These terms and conditions (together with the other documents incorporated by reference below, the “Agreement”) govern the supply of the Services under this Agreement by Curtispay Limited, and/or any of they of the additional parties specified in Schedule 1, as the context requires ("Curtispay", "we", "us", "our") tothe merchant(s) approved by us under this Agreement ("you", "your" or the "Merchant").If you receive Services from any additional party we will provide you with details of those additional parties. The entitiesproviding Services as referred to above, listed in Schedule 1 or as we make known to you will be deemed to be a party to this Agreement.
Contact information: our contact details are available at: http://www.curtispay.com/contactus
Capitalised terms that are not otherwise defined in this Agreement have the meanings given in clause 1.
Your Agreement is made up of:
Any Application Form
Each Pricing Schedule
Sector Specific Terms (see below)the other Schedules to these terms and conditions
These terms and conditions
Our Privacy Statement: www.curtispay.com/home/policy
In each case as may be amended, varied, supplemented, modified or novated from time to time. Each document (including any document referred to in each document), and any other document from time to time designated as such, is incorporated into and forms a part of this Agreement.If there is any conflict or ambigui ty between the terms of the documents listed above, except as expressly provided otherwise, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.
Key features
This Agreement contains important information you must read. You must ensure you understand and comply with the termsof the Agreement. If necessary, seek independent legal advice.
This section explains some of the key features of your Agreement with references to relevant clauses.
Key feature: More information:
AUTHORISATION NO GUARANTEE OF PAYMENT
What is an Authorisation?
Authorisation of a transaction is a confirmation from the Card Issuer (or Alternative PaymentProvider) that at the time the transaction is taken there are sufficient funds available to cover thetransaction and (for Card payments) the Card has not been reported as lost or stolen.
Does receiving an Authorisation mean I will be paid?
No. Receiving an Authorisation for a Transaction is no guarantee of payment. It does not confirmthe authenticity of the Card presenter or the Card, nor does it guarantee payment.
CHARGEBACKS AND ASSESSMENTS
What is a Chargeback?
A Chargeback is the technical term used by Card Schemes where a transaction is disputed by acardholder and where funds may not be remitted to you or if they already have been, where youmay be required to pay these back. We use the term Chargeback in the Agreement to cover similarlydisputed transactions in relation to Alternative Payment Methods.Chargebacks allow transactions to be reversed under specified circumstances. These may includewhere a card is used fraudulently, or where goods are not of a satisfactory quality or you fail todeliver prepaid goods or services. These transactions tend to be referred to as "disputed transactions".
What does this mean for me?
You are liable for each Chargeback and these represent a debt immediately payable from you to us.
Please refer to the Customer Operating Instructions for further information about Chargebacks,including the process for disputing a Chargeback. It may not always be possible however for you todispute Chargebacks successfully, even where you have provided goods or services. This is a risk ofyour business, which you accept.
EXCLUSIONS AND LIMITATIONS OF LIABILITY
This Agreement contains important exclusions and limitations on our liability to you and yourliability to us. Most of these are contained in clause 15. You should ensure you have read andunderstood the exclusions and limitations contained in this Agreement in full (including those listedin this table) so that you can ensure that you have adequate protections (e.g., insurance andbusiness continuity arrangements) in place for your business, to cover you in cases where ourliability has been limited or excluded.
KEEPING US INFORMED
You must only use the Services in connection with the sale and supply of goods or services whichcommonly fall within the type of business you have identified to us. You must keep us informed(among other things) about changes to the nature of goods or services your business offers, andany website address through which you trade.Additionally, we are required by law to undertake regular customer verification exercises andrequire your cooperation with these.
RECORD KEEPING
What do I need to do?
It is important you retain records of transactions and store these securely. You may need to providerecords in order to receive or retain payments for goods or services, for example where aChargeback is raised or potentially fraudulent activity has occurred.Failure to keep records will negatively impact your ability to dispute chargebacks successfully. Itmay also lead to you not receiving funds for payments you have processed.
THIRD PARTY PROCESSING & UNAUTHORISED USE OF TERMINALS
You must only use the Services provided under this Agreement to process payments for goods orservices you are providing to a Buyer. You must not use the Services to process payments on behalfof a third party, for goods or services being provided by a third party, where no goods or servicesare being provided to a Buyer, or without your authorisation.
You are responsible for controlling the use of your terminals, access codes and merchant dataaccount. If these are used without your authorisation, you will be liable for any resulting losses.
Who is a "third party"?
Third parties include is any party (e.g. a limited company or an individual) who has not entered intothis Agreement (e.g., is not a signatory to this Agreement). This may include other persons withinyour business such as other companies within your corporate group or ownership, or a separatesole trader operating at the same premises.
What about if my business changes hands?
This Agreement is personal to you and cannot be transferred by you to a third party. Where yourbusiness changes hands and a new legal entity owns or operates the business neither you nor thenew legal entity may use the Services to process payments for goods or services being provided.Contact us well in advance of your business changing hands to let us know when this will happenand so we can explain what will be required to close your account. If the new legal entity wouldlike to use Curtispay, we can discuss relevant steps with them, but our usual account openingprocedures will apply before we can agree to provide them with services.
What does it mean if third party processing occurs?
If you use the Services to process payments for goods or services that you are not providing asprincipal to a Buyer, you will not receive remittance of funds from us and will also be liable for anyfraud/chargebacks irrespective of the fact you have processed transactions on behalf of someoneelse. You may also be liable as a result of any consequent breach of this Agreement (includingNetwork Rules and related Assessments) and we will have the right to terminate your agreementwith us.
NETWORK RULES
Why are these so important
The payments systems in connection with which we provide you Services under this Agreementhave rules in place. Among other things, these rules are to ensure standards are maintained andadhered to by the various parties in the payments chain.Many of the obligations placed on you under this Agreement in part result from requirements inthe Network Rules.
What happens if I do not comply?
Failure to comply with the Network Rules, or provisions of this Agreement based on Network Rules,constitute a breach of this Agreement and may result in Services being suspended or terminated.It may also result in Assessments (e.g. fines or charges), which may be significant in value and forwhich you will be liable.
THIRD PARTY PRODUCTS AND SERVICE PROVIDERS
Where you use hardware, software or services provided by a third party in connection with anyService we provide you under this Agreement, you will be solely responsible for ensuring that bothyou and the third party maintain the compatibility and compliance of such products with (a) anyrelevant data security or other payments standards and (b) the Services we provide. Third PartyProducts will not be maintained or kept up to date by us, under this Agreement or otherwise.
DATA PROTECTION
As payments involve a substantial amount of cardholder, transaction and other data, dataprotection is a particular concern and is subject to substantial regulation. The data provisions of this
Agreement reflect this concern and highlight the specific obligations both we and you have inrelation to processing payment data. These include implementing appropriate security measuresand where necessary, obtaining payment user consent and displaying privacy notices to paymentusers as well as assisting payment users in exercising rights of access, erasure, data porting etc.
TAX
Fees and other sums payable under this Agreement are exclusive of VAT and any other applicable
Taxes, for which you are liable.
If you and we are jointly liable for any Tax, you are responsible to pay it or, if we choose to pay itfor you, you agree to immediately reimburse us or we can choose to deduct it from sums we oweyou. If we are required by Applicable Law to make a Tax Deduction from sums we owe you, we will doso and remit the net amount to you. We will not be obliged to increase or gross-up any paymenton account of the Tax Deduction. If a Tax Authority requires information from us in relation to you and/or Transactions processedunder this Agreement, you acknowledge and agree that we may provide such information. Youagree to provide us with your Tax identification details on request.
IMPORTANT: The key features listed above are not a complete list or overview of the terms, and the clauses listed may notbe the only clauses that apply to the various features. This summary is not intended to have any legal effect and is onlyintended as an explanation of some key features. Reading this introductory section is not a substitute for reading,understanding and complying with the terms of your Agreement.
Payment Services Regulations
This Agreement applies to merchants of any size. However, you acknowledge and agree that,
if at the time you enter into this Agreement, you are a "Large Enterprise" or "Large Charity" (as defined below), or you are otherwise capable of doing so, thenyou: confirm that you are not a consumer, micro-enterprise or a charity within the meaning of the Payment Services Regulationsor any equivalents thereof which have been implemented locally where you are incorporated;agree that none of the provisions of Part 6 (Information requirements for payment services) of the Payment ServicesRegulations 2017 (or any equivalents thereof which have been implemented locally where you are incorporated) appliesto this Agreement;agree that regulations 66(1) (charges), 67(3) and (4) (withdrawal of consent), 75 (evidence on authentication and execution), 77 (payer or payee’s liability for unauthorised transactions), 79 (refunds for direct debits), 80 (requests for directdebit refunds), 83 (revocation of a payment order), 91 (defective execution of payer-initiated transactions), 92 (defectiveexecution of payee-initiated transactions) and 94 (liability for charges and interest) of the Payment Services Regulations2017 (or any equivalents thereof which have been implemented locally where you are incorporated) do not apply to this
Agreement; andagree that the time period for notifying us of any unauthorised or incorrectly executed payment transaction is any suchperiod specified in this Agreement rather than the period specified in regulation 74(1) (notification of unauthorised orincorrectly executed payment transactions) of the Payment Services Regulations 2017 (or any equivalents thereof whichhave been implemented locally where you are incorporated).
You acknowledge and agree that you are a "Large Enterprise" if:your annual turnover and/or annual balance sheet total exceeds£2 million, if you enter into this Agreement prior to 1 January 2012; or€2 million (or sterling equivalent), if you enter into this Agreement on or after 1 January 2012; oryou have ten (10) or more employees,
You acknowledge and agree that you are a "Large Charity" if:you are a charity with an annual income of £1 million or more.Part 5 – Terminal Hire and the Consumer Credit Act
Where you wish to hire one or more Terminals from us and you are:
(A) an individual; or
(B) a partnership consisting of 2 or 3 persons not all of whom are bodies corporate; or
(C) an unincorporated body of persons which does not consist entirely of bodies corporate and is not a partnership,
(in each case, within the meanings give to those terms as used in the Consumer Credit Act 1974) then the hire shall be governedby Regulated Terminal Hire Terms which are separate from, and independent of, this Agreement.If you are not within one of the categories defined in (A) to (C) above, then the Terminal Hire shall be subject to the Unregulated
Terminal Hire Terms in Schedule 5.
