proceeding with the Transaction unless the Transaction is below the floor limits (if any) specified in the Application Form or the Commercial Schedule;
      • where Authorisation is obtained, but the Card or Alternative Payment Method Transaction does not proceed immediately, reverse the Authorisation;
      • refrain from doing anything which is materially disreputable or materially damages our reputation or that of any of the Card Schemes or Alternative Payment Method providers, or which involves or gives rise to fraud or any other criminal activity;and
      • inform Payers
        • of your identity at all points of interaction so the Payer can readily identify you as a counterparty to the relevant Transaction;
        • that you are responsible for the Transaction, including delivery of the goods or provision of the Services and for customer service and dispute resolution;
        • of your location, which must be clearly identified on the home and payment page of any relevant website;and
      • publish your terms and conditions of sale, delivery, returns, complaints and refunds policies on Your Website, which must state clearly that we are a payment services provider which will not participate in any disputes between you and the Payers, and you shall notify us in advance of any changes to such terms and conditions and policies.
    3. Unless otherwise agreed by us in writing, and save as expressly set out otherwise in the Agreement, you acknowledge and agree that you shall (at your own cost) be solely responsible throughout the duration of the Agreement for the provision of all equipment, software, systems and telecommunications facilities which are required to enable you to receive the Services (including any modification or adjustments thereto pursuant to clause 20).
    4. Unless otherwise agreed by us in writing in advance, you shall maintain your registered office and centre of main interests within the territory designated in the Application Form.
    5. We shall be permitted to update the list of Prohibited Items with immediate effect on providing written notice including by email or by posting a list of Prohibited Items on the EMS Website. Where such update arises as a result of the requirement of a provider of an Alternative Payment Method, Card Scheme, Acquirer or a Regulator, you shall ensure that on and from date on which the update is to become effective you shall cease selling any prohibited goods or services listed in such updated list. Where such update is not as a result of such requirement, you shall cease selling any prohibited goods or services listed in the updated list, except that you shall be permitted to fulfil orders for such items made before the update became effective.
    6. You shall, in relation to data that we transmit to you, use reasonable endeavours to ensure that such data does not contain destructive code. You shall advise us if you become aware that you have so transmitted any destructive code and take reasonable steps to remedy the problem and prevent recurrence.
    7. You will not, without our prior written approval (at our absolute discretion and which may be given via an electronic authorisation that you may not be able to store) send for processing under the Agreement, in any year, any Transactions over the relevant Trading Limit.
    8. You shall keep secure, and follow our instructions concerning the use of, the Security Credentials. We are entitled to suspend the use of the Security Credentials and/or the Services if we reasonably consider that the Security Credentials have been compromised or used fraudulently or without authorisation. We will inform you of such suspension as soon as reasonably possible and reinstate the Security Credentials within a reasonable time. We have no responsibility for any loss or damage arising from or in connection with your improper or negligent use, storage or disclosure of your Security Credentials.
    9. You will comply promptly with all requests for information that we may make for the purposes of meeting our operational and legal requirements to carry out KYC in relation to you (including providing personal information about your directors and beneficial owners).
    10. You shall comply in all respects with Sanctions.
    11. You shall grant us the right to access Your Website for the purpose of conducting manual checks or automated searches in order to investigate the accuracy of information contained on Your Website in relation to the Services, provided that any such searches shall not be deemed an approval of any contents of Your Website.
  7. Fees
    1. In return for us providing you with the Services, you shall pay to us the Fees in accordance with this clause 7.
    2. Unless stated otherwise, all Fees and amounts due hereunder are stated exclusive of VAT and any other relevant taxes and in addition to paying such Fees and other amounts you shall also pay any such taxes if applicable (save corporation taxes and similar taxes).
    3. Without prejudice to clause 7.4, at the end of each month during the Term, and on termination of the Agreement, we shall be permitted to invoice you for the amount of the Fees for the Services provided in the immediately preceding month.
    4. We shall be entitled to deduct the Fees, Chargebacks, Refunds or Assessments from the Transactions or from Your EMS Account at any time following the Transaction, or require you to pay the invoiced Fees, Chargebacks, Refunds or Assessments to such account as we notify to you, within seven (7) calendar days following the date of invoice, in each case together with VAT and any interest due on the Fees.
    5. The Fees and other amounts payable to us shall be paid in the Transaction currency specified in the Application Form or the Commercial Schedule.
    6. We may at any time change the rate or basis of the Fees if there is a change in the fees levied on us by the relevant Alternative Payment Method provider, Card Scheme or Acquirer, or to reflect a change to the Relevant Rules. We will notify you of any such change by posting a notice on our Website, emailing you or another method. If you are a Micro-Enterprise or a Small Charity, we will notify you at least two (2) months before the changes take effect.
    7. We may also revise the Fees by two months' notice either in writing to you or by posting the revision to the EMS Website.