There is a Minimum Hire Period specified in each of the Regulated Terminal Hire Terms and the Unregulated Terminal HireTerms. Please note that both Terminal Hire Agreements provide that if the rental arrangement termi nates for any reasonbefore the end of the relevant Minimum Hire Period, certain monies will be payable and the Terminal will need to be returned to us.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, the following terms shall have thefollowing meanings (unless the context otherwise requires):
"Access Code" means each personal identification number and/or password that is necessary to enable you to access or use your Merchant Data Account and/or any Service;
"Acquirer" means a Person who supplies Acquiring Services toyou under this Agreement where that Person is one of us, and
not an Other Acquirer;
"Acquiring Services" means both Card Acquiring Services and
Alternative Acquiring Services;
"Alternative Payment Method" means a payment method
(other than Cards) specified in Schedule 2, or as otherwise approved by us in writing from time to time; "Alternative Payment Provider" mean, for each Alternative
Payment Method, the provider of such payment method;"Alternative Acquiring Services" mean, for each Alternative
Payment Method, both:
(A) the processing by us of Transactions, Chargebacks and Refunds; and
(B) the receipt and disbursement of related funds (except where we are acquiring direct debits and payment is made directly to you by the
Buyer’s bank); in each case arising from the use of the non-Card
payment methods specified in Schedule 2;"Anticipated Liabilities" means amounts required to cover any
sum due under:
(i) the indemnity in clause 14.1 in respect of
potential or expected Refunds, Chargebacks, Chargeback Costs, any liability or expected liability relating to a Transaction or
Assessments; or
(ii) any liability or potential liability of yours under this Agreement;
"Applicable Law" means all laws or regulations (and including the requirements of any Regulatory Authority) applicable to a
Party (including a Party’s rights or obligations) or to any Transaction or Refund for the time being in force in any
jurisdiction;
"Application Form" means each application form that we ask you to submit when applying for the provision of Services,
any attached Pricing Schedule, and any attached addendum or addendum you subsequently accept (e.g. a Curtispay Total Addendum);
"Arrangement" means a Voluntary Arrangement under the Insolvency Act 1986 or the Insolvent Partnerships Order 1994or a Scheme of Arrangement under sections 895 to 901 of the Companies Act 2006, or similar or analogous event in relationto you in this or any other jurisdiction; "Assessment" means any assessment, fine, liquidateddamages, fee, cost, expense or charge of any nature which a Card Scheme, Other Financial Institution, Alternative PaymentProvider or any other third party levies on you or us at any time, directly or indirectly, in relation to a Service, Transaction or any
other aspect of our or such third party’s relationship with you; "Authorisation" means:
(A) in the case of the Acquiring Services related to Cards: the confirmation at the time of a Transaction from the relevant Card Issuer that the Card used topay for the Transaction has not been blocked for any reason or listed as lost or stolen or as having had its security compromised and that there are sufficient funds available for the relevant Transaction; and
(B) in the case of Alternative
Acquiring Services: authorisation of a Transaction, including, where applicable, the confirmation from the relevant Other
Financial Institution or Alternative Payment Provider that adequate funds are available at the time of the Transaction topay for the relevant Transaction; and "Authorise" and "Authorised" shall be construed accordingly;"Authorisation Request" means a request for Authorisation;"Authorised User" means an individual authorised by you to
access your Merchant Data Account;"Business Day" means a day other than a Saturday, Sunday orpublic holiday in England on which banks are open for normal
banking business in London, United Kingdom; "Buyer" means a Person who or which has ordered goodsand/or services from you and has initiated a Transaction inrespect of that order, including a Cardholder;
"Capture" means, in relation to Card Acquiring Services, our transmission of a payment instruction in relation to aTransaction to a Card Scheme for onward transmission to a Card Issuer to enable the earmarking of funds by a Card Issuer
in a Cardholder’s account for Settlement; "Capture Request" means, in relation to Gateway Services, the
submission by you to the Acquirer, Other Acquirer or Alternative Payment Provider via the Gateway Service of Datarelating to a specific Transaction after receipt of the Authorisation for the purposes of executing a payment
instruction in respect of a Transaction; "Card" means a credit, debit, charge, purchase or other
payment card issued by a Card Issuer under a Card Scheme whose payments we are able to process (as notified by us to
you from time to time); "Card Acquiring Services" means the Authorisation, Capture
and Settlement by us of a Card related Transaction, and the processing by us of Chargebacks, Refunds, Representments
and/or Retro-Charges in respect of Cards; "Cardholder" means a Person who or which is the authorised user of a Card;
"Card Issuer" means a Person which issues Cards;
"Card Not Present Transaction" or "CNP" mean a Point of Sale Transaction in which the Buyer uses a Card but is not present at the point of sale;
"Card Schemes" means schemes governing the issue and use of Cards listed in Schedule 6, or as may be approved and notified by us to you in writing from time to time;
"Centre of Main Interests" mean the place where you maintain your registered office or if different, where you conduct the administration of your interests on a regular basis;
"Chargeback" means either:
(i) any circumstances where Card Issuers, Card Schemes and/or Other Financial Institutions
either refuse to Settle a Transaction or demand payment from us in respect of a Transaction that has been Settled and/or in
respect of which Remittance been made to you; or
(ii) (in respect of an Alternative Payment Method) any Reversed
Payment (as defined in Schedule 2); or
(iii) any other circumstance where any Alternative Payment Provider or Other
Financial Institution either refuses to make a payment to us (including a Payment as defined in Schedule 2 or otherwise) or
demands payment from us in respect of a disputed Payment or other payment made to us in respect of a Transaction, or in
respect of which Payment or other payment has been made to you; in each case notwithstanding any Authorisation;
"Chargeback Costs" means our administrative charge for processing a Chargeback and any
(i) reasonable costs, expenses, liabilities, and
(ii) Assessments that we may incur as a result of or in connection with a Chargeback
"Claim" means any action, proceeding, claim, demand or assessment (including Assessments), fine or similar charge
whether arising in contract, tort (including negligence or breach of statutory duty) or otherwise;
"Commencement Date" means the date on which you are notified by us (in our sole and absolute discretion) that your
application for provision of Services has been accepted;
"Confidential Information" means this Agreement and information relating to it (other than Transaction Data), or
provided pursuant to it, that is designated as "confidential" or which by its nature is clearly confidential, howsoever
presented, whether in oral, physical or electronic form and which is disclosed by one Party to another hereunder, including
(but not limited to) pricing and specifications relating to the Services;
"Contract Year" means each successive 12 month period
commencing on the Commencement Date;
"Control" or "Controlled" means the exercise, or ability to exercise or entitlement to acquire, direct or indirect control
over you or us (as applicable), as defined in ss. 449 and 450 of the Corporation Tax Act 2010 and a "Change of Control" shall
be deemed to have occurred if any Person or Persons who control(s) you or us at the Commencement Date subsequently
cease to control you or us, as the case may be;
"CPC/DCC Services" means the Cardholder Preferred Currency
Direct and Dynamic Currency Conversion Services, as described
in Schedule 4;
"Customer Due Diligence" means the measures prescribed by
the Money Laundering Regulations 2007 or any other
Applicable Law;
"Customer Operating Instructions" or "Merchant Operating
Instructions" mean any instructions, guidance or manuals and
that include information and requirements relating to the
Network Rules and the Services, as amended from time to time;
"Data" means documents, data and records of any kind relating
to Transactions, Chargebacks, Representments, Retro-Charge
or Refunds (including, for the avoidance of doubt, data relating
to Cards and Buyers) and shall include Trans action Personal
Data and Sensitive Authentication Data;
"Data Controller" means any Person who alone or jointly with
others determines the purposes for which and the manner in
which Personal Data are, or are to be, Processed;
"Data Protection Authority" means any authority which has
jurisdiction over Curtispay or you in the area of protection of
Personal Data;
"Data Protection Legislation" means all Law applicable to the
protection of Personal Data from time to time, including the
General Data Protection Regulation ((EU) 2016/679)) and/or
the UK Data Protection Act 2018 together with other Law and
regulations made under them;
"Data Subject" means an identified or identifiable individual
whose Personal Data is Processed under this Agreement;
"Dispute Management System": the online electronic request
for information and Chargeback management and defence
system provided or otherwise made available to you by
Curtispay;
"Documentation" means any documents we supply to you
from time to time, whether in physical or electronic form and
whether in the form of text, graphics or still or moving images;
"eCommerce Transactions" or "E-commerce Transactions"
mean Transactions which are sales in which the payment order
is given via the internet, and excludes Mail Order/Telephone
Order Transactions;
"EEA" means the European Economic Area;
"Exchange Rate" means the reference currency exchange rate
we may notify to you from time to time. Our prevailing
standard reference exchange rate is sourced from Bloomberg
or an equivalent leading provider. The reference rate will
fluctuate and is therefore indicative only;
"Fees" means the fees specified in the Application Form or
Pricing Schedule;
"Floor Limit" means any monetary limit (of which we notify you
from time to time) above which you must obtain our
Authorisation prior to completing a Transaction;
"Fraud Management Services" has the meaning given to that
term in Schedule 4, part 3;
"Gateway Services" means the provision by us of an online
portal that (among other things, and pursuant to the provisions
of Schedule 4) supports the processing of Authorisation
Requests and Capture Requests and the transmission of Data
by us between you and the Buyer and/or between you and an
Acquirer or Other Acquirer to enable a Transaction,
Representment or Retro-Charge or making a Refund over the
internet. We do not enter into the possession of any funds in
the course of providing the Gateway Services (or at all where
the Gateway Services are provided and you are using an Other
Acquirer);
"Group Company" in respect of a Party means: (i) any
undertaking which, directly or indirectly, Controls or is
Controlled by such Party; and (ii) any other undertaking which,
directly or indirectly, Controls or is Controlled by any such
undertaking;
"Hosted Payment Pages" means the Curtispay hosted
payment pages which may be utilised by the Merchant as part
of the Gateway Service;"Initial Term" means, unless otherwise stated in your
Application Form, a period of twelve (12) months commencing
on the Commencement Date;
"Insolvent" means:
(A) in respect of a person, that that person is unable to pay its
debts as defined in s.123 (1) or (2) Insolvency Act 1986
EXCEPT THAT in the interpretation of this definition: (i)
the words "it is proved to the satisfaction of the court
that" in subsections (1)(e) and (2) of section 123 shall be
deemed to be deleted; and (ii) a Party shall not be deemed
to be unable to pay its debts if any demand under section
123(1)(a) or section 268(1)(a) is being contested in good
faith by such Party and such Party has adequate funds to
discharge the amount of such demand or if any such
demand is satisfied before the expiration of 21 days from
the date on which it is made;
(B) (where you are an individual) you are the subject of a
bankruptcy petition or order;
(C) (where you are an individual) you are deemed either
unable to pay your debts or as having no reasonable
prospect of so doing, in either case, within the meaning of
section 268 of the Insolvency Act 1986;
(D) (where you are a partnership) you have any partner to
whom any of the foregoing apply;
(E) (where you are an individual) you die or, by reason of
illness or incapacity (whether mental or physical), you are
incapable of managing your own affairs or become a
patient under any mental health legislation;
"Intellectual Property Rights" means any and all intellectual
property rights of whatever nature and includes patents,
inventions, know-how, proprietary knowledge, trade secrets
and other confidential information, copyrights, database rights
(including rights of extraction), design rights (registered or
unregistered), copyright, trade marks, service marks, logos,
internet domain names, business names, trade names, rights
protecting goodwill and reputation, moral rights, all
registrations or applications to register any of the aforesaid
items, and all rights and forms of protection of a similar nature
of any of the aforesaid items or having equivalent effect in any
country or jurisdiction, rights in the nature of unfair
competition rights and rights to sue for passing off;
"Losses" means any liabilities, losses, damages, charges, fines,
costs and/or expenses (including reasonable and properly
incurred legal fees and/or expenses);
"Mail Order/Telephone Order Transactions" or "MOTO" mean
Transactions, which are Card Not Present Transactions, in
which the Buyer pays using a Card concluded by telephone or
mail order, other than eCommerce Transactions;
"Merchant Bank Account" means an account in your name
with a duly authorised credit institution acceptable to us that is
maintained by you for the purposes of receiving Remittances
and paying your Fees due to us in accordance with clause 4.1;
"Merchant Data Account" means an electronic management
information account in our systems containing Data related to
your Transactions, Chargebacks, Refunds, Representments and
Retro- Charges, and which may be made available to you from
time to time such as Curtispay Dashboard or any replacement product
made available to you from time to time;
"Merchant Material Adverse Change" means any
circumstance, event or series of events that we have
reasonable grounds to believe materially adversely affects or
may materially adversely affect your liabilities or potential
liabilities; or your ability fully and promptly to perform and
comply with any one or more of your obligations under this
Agreement, including:
(A) a material change in the nature of your business or the
goods and/or services supplied by you;
(B) a material positive or negative fluctuation month-onmonth in your Transaction volumes or the average value
of your Transactions or the occurrence of such other
event as may give rise in our discretion to a significant
increase in our risk profile;
(C) a material increase in your Chargeback, Refunds and/or
declined Transactions levels relative to expected volume;
(D) the occurrence of a material Assessment or multiple
Assessments;
(E) a Change of Control in respect of you, or a sale or other
disposal of any substantial division or part of your
business;
(F) the withdrawal, removal, termination or unenforceability
of any security in relation to you which we or any Other
Financial Institution rely upon;
(G) the withdrawal or termination of any licence, permission
or authorisation required to operate your business;
(H) instructions from a Regulatory Authority which you do
not, or you are unable or unwilling to, comply with;
(I) you grant to a third party any security or charge over all
or a significant proportion of your assets; or
(J) a material deterioration in your profits or your financial or
trading position,
PROVIDED THAT, in respect of events set out in subparagraphs (B), (C) and (J) only, account shall be taken of
historical figures and trends including seasonality of sales and
yearly sales growth;
"Mobile Terminals" means a Terminal that enables
Transactions to be submitted via a mobile telecommunications
network;
"Network Rules" means all applicable rules, regulations and
operating guidelines issued by the Card Schemes or any
Alternative Payment Provider from time to time relating to
Cards, Transactions, Alternative Payment Methods and any
payments or processing of Data relating thereto (including
those communicated to you in the Customer Operating
Instructions and such rules, regulations and guidelines posted
on Card Scheme or Alternative Payment Provider websites
from time to time including:
www.visaeurope.com;
www.mastercard.co.uk/;
and
and such other URLs as we may notify you about from time to
time); and all amendments, changes and revisions made
thereto from time to time, and any current waivers or
exceptions agreed with the Card Schemes or any Alternative
Payment Provider;
"Other Acquirer" means a third party which has an agreement
with you to provide you with services the same as or similar to
the Acquiring Services in connection with Services (other than
Acquiring Services) being provided to you by us under this
Agreement;
"Other Financial Institution" means any third party credit or
financial institution (including Card Issuers) which may be
involved, or which we in our sole and absolute discretion
involve, in the course of our provision of any of the Services;
"Other Payments Organisation" means any third party service
provider (including Alternative Payment Provider, providers of
Third Party Products and Card Schemes) which may be
involved, or which we in our sole and absolute discretion
involve, in the course of our provision of any of the Services;
"Party" means each party to this Agreement (as the context
may require) and includes the successors and permitted assigns
of each such party;
"Payment Services Regulations 2017" means the Payment
Services Regulations 2017, UK Statutory Instrument 2017 No.
752, as amended from time to time;
"PCI SSC 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 (the "PCI SSC") at
https://www.pcisecuritystandards.org;
"Person" means any individual, company, body corporate,
corporation sole or aggregate, government, state or agency of
a state, firm, partnership, association, organisation or trust (in
each case, irrespective of the jurisdiction in or under the law of
which it was incorporated, formed or otherwise exists);
"Personal Data" means data which relates to a Data Subject
who can be identified from such data, or a combination of such
data and other information in the possession of, or likely to
come into the possession of, the Data Controller;
"Personnel" means employees, agents, consultants,
contractors and sub-contractors and their employees, agents,
consultants and sub-contractors;
"Point of Sale Transactions" means Transactions in which the
Buyer’s payment instruction is issued via a Terminal;
"Pricing Schedule" means the document(s) setting out the
relevant fees payable by you in connection with the Services,
whether attached to or included within the Application Form,
Schedule 7 and/or otherwise provided by us to you from time
to time;
"Privacy Statement" means collectively our "layered" privacy
statement as updated from time to time and which is made
available at www.curtispay.com/home/policy;
"Processing" means any operation which is performed upon
Personal Data, whether or not by automatic means, and
"Process" shall be construed accordingly;
"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, Mastercard
Member Alert to Control High-Risk Merchants or an equivalent
for any other Card Scheme, or a Regulatory Authority black list;
"Recurring Transaction" means a repetitive periodic
Transaction for which you charge the Buyer's Card or
Alternative Payment Method account (e.g. subscriptions or
instalments);
"Recurring Transaction Authority" means a Buyer's prior
written authority (taken during the check-out process) for you
to establish a Recurring Transaction, setting out: (a) the
amount of the Recurring Transaction and whether this amount
is fixed or variable; (b) the dates on which the Recurring
Transaction will be charged to the Buyer’s Card or Alternative
Payment Method account and whether the dates are fixed or
variable; (c) the method of communication for all
correspondence with the Buyer; and (d) a statement that the
Buyer may cancel the Recurring Transaction Authority at any
time;
"Refund" means a Transaction, in respect of an initiating
Transaction, made wholly or partially to reverse that initiating
Transaction;
"Regulated Terminal Hire Terms" means a hire agreement for
Terminals that is regulated under the Consumer Credit Act
1974 (as amended or replaced);
"Regulatory Authority" means any governmental or regulatory
authority, and/or any self-regulatory authority, governmental
department, agency, commission, board, tribunal, crown
corporation, or court or other law, rule or regulation making
entity having jurisdiction over any of the Parties and/or their
businesses or any part or subdivision thereof in any territory in
which the Services are made available or any local authority,
district or other subdivision thereof (including, in respect of the
United Kingdom, the Financial Conduct Authority, the Office of
Fair Trading, the Office of the Information Commissioner) and
any body which succeeds or replaces any of the foregoing;
"Remittance" means any payment we make to you under this
Agreement in the course of Card Acquiring Services (and
"Remit" will be construed accordingly);
"Remittance Date" means the Business Day (notified to you by
us from time to time) on which Remittance occurs;
"Representative" means, in respect of the Parties, any Person
that a Party may notify to the others from time to time as being
authorised to act on that Party’s behalf;
"Representment" means a Transaction to reverse a
Chargeback by the re-execution of the original Transaction,
where you have successfully challenged the Chargeback;
"Restricted Person" means a person that is
(i) listed on, orowned or controlled by a person listed on any Sanctions List;
(ii) located in, incorporated under the laws of, or owned or
controlled by, or acting on behalf of, a person located in or
organised under the laws of a country or territory that is the
target of country-wide Sanctions; or (iii) otherwise a target of
Sanctions.
"Retro-Charge" means a Transaction initiated by you to reverse
a Refund to which the Buyer was not entitled;"Sanctions" means any economic sanctions laws,
regulations,
embargoes or restrictive measures administered, enacted or
enforced by:
(i) the United States government;
(ii) the UnitedNations;
(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 (together "Sanctions Authorities")
"Sanctions List" means the "Specially Designated Nationals and
Blocked Persons" list issued by OFAC, the Consolidated List of
Financial Sanctions Targets issued by Her Majesty’s Treasury, or
any similar list issued or maintained or made public by any of
the Sanctions Authorities.
"Schedules" means each of the schedules attached to, and
forming part of, this Agreement;
"Sensitive Authentication Data" means security related
information used to authenticate Cardholders and authorise
Card transactions. Sensitive Authentication Data elements
include magnetic stripe data (PAVE, CVV, CVC, CID) PINs, PIN
blocks and the three or four digit number security code found
either on the front or on the back of a card (e.g. MasterCard
CVC2/ Visa CVV2);
"Services" means any or all of the Acquiring Services, the
Technical Services and/or the Terminal Hire that are provided
to you by us under this Agreement;
"Settlement" means the crediting to us, our agent or an Other
Financial Institution (as applicable) of the value of a Transaction
as determined by the relevant Card Scheme or Other Financial
Institution as the case may be (and "Settle" and "Settled" shall
be construed accordingly);
"Tax": all forms of tax and statutory, governmental, state,
federal, provincial, local, government or municipal charges,
duties, imposts, contributions, levies, withholdings or liabilities
wherever chargeable and any penalty, fine, surcharge, interest,
charges or costs relating to it.
"Tax Authority": any taxing or other authority (in any
jurisdiction) competent to impose, administer or collect any
Tax.
"Technical Services" means:
Gateway Services;
(B) DCC Services;
(C) Fraud Management Services;
(D) management information services; and
(E) such other services as we may specify from time to time
in our Documentation or Schedule 4,
in each case excluding Acquiring Services;
"Terminal" means an authorised point-of-sale payment order
acceptance terminal and associated equipment or device(s);
"Terminal Hire" means arrangements for the hire of terminals
by us to you under the Terminal Hire Agreements;
"Terminal Hire Agreements" means the Regulated Terminal
Hire Terms and the Unregulated Terminal Hire Terms;
"Third party" means a Person who is not a Party to this
Agreement;
"Third Party Product" means a product (whether hardware,
software or services) supplied to you by a third party;
"Trading Limit" means the maximum aggregate value of one or
more Transactions that you may complete in respect of any
specified period as notified to you from time to time;
"Transaction" means any payment by a Buyer for goods and/or
services purchased by a Buyer from and provided by you, using
either:
(A) a Card, a Card number or otherwise to debit or credit
the applicable Card account; or
(B) an Alternative Payment
Method; in each case in accordance with the terms of this
Agreement and in relation to which we supply any of the
Services to you, or a reversal of the same. Unless the context
requires otherwise, a reference to "Transaction" shall include a
reference to a Refund, a Representment, a Retro-Charge, a
Recurring Transaction and a series of connected Transactions;
"Transaction Data" means Transaction Personal Data and any
other data relating to a specific Transaction;
"Transaction Personal Data" means Personal Data which it is
necessary to provide or to Process in connection with
Transactions, Chargebacks, Refunds, Representments or RetroCharges in the course of providing the Services;
"Unregulated Terminal Hire Terms" are the terms applicable
to unregulated hire arrangements for Terminals, specified in
Schedule 5;
and
"Curtispay Customer Payments Account" means an account
with any Other Financial Institution in which we hold the
proceeds of Transactions, net of any amounts due to us.
1.2. Any reference to:
(A) a clause shall be to the relevant
clause of this Agreement; and
(B) a part or paragraph shall be
to the relevant part or paragraph of the relevant Schedule.
1.3. The use of the term "including" and inflections
thereof, or of the abbreviation "e.g." mean "including without
limitation," "include without limitation" or "includes without
limitation".
1.4. References to a Person include a reference to that
Person’s successors or assigns.
1.5. Words importing the singular include the plural and
vice versa where the context so requires.
1.6. Clause, schedule and paragraph headings shall not
affect the interpretation of this Agreement.
1.7. Any references to a law or regulation is to the law or
regulation from time to time in force.
1.8. Any reference to the Financial Conduct Authority
includes any body taking over its functions.
1.9. To avoid doubt, as regards (i) your obligations and (ii)
our rights and remedies (and strictly for our benefit only) any
reference in the Agreement to a Transaction, Refund,
Representment or Retro-Charge shall include activity
purporting to constitute a Transaction, Refund, Representment
or Retro-Charge and/or which would (save for any breach by
you of this Agreement, or any unauthorised, fraudulent or
criminal activity) have constituted a Transaction, Refund,
Representment or Retro-Charge.2.
OUR OBLIGATIONS
Provision of the Services
2.1. Acquiring Services: In return for the Fees related to
Acquiring Services, we shall supply you with the Acquiring
Services in accordance with this Agreement, with reasonable
care and skill, and in compliance with Applicable Law and the
Network Rules.
2.2. Not used.
2.3. Technical Services and Terminal Hire: In return for
the Fees related to the Technical Services and Terminal Hire,
we shall supply you with, respectively, the Technical Services
and Terminal Hire in accordance with this Agreement (including
any specific terms and conditions contained in Schedule 4 or
the terms and conditions set out in any Application Form
and/or the Terminal Hire Agreements, as applicable), with
reasonable care and skill, and in compliance with Applicable
Law.
Where we provide Technical Services only
2.4. In respect of the Technical Services when we are not
providing the Acquiring Services, you acknowledge and agree
that the relevant Other Acquirer (or, where applicable, the
relevant Other Financial Institution or Alternative Payment
Provider providing related payment services to you) shall be
solely responsible for authorising and settling Transactions and
paying to you any sums due in respect of Transactions,
Representments and Retro-Charges.
2.5. In view of the nature of Technical Services, you
acknowledge and agree that in circumstances where we
provide only Technical Services, 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 that there are any discrepancies between the
amount of any payments you actually receive in connection
with Transactions, Representments and Retro-Charges and the
amount you expect to be paid. Such notice must be given to us
in writing within thirty (30) days following the date of the
relevant Transactions, Representments or Retro- Charges.
Merchant Data Account and related terms
2.6. For the term of this Agreement, we grant to you a nonexclusive, non-transferable, worldwide licence to access and
use:
(A) the Data that we make available via your Merchant Data
Account; and
(B) the Documentation,
solely for the purpose of receiving the Services in accordance
with the provisions of this Agreement and solely for your
internal business purposes. You agree that you shall not publish
or redistribute any content included in your Merchant Data
Account to any third party. You undertake not to delete or alter
any proprietary or copyright or trademark notices appearing in
the Merchant Data Account or related Documentation.
If you are not a Large Enterprise or Large Charity, you will have
access to the Data in your Merchant Data Account either free
of charge or with a free of charge alternative.
2.7. While we may display your Transactions in your
Merchant Data Account (which you may download, save, print
orstoreas applicable, and should do so securely) and otherwise
provide or make available certain information to you in
accordance with Applicable Law, you are responsible for
maintaining your own records related to the Services,
Transactions, Refunds, Representments, Chargebacks and
Retro-Charges, and for reconciling these with your own bank
account data and other accounting records. Upon the
termination of this Agreement for whatever reason, we will
have no obligation to retain,store or make availableto you any
Data, records or other information in connection with any of
the Services or Transactions, Refunds, Representments,
Chargebacks and Retro-Charges.
If you are not a Large Enterprise or Large Charity and we make
the information in your Merchant Data Account available to
you via an online portal,then we will let you know in thatportal
how long the relevant information will remain available.
2.8. We will show the amount of each Transaction in your
Merchant Data Account following or conditional upon our
receipt of funds.
2.9. Interchange reporting: At your request to our
customer services team (see contact details in the introduction
to this Agreement above), we will make reference data
available to you on a monthly basis for each of your
Transactions, showing 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. No
historic or backdated data will be available.
2.10. Curtispay Dashboard : Where you receive Curtispay Dashboard from us,
you agree to pay any Fees for Curtispay Dashboard that may
apply depending on the type of Curtispay Dashboard
membership type you subscribe to. If you wish to change your
Curtispay Dashboard membership you need to tell us which reflected in your following
month's invoice.
3. YOUR OBLIGATIONS
3.1. You shall at all times comply with:
(A) the provisions of this Agreement;
(B) the Network Rules, including any reflected in this
Agreement, provided or made available to you from time
to time, or made publicly available by a Card Scheme or
Alternative Payment Provider;
(C) all Applicable Law, including those requirements which
apply to the sale of goods and/or services by you in
connection with the Transactions and the execution and
performance by you of your obligations under this
Agreement; and
(D) your obligations relating to the sale and/or supply of
goods and/or services by you to Buyers. Your use of the Services
3.2. You shall:
(A) only accept payments from and/or make Refunds to
Buyers in connection with goods and/or services which
you have sold and supplied as principal to those Buyers,
and only pay such Refunds to the Buyer using the
payment method used by the Buyer for the original
Transaction;
(B) only accept payments and/or make Refunds in respect
of goods and/or services the sale and supply of which
commonly falls within your business as identified to us .
You acknowledge Curtispay may, acting reasonably,
amend the Merchant Category Code (the Network
Rules’ categorisation of merchant businesses) solely to
ensure a more accurate match to your business;
(C) notify us in writing before you make any change to the
nature of the goods and/or services the sale and supply
of which fall within your business as identified to us;
(D) promptly notify us in writing if you change your address
or your place of business and obtain our prior written
consent (which may be withheld at our sole discretion)
in respect of any URL of any website where you accept
or state that you will accept payments by Card or
Alternative Payment Methods using any of the Services;
(E) (where we have agreed in writing that you may accept
Recurring Transactions) in relation to any Recurring
Transaction:
i. obtain a Recurring Transaction Authority from the
Buyer for such Recurring Transaction and confirm,
within two (2) working days of the date of the
Recurring Transaction Authority, to the Buyer via the
agreed method of communication that a Recurring
Transaction Authority has been established;
ii. notify the Buyer via the agreed method of
communication at least seven (7) working days prior
to a Recurring Transaction payment being charged to
the Buyer’s Card if:
(i) the payment amount has
changed;
(ii) the payment date has changed; (iii)
more than six (6) months have elapsed since the last
Recurring Transaction payment; or (iv) a trial period,
introductory offer or promotional activity has
expired;
iii. not effect (or seek to effect) a Transaction under the
Recurring Transaction Authority once the Recurring
Transaction Authority has expired, or once the Buyer
has notified you that the Buyer wishes to cancel such
Recurring Transaction Authority; and
iv. retain securely the Recurring Transaction Authority
for at least a period of eighteen (18) months after
the date of final Transaction effected under it, and
produce each Recurring Transaction Authority to us
on demand.
To avoid doubt, you may not accept Recurring
Transactions unless we have previously agreed with you
in writing that you may do so.
(F) only accept payments and submit Data to us in respect
of Transactions which a Buyer has authorised in
accordance with Applicable Law, this Agreement , the
Network Rules and any other information or instructions
provided or made available by us to you from time to
time;
(G) ensure that you prominently and unequivocally inform
Buyers of
(i) your identity at all points of interaction with
a Buyer (including prominently displaying your company
name and any trading name on any website through
which you conduct Transactions), so that the Buyer can
readily identify you as the counterparty to the relevant
Transaction; and
(ii) (in respect of eCommerce
Transactions) your location (physical address), which
must be clearly identified on the home and payment
page of any relevant website to enable the Cardholder
to easily determine whether the Transaction will be a
domestic transaction or a cross-border Transaction.
(H) only submit Data to us directly from your own staff or
systems, or via a Third Party Product which has been
expressly approved by us in writing as one you are
entitled to use to submit Data to us, and in respect of
which you shall ensure that appropriate compliance
standards, licences and clearances are obtained (and
the correct licence fees or royalties paid) for the use of
all such Third Party Products used in connection with
the Services;
(I) offer your Buyers a documented complaints procedure
and customer service contact point accessible by e-mail
and/or telephone;
(J) refrain from doing anything which we reasonably
believe to be disreputable or capable of damaging the
reputation or goodwill of us, or any Other Financial
Institution, Other Payments Organisation or the Card
Schemes;
(K) not itself or through a third party reverse engineer or
copy any technology of a proprietary nature which we
make available to you; and
(L) submit Transactions to us promptly and in any event
within two (2) days of entry into them.
3.3. You shall ensure that the Access Codes are not made
known to any other person. You shall use all reasonable
endeavours to ensure that there is no unauthorised use of the
Access Codes, Terminals or of any other confidential material
or information used in the provision or use of our Merchant
Data Account. However, if you suspect that there may be or has
been or are aware that there has been unauthorised use of the
Access Codes or of any other confidential material or
information used in the provision or use of your Merchant Data
Account you shall notify us immediately by contacting us by
telephone, with confirmation of such notification in writing,
using the relevant contact information (see introduction
above). We will use reasonable endeavours to prevent
unauthorised use of your Merchant Data Account upon
receiving such notification.
Access Codes, Merchant Data Account, Documentation and
related security measures
3.4. You acknowledge and agree that: 3.4.1 You are solely responsible for establishing and
applying adequate security systems and procedures:
(A) to comply with the provisions of clause 3.3;
(B) for monitoring all use of or access to your Access Codes,
Terminals and Merchant Data Account in order to ensure that
any Authorised User is using or accessing your Merchant Data
Account within the limits of their authority and that no
transactions have been effected which would indicate that
unauthorised persons are in possession of your Access Codes;
and
(C) in relation to Data after it has been accessed via, or printed
or downloaded from, your Merchant Data Account.
3.4.2 You are responsible for all losses resulting from any
unauthorised activity in connection with your Merchant Data
Account (including use of Access Codes and Terminals). You
acknowledge and agree that without limitation we may
suspend the Services and/or at your cost take such other steps
as we consider necessary if you have acted fraudulently or you
have either intentionally or not, and whether or not through
negligence, failed to comply with the provisions of this
Agreement (including failing to protect your Access Codes
under clauses 3.3 or 3.4, or failing to notify us of the
unauthorised transaction under clause 4.7).