  8. Reserve and Security
    1. We may require that Security is established in relation to you for the purpose of providing a source of funds to pay us for any and all, actual and reasonably anticipated claims, losses, cost, penalties and expenses. If we determine that a Rolling Reserve is applicable, we shall be entitled to deduct such percentage of each Transaction as is set out in the Application Form or Commercial Schedule and which is denominated as the Rolling Reserve, from the relevant Settlement and hold such sum in Your EMS Account. If we, in our reasonable discretion, determine that a Security Deposit is required, we shall notify you of this and the amount of the Security Deposit required. Within 30 days of such notification, you shall transfer to an account nominated by us, the amount of the Security Deposit requested. If we, in our reasonable discretion, determine that a Payment Delay is required, we shall notify you of this and the length of the Payment Delay. Following such notice we shall delay Settlement to you for the period so notified and the Settlement Frequency shall be amended accordingly.
    2. If we so request, you shall provide us with a bank guarantee in an amount and form acceptable to us within 30 days of request.
    3. We may increase the Rolling Reserve, the Security Deposit, the Bank Guarantee or the Payment Delay if:
      • we reasonably consider there to be a risk that Your EMS Account does or will not hold sufficient funds for actual or reasonably anticipated Refunds, Chargebacks, Payer’s Disputed Sums, Assessments and/or Fees;
      • or there is a material increase in the number of Transactions, the average value of Transactions, or the aggregate value of Transactions in any month compared to any previous month, taking into account any trends or seasonality of trading.
    4. We shall hold the Security against any Chargebacks, Payer’s Disputed Sums, Assessments, Fees and any other obligations of you under the Agreement, for such time as reasonably decided by us and/or as permitted by the Relevant Rules.
    5. When we consider that you have satisfied all your obligations under the Agreement and in any event no later than 180 days after termination or expiry of this Agreement, (without prejudice to our rights to recovery should any such obligations nevertheless remain outstanding) we shall remit any credit balance in Your EMS Account to Your Current Account, close Your EMS Account and release any Security held.
  9. Payments to you
    1. Subject to these Terms (in particular, clauses 7 to 11), and to Your EMS Account holding the Rolling Reserve required in the Application Form or Commercial Schedule, you shall receive the Settlement Amount from Your EMS Account into Your Current Account according to the Settlement Frequency.
    2. We shall be permitted to net off or set off a sum due from you to us from or against any sum required under these Terms to be paid or credited by us to you, including any Security.
    3. We have the right to suspend the processing of any Transaction and Settlements to Your Bank Account when we are instructed to do so by a Card Scheme, an Alternative Payment Method provider or bank associated with the relevant Transaction or any competent court or Regulatory Authority, or when we reasonably believe that a Transaction is, or may be, or may involve:
      • the subject of a suspicious activity;
      • fraudulent or criminal activity;
      • a payment to a third party or cash given by a third party;
      • related to a Prohibited Item or otherwise not permitted by these Terms;
      • a breach of the terms of the Agreement, including any breach of the Relevant Rules or Applicable Laws,
      until the satisfactory completion (in our opinion) of an investigation by us or a third party. We shall notify you within a reasonable time of any such action, and the reasons, and the procedure for rectifying any factual errors, that led to the suspension unless we are prohibited from doing so under Applicable Laws or Relevant Rules. We may charge you the reasonable costs of any such notification. If, following our investigation, we return the value of the relevant Transaction to the sender, you must reimburse us on demand for such sums if sufficient funds are not available from Your EMS Account to do so;
    4. Where the Transaction currency is not in the billing currency specified in the Application Form or the Commercial Schedule, we will convert the payment into a billing currency when deducting Fees and Chargeback Costs from Your EMS Account. You agree and acknowledge that the conversion rate will be the rate used by the bank which performs the conversion for us, and which we do not control and cannot display.
    5. You authorise us and the bank with which Your EMS Account is held to hold, receive and Settle funds from Transactions, on your behalf, when such funds are received from the Card Schemes, Alternative Payment Method provider or Acquirer.
  10. Payers' Disputes, Chargebacks and Assessments
    1. Where a Chargeback or any other Payer's Disputed Sum and/or an Assessment occurs (whether or not you have accepted payment in respect of the relevant Transaction) this represents an immediate liability from you to us so that the amount of such Payer’s Disputed Sum, Chargeback and/or Assessment shall be a debt owed by you to us. We will be entitled to recover from you (including as provided under this clause 10) the full amount of the relevant Chargeback, Payer's Disputed Sum and/or Assessment, and any related Chargeback Costs whether or not you successfully dispute the Assessment, Chargeback or claim of a Payer's Disputed Sum. To the extent permitted by Applicable Laws, we shall notify you as soon as reasonably practicable of any applicable Payer's Disputed Sum, Chargebacks, Chargeback Costs or Assessments which have occurred or been incurred. Such notification may be given via a link to a URL provided by us to you. Where we inform or invoice you of the sums due to us under this clause 10.1:
      • we shall be entitled to deduct sums from Your EMS Account (including the Rolling Reserve) or (if so required by us) you shall make full payment of the invoiced sums (which are due from you) within 14 days of the date of invoice;and
      • you shall not make any Refund to the relevant Payer which is the subject of the Chargeback or Payer's Disputed Sum in question.