3.4.3 If any action or proceeding is brought:
(i) against us by a third party; or
(ii) by us against a third party,
in relation to any Transaction or dealing with or for you, you
shall co-operate with us to the fullest extent possible in the
prosecution or defence of such action or proceeding.
3.5. You shall only access and use:
(A) the Data that we make available via your Merchant Data
Account; and
(B) the Documentation,
solely in accordance with the licence granted to you by us under
clause 2.6.
3.6. You shall notify us as soon as you terminate the
authority of an Authorised User.
3.7. Except as expressly permitted under this Agreement,
you must not copy, download, disclose or make available to any
third party any Data from your Merchant Data Account or the
Documentation in whole or in part for any purpose whatsoever.
3.8. Customer Due Diligence: You will comply promptly
with all requests for information that we make for the purpose
of meeting our operational and legal requirements to carry out
Customer Due Diligence in relation to you (including providing
personal information about your directors and beneficial
owners).
3.9. Costs: 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 this Agreement
for the provision of all equipment, software, systems and
telecommunications facilities which are required to enable you
to receive the Services (including any adjustments pursuant to
clause 22.1). This includes any integration related costs,
incurred prior to, on or after the Commencement Date.
3.10. Not used.
3.11 Sanctions:
(A) You shall comply with all laws to which you may be
subject and shall comply in all respect with all Sanctions.
(B) You undertake that you are not, and will procure that
none of your directors, officers, agents, employees or
persons acting on behalf of the foregoing is, a Restricted
Person and do not act directly or indirectly on behalf of
a Restricted Person.
(C) You shall to the extent permitted by law promptly upon
becoming aware of them supply to us details of any
claim, action, suit, proceedings or investigation against
you or the persons listed in (B) above with respect to
Sanctions by any Sanctions Authority.
3.12 Merchant location rules: You warrant and undertake
that you:
(A) have a permanent establishment and/or business
registration in the country referenced as your address in
the Agreement which is where the Acquiring Services
are provided;
(B) will abide by all relevant accounting principles as they
apply to you and record the Transactions that Curtispay
processes for you in the accounting records of the
permanent establishment/business registration as the
case may be fully and properly in accordance with those
principles and the Network Rules;
(C) pay all relevant Taxes as required by Applicable Law and
the Network Rules relating to the Transactions
submitted to Curtispay for processing by the permanent
establishment/business registration as the case may be;
and
(D) will comply with all Network Rules as in force from time
to time and to the extent any Card Network rules
require a change in the location of your merchant or
contracting entities, you undertake to comply with such
requirements and will execute all such documents as
required by Curtispay in order to ensure compliance
with the Network Rules or any Applicable Law. Such
document(s) may include but are not limited to, the
execution by you of a novation agreement replacing
your merchant legal entity with another entity or Group
Company as required pursuant to the relevant Network
Rules.
3.13 You further agree to provide Curtispay with evidence of
compliance with this warranty and undertaking on
request by Curtispay, including the accounting records
relating to the permanent establishment/business
registration as the case may be.
4. FEES, CHARGES, REFUNDS AND OTHER PAYMENTS DUE
FROM YOU
4.1 All applicable Fees payable to Curtispay under this
Agreement are immediately due and payable on provision of
the relevant Service to you.
4.2 Unless stated otherwise, all Fees, charges and other
payments to be made by you under this Agreement are exclusive of VAT and any other applicable Taxes under any
Applicable Law or governmental decree, for which you shall
also be liable. Any Tax payable in respect of the Services
provided or payments made under this Agreement (other than
Tax payable on our net income, profits or gains) will be payable
by you. In addition:
4.2.1 Joint liability for Tax: If you and we are jointly liable for
any Tax, such Tax will be payable by you. We may
however (but shall not be obliged to) pay any such Tax
to the relevant Tax Authority and, if we pay it, you will
immediately reimburse us for it. We may, at our sole
discretion, deduct such sums from any Remittance,
Outward Payment or sums held by us and owed to you.
4.2.2 Tax Deduction: If a deduction or withholding on account
of Tax (a "Tax Deduction") is required by Applicable
Law, we may make such Tax Deduction from any
Remittance or Outward Payment and will pay such
amounts as are due to the relevant Tax Authority. For
the avoidance of doubt, we will not be obliged to
increase or gross-up any payment on account of any Tax
Deduction. At your request, we will provide
confirmation that the Tax Deduction has been made
and/or that the appropriate payment has been made to
the relevant Tax Authority.
4.2.3 Information required by a Tax Authority: If a Tax
Authority requires information from us in relation to you
and/or Transactions processed under this Agreement,
you hereby agree that we may provide such
information. You agree to provide us with your Tax
identification details on request.
4.3 Where we do not Remit to you net of amounts owed
by you to us (as referred to in clause 5.2), while all sums are due
immediately, they will be payable in accordance with the terms
of any invoice issued by us, or such period as applies to any
direct debit.
4.4 We may from time to time vary the Fees and/or
introduce new charges in addition to the Fees, in accordance
with clause 22.
4.5 You shall maintain and disclose to Buyers at the time
of purchase a fair policy for the return of goods or cancellation
of services. You shall not give a cash refund to a Buyer for a
payment made using a Card, unless required by Applicable Law,
nor accept cash or other compensation for making a refund to
a Card.
4.6 The form and procedure for making Refunds is
specified in the Customer Operating Instructions applicable to
the type of Refund. A Refund only arises in circumstances
where there is an originating Transaction which is being
reversed or partially reversed. You must ensure the amount of
any Refund does not exceed the amount of the initiating
Transaction. You are solely liable for any misuse of your facility
or any Service to process Refunds, including where there is no
originating Transaction.
4.7 Subject to the provisions of this Agreement, where we
are providing Acquiring Services the value of any Refund will be
credited to the Buyer’s payment service provider’s account by
no later than the end of the Business Day after you submit the
Refund, unless you submit the Refund after 16.00 (BST/GMT), in
which case, the Refund will be deemed to have been submitted
on the next Business Day. The time periods in this clause 4.7
shall not apply where the Buyer’s payment service provider is
located outside the EEA.
4.8 We may refuse to execute a Refund if it does not meet
the conditions in this Agreement or is prohibited by law. If we
do refuse to execute a Refund, within the time for processing
the Refund we will notify you (i) (unless prohibited by law) of
the refusal, (ii) (if possible) the reasons for such refusal, and (iii)
(where it is possible to provide reasons for the refusal and
those reasons relate to factual matters) the procedure for
correcting any factual mistakes that led to it. Any payment
order that we refuse will be deemed not to have been received
for the purposes of execution times and liability for nonexecution or defective execution.
4.9 Where we execute a Transaction or Refund in
accordance with details provided by you, the Transaction or
Refund will be deemed to have been correctly executed by us
and any Other Financial Institution involved. Where the details
provided by you are incorrect, we are not liable for the nonexecution or defective execution of the Transaction or Refund,
but we will make reasonable efforts to recover the funds
involved in such a Transaction or Refund and we may charge
you for any such efforts.
4.10 Subject to the provisions of clause 4.9 and where you
are not a Large Enterprise or a Large Charity, we are liable for:
(A) the correct execution of Refunds unless we can prove to the
Buyer and, where relevant, the Buyer’s payment service
provider that the Buyer’s payment service provider received
the amount of the Refund in accordance with clause 4.8. Where
applicable, on your request, we will make immediate efforts to
trace a non-executed or defective Refund and notify you of the
outcome and without undue delay refund to you the amount
of the non-executed or defective Refund and, where
applicable, restore your Merchant Data Account to the state it
would have been in had the non-execution or defective
execution not taken place; and
(B) any: (1) charges for which you are responsible; and (2)
interest you must pay,
in each case, as a consequence of the non-execution or
defective execution.
4.11 Subject to the provisions of clause 4.9,where you are
not a Large Enterprise or a Large Charity and a Transaction is
initiated by you as a payee (e.g. direct debit) as opposed to
through you (e.g. a Point of Sale Transaction), we are liable for
the correct transmission of the payment order in accordance
with Applicable Law. If we become aware of the non-execution
or defective execution of a Transaction in circumstances where
we are liable, we will immediately re-transmit the payment
order in question and make immediate efforts to trace the
Transaction and notify you of the outcome. Where we can
prove to you and, where relevant, to the Buyer’s payment
service provider that we are not liable in respect of a nonexecuted or defectively executed Transaction, the Buyer’s
payment service provider is liable to refund to you the amount
of the non-executed or defective Transaction and, where
applicable, restore your Merchant Data Account to the state it
would have been in had the non-execution or defective
execution not taken place.4.12 You must notify us promptly after becoming aware
(and in any event within 13 months of the Transaction) of any
Refund which has not been correctly executed. You shall also
notify us promptly of any unauthorised Transactions.
4.13 If you fail to pay any amount under this Agreement
when due, then in addition to any of our other remedies under
this Agreement, we may charge you any reasonable costs and
expenses incurred by us in endeavouring to collect any unpaid
and overdue amounts, including any debt collection agency
charges and reasonable legal costs which are incurred by us in
exercising our rights under this Agreement, including
enforcement of it.
5. PAYMENTS TO YOU
5.1 After we show and value date Transactions to your
Merchant Data Account in accordance with clause 2.8, subject
to clauses 5.2 to 5.7 (inclusive), we shall initiate or procure the
initiation of each Remittance by bank transfer to your
Merchant Bank Account on the later of the following:
(A) the Remittance Date; and
(B) the expiry of any period of deferment pursuant to clause 5.4
in respect of the relevant Transactions.
5.2 In respect of any sums specified in clause 5.3 below,
we may at our option (which we may exercise in our sole and
absolute discretion):
(A) deduct or withhold such sums from, or set-off such sums
against, any amount we are otherwise obliged to pay you;
and/or
(B) provide or make available to you (including by email or on a
portal from which it can be accessed and/or downloaded) an
invoice for any or all such sums, which invoice shall be payable
in accordance with its terms;
5.3 The sums referred to in clause 5.2 are:
(A) any Refunds;
(B) any Chargebacks;
(C) any Assessments;
(D) any Chargeback Costs;
(E) any Claims;
(F) any Anticipated Liabilities;
(G) any Fees; and
(H) any other charges or amounts due from you to us under this
Agreement or otherwise.
5.4 In addition to our rights under clauses 5.2 and 5.3, we
may defer any amount we are obliged to pay you:
(A) if, following any deductions pursuant to clause 5.2, such
amount is less than the minimum Remittance threshold that we
reasonably determine in our sole and absolute discretion (of
which we will notify you from time to time), until the total
Remittance payable reaches that threshold;
(B) where we reasonably believe that a Transaction (including
activity which would otherwise have constituted a Transaction)
may be fraudulent or involves other criminal activity, until the
satisfactory completion of our investigation and/or that of any
Other Financial Institution, Regulatory Authority, Card Scheme
or Alternative Payment Provider or any other third party; or
(C) without limit in amount or time, if we become aware or
reasonably believe that you are in breach of or likely to be in
breach of your obligations under this Agreement.
5.5 We may suspend the processing of all or any
Transactions, Refunds, Representments or Retro-Charges where we reasonably believe that a Transaction, Refund,
Representment or Retro-Charge (including activity which would otherwise have constituted a Transaction, Refund, Representment or Retro-Charge) may be fraudulent or involves any criminal activity, until the satisfactory completion of our
investigation and/or that of any, Other Financial Institution,
Regulatory Authority, Card Scheme or Alternative Payment
Provider, or any other third party.
5.6 In the event that we exercise our rights under this
clause 5 we shall notify you of any such action and the reasons
for it, unless we are prohibited from doing so under the
Applicable Law. Subject to reasonable security measures and
Applicable Law, we will notify you before any suspension of
processing under clause 5.5 if we are able to do so, or otherwise
immediately after such suspension.
5.7 Remittance shall be paid in the currency or currencies
agreed between you and us as set out in the Application Form,
or as otherwise agreed in writing by you and us from time to
time. Where we apply a currency conversion to Remittance, we
use our prevailing Exchange Rate of the day which is applied on:
(a) the date of Settlement, in the case of Point of Sale
Transactions (including Mail Order/Telephone Order
Transactions and Card Not Present Transactions); and (b) the
date on which the Transaction is sent to the Acquirer, in the
case of eCommerce Transactions.
5.8 In circumstances where we receive Transaction funds,
you hereby unconditionally instruct and authorise us or any Other Financial Institution to remit such funds to one or more
Curtispay Customer Payments Accounts for the purpose of holding the funds received in respect of Transactions you have
processed (net of any amounts due to us) on your behalf, prior to making each Remittance to you. You shall not be entitled to
receive interest, if any, paid by our bank service provider in connection with funds held in the Curtispay Customer
Payments Account and any such interest may be retained by us.
6. CHARGEBACKS AND ASSESSMENTS
6.1 Each Chargeback and each Assessment represents a debt immediately due and payable by you to us.
6.2 You acknowledge and agree that you may be required to reimburse us for Chargebacks in circumstances where you have accepted payment in respect of the relevant Transaction, even if you are under no legal liability in respect of the supply of the goods or services concerned. To the extent permitted by Applicable Law, we shall notify you as soon as reasonably
practicable of any applicable Chargebacks and Chargeback Costs which have occurred or been incurred. Such notification may be given via a link to a URL which we may provide to you.
6.3 Any Chargebacks for which you are required to reimburse us shall correspond to the whole or part of the
Settlement value in the currency of the original Transaction.
With your written consent (not to be unreasonably withheld or delayed) the amount may be converted to the Settlement
currency from the currency of Chargeback at the Exchange Rate
quoted to us.
6.4 In the event that you wish to dispute a Chargeback, it is your responsibility (i) to prove to our reasonable satisfaction
(which shall, subject to clause 6.5 and without limitation, be conditional upon the relevant Card Scheme, Card Issuer, Other
Financial Institution, or Alternative Payment Provider, as the case may be, confirming it is satisfied) that the debit of the
Buyer's account was authorised by such Buyer; and (ii) (additionally) to provide us with such other evidence as we or
any Card Issuer, Other Financial Institution, Alternative Payment Provider or Card Scheme may require you to provide
in support of your claim. The evidence required to be provided will depend on, among other things, the nature of the
Chargeback, and may vary accordingly.
6.5 Subject to the Network Rules, neither we nor any
Other Financial Institution shall be obliged to investigate the validity of any Chargeback or Assessment. You acknowledge
and agree that any decision or determination of the relevant Card Scheme or Alternative Payment Provider as to the validity
and extent of any Chargeback and/or Assessment shall be final and binding.
6.6 As Chargebacks may arise a considerable period of time after the date of the relevant Transaction, you
acknowledge and agree that, notwithstanding any termination of this Agreement for whatever reason, we shall remain,
without prejudice to Clause 8, entitled to recover Chargebacks and Chargeback Costs from you (and, where relevant, from any
Person who has provided us with a guarantee or security relating to your obligations under this Agreement) in respect of
all Chargebacks that occur in relation to Transactions effec ted
during the term of this Agreement.
6.7 Subject to clause 6.8, you shall not be liable for any Chargebacks, Chargeback Costs or Assessments to the extent
that they are caused by our breach of our obligations under this Agreement.
6.8 We will in no circumstances be liable for the payment
of any sums in respect of any Chargeback or Chargeback Costs arising out of or in connection with Transactions in respect of
which we supply Technical Services only.
6.9 If you wish to dispute a Chargeback or Assessment,you will do so in accordance with the applicable procedure set
out in the Customer Operating Instructions and Network Rules and, if applicable, the Dispute Management System. In the
case of a disputed Chargeback or Assessment, you must provide us within any specified timeframe with the evidence
required by us, the Card Scheme or the Card Issuer. Your use of the Dispute Management System is subject to and conditional
upon you granting the necessary access to the information required.
You consent to the useof any such information within the Dispute Management System and shall ensure that the information (i) is complete and accurate in all material respects; and (ii) does not infringe any Intellectual Property Rights or
confidentiality rights of a third party.
7. FLOOR AND TRADING LIMITS
7.1 In respect of the Acquiring Services, we may from time to time notify you of a Trading Limit and/or a Floor Limit.
7.2 You shall not exceed the Trading Limit or complete a Transaction
in excess of the Floor Limit without our prior written approval (to be given in our sole and absolute discretion). For the purposes of this clause 7.2 we may give such written approval via an electronic authorisation that you may not be able to store.
Such Trading Limit or Floor Limit shall continue to apply unless we notify you otherwise in writing.
7.3 Unless otherwise agreed by us or notified by us in accordance with clause 7.1 or 7.2, the monetary value of the
Floor Limit shall be zero.
8. BANK ACCOUNT AND PAYMENTS
8.1 You shall open and maintain in your name a Merchant Bank Account throughout the term of this Agreement and for
such period as may be required thereafter for the purposes of any applicable provisions of this Agreement. You are required
to maintain with your bank a direct debit instruction to authorise us to Bacs Direct Debit from the Merchant Bank Account all sums that become due and payable by you to us under or in connection with this Agreement.
8.2 In addition to, and without prejudice to the exercise of any rights under clauses 5.2 to 5.4, we may debit the Merchant
Bank Account, at our option, for all sums that become due and payable by you to us under or in connection with this
Agreement, in accordance with the terms of the direct debit instruction maintained by you under claus e 8.1. Where
applicable, you hereby authorise Curtispay to collect Fees in relation to the Services provided by the latter, which may be collected directly from the
Merchant Bank Account, whether under the direct debit mandate or otherwise, or as otherwise provided in the Agreement.
8.3 You will ensure that the Merchant Bank Account shall
at all times have a credit balance sufficient to meet any sums
due and payable to us under or in connection with this
Agreement.
8.4 We shall, if practicable, notify you in advance of any
sums payable by you to us which we intend to debit by direct
debit.
8.5 You shall notify us in writing in advance of any changes
proposed by you or any third party in respect of the Merchant
Bank Account (including the location of the branch at which
such account is held) and shall not implement such changes
without our prior written consent (such consent not to be
unreasonably withheld or delayed). If any changes in the
Merchant Bank Account details are imposed on you, you shall
notify us in writing immediately, giving full details of such
changes and the reasons for them.
8.6 This clause 8 shall not prejudice your rights under
Applicable Law or the UK Direct Debit Guarantee Scheme to
recover payments made to us by direct debit.
8.7 Any Remittance made, at your direction, by Curtispay
to a Merchant Bank Account in the name of a person other than
you will constitute good receipt by you of the sum due and owing by Curtispay to you in relation to Curtispay’s liability to
you under this Agreement.
9. INTEREST
9.1 Subject to the provisions of clauses, 5.8, 11 and 15.3,
if any Party (the defaulting party) fails to pay any amount under
this Agreement when due, then the other Party shall be entitled
to charge the defaulting party 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.
9.2 The Parties agree the provisions of this clause 9
provide a substantial contractual remedy and that the Late
Payment of Commercial Debts (Interest) Act 1998 is excluded
from this Agreement.
10. SET-OFF
10.1 You hereby irrevocably authorise each of us and any
Other Financial Institution, from time to time without notice
and both before and after demand, to set off by whatever
means the whole or any part of your liabilities to us or any
Other Financial Institution (as appropriate) under this
Agreement or any other contract (whether such liabilities are
present, future, actual or contingent or potential, liquidated or
unliquidated and irrespective of the currency of their
denomination) against any Remittance due to you or against
any sums (whether or not related to the Transaction that gave
rise to the liability) held by us or any Other Financial Institution
or owed to you under this Agreement or any accounts referred
to in clause 11. Any credit balance with us and/or any Other
Financial Institution will not be repayable, or capable of being
disposed of, charged or dealt with by you until such liabilities of
yours to us and any Other Financial Institution have been met.
Neither we nor any Other Financial Institution allowing you to
make withdrawals from any account you hold with us or any
Other Financial Institution will waive this restriction or our or
such Other Financial Institutions rights under this clause 10. We
will notify you as soon as reasonably practicable upon
exercising our rights, and/or upon us or any Other Financial
Institution exercising our or its rights, under this clause 10.1.
10.2 You are not entitled to any form of set-off in respect
of any of our or any Other Financial Institution’s liabilities under
this Agreement or any other Agreement (whether such
liabilities are present, future, actual, contingent or potential)
against any amounts due to us or any Other Financial
Institution from you.
10.3 Any exercise of our or any Other Financial Institution’s
rights under this clause 10 shall be without prejudice and in
addition to any other rights or remedies available to us or any
Other Financial Institution under this Agreement or otherwise.
11. SECURITY
11.1 We may at any time require that you procure, within
thirty (30) days (or such longer period as we may determine is
reasonable) after receiving our written request, that a Person
or Persons reasonably satisfactory to us provide us with a
guarantee, indemnity or other security (including the
replacement of any existing security) in such form and over
such assets as we may reasonably require (including your
Merchant Bank Account) to secure to our reasonable
satisfaction the performance of your obligations (including
contingent or potential obligations) from time to time under
this Agreement. No interest is payable in respect of any security
arrangements entered into in connection with this Agreement.
Any security granted to us in accordance with this clause shall
be held on trust to secure your obligations under this
Agreement to each of us, including Curtispay Limited
11.2 In connection with this clause 11, we may from time
to time request your reasonable assistance (at your cost) with
our credit assessment. This assistance may involve the
provision by you of your financial and trading information.
11.3 We may charge you for our reasonable external costs
(including legal fees) incurred in obtaining the guarantee,
indemnity and/or security referred to in this clause 11, and
shall not be liable for any of your costs.
12. TERM AND TERMINATION
The term of your Agreement
12.1 This Agreement shall come into force on the
Commencement Date and, unless otherwise terminated earlier
in accordance with any provision of this Agreement, continue
thereafter until:
(A) (if you are a Large Enterprise or a Large Charity) it is
terminated in accordance with clause 12.2, such notice not to
expire prior to the end of the Initial Term; or
(B) (if you are not a Large Enterprise or a Large Charity) it is
terminated in accordance with clause 12.2.
12.2 For the purposes of termination by notice under
clause 12.1:
(A) we shall give you two (2) months’ prior written notice; and
(B) you shall give us one (1) month’s prior written notice.
12.3 Your other termination rights: You may terminate
this Agreement or any Service with immediate effect by giving
written notice to us if any of us:
(A) commits a material breach of this Agreement which, if
capable of remedy, is not remedied to your reasonable
satisfaction within twenty-one (21) days of service of a notice
requiring such remedy;
(B) is Insolvent;
(C) is the subject of a petition, order, or resolution or any step
in connection with winding up (whether solvent or insolvent).
12.4 Our other termination and related rights: We may
terminate this Agreement or any Service, or suspend the
provision of any Service with immediate effect, to be notified
to you in writing, if you:
(A) commit a material breach of this Agreement which: (1) is
not, in our reasonable opinion, capable of remedy; or (2) if
capable of remedy, is not remedied to our reasonable
satisfaction within twenty-one (21) days of service of the notice
requiring such remedy;
(B) are Insolvent;
(C) are the subject of a petition, order, or resolution or any step
in connection with winding up (whether solvent or insolvent);
(D) cease or threaten to cease to carry on all or a material part
of your business, except for the purpose of a bona -fide solvent
reconstruction, amalgamation, reorganisation, merger or
consolidation;
(E) begin negotiations or proceedings, or propose or agree to
defer, reschedule or readjust your debts;
(F) propose or make a general assignment of any of your debts
or an arrangement or composition with or for the benefit of
some or all of your creditors in respect of all or all of a particular
type of your debts;
(G) agree to a moratorium, or a moratorium is agreed or
declared in respect of all or a material part of (or a particular
type of) your debts or you otherwise propose, seek or agree to
defer, reschedule or readjust any of your debts;
(H) are the subject of a petition for an administration order or
an application for an administration order, or an administrator
is appointed to you or notice of intention to appoint an
administrator to you is filed or given, or any other step is taken
by any person with a view to the administration of you under
the Insolvency Act 1986 including the passing of any resolution
by your directors or shareholders approving the presentation
of any such petition, the making of any such application or
appointment or the giving of any such notice;
(I) are the subject of any step for an execution or other process
issued on a judgment, decree or order of any court in favour of
a creditor of yours that is returned unsatisfied in whole or in
part, or any step to enforce security over, or a distress,
execution or other similar process is levied or served against,
the whole or a substantial part of your assets or undertaking,
including the appointment of a receiver, administrative
receiver, manager or similar officer to enforce that security;
(J) suffer or are subject to any equivalent event, circumstance
or procedure to those set out above in this clause 12.4(B) to (I)
(inclusive) in any other jurisdiction;
(K) undergo a Merchant Material Adverse Change;
(L) breach any applicable Trading Limit or Floor Limit;
(M) fail to comply with clauses 17.8 and 17.10;
(N) act in a manner, or if anything happens to you or comes to
our attention in relation to you or arising from or incidental to
your business or the conduct of your business (including trading
practices or any individual’s activity), that we in our reasonable
discretion consider:
(1) to be disreputable or capable of damaging the reputation of
us or that of any Card Scheme, Other Payments Organisation or
Other Financial Institution; or
(2) to be detrimental to our systems, business or that of any
Card Scheme, Other Payments Organisation or Other Financial
Institution; or
(3) may or does give rise to fraud or any other criminal activity
or suspicion of fraud or any other criminal activity; or
(4) may or does give rise to increased risk of loss or liability to
any of us;
(5) may affect your ability or willingness to comply with all or
any of your obligations or liabilities under this Agreement; or
(6) to be or to be for a purpose contrary to Applicable Law
and/or any policy of ours in relation to Applicable Law;
(O) fail to perform any of your obligations under clause 11
(strictly in accordance with the timeframe set out therein); or
(P) include anything in the Application Form which is untrue,
inaccurate or misleading.
12.5 We may terminate this Agreement (or terminate or
suspend the provision of all or part of any Service under this
Agreement) with immediate effect, giving written notice, if:
(A) we or any Group Company of ours becomes entitled to
terminate any other agreement with you;
(B) we or any Other Financial Institution becomes entitled to
enforce any guarantee or security from or in relation to you;
(C) we are required to do so by any Card Scheme or Regulatory
Authority or under the Network Rules or Applicable Law or
reasonably believe that a Transaction or Outward Payment or
this Agreement or the performance of it may be contrary to
Applicable Law or Sanctions
(D) a Card Scheme, Other Payments Organisation, Other
Financial Institution or any other third party or any ceases to
provide us with any Service or service necessary for us to
provide a Service to you;
(E) you install and/or use the Terminal(s) at a place other than
the premises at which you have previously informed us the
Terminals shall be installed and used;
(F) we reasonably consider that any act or omission of yours
falls within a Reason Code;
(G) the ratio of Chargebacks to Transactions exceeds one per
cent (1%) by number or value, or we otherwise consider in our
sole and absolute discretion that the total volume or value of
Refunds, Chargebacks and/or declined Authorisation Requests
is excessive;
(H) any Regulatory Authority or court of competent jurisdiction
(an "Authority") has taken action or made statements, orders,
requests, directives or demands regarding your activities or
another person operating in your industry ("Actions or
Communications") and Curtispay determines in its sole and
absolute discretion that the Actions or Communications of any
Authority may harm or otherwise adversely affect, directly or
indirectly, the reputation or goodwill of Curtispay or any
applicable Network Rules making body if Curtispay continues
to process Transactions under this Agreement;
(I) any of the above provisions of clauses 12.4(B) to (J), 12.4(O)
and clauses 12.5(A) to (D) applies to a Person who provides any
security under clause 11; or
(J) any changes to or of Applicable Law, including Sanctions,
(i)
prohibit us from exercising any of our rights and/or performing
any of our obligations under this Agreement,
(ii) subject either
party to potential penalties or enforcement actions by any
Regulatory Authority or Sanctions Authority under Applicable
Law, or
(iii) frustrate in any way the performance of the
Agreement by either party.12.6 You shall inform us upon becoming aware of any of the
events set out in the following clauses: clauses 12.4(A) to (J)
and clauses 12.5(A), (B), (E), (G) and (H).
12.7 Where any additional party specified in Schedule 1
serves you notice to terminate this Agreement under this
clause 12, such termination shall only relate to the Services
provided by that additional party. This shall not limit any other
Party’s right to terminate this Agreement or any other Services.
12.8 You acknowledge and agree that suspension or
termination by Curtispay in accordance with clauses 12.4 and
12.5 shall in no way create any cause of action, Losses, Claim or
any other right ("Action") in favour of you against Curtispay
whether under Applicable Law, contract, equity or otherwise.
Without prejudice to the foregoing and notwithstanding clause
25 (Waiver), you hereby waive, and fully release and discharge
Curtispay and its Group Companies from, any Action you may
otherwise have arising from Curtispay exercising such
suspension or termination right, including any challenge in
relation to the exercise of Curtispay’s discretion, and you agree
that you shall not apply to any Authority for any form of relief,
including (without limitation) injunctive relief, that could
constrain or prevent Curtispay from exercising any of its rights
of suspension or termination.