    2. Any Chargebacks and/or Payer's Disputed Sums for which you are obliged to reimburse us shall correspond to the whole or part of the value of the relevant original Transaction.
    3. You agree that, in the event of a Chargeback and/or Payer's Disputed Sum which may be passed to you in accordance with clause 10.1, but which you still dispute, it is your responsibility, to prove to our reasonable satisfaction (and, where required, that of the relevant Card Scheme, Card Issuer or Alternative Payment Method provider) that the debit of a Payer's account was authorised by such Payer and/or the payment is incorrectly disputed by the Payer. Accordingly, you shall, upon becoming aware of a Chargeback or Payer's Disputed Sum, notify us whether or not you dispute the Chargeback or the Payer's claim to the Payer's Disputed Sum as provided in clause 10.4(a) and clause 10.4 otherwise applies. Notwithstanding the foregoing, you will act in good faith and use reasonable endeavours to settle Chargebacks and claims for Payer's Disputed Sums with the Payer.
    4. Subject to the Relevant Rules, we shall automatically implement an electronic chargeback investigation system to assess the validity of any Chargeback raised by any Card Issuer, Card Scheme or Alternative Payment Method provider. If a Chargeback or Assessment is passed on to us by or from the relevant Alternative Payment Method provider, Card Issuer or Card Scheme:
      • as soon as possible or when sending our monthly invoice under clause 7.3, we shall notify you in writing of the same and of any Chargeback Costs, and, where you have reasonable grounds to dispute such Chargeback or Assessment in good faith, you may by written notice given within fifteen (15) days of receiving the notification, containing full details of your reasons for such dispute, request us to investigate and/or challenge the same (failing which you shall be deemed to have accepted that the Chargeback or Assessment is due);
      • and in case of such request, we shall use our reasonable endeavours to investigate and challenge the relevant Chargeback or Assessment and, where permitted by the Relevant Rules, to seek to persuade the relevant Alternative Payment Method provider, Card Scheme or Card Issuer to cancel the relevant Chargeback or Assessment. Pending resolution of such dispute we shall, unless prohibited by the Relevant Rules, debit the Chargeback or Assessment to you.
      Notwithstanding the foregoing, you acknowledge and agree that any decision or determination of the Alternative Payment Method provider, Card Issuer or Card Scheme as to the validity and extent of any Chargeback and/or Assessment shall be final and binding and your provision of information concerning the dispute does not result in any guarantee that the Chargeback or Assessment will not be made.
    5. Where you agree that a claim for a Payer’s Disputed Sum or a Chargeback is correct, or you do not dispute it within the timescales provided in clause 10.4, then you shall not be entitled to the sum subject to the Chargeback or the Payer’s Disputed Sum.
    6. As Chargebacks, Payer’s Disputed Sums and Assessments may arise a considerable period of time after the date of the relevant Transaction, you acknowledge and agree that, notwithstanding any termination of the Agreement for any reason, and subject to the other provisions of this clause 10, we shall, both during and after the Term, remain entitled to recover relevant Payer’s Disputed Sums, Chargebacks, Chargeback Costs and Assessments from you in respect of Payer’s Disputed Sums, Chargebacks and Assessments that occur in relation to Transactions effected during the Term.
    7. Following the reversal or cancellation of any Chargeback or Assessment for which we have debited you in accordance with the Agreement (or which you have otherwise paid) we shall refund to Your EMS Account or to Your Current Account (as appropriate), the amount of such Chargeback or Assessment, the amount of any Chargeback Costs which we have received from you in respect of such Chargeback, and, if the Chargeback was raised by the provider of an Alternative Payment Method, Card Scheme or the Card Issuer as a result of our breach of the Agreement or negligence, a sum equal to the value of any "Request for Information" charge that was received by us from you in respect of such Chargeback.
    8. Where the number of Chargebacks and/or Assessments disputed by you is greater than the number that we would ordinarily and reasonably expect to be disputed by a merchant of a size and nature similar to you, or the number of fraudulent Transactions, Chargebacks or claims for Disputed Payment Sums received by you, exceed the applicable thresholds set out in the Application Form or Commercial Schedule as may be revised by us consistent with the Relevant Rules then, within fifteen (15) days of request or stipulated by the Relevant Rules:
      • we and you shall, on our request, meet to discuss the likely cause and to agree in good faith means of mitigating the same;
      • if we so request, you shall provide to us your Action Plan;and
      • you shall comply with any instruction from us on how to reduce the Chargebacks and/or Assessments or the number of fraudulent Transactions, Chargebacks or claims for Payer's Disputed Sums.