13. CONSEQUENCES OF TERMINATION
13.1 Upon termination of this Agreement all rights and
obligations of any Party shall cease to have effect immediately,
save that:
(A) the clauses which expressly or by implication have effect
after termination will continue to be enforceable
notwithstanding such termination (including, for the avoidance
of doubt, clauses 4, 5, 6.6, 8, 9, 10, 13, 14, 15, 17, 18, 19, 20,
21, 23, 24, 29, 30 and 31, paragraphs 1.7, 1.8, 4.6, 4.8 and 4.9
to Schedule 4, and the paragraphs listed in paragraph 29 to
Schedule 5); and
(B) termination shall not affect accrued rights and obligations
of any Party under this Agreement as at the date of
termination.
13.2 Upon termination of this Agreement, you shall
immediately pay to us all amounts owed by you to us under this
Agreement and we shall immediately pay you all amounts
owed to you by us under this Agreement, subject to the
provisions of clauses 5, 6 and 10.
14. INDEMNITY
IMPORTANT NOTE: You must read these indemnity
provisions carefully. They provide important protections for
you and for us. The indemnities in this clause are in addition
to and do not affect any other indemnity under or in
connection with this Agreement, including without limitation
in connection with clause 11, the Terminal Hire Agreements
or the Technical Services.
14.1 How you indemnify us: You will indemnify us and
hold us harmless and indemnified from, against and in respect
of all and any Losses in relation to any Claims brought against
us by a Buyer, Card Scheme, Card Issuer, Other Financial
Institution, Other Payments Organisation, Acquirer, Other
Acquirer, Regulatory Authority or any other third party, to the
extent such Claims arise out of or in consequence of or in
connection with:
(A) a Transaction (including the failure to retain or produce a
Recurring Transaction Authority), Refund, Representment,
Retro-Charge, Assessment, Chargeback and/or Chargeback
Cost (including any activity which would otherwise constitute a
Transaction, Refund, Representment, Retro-Charge);
(B) any breach of the requirements or failure by you to comply
with:
(i) the requirements of a Card Scheme or Alternative
Payment Provider;
(ii) the Network Rules;
(iii) a Regulatory
Authority; or
(iv) Applicable Law, and any reasonable steps
taken in the protection of our interests in connection with any
such breaches;
(C) any security breach as described in clause 17.10,
compromise or theft of Data held by you or on your behalf, or
any other security breach or a security breach relating to Data
(whether or not you have complied with PCI SSC Standards as
defined in clause 17.8), and any reasonable steps taken in the
protection of our interests in connection with such breach;
(D) the enforcement or attempted enforcement of this
Agreement;
(E) any reasonable steps taken in the protection of our interests
in connection with any allegation of fraud made in relation to
you or your business; and/or
(G) any breach by you of the provisions of clause 23;
except if and to the extent such Claim is caused by our fraud or
any breach of this Agreement by us.
14.2 How we indemnify you: We shall indemnify and hold
you indemnified from and against any Losses in relation to any
Claims brought against you by a third party, to the extent such
Claims arise out of or in connection with:
(A) any actual security breach or security breach reported to
you by a Card Scheme, Acquirer, Other Acquirer, Card Issuer or
us relating to Data which is directly attributable to our failure
to comply with any PCI SSC Standards or to our negligence (but
not including any claims made by a Regulatory Authority), and
any reasonable steps taken in the protection of your interests
in connection with such breach; and/or
(B) any breach by us of the provisions of clause 23;
except if and to the extent caused by or contributed to by your
negligence or any breach of this Agreement by you.
15. EXCLUSION AND LIMITATION OF LIABILITY
IMPORTANT NOTE: THIS CLAUSE 15 CONTAINS IMPORTANT
EXCLUSIONS AND LIMITATIONS ON OUR LIABILITY. YOU MUST
READ THIS CLAUSE CAREFULLY.
15.1 Matters not excluded or limited by this Agreement:
Nothing in this Agreement shall exclude or restrict liability for:
(A) losses suffered by a Party arising out of the other Party’s
fraud, fraudulent misrepresentation or wilful default;
(B) death or personal injury resulting from a Party’s negligence;
(C) any breach of any obligations implied by Section 12 of the
Sale of Goods Act 1979 or Section 2 of the Supply of Goods and
Services Act 1982;(D) losses suffered by us in respect of any Chargebacks or
Assessments recoverable under clause 6 and/or 14;
(E) any Fees or other amounts due by you to us;
(F) (except in respect of the types of Losses listed under clause
15.2) for any indemnity provided hereunder; or
(G) any other liability to the extent it cannot be lawfully
excluded or limited,
and each of the following provisions of this clause 15 is subject
to this clause 15.1.
15.2 Limitations and exclusions of liability for you and us:
Each Party shall only be liable for direct Losses arising out of or
in connection with its own breach of this Agreement or
negligence EXCEPT THAT neither Party will be liable to the
other Party under or in connection with this Agreement or its
subject matter for any of the following types of Losses arising
under or in connection with this Agreement (whether arising
out of breach of contract, misrepresentation (whether
tortious or statutory), tort (including but not limited to
negligence), breach of statutory duty, liability under
indemnities or otherwise):
(A) loss of profits, revenue or anticipated savings (including
those anticipated or forecast);
(B) loss of goodwill (or any other damage to reputation);
(C) loss connected with or arising from business interruption;
(D) loss of opportunity, business or contracts;
(E) loss of bargain;
(F) lost or corrupted data (or loss associated with the same);
and/or
(G) any special, incidental, punitive, consequential or indirect:
loss, damage, cost and/or expense whatsoever,
in each case whether such losses are direct, indirect or
consequential, and even if that Party was aware of the
possibility that such losses might be incurred by another
Party.
15.3 Interest: Subject to clause 15.2, you shall not be
entitled to any interest or any other compensation whatsoever
in respect of any sums held by us in accordance with this
Agreement prior to Remittance being made to you for any
period during which payment may be:
(A) deducted, withheld, deferred or not paid under clause 5;
(B) set-off under clause 10; or
(C) not paid due to a suspension of Services (or part thereof)
under clause 12,
unless you demonstrate that such non-payment results from
our breach of our obligations under this Agreement, in which
case interest accrues on a daily basis until the date of payment
calculated at the rate specified in clause 9.
15.4 Curtispay’s excluded liability: We shall not be liable
for any failure to perform (nor any defective or delayed
performance of) any of our obligations under this Agreement if
and to the extent that such failure is due to:
(A) circumstances beyond our reasonable control;
(B) any cessation or interruption of any part of the Services
which are due to any act or omission of a third party (including,
but not limited to, Other Acquirers, Other Financial Institutions,
Other Payments Organisations (including an Alternative
Payment Provider, Card Scheme, and Third Party Product
provider)) and is not caused by our breach of this Agreement;
(C) us taking steps (in our reasonable and honest belief or view)
to comply with any relevant requirement under the Network
Rules or any Applicable Law or the requests of any Regulatory
Authority;
(D) your failure to provide complete and/or correct Data to us,
any Other Financial Institution, Card Scheme or Other
Payments Organisation) and/or your negligence and/or breach
of this Agreement;
(E) a suspension of Services by us under clause 12;
(F) your breach(es) of this Agreement, negligent, wrongful or
bad faith acts or omissions; or
(G) any deferment/withholding of any Remittance otherwise
due to you effected pursuant to the provision of this
Agreement.
Additionally, we shall have no liability to you for any inaccuracy
in the information we or any Other Financial Institutions
provide to any third parties pursuant to clause 19.
15.5 Limitation of Liability: The aggregate liability of each
of Curtispay Limited and each of the
additional parties listed in Schedule 1 to you in relation to all
Claims arising out of, or in connection with the Services or this
Agreement during each Contract Year shall be limited to:
(A) in the first Contract Year, a sum equal to the average
monthly Fees paid under this Agreement, less any fees incurred
by us under the Network Rules in respect of Transactions, in
each case in the period between the Commencement Date and
the first event giving rise to the first such Claim, multiplied by
twelve (12); and
(B) in each Contract Year thereafter, a sum equal to the Fees
paid under this Agreement, less any fees incurred by us under
the Network Rules in respect of Transactions, in each case in
the twelve (12) months immediately preceding the first event
giving rise to the first such claim in the relevant Contract Year.
15.6 Additional exclusions and limitations: In addition to
any other exclusion or limitation of liability contained in this
Agreement, the following additional exclusions and limitations
apply in relation to the Services:
(A) We accept no responsibility, and shall not be liable for (a)
the accuracy or reliability of any data you send to us; (b) our
interpretation of that data; or (c) the consequences or accuracy
of our interpretation of that data or any subsequent
interpretation or risk assessment you undertake in relation to
that data.
(B) The Data available via your Merchant Data Account is
supplied to you on an "as is" basis for your information only and
is not intended to be relied upon by you for any purpose
whatsoever.
(C) We do not warrant that the Data available via your
Merchant Data Account is accurate, sufficient, up-to-date,
reliable or error-free at the time it is accessed.
(D) We accept no responsibility, and shall not be liable for any
Third Party Product you use in connection with the Service, and
any reference by us to a Third Party Product (including in any
technical specification we provide to you), or approval by us in
connection with clause 3.2(H), shall not constitute any
recommendation or endorsement by us of that Third Party
Product, or any warranty or representation that such Third
Party Product will be or remain compatible, compliant and/or
suitable for your use and/or with the Services, or will deliver
any specific result.
(E) The electronic transmission of Data, including but without
limitation to transmission via the internet cannot be
guaranteed to be secure or error-free. There is always a
possibility that Data sent by electronic means could be
intercepted by a third party, corrupted, lost, destroyed,
delayed or otherwise adversely affected. As a result, we shall
not be liable to any party in respect of any error or omission
arising from or in connection with the electronic transmission
of information to you or your reliance on such Data. This
includes but is not limited to acts or omissions of your and/or
our internet service providers. This exclusion of liability shall
not apply in the event of any proven criminal, dishonest or
fraudulent acts on our part.
15.7 Basis of exclusions and limitations: You acknowledge,
represent and agree that, given the nature of the Services:
(A) other suitable alternative payment methods for the Buyers
are available to you;
(B) you were able to choose other providers of services similar
to the Services before entering into this Agreement;
(C) you acknowledge and accept the risk of any Losses which
you may suffer and be unable to claim for because of the
exclusions and limitations on our liability under this clause 15,
and the importance of insuring against such Losses;
(D) the Fees have been calculated by us taking into account the
exclusions and limitations contained in this Agreement (which
would be uneconomical but for such exclusions and
limitations); and
(E) we would not be in a position or willing to enter into this
Agreement (or any similar agreement) with you or other
merchants but for these exclusions and limitations of liability.
16. MATERIALS
16.1 You shall only use such materials identifying the
Services, us, any of our Group Companies, any Card Scheme or
any Alternative Payment Method if such materials have
previously been approved by us in writing (such approval not
to be unreasonably withheld).
16.2 You shall display prominently on each of your
premises, trading venues or website where you accept or state
that you accept Cards or Alternative Payment Methods for
payment, the Card and Card Scheme identification or
Alternative Payment Method identification:
(A) as required by the Network Rules; and
(B) as notified to you from time to time (whether to inform you
of such Network Rules (including amendments to Network
Rules) or otherwise).
17. DATA
The parties’ roles as independent Data Controllers
17.1 The Parties agree that, for the purposes of Data
Protection Legislation, it is their mutual understanding that the
Parties shall not constitute joint Data Controllers. Each Party
acknowledges and agrees that, for the purposes of Data
Protection Legislation, it is an independent Data Controller of
Transaction Personal Data and that it determines the purposes
for which and the manner in which the Transaction Personal
Data is, or is to be, processed.
17.2 If you receive any complaint, notice or communication
from a Data Protection Authority which relates directly to:
(A) our Processing of the Transaction Personal Data; or
(B) a potential failure by us to comply with Data
Protection Legislation in respect of your or our
activities under or in connection with this Agreement,
you shall, to the extent permitted by Applicable Law, promptly
notify us and provide such information as it shall reasonably
request in that regard.
17.3 You acknowledge that we may disclose Transaction
Personal Data to any Data Protection Authority, law
enforcement authority or regulator.
Fair Processing notices and consents
17.4 You shall ensure that, in respect of all Transaction
Personal Data you provide to Curtispay under this Agreement,
and in respect of the use of such Transaction Personal Data
under this Agreement:
(a) all necessary fair processing notices
have been provided by you to the relevant Data Subjects which
specify Curtispay as a Data Controller in respect of the Data
Subject’s Personal Data and provide a link to our Privacy
Statement or include a statement that our Privacy Statement
can be found on our corporate website and that you have
obtained from the relevant Data Subjects all applicable
consents, and
(b) all necessary steps have been taken to ensure
that such Transaction Personal Data has been gathered and
Processed in accordance with the principles set out in the Data
Protection Legislation, including in particular those relating to
(i) lawful, fair and transparent Processing;
(ii) specified,
legitimate and explicit purposes of Processing; and
(iii)
adequate, relevant and not excessive Processing.
17.5 To the extent that we are Processing your personal data,
for example you are a sole trader, please refer to our Privacy
Statement for information about how we use your Personal
Data.
Curtispay searches
17.6 Curtispay may make periodic searches of, and provide
information about you to credit reference, market research,
customer feedback and fraud prevention agencies, and
Curtispay's agents. Such information as
is provided to credit reference agencies may be used by other
credit providers to take decisions about you. Further
information about how we use this information can be found in
our Privacy Statement.
Assistance
17.7 Whenever we request it, you shall give us reasonable
assistance to facilitate the successful collection and delivery of
all Data. We shall assist you, upon your request, where we are reasonably able to gain access to the Data, but reserve the right
to make reasonable charges for doing so. You shall promptly
pay such reasonable charges to us on demand.
17.8 If a Data Subject makes a written request to either
Party to exercise any of their rights under Data Protection
Legislation in respect of Transaction Personal Data, the
receiving Party shall respond to that request in accordance with
Data Protection Legislation. To the extent the request concerns
processing of Transaction Personal Data undertaken by the
other Party, the receiving Party shall promptly and without
undue delay forward the request to the other Party; and
cooperate and provide reasonable assistance in relation to that
request to enable the other Party to respond in accordance
with Data Protection Legislation.
Your PCI and other compliance requirements
17.9 You acknowledge and agree that you (and your
agents, sub-contractors or any third parties used by you) shall
abide by any data security standards of the Payment Card
Industry Security Standards Council (or any replacement body
notified to you by us) and the Card Schemes and Alternative
Payment Method schemes, including the PCI SSC Standards.
We may charge you an annual management fee (specified in
the Pricing Schedule) for administering the system through
which you report your PCI SSC Standards compliance status to
the Card Schemes, and a PCI SSC Standards non- compliance
fee (also specified in the Pricing Schedule) for each month in
which you are not compliant with the PCI SSC Standards.
No prior security breaches
17.10 You represent, warrant and undertake that no security
breach relating to Data processed by or on behalf of you has
occurred before the date on which this Agreement was signed
by the Parties and/or the Commencement Date. If you breach
the foregoing representation, warranty and undertaking, you
acknowledge and agree that we may suspend the Services
(including as required under the Network Rules) and/or (if
unremedied) take such other steps as we, any Card Scheme,
Regulatory Authority or any Other Financial Institution or Other
Payments Organisation reasonably considers necessary to
remedy the breach.
Notification of security breaches
17.11 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 SSC Standards). As soon as
reasonably practicable, you shall also (and without prejudice to
any other remedy we have in respect thereof) immediately
identify and resolve the cause of such security breach and take
any steps that we may require of you to do so, including but not
limited to the procurement (at your cost) of forensic reports
from third parties recommended by us.
Do not store card details
17.12 You shall not store (as such term is used in the PCI SSC
Standards), at any time:
(A) Card verification value in the magnetic stripe;
(B) Card verification value printed on the Card in or next to the
signature panel;
(C) Card verification value contained in the magnetic stripe
image in a chip application;
(D) PIN verification value contained in the magnetic stripe;
(E) the full contents of any track from the magnetic stripe (on a
Card, in a chip or elsewhere); or
(F) any other Data that the Card Schemes mandate from time
to time as Data that cannot be stored.
18. RETENTION OF RECORDS
18.1 In addition to complying with all record retention
provisions under Applicable Law, and subject to the
requirements of the PCI SSC Standards, you shall retain legible
copies of Data for a minimum period of eighteen (18) months
from the date of each Transaction.
18.2 Nothing in this Agreement (including this clause 18)
affects or limits your own requirement to have in place
adequate record retention policies and procedures as
necessary and appropriate for your own business purposes,
which are and remain your responsibility.
19. PROVISION AND DISCLOSURE OF DATA AND
INFORMATION
This clause 19 contains important information about the
provision and disclosure of data and information in
connection with the Services. It should also be read alongside
our Privacy Statement.
19.1 We may, from time to time, request you to provide
copies of Data, in which event you shall provide such copies to
us, in such format specified by us, within ten (10) days of such
request being received.
19.2 Upon our request, you shall at all times throughout
the term of this Agreement (and for such subsequent period as
may be necessary thereafter):
(A) promptly disclose to us or any Other Financial Institution,
Card Scheme or Other Payments Organisation such accurate,
complete and reliable information as we or such third party
reasonably require(s) relating to the performance of the
Services or obligations under this Agreement, the Network
Rules or Applicable Law;
(B) take all reasonable steps to assist us and/or any Other
Financial Institution, Card Scheme or Other Payments
Organisation in handling any Claim or query raised by a Buyer,
a Card Issuer, a Card Scheme or any other third party in relation
to the Services or any Transaction, Chargeback, Refund,
Representment or Retro-Charge;
(C) co-operate in providing any Other Financial Institution Card
Scheme or Other Payments Organisation with all information
requested by it in order for you or your Transactions to be
accepted by such third party or otherwise to enable us to
provide you with any of the Services (or any part thereof);
(D) to enable us to assess your financial position throughout the
term of this Agreement, provide us with your latest audited
accounts and any other accurate, complete and reliable
information we may reasonably require (including but not
limited to your management accounts).
19.3 You hereby authorise:
(i) us;
(ii) any Other Financial Institution;
(iii) any Other Payments Organisation (including any
Alternative Payment Provider or Card Scheme); and
(iv) any credit institution at which you maintain the Merchant
Bank Account,
to use, share and release Data and any other information
relating to you, including information relating to you which is
held in connection with the provision of the Services and/or
by the Card Schemes, Other Financial Institutions or Other
Payments Organisations (or, if instructed by us, you shall
provide such Data or information or procure that such Data or
information is provided), to any Person, including our Group
Companies and their respective officers, Card Issuers,
Alternative Payment Providers, Card Schemes, Regulatory
Authorities, law enforcement agencies, fraud prevention
agencies and credit reference agencies, and third parties:
(A) for the purpose of fulfilling our or any Other Financial
Institution’s obligations under the Agreement or the Network
Rules or requirements of an Other Payments Organisation
(including a Card Scheme or Alternative Payment Provider) or
otherwise as required by Applicable Law;
(B) to assess financial and insurance risks;
(C) in relation to any breach of, or to enforce, this Agreement;
(D) to recover debt or in relation to your insolvency;
(E) to maintain and develop customer relationships, services
and systems;
(F) to prevent and detect fraud or crime;
(G) in the course of any investigation by us, any Other Financial
Institution, Regulatory Authority, Card Scheme, Other
Payments Organisation or any third party into any suspected
criminal activity;
(H) regarding information security, the risk of fraud, sector risk
and credit risk; and
(I) to enable the Card Schemes to assign a Reason Code to any
undesirable act or omission.
Where you have been referred to us through a third party,
whether under an affiliate, partnership marketing or other
introducer type arrangement, you authorise us to release Da ta
to relevant third parties as necessary for the operation of such
arrangement and/or to fulfil our reporting obligations to such
third parties.
19.4 You shall advise us in writing as soon as you become
aware (and in any event within 48 hours) of any:
(A) other agreement that you enter into concerning your
acceptance of Transactions;
(B) act, omission or error which does or may cause material loss
or damage to us or any Other Financial Institution, Card Scheme
or Other Payments Organisation) (including damage to the
reputation of us or any such third party, which for the
avoidance of doubt shall be deemed to be material in every
instance in which it occurs);
(C) actual or suspected violation or compromise of the security
or integrity of any Data or any other information relating to the
Services or the Card Schemes or any of our Confidential
Information at any time obtained or held by you.
19.5 If you contact us electronically, we may collect your
electronic identifier (for example, Internet Protocol (IP) address
or telephone number) supplied by your service provider.
19.6 A link between you and anyone with whom you have
a joint account or similar financial association will be recorded
at credit reference agencies, creating a "financial association".
All such associated parties' information will be taken into
account in future applications until you or one of them
successfully file a "notice of disassociation" at the credit
reference agencies.
19.7 We may make periodic searches of and provide
information about you to credit reference agencies, fraud
prevention agencies, Card Issuers, Card Schemes and our
Group Companies to manage and take decisions about their
relationship or prospective relationship with you. Such
information may be used by other credit providers to take
decisions about you and your financial associates. We may also
review you and your business activities (including by electronic
means) to monitor your compliance with the Agreement.
19.8 We may:
(A) disclose information concerning you and your Data to third
parties where we aggregate data to facilitate cross-industry
analysis and comparisons; and
(B) (without limitation) use and/or disclose Confidential
Information and Transaction Personal Data for preparing and
furnishing compilations, analyses, and other reports of
aggregated information and anonymised information,
PROVIDED THAT in each case such compilations, analyses or
other reports do not identify
(i) you (other than where
Curtispay prepares the compilation, analysis or other report
either for and to you or on your behalf) or
(ii) any Cardholder
whose Transactions were the subject of or involved in the
preparation of any such compilation, analysis or other report.
19.9 The information which we, and/or any Other Financial
Institution or Other Payments Organisation, collect from you
may be transferred to, processed and/or stored at, a
destination outside the EEA.
19.10 In the event that we consider that any act or omission
of yours falls within a Reason Code, details of any such act or
omission shall be advised to you and shall also be available on
request. In addition, the fact of termination (if any) under
clause 12.4(H) and the Reason Code forming the grounds for
termination shall be notified to (and may be recorded by) the
Card Schemes and thereafter be maintained by them in
accordance with their normal practice. The aforementioned
database records are available for enquiry by any Acquirer,
Other Acquirer and Card Issuer. In certain circumstances, they
are also made available to crime enforcement authorities.
20. RIGHT OF AUDIT
20.1 Subject to the rest of this clause 20, upon our request,
you shall:
(A) permit or procure us or our duly authorised representatives
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 and those of any other
business which we consider is or may be connected to you; and
(B) permit or procure us or our duly authorised representatives
to take and retain copies of all or any such records; and
(C) provide to us or our duly authorised representatives or
procure that we or they are provided with honest and
comprehensive answers to any enquiries we may make in
relation to you and your business,
for the purpose of ascertaining whether or not you are
performing your obligations in accordance with all the
provisions of this Agreement.
20.2 We shall give you a minimum of twenty-eight (28) days
written notice of any exercise of our rights under this clause 20,
except where the requirements of a Regulatory Authority do
not permit such notice or we have immediate data security,
compliance or fraud concerns, in which case we may give
immediate or shorter notice.
20.3 We shall exercise our rights under this clause 20
reasonably and usually no more than once annually during the
term of this Agreement unless a Regulatory Authority requires
otherwise or there are immediate data security, compliance or
fraud concerns, in which case we may give immediate or
shorter notice. Additionally, where matters are identified as
requiring remediation in a shorter period we may, acting
reasonably, exercise our rights more frequently to ascertain
whether such remediation has been made.
21. INTELLECTUAL PROPERTY
21.1 The Agreement does not transfer, and is not intended
to transfer, to any Party any of the Intellectual Property Rights
that any other Party owns at the Commencement Date or any
Intellectual Property Rights that are created, acquired or
developed during the term of the Agreement.
21.2 You shall not acquire any Intellectual Property Rights
in any Merchant Data Account, or any Data, that we make
available to you under this Agreement.
21.3 Each Party shall obtain the written consent of the
other Parties prior to using or referring to any trademarks,
logos, copyrighted materials, business names or other similar
Intellectual Property Rights in any promotional materials or
literature, agreements or on any website.
21.4 On termination of the Agreement, each Party shall
remove any reference to the other Parties from any
promotional materials or literature, agreements or on any
websites.
22. SERVICE ADJUSTMENTS AND AGREEMENT VARIATIONS
22.1 From time to time, we may make changes to our
Privacy Statement, adjust the content and interfaces of the
Services or make changes to the Services which are necessary
to comply with any Applicable Law or Network Rules, or make
changes which do not materially affect the nature or quality of
the Services. Such adjustments may result in changes to the
Customer Operating Instructions and are not subject to prior
written notice or any right of termination under clause 22.3. If
such adjustments or changes 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 or changes.
22.2 From time to time we may change the way we use
your information (other than Transaction Personal Data).
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 two (2) months, you will be deemed to consent to that
change.
22.3 We shall be entitled to vary the provisions of the
Agreement from time to time by giving you at least two (2)
months’ prior written notice. Such variations may be notified
by reference to materials available on our website, as set out in
clause 26.5. If we make changes to the terms and conditions
herein affecting your payment services, you shall be entitled to
terminate the Agreement immediately by providing written
notice to us, PROVIDED THAT such notice is served upon us
within two (2) months of you being notified of the variation.
Otherwise, you will be deemed to have accepted any variation
of the provisions of this Agreement two (2) months from being
notified of it.
22.4 We may from time to time in our sole discretion
withdraw or decommission a product, software or a Service
that you are using and will, if practicable, give you reasonable
prior notice of this.
23. CONFIDENTIAL INFORMATION
23.1 Except to the extent set out in this clause 23, each
Party shall:
(A) treat as confidential all Confidential Information obtained
from the other Parties under the Agreement;
(B) use the other Parties’ Confidential Information solely for the
specific purposes for which it was disclosed;
(C) not publish or otherwise disclose to any person the other
Parties’ Confidential Information without the owner’s prior
written consent; and
(D) take all action reasonably necessary to secure the other
Parties’ Confidential Information against theft, loss or
unauthorised disclosure.
23.2 Each Party may disclose Confidential Information that
would otherwise be subject to clause 23.1 but only if it can
demonstrate that the Confidential Information:
(A) is required to be disclosed by any court of competent
jurisdiction, Regulatory Authority, by the rules of a recognised
stock exchange or by Applicable Law or the Network Rules;
(B) was lawfully in its possession prior to disclosure to it by any
other Party without an obligation restricting disclosure;
(C) is already public knowledge or which becomes so at a future
date (otherwise than as a result of breach of this clause 23);
(D) is received from a third party who is not under an obligation
of confidentiality in relation to the information; or
(E) is developed independently without access to, or use or
knowledge of, the Confidential Information.
23.3 Notwithstanding the provisions of clauses 23.1, 23.2
and 23.4, we, and/or any Other Financial Institution or Other
Payments Organisation, may aggregate and anonymise your
Confidential Information (including the Data), and disclose it in
that form to any third party. The provisions of clauses 23.1, 23.2
and 23.4 will not restrict the sharing of any Confidential
Information by Curtispay to its directors, employees,
professional advisors, insurers, Group Companies or sub-contractors who need to know it to provide the Services and/or
to manage or enhance the relationship between the Parties,
provided that such persons use it solely for such purpose and
are under an obligation to us to keep such information
confidential.
23.4 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 Parties 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 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 Law or its legitimate internal
compliance requirements. Any obligation to destroy or
permanently erase Confidential Information shall not be
applicable to Confidential Information that forms part of an
electronic back-up system which is not immediately retrievable
as part of day-to-day business.
24. ASSIGNMENT, SUB-CONTRACTING AND NOVATION
24.1 The Agreement is personal to you and you may not
assign, novate or transfer it or any of your rights or obligations
under it.
24.2 You may only use an agent or subcontractor in relation
to the performance of your obligations under the Agreement
with our prior written consent. We may reasonably withdraw
that consent at any time.
24.3 You shall be liable to us for the acts or omissions of:
(A) any of your Personnel, whether or not used with the
consent that we may give pursuant to clause 24.2;
(B) any of your Group Companies; and
(C) any Personnel of any of the foregoing,
in the course of or relating to the performance of your
obligations under the Agreement or arising out of or in
connection with any Transaction, Refund, Representment,
Chargeback or Retro-Charge.
24.4 Subject to Applicable Law and the Network Rules, we
shall be entitled at any time to assign or transfer the Agreement
or the benefit of any or all of our rights under the Agreement
and/or to sub-contract our obligations under the Agreement
without your consent. Without prejudice to clause 29.4, upon
request, you shall execute any documents required to effect
any such assignment, transfer or subcontract.