  11. Interest

    If either Party fails to pay any amount due under the Agreement to the other Party when due, then the relevant Party to whom such sum was owed shall be entitled to charge default interest at a rate equal to three (3)% per annum above the base rate that is published by The Bank of England from time to time. Any interest which may accrue on the amount of any unpaid or late-paid sum which we were entitled to deduct from Your EMS Account (but which we were unable to deduct due to there being insufficient funds in Your EMS Account), shall begin to accrue on the date that we send you the relevant notice that such withdrawal has failed or will fail.

  12. Term, Termination and Consequences of Termination
    1. The Agreement shall come into force on the Commencement Date and continue in force until terminated in accordance with this clause 12.
    2. Either party may terminate the Agreement by at least two (2) months' written notice to the other party. If you are a Micro-Enterprise or a Small Charity you may terminate the Agreement by giving us one (1) months’ written notice.
    3. We may terminate the Agreement and/or suspend the Services and/or the processing of any Transaction and Settlements to Your Bank Account for such time as we see fit with immediate effect by giving written notice to you if:
      • you commit a material breach of the Agreement which is not capable of remedy or, if capable of remedy, is not remedied within fourteen (14) days (or such longer period as we may agree in writing following a request by you) of the date of written notice from us requiring such remedy to our reasonable satisfaction;
      • you file a petition for bankruptcy, are insolvent or cannot pay your debts as they fall due, make any arrangement or composition with or assignment for the benefit of your creditors, have a receiver appointed for you or your business, go into liquidation voluntarily (otherwise than for solvent reconstruction or amalgamation) or compulsorily, or suffer or are subject to any equivalent event in any jurisdiction;
      • you fail to pay any sums due within seven (7) days of notice from us of failure to make such payment;
      • you are involved in fraud or do anything which we consider could damage our, a Card Scheme’s or an Alternative Payment Method provider’s reputation;
      • we are required to do so by any Alternative Payment Method provider, Card Scheme, Acquirer or Regulator or under the Relevant Rules or Applicable Laws;
      • you operate your business contrary to Applicable Law;
      • a Card Scheme, Alternative Payment Method provider or Acquirer suspends, terminates or otherwise ceases the provision to us of any services necessary for us to provide the Services to you;
      • you change your registered office and/or centre of main interests without our prior written consent;
      • you are issued with any mandatory instruction from a Regulator with which you do not or are unable or unwilling to comply;
      • you undergo a change of Control to a person whom we consider to be a competitor of us or to whom we are not permitted to provide the Services by reason of Applicable Laws or a binding determination or decision of a Regulator or a person who is not of a financial position and standing which is satisfactory to us or who does not successfully pass our KYC checks;
      • you make any material change (or series of changes which together are material) to the types or range of goods and services offered on Your Website, the delivery period or other terms on which those goods or services are sold, and/or Your Website in breach of clause 6.2(a);
      • you fail to provide proper copies of the Transaction receipts as required under clause 17.1;
      • the number of fraudulent Transactions, Chargebacks, Assessments or Payer’s Disputed Sums is in excess of the applicable threshold set out in the Application Form or the Commercial Schedule;
      • you issue or have issued any credit to a Payer to avoid exceeding the Chargeback and/or Payer’s Disputed Sum thresholds set out in the Application Form or Commercial Schedule, or if we reasonably suspect that you are otherwise circumventing such thresholds;
      • you accept any payment(s) from, and/or make or process any payment(s) of Refunds to, Payers where there is no underlying transaction for the sale and provision of goods and/or services by you to the relevant Payer;
      • you improperly or negligently use, care or store the Security Credentials or there is a systemic loss, theft, misappropriation or unauthorised use of the Security Credentials;
      • you are prevented by a Force Majeure Event from performing any material obligations under the Agreement;
      • you fail to provide to us the Action Plan in the time specified in clause 10.8 or properly to perform the Action Plan;
      • the Relevant Rules and/or the rules of the Acquirer are amended in such a way as, in our opinion (in our sole discretion), will make the continued provision of the Services under the Agreement illegal, impracticable or economically unviable;
      • you act in a manner which may or does give rise to increased risk of fraud or any other criminal activity or suspicion of fraud or any other criminal activity;
      • or we consider that any act or omission or yours falls within a Reason Code.
    4. You may terminate the Agreement with immediate effect by giving written notice to us if we:
      • commit a material breach of the Agreement which is not capable of remedy or, if capable of remedy, is not remedied within seven (7) days of receipt by us of a written notice from you requiring such remedy to your reasonable satisfaction;
      • are insolvent or unable to pay our debts when they fall due;
      • make a material variation to the Agreement under clause 20.3, provided you give us 30 days' written notice of such termination within 30 days of you receiving the notice of variation following which such right will lapse;or
      • are prevented by a Force Majeure Event from performing any material obligations under the Agreement.
    5. Upon termination of the Agreement, all rights and obligations of any Party shall cease to have effect immediately, save that those clauses which expressly or by implication have effect after termination will continue to be enforceable notwithstanding such termination, and termination shall not affect accrued rights and obligations of either Party under the Agreement as at the date of termination.