24.5 We shall be entitled to novate any or all of our rights
and obligations (as appropriate) under the Agreement to a
third party at any time on giving you at least two (2) months’
notice. If we do this you shall be entitled to terminate the
Agreement within two (2) months’ of you receiving the notice
of the novation. You will be deemed to have accepted the
novation of the Agreement two (2) months from receipt of the
notice.
24.6 With effect from the date that we novate our
obligations under the Agreement to a third party (the
"Novation Date"), you shall release and discharge us from
further performance of our obligations under the Agreement
and from all claims and demands against us, whatsoever arising
out of or in respect of the Agreement, whether prior to, on or
subsequent to the Novation Date and the third party shall
perform, or procure the performance of, all such obligations
under the Agreement, and shall accept all liabilities arising out
of or in respect of the Agreement, from the Novation Date.
25. WAIVER
25.1 No failure or delay by a Party in exercising any of its
rights or remedies provided under the Agreement or under
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. The Parties agree and acknowledge that the doctrine
of affirmation, by which a Party is deemed to have affirmed a
decision to proceed with a contract notwithstanding the
enlivening of a right to terminate, shall have no application to
the Agreement.
25.2 No single or partial exercise of any of a Party’s rights
or remedies under the Agreement or under Applicable Law
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.
25.3 Subject to clause 27.3, 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
Law.
26. NOTICES & OTHER COMMUNICATIONS
26.1 Subject to clause 26.2, 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
(i)
delivering it personally (including by commercial courier); or
(ii)
sending it by post (including by airmail or other international or
local mail service in the case of an address for service outside
the United Kingdom); or
(iii) sending it by email, to the email
address of the other Party as set out in this Agreement or
otherwise as notified by such Party from time to time. For the
avoidance of doubt, any notice delivered by email shall not
need to be signed.
26.2 (A) Where you provide an email address, we may send
notices to and rely on the authenticity of communications we
receive from that email address as being from and binding on
you. You must ensure only you and persons with authority to
act on your behalf have access to your email addresses, that
they are kept secure and that you contact us immediately if you
become aware or suspect any relevant unauthorised use or
security compromise.
(B) Unless otherwise agreed by us in writing, notice from you
to us to terminate the Agreement must be delivered to us by
post.
(C) Either Party may, as an alternative to any other method of
notice, give notice to the other’s registered office address
(where it has one). Where the registered office address is not
the postal address provided by a party in accordance with
clause 26.1, deemed receipt shall be calculated by adding
two (2) Business Days to the period for deemed receipt under
clauses 26.3(B)-(E) below.
26.3 Any notice given in accordance with this Agreement
shall be deemed to have been received:
(A) if sent by email, on the day on which the communication is
sent and no report of non-delivery is received by the sender,
PROVIDED THAT (i) any notice despatched after 17:00 hours on
any Business Day or at any time on a day which is not a Business
Day shall be deemed to have been given at 09:00 on the next
Business Day;
(B) if delivered personally, at the time of delivery;
(C) if sent by first class post within the United Kingdom, two (2)
Business Days from the date of posting;
(D) if sent by second class post within the United Kingdom, four
(4) Business Days from the date of posting; and
(E) if you are outside of the United Kingdom, then if sent by
post, within seven (7) Business Days from the date of posting.
26.5 Notices given by us to you in hard or electronic format
may refer to documents or materials made available on our
website, by providing you with a website URL address where
you can access the documents or materials. The full contents
of these documents and materials will be deemed to be
communicated and notified to you as if set out in full in the
notice.
26.6 In addition to formal notices given in accordance with
this clause 26, we may communicate with you from time to
time in relation to your use and our provision of the Services by
means of newsletters, emails, SMS or text message and
messages on our website. We may also communicate with you
through products such as your Merchant Data Account. Such
communications may include notification of changes to the
Customer Operating Instructions or Network Rules, or new or
replacement products or services in connection with the
Services.
27. ENTIRE AGREEMENT
27.1 The Agreement constitutes the entire agreement and
understanding between you and us in respect of its subject
matter and supersedes and invalidates all other prior
representations, arrangements, understandings and
agreements relating to the same subject matter, (whether oral
or in writing, express or implied), other than any securities or
written pledges, undertakings or assurances which you may
previously have given to us as a condition precedent or in
anticipation of the Agreement. Each party acknowledges that
in entering into this Agreement it does not rely on any
statement, representation, warranty or understanding other
than those expressly set out in this Agreement, save that,
notwithstanding the foregoing, we have entered into this
Agreement in reliance on your representations set out in the
Application Form.
27.2 Save to the extent expressly set out in this Agreement,
we hereby exclude all warranties, conditions, terms,
obligations, undertakings and representations (whether in
each case express or implied by statute, common law, custom,
trade usage, course of dealing or otherwise, (including but not
limited to implied undertakings of satisfactory quality and
reasonable fitness for purpose)) to the fullest extent
permissible by Applicable Law, and you hereby waive
irrevocably any rights or remedies you may otherwise have had
in respect of any of the same.
27.3 Nothing in this clause 27, or elsewhere in this
Agreement, shall operate to exclude any liability for fraud.
28. SEVERABILITY
28.1 Each clause and sub-clause of the Agreement is
severable. If any provision of the Agreement or any part of it is
or becomes invalid under or contravenes Applicable Law, or is
held to be unreasonable in the circumstances, or is held by any
court or administrative body of competent jurisdiction to be
illegal, invalid or unenforceable:
(A) the remaining provisions shall not be affected and shall
remain in full force;
(B) the legality, validity, enforceability and reasonableness of
the remainder of the Agreement shall not be affected; and
(C) if such provision would cease to be illegal, invalid,
unenforceable or unreasonable if some part of that provision
were modified or deleted, the provision in question shall apply
with the least such modification or deletion as may be
necessary to make the provision legal, valid, enforceable
and/or reasonable.
29. MISCELLANEOUS
29.1 Status of the Parties
29.1.1 Nothing in the Agreement shall be construed as
constituting a partnership, joint venture or agency (except to
the extent specified in Schedule 1) between or among the
Parties.
29.1.2 You agree, represent and warrant that
Curtispay Limited,providing the Services (the "Service Providers"):
(A) is providing its element of the Services as an independent
contractor, and not as a partner or joint venturer with the other
Parties;
(B) shall be only severally liable in respect of its own obligations
under this Agreement;
(C) shall not be liable in connection with the Services provided
by the other Service Providers, whether jointly, jointly and
severally or at all; and
(D) does not have any specific knowledge of the nature of your
business, or knowledge of any special circumstances relating to
your business, and in any event shall not be deemed to have
knowledge of your business beyond the disclosure and
description of the same in your Appli cation Form.
29.1.3 Each Party (including each Service Provider) will be
deemed to represent to the others, and warrant and agree
that:
(A) each Service Provider is providing its element of the Services
as an independent contractor, and not as a partner or agent of
or joint venturer with the other Parties;
(B) each Service Provider shall be only severally liable in respect
of its own obligations under this Agreement;
(C) each Service Provider shall not be liable in connection with
the Services provided by the other Parties, whether jointly,
jointly and severally or at all;
(D) it is not relying on any communication (written or oral) of
any other Party as advice, or on any such communication as an
assurance or guarantee;
(E) each other Party is not acting as a fiduciary or adviser to it
in respect of the subject matter of this Agreement;
(F) the relationship between each other Party and it is not that
of employee or employer, franchisee or franchisor, and/or
principal or agent, and contains no similar duty; and
(G) it is acting wholly in the course of business and not as a
consumer.
29.1.4 The Services are offered to and accepted by you solely
for business purposes. You represent, warrant and agree that
you shall not use the Services or any part of them outside of
your business.
29.1.5 Where another one of your Group Companies receives
Services from us, you agree to be jointly and severally liable
with such Group Company. If you are a partnership, each
partner will be jointly and severally liable under this
Agreement.
29.2 Save as expressly provided, this Agreement is not
intended to confer any benefit on any third party, and a Person
who is not party to the Agreement shall have no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any
provision of the Agreement. Curtispay
involved in providing any of the Services or otherwise to the
extent expressly provided shall be entitled under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this
Agreement.
29.3 Exclusivity
29.3.1 Unless otherwise stated in your Application Form, the
provision of the Services under this Agreement is not exclusive.
29.3.2 We may process payment transactions for any other
Person acting in any capacity, including merchant, seller,
wholesaler, retailer, payment service provider, credit
institution or financial institution.
29.5 At any time after the Commencement Date, you shall,
at our request, execute or procure the execution of such
documents and do or procure the doing of such acts and things
as the Party so requesting may reasonably require, for the
purpose of giving effect to all the provisions of the Agreement.
29.5 Except as provided herein, each Party shall pay its own
costs in relation to the negotiation, preparation, execution and
carrying into effect of this Agreement and in carrying out any
related due diligence.
29.6 This Agreement may be made and executed in any
number of counterparts, which together constitute one
Agreement.
29.7 This Agreement is in the English language. We are only
obliged to communicate with you in English. We may provide
to you a foreign language translation of this Agreement or any
other communication, PROVIDED THAT such translation shall
be for your information purposes only and in the event of any
inconsistency between the English version and the foreign
language version, the English version shall prevail.
30. DISPUTE RESOLUTION PROCEDURE
30.1 Subject to the provisions of clause 32, if any dispute
between you and us (each a "disputing party") arises out of or
in connection with this Agreement or its subject matter,
formation, validity or enforceability (including non-contractual
claims) (each a "dispute") then, except as expressly provided in
this Agreement, the Disputing Parties shall follow the dispute
resolution procedure set out in this clause.
30.2 Either Disputing Party shall give to the other written
notice of the Dispute, setting out its nature and full particulars
("Dispute Notice"), together with any relevant supporting
documentation. Following service of the Dispute Notice, the
Representatives of each of the Disputing Parties shall attempt
in good faith to resolve the Dispute.
30.3 If the Representatives of the Disputing Parties are for
any reason unable to resolve the Dispute with fourteen (14)
Business Days of service of the Dispute Notice, either Disputing
Party shall be entitled to commence proceedings under clause
31.2.
30.4 If the Dispute is resolved by the Representatives
within fourteen (14) Business Days of service of the Dispute
Notice in accordance with clause 30.2, the settlement shall be
recorded in writing and signed by each of the Disputing Parties
within seven (7) Business Days of the end of the period referred
to in clause 30.2.
30.5 Nothing in this clause 30 shall prevent either Disputing
Party making any application for injunctive relief that it
considers necessary to protect its position.
31. GOVERNING LAW AND JURISDICTION
31.1 This Agreement and any Dispute, shall be governed by
and construed in accordance with English law.
31.2 Subject to the provisions of clause 30, the Parties
irrevocably agree, for our sole benefit that, subject as provided
below, the English Courts shall have exclusive jurisdiction over
any Dispute. Nothing in this clause shall limit our right to take
proceedings against you in any other court of competent
jurisdiction, nor shall the taking of proceedings in any one or
more jurisdictions preclude the taking of proceedings by us in
any other jurisdiction, whether concurrently or not, to the
extent permitted by the law of such other jurisdiction. You
waive any objection to any proceedings in such courts pursuant
to this clause 31.2 on the grounds of venue or on the grounds
that proceedings have been brought in an inappropriate forum.
Any proceedings brought by you against us in respect of a
Dispute must be brought in the English Courts.
31.3 If you are a Large Enterprise or a Large Charity and
you do not have a place of business in England and Wales,
Scotland or Northern Ireland, you must appoint a process agent
in England or Wales and inform us of the contact details of your
process agent within five (5) Business Days following execution
of the Agreement. Within five (5) Business Days of the
appointment of your process agent ceasing to be effective for
any reason, you will appoint a replacement process agent in
England or Wales for the purposes of this clause and
immediately will notify us of the change in accordance with this
clause 31.3.
32. COMPLAINTS
First use the Curtispay Complaints Procedure
If you are not satisfied with our Services, you must initiate our
complaints handling procedure to resolve such matters. For
more information about this process please email us : info@curtispay.com
Financial Ombudsman Service
If you are still not satisfied after following our complaints
procedure, you can ask the Financial Ombudsman Service
(subject to Applicable Law governing eligible complainants), to
review the complaint.
You can contact the Financial Ombudsman Service:
By phone: 08000234567, 03001239123, +442079640500
By email: complaint.info@financial-ombudsman.org.uk
By post: The Financial Ombudsman Service, Exchange Tower,
London E14 9SR
Call using next generation text relay: (18002) 020 7964 1000
By text: You can also text the Financial Ombudsman Service on
07860 027 586 and they will call you back. The Financial
Ombudsman Service advises not to send any account numbers
or bank details by text and that if you feel you need to speak to
them more urgently, it's probably best to call them.
Up to date contact details and other information on the
Financial Ombudsman Service can be found at www.financialombudsman.org.uk.
33. REGULATORY INFORMATION
is a private limited company
registered in England & Wales under company number
12861335 , and whose registered office address is at The
87a Hambrough Road, Southall, London, England, UB1 1HY.
In today's digital age, reliable and efficient technical support is crucial for seamless business operations.
Our Remote PC Support Services aka SOFTWARE MAINTENANCE are designed to provide comprehensive assistance, ensuring your systems run smoothly and efficiently, no matter where you are.
Our Services Include:
Remote Troubleshooting and Diagnostics
Quickly identify and resolve software and hardware issues.
Perform detailed diagnostics to ensure optimal performance.
Provide immediate solutions to common technical problems.
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Install and configure essential software applications.
Ensure compatibility and functionality across your systems.
Customise software settings to meet your specific needs.
System Maintenance and Updates
Regularly update operating systems and software to the latest versions.
Apply security patches and updates to protect against vulnerabilities.
Perform routine maintenance to enhance system performance.
Virus and Malware Removal
Conduct thorough scans to detect and remove viruses, malware, and spyware.
Implement security measures to prevent future infections.
Educate users on safe browsing and email practices.
Network Support and VPN Configuration
Troubleshoot and resolve network connectivity issues.
Configure VPNs to ensure secure remote access.
Optimise network settings for better performance.
Data Backup and Recovery
Set up automated backup solutions to protect your data.
Recover lost or corrupted data quickly and efficiently.
Implement robust data protection strategies.
Email and Account Support
Assist with email setup and configuration.
Troubleshoot email delivery and synchronization issues.
Manage user accounts and permissions.
User Training and Support
Provide training on new software and tools.
Offer guidance on best practices for system use.
Create user-friendly documentation and support materials.