    6. Upon or at any time after termination of the Agreement, you shall immediately pay us all amounts owed by you under the Agreement and we shall immediately pay you all amounts owed by us under the Agreement, provided that as regards Transactions still in progress on the termination date, Fees, Chargeback Costs and Assessments shall be payable in accordance with the other terms of the Agreement.
  13. Indemnity
    1. You shall indemnify and hold us indemnified from and against all actions, proceedings, costs, claims, demands, charges, expenses (including legal expenses), losses and damages, which we may suffer or incur arising from or in connection with:
      • any claim brought against us by a Payer, Card Scheme, Card Issuer, Alternative Payment Method, Acquirer or other third party arising from a Transaction, Refund or Chargeback, unless due solely to our negligence or breach of the Agreement;
      • any other claim brought against us (including Assessments) arising from any loss, compromise or theft of Data held by you;
      • any failure by you to fulfil your obligations under the Agreement;or
      • any failure by you to comply with the Relevant Rules or the requirements of a Regulator or Applicable Laws.
    2. We shall be entitled to deduct from the amount of the Transactions or Your EMS Account, or require you to pay on demand, any sums due under the indemnity you give to us in accordance with this clause and with clause 5.3(b).
  14. Liability
    1. Subject to clauses 14.2, 14.3 and 14.4, but otherwise notwithstanding any other provision of the Agreement we shall only be liable for any proven direct losses which you suffer or incur as a result of our negligence or breach of the Agreement, save if and to the extent that such breach is caused or contributed to by you and we shall not be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any direct or indirect loss of profit, contract, goodwill, reputation, opportunity or revenue whether foreseeable or otherwise.
    2. Nothing in the Agreement shall operate to exclude or restrict a Party's liability for fraud or fraudulent misrepresentation, death or personal injury resulting from its negligence, wilful abandonment of the Agreement, or any other liability to the extent it cannot be lawfully excluded.
    3. If you are a Micro-Enterprise or Small Charity, we shall be liable for the correct execution of Refunds within the timescales set out in the Payment Services Regulations, and for the correct transmission to a Payer’s Alternative Payment Method provider or Card Issuer (as applicable) of that Payer's request to make a Transaction, unless we can prove that the Payer’s Alternative Payment Service or Card Issuer (as applicable) is liable. We shall not be liable under this clause if you fail to notify us promptly after becoming aware of an incorrect Refund or Transaction, and in any event no later than 13 months after the incorrect Refund or Transaction has taken place.
    4. Neither Party shall be liable for any delay or failure to carry out any of its obligations under the Agreement if and to the extent that such failure is due to complying with any relevant requirement under the Relevant Rules or any Applicable Laws.
    5. Subject to clauses 14.2 and 14.3, our aggregate total liability to you in contract, tort (including negligence or breach of statutory duty) or otherwise arising out of, or in connection with, the supply, failure to supply or delay in supplying the Services or otherwise in connection with or related to the Agreement shall be limited to, and capped at the level of, the aggregate amount of fees paid by you to us under the Agreement during the one year period immediately preceding the event giving rise to the claim for liability.
  15. Materials
    1. You shall only use such materials identifying the Services, us, any affiliate of ours, any Alternative Payment Method or any Card Scheme if such materials have previously been approved by us in writing (such approval not to be unreasonably withheld).
    2. You shall, as required by the Relevant Rules, display prominently on Your Websites where you accept Cards or Alternative Payment Methods for payment, the Card and Card Scheme or Alternative Payment Method identification, and remove from Your websites that identification immediately on expiration of the Agreement.
  16. Data
    1. Whenever either Party requests it, the other Party shall give reasonable assistance to facilitate the successful collection and delivery of all Data.
    2. Each Party shall comply with all Applicable Laws governing the use, storage and/or Processing of Personal Data.
    3. You shall publish your privacy policy on Your Website in accordance with all Applicable Laws and such policy will contain any notice of your transfer of Personal Data to us as required by Applicable Law. You shall obtain any consents to such transfer or to our use of Personal Data contemplated by the Agreement, as required by Applicable Law.
    4. We and you agree that for the purposes of the Agreement and our Processing of the Payer Data in connection with the Services to be provided, we (and each permitted subcontractor pursuant to the Agreement) shall be the Data Processor and you shall be the Data Controller.
    5. You also acknowledge and agree that we will be a Data Controller in relation to Payer Data where we determine the purposes and means of the Processing, including where we (i) conduct risk management activities such as transaction monitoring for the purpose of detecting and preventing fraudulent activity; (ii) conduct anti-money laundering, financial crime and other screening checks; (iii) undertake activity to comply with the Relevant Rules or Applicable Law; (iv) anonymise or pseudonymise Payer Data that is subsequently used for maintaining, improving or developing services.
    6. To the extent required under Applicable Law, we, acting as Data Processor, will:
      • only Process the Payer Data on your documented instructions, (such instructions include the performance of the Services), and otherwise as necessary to perform our obligations under the Agreement or as required by law applicable to us (provided that we first inform you of the legal requirement unless this is prohibited on important grounds of public interest);
      • ensure that our staff who have access to Payer Data have committed themselves to appropriate obligations of confidentiality;
      • maintain all appropriate technical and organisational measures to ensure security of the Payer Data. Such measures shall be compliant with our applicable IT security policies;
      • assist you to fulfill your obligation to respond to requests for exercising of data subject rights (including access requests) set out in the Data Protection Law;
      • not transfer any Payer Data collected in the European Union outside the European Economic Area save as required to deliver the Services and otherwise with your prior written consent or subject to European Commission approved Model Clauses or other mechanism permitted under Applicable Laws;
      • subject to reasonable access arrangements and save for disclosure of information which is confidential, commercially sensitive or privileged, permit you or a third-party auditor acting under your direction, to conduct, at your cost, data protection audits, assessments and inspections concerning our data protection procedures relating to our compliance with this clause 16.6 provided that we may satisfy the foregoing obligation by providing you with a copy of a report by a suitable, independent third party as to our systems used for Processing the Payer Data;
      • notify you as soon as reasonably practicable and in writing if we become aware of any unauthorised or unlawful processing, disclosure of, or access to, Payer Data and/or any accidental or unlawful destruction of, loss of, alteration to, or corruption of Payer Data (a Reportable Breach) and provide you with assistance in responding and mitigating it. We shall maintain a log of Reportable Breaches;
      • assist you in complying with Article 35 (Data protection impact assessment) and Article 36 (Prior consultation) of the General Data Protection Regulation in respect of any new type of Processing proposed, in accordance with Data Protection Law;and
      • on termination of the Agreement, either destroy all Payer Data or transfer it to you or a nominated third party (in a mutually agreed format and by a mutually agreed method).
    7. You provide us with a general authorisation to engage sub-Processors of the Payer Data. We shall inform you of any proposed changes to Processors. Where so required by Applicable Law, we shall enter into a written agreement with each sub-Processor containing obligations equivalent to those set out in clause 16.6.
    8. You represent, warrant and undertake that, as far as you are aware, you are not subject to any current written notice of non-compliance or investigation with any Acquirer (not being us), a Card Scheme or a Regulator (including under any official alert received by you from a Regulator) in respect of a security breach relating to Data relating to Transactions processed by, or (by a third party other than us) on your behalf of.
    9. You shall notify us as soon as possible if you become aware of or suspect any security breach by you relating to Data. As soon as reasonably practicable, you shall also (and without prejudice to any other remedy we have in respect thereof) identify and remediate the source of such security breach and take any reasonable steps that we may require of you including but not limited to the procurement (at your cost) of forensic reports from third parties recommended by us.
    10. To ensure you are complying with your obligations under the Agreement to safeguard the Payer Data and Transaction Details, we may request details of your relevant security systems or may carry out an inspection or audit of your systems, including any relevant computer system. If we wish to carry out an inspection, we will give advance notice to you specifying the date and nature of the inspection.
    11. You shall not compile or use any lists of Payers or Card or Alternative Payment Method account identification numbers using Transaction Details other than to send Transaction Details to us.
  17. Retention of Records
    1. You shall retain legible copies of receipts of Transaction payments and also other Data for a minimum period of eighteen (18) months from the date of the Transaction (or such longer period as may be required by a Card Scheme, Alternative Payment Method provider, Relevant Rules, Acquirer or Applicable Law) and provide such copies to us (in a format specified by us) following a request by us within two (2) days of receiving such request.
  18. Provision and Disclosure of Information
    1. You shall at all times throughout the Term (and for such subsequent period as may be reasonably required by us thereafter):
      • disclose to us such information as we reasonably require relating to the performance of the Agreement including any information required to satisfy our obligations to any Alternative Payment Method provider, Card Scheme, Acquirer or Regulator, and/or relating to any aspect of the processing of Data by you or by any person with whom you have a commercial relationship for that purpose;
      • take all reasonable steps (without prejudice to clause 10.4) to assist us in handling any claim or query raised by a Payer, Card Issuer, Card Scheme, Acquirer, Alternative Payment Method provider or any other third party in relation to the Services, and give us reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of Transactions;and
      • to enable us to assess your financial position, provide us with your latest audited accounts and any other accurate, complete and reliable information we may reasonably require.
    2. Subject to Applicable Laws, we may use and share your Data (or if instructed by us, you shall provide such Data or information to any of our agents (as applicable) or any other person within fifteen (15) days) with our affiliates, the Alternative Payment Method providers, Card Issuers, Card Schemes, Acquirers, law enforcement agencies and credit reference agencies as is necessary in order to fulfil our obligations under this Agreement or the Relevant Rules or the requirements of a Card Scheme, Acquirer or Alternative Payment Method provider or otherwise as required by Applicable Laws, to assess financial and insurance risks, recover debt, develop services and systems and prevent and detect fraud and crime. We may use your information to assist Payers to identify their Transactions with you.
    3. We shall use reasonable care in the provision of information pursuant to this clause 18, but otherwise we shall have no liability to you for any inaccuracy in the information which we have obtained from third party sources.
    4. You must not sell, purchase, provide, exchange or in any manner disclose Transaction data, including but not limited to the card or personal information of or about a Payer to anyone other than us, or in response to a valid government demand.
    5. You authorise and consent to us obtaining credit and financial information relating to you from any third parties and to undertake credit and financial review on you in our sole discretion.
  19. Intellectual Property
    1. The Agreement does not transfer, and is not intended to transfer, to either Party any copyrights, rights in software, trade marks, rights in confidential information or other intellectual property rights that the other Party owns at any time.
    2. Unless expressly set out otherwise in the Agreement, each Party shall obtain the written consent of the applicable other Party prior to using or referring to any trade marks, logos, copyrighted materials, business names or other similar intellectual property rights of such other Party in any promotional materials or literature, agreements or on any website.
    3. We grant to you a worldwide, non-exclusive, non-transferrable, non-sublicensable, royalty-free licence to use the EMS API solely for the purpose of receiving the Services.
    4. You grant to us for the Term, a worldwide, non-exclusive, non-transferrable, non-sublicensable, irrevocable, royalty-free licence to use the Data solely for the purpose of providing the Services to you and for the purposes set out in clause 18, and to anonymise, aggregate, combine, manipulate or otherwise use the Data for analytics purposes and commercialising the anonymised information.
    5. On termination of the Agreement, each Party shall remove any reference to the other Party from any promotional materials or literature, agreements or on any websites.
  20. Service Adjustments and Contract Variations
    1. From time to time, we may make changes to our Privacy Policy, adjust the content and interfaces of the Services or make changes to the Services or these Terms which are necessary to comply with any Applicable Law or Relevant Rules, or make changes which do not materially affect the nature or quality of the Services. We shall provide at least two (2) months’ notice of such changes but are not subject to any right of termination under these Terms. 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.
    2. Subject to clause 20.1 and 20.3, no variation to the Agreement shall be effective unless made in writing and signed by or on behalf of each of the Parties.
    3. We shall be entitled to vary the provisions of the Agreement from time to time on giving you at least two (2) months' written notice.
  21. Confidential Information
    1. Except to the extent set out in this clause 21, each Party shall treat as confidential all Confidential Information obtained from the other Party under the Agreement, use the other Party’s Confidential Information solely for the performance of the Agreement, not publish or otherwise disclose to any person the other Party's Confidential Information without the owner's prior written consent, and take all action reasonably necessary to secure the other Party's Confidential Information against theft, loss or unauthorised disclosure.
    2. Each Party may disclose Confidential Information that would otherwise be subject to clause 21.1 only if it can demonstrate that the Confidential Information is required to be disclosed by any court of competent jurisdiction, Regulator, by the rules of a recognised stock exchange or by Applicable Laws or the Relevant Rules; was lawfully in its possession prior to disclosure to it by any other Party without an obligation restricting disclosure; is already public knowledge or becomes so at a future date (otherwise than as a result of breach of this clause 21); is received from a third party who is not under an obligation of confidentiality in relation to the information; is developed independently without access to, or use or knowledge of, the Confidential Information; or is trivial or obvious.
    3. Other than as expressly permitted under the Agreement, on termination of the Agreement for whatever reason, each Party shall forthwith cease to use any Confidential Information of the other Party and shall return on demand, or at the request of the other, destroy or permanently erase to the extent practicable all copies of that Confidential Information in its possession or control, save that a Party will be permitted to retain such part of the Confidential Information for the purposes of and for so long as required by any Applicable Laws or by judicial or administrative process or its legitimate internal compliance issues (and we may retain such information for five (5) years after termination of the Agreement).
  22. Miscellaneous
    1. A Party (the Affected Party) shall not be in breach of the Agreement or liable for any failure or delay in the performance of any obligations under the Agreement (and the time for performance of the obligations shall be extended accordingly) arising from or attributable to Force Majeure Events. The corresponding obligations of the other Party will be suspended to the same extent as those of the Affected Party. The Affected Party must promptly notify the other Party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance, and use reasonable endeavours to mitigate the effect of the Force Majeure Event on its ability to perform the Agreement.
    2. Where required by a Card Scheme, you shall permit us or our agents to have access to all or any of your premises where, or systems on which, your business trades or where your records or stock are located, during business hours, to examine all or any such premises, systems, records or stock for the purpose of ascertaining whether or not you are performing your obligations in accordance with these Terms.
    3. The Agreement is personal to you and you may not assign it or transfer it or any of your rights under it. Subject to the Relevant Rules, we shall be entitled to appoint agents and sub-contractors in respect of all or any aspect of the Services.
    4. No failure or delay by a Party in exercising any of its rights or remedies provided under the Agreement or under Applicable Laws 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.
    5. No single or partial exercise of any of a Party's rights or remedies under the Agreement or under Applicable Laws shall preclude or restrict the further exercise of such right or remedy. A waiver of any breach of any provisions of the Agreement shall not constitute a waiver of any other breach and shall not affect the other provisions of the Agreement.
    6. The rights and remedies of a Party under the Agreement are cumulative and not exclusive of each other or of any rights or remedies provided by Applicable Laws.
    7. Any notice to be given under or in connection with the Agreement 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 guaranteed delivery post (or equivalent) or by email to the postal address or email address of the other Party as set out in the Application Form or, in relation to us, the contact details for notices set out in the EMS Website (and as may be amended by notice from the relevant Party from time to time). Unless otherwise agreed in writing by us, notice from you to us to terminate the Agreement must be delivered by post. Notices in connection with court or arbitral proceedings must not be served by email.
    8. The Agreement constitutes 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 Agreement which may have been made between us and you either orally or in writing prior to the date of the Agreement.
    9. Each Party warrants that it has not relied on any representations, arrangements, understanding or agreements (whether written or oral) not expressly set out or referred to in the Agreement. The only remedy available to any Party in respect of any such representations, arrangement, understanding or agreement shall be for the breach of contract under the provisions of the Agreement.
    10. If any provision of the Agreement or any part of it is held by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remainder of the Agreement shall not be affected, and, 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.
    11. Nothing in the Agreement shall be construed as constitution of a partnership between the Parties nor, except as expressly provided, shall it constitute, or be deemed to constitute a Party the agent of any other Party for any purpose.
    12. We are an agent of EPS; accordingly, EPS is entitled to benefit from and enforce the Agreement. Without prejudice to the foregoing, the Agreement is not intended to confer any benefit on any third party, and no person who is not party to the Agreement shall have any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any provisions of the Agreement. This clause 22.12 does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
    13. Except as provided herein, each Party shall pay its own costs in relation to the negotiation, preparation, execution and carrying into effect of the Agreement and in carrying out any related due diligence.
    14. The Agreement is concluded in the English language and all communications (including any notices or the information being transmitted) shall be in the English language. In the event that the Agreement is translated, for your convenience, into any other language, the English language text of the Agreement shall prevail.
    15. The following sub-clauses (a) to (c) apply unless you are a Micro-Enterprise or Small Charity. You confirm you are not a Micro-Enterprise or Small Charity unless recorded in the Application Form or the Commercial Schedule:
      • You confirm that you are not a consumer, micro-enterprise or a charity within the meaning of the Payment Services Regulations. The Parties agree that in accordance with the corporate opt-out at Regulations 40(7) and 63(5) of the Payment Services Regulations the Parties' relationship is governed by the Agreement and that the provisions of Part 6 and certain provisions set out in Part 7 of the Payment Services Regulations do not apply to the Agreement.
      • The Parties agree that with respect to information supplied by us to you, the Agreement will apply to the fullest extent permitted under Regulation 40(7) of the Payment Service Regulations and Regulations 48-58 of the Payment Services Regulations shall to the fullest extent permitted by Applicable Law not apply.
      • The Parties agree that these Terms will apply to the fullest extent permitted under Regulation 63(5), and Regulations 66(1), 67(3) and (4), 74(1), 75, 77, 79, 80, 83, 91, 92 and 94 of the Payment Services Regulations shall to the fullest extent permitted by Applicable Laws not apply.
  23. Governing Law and Jurisdiction

    The Agreement and any non-contractual obligations arising from or in connection with it shall be governed by English law and the Agreement shall be construed in accordance with English law. The parties submit to the exclusive jurisdiction of the English courts with respect to any dispute hereunder.

  24. Complaints

    If you are not satisfied with our Services on behalf of EPS, EPS has a complaint handling procedure that you can use to resolve such matters, which can be accessed by telephoning EPS or visiting EPS's website at such number or URL as we may advise from time to time.

  25. Regulatory Information
    1. EPS is a member of the Financial Ombudsman Service. If you are still not satisfied after following EPS's complaints procedure, you can ask the Ombudsman to review the complaint. You can write to the Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London E14 9SR or telephone 0845 080 1800. Further information is available on www.financial-ombudsman.org.uk.
  26. Schedule 1- PROHIBITED ITEMS
    • Prescription drugs
    • Nutraceutical or herbals products with recurring payments
    • Binary options
    • Cryptocurrencies
    • Dangerous and hazardous goods (combustibles, corrosives, etc)
    • Drugs & illicit substances and related paraphernalia
    • Dual use goods
    • Industrial spare parts
    • Insurance
    • Gambling services
    • Weapons (all types of firearms & ammunition)
    • Tobacco
    • Alcohol
    • Adult and Escort services
    • Dating with video chat
    • Donations
    • Political Organisations
    • Religious Organisations
    • Multi-Level marketing
    • Donations Uploading, File sharing
    • Trial products
    • Replica/counterfeit goods
    • Uploading and file sharing websites, illegal music and movie downloads
    • PC online support
    • Horoscopes, Astrology, Numerology