Terms & Conditions for Merchant Acquiring Services

Effective date: 18th of February 2021Version: 1.1

Preliminary Provisions


The Terms & Conditions for Merchant Acquiring Services (hereinafter “Agreement”) govern the relationship between FM Finance Ltd, a private limited liability company incorporated under the laws of England and Wales, registered with the Companies House under number 11415496, with its registered address located at Suite 32 Pure Offices Hatherley Lane, Cheltenham Office Park, Cheltenham, England, GL51 6SH, authorised by the Financial Conduct Authority of the United Kingdom as a payment institution with firm reference number 815137 (hereinafter “FMPay”) on one side and the Merchant (as defined below) on the other. Collectively hereinafter FMPay and the Merchant shall be referred to as “Parties” and singularly to as the “Party”.

The Agreement applies to all Merchants who use Acquiring Services provided by FMPay. The Agreement describes the terms and conditions that apply to the Merchant’s use of the Services. If the Merchant does not understand any terms of the Agreement it should contact FMPay before accepting this Agreement and starting to use the Services.


Important Information


FMPay is not a participant in the Financial Services Compensation Scheme (FSCS) that is the United Kingdom statutory deposit insurance and investors compensation scheme or any other compensation schemes. FMPay is an Authorised Payment Institution that does not take deposits, and, therefore, is not obliged to be part of the FSCS. Instead, FMPay protects the Client’s funds in accordance with Regulation 23 of the Payment Services Regulations 2017, by keeping client’s funds on safeguarding accounts with duly authorised credit institutions.

    1.1 The purpose of the Agreement is to outline the rights and obligations of the Merchant and FMPay with regard to the use of the Services which enable the Merchant to accept Payments from Cardholders for goods and/or services purchased on the Merchant’s Website.

    1.2 The Agreement is a binding legal agreement between a Merchant and FMPay.

    2.1 The following definitions shall be applicable in the Agreement:


    3-D Secure

    – means the “Three Domain Secure” protocol developed by Visa International Inc. (Visa) branded as “Visa Secure”, the “Mastercard Identity Check” developed by Mastercard International Inc including successive versions thereof and any amendments thereto and any other similar protocols developed by aforementioned and other Card Schemes

    Acquiring Currency –

    means a currency which is available for the Merchant for the sake of effecting Payments.

    Acquiring Institution –

    asdasdsmeans a financial institution that is authorized by a Card Scheme to enable the use of a Cards by accepting Payments from merchants on behalf of the Card Scheme, routing these to the Card Scheme or Issuing Institution and collecting and settling the resulting funds to the Merchant; in case that the Acquiring Institution differs from FMPay, the details of it will be indicated in the Parameter Schedule.adasdasdasd

    Acquiring Service

    – means a payment service enabling the execution of transactions initiated by, or via, the Merchant, by means of the Cards, which involves, among else, operating authorisation process, transmitting payment orders to the Intermediary Institutions, and is designed to provide the Merchant with funds due to the Merchant.

    Acquired Funds

    – means the funds that were collected from Cardholders utilizing Acquiring Services.

    API Integration

    – means application programming interface consisting of direct secured internet connection between the Merchant’s Website and the FMPay environment via which Payment details are transmitted.

    Authorized User

    – means an individual authorized by the Merchant and accepted by FMPay to have access to the Merchant Account.

    Business Day

    – means a day on which banks are open for general business in London but excludes Saturday, Sunday and any other day which is a legal holiday in London

    Card

    – means any and all cards provided by the Issuing Institution.

    Card Scheme

    – means a card brand such as Mastercard®, Visa®, UnionPay® or any other as approved by FMPay from time to time and indicated in the Parameter Schedule.

    Cardholder

    – means a person to whom the Card is issued by the Issuing Institution.

    Chargeback

    – means a Payment made with a Card which is being disputed by the Cardholder where the relevant claim is submitted to the Issuing Institution, resulting in charging the Merchant with the value of the disputed Payment or its part.

    Collateral

    – means a guarantee, indemnity or other security (including Rolling Reserves and Fixed Reserves as the case may be) in such form and over such assets as FMPay may reasonably require, to secure to the reasonable satisfaction the performance of obligations (including contingent or potential obligations).

    Confidential Information

    – means information received in connection with, or which a Party has learned in consequence of, the Agreement or its terms and conditions or relating to the commercial secret of the Parties, including know-how, value of services, information about customers, or employees, Card data, Payment data and information on the Cardholders. Confidential Information under the Agreement shall not include (i) information that becomes publicly available on the date of signing the Agreement or after signing it; (ii) information that is publicly available through no fault of a Party; (iii) information that was legally received by a Party before entering into the Agreement.

    Chargeback/Payment Ratio

    – means a Chargeback to the successfully acquired Payment ratio which is indicated in the Parameter Schedule.

    Data Protection Legislation

    – means any laws and regulations in any relevant jurisdiction relating to privacy or the use or processing of data relating to natural persons, including EU Regulation 2016/679 (“GDPR”) and the Data Protection Act 2018 (“DPA”) and the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and any laws or regulations ratifying, implementing, adopting, supplementing or replacing the forgoing; in each case, to the extent in force, and as such are updated, amended or replaced from time to time.

    Data Controller

    – means the entity which alone or jointly with others determines the purposes and the means of the processing of Personal Data.

    Data Processor

    – means the entity which processes Personal Data on behalf of a Data Controller.

    Data Subject

    – refers to any individual person who can be identified, directly or indirectly, via an identifier including but not limited to a name, an ID number, location data, or via factors specific to the person’s physical, physiological, genetic, mental, economic, cultural or social identity.

    Database

    – means MasterCard Alert to Control High-risk Merchants (MATCH) and/or Visa Merchant Alert Services (VMAS) as the case may be.

    E-invoicing Page

    – means the payment interface where the Cardholder is redirected by the means of a link to a payment site hosted by FMPay on which Payment details are entered by the Cardholder.

    Fees

    – means any fees, tariffs and charges that are due to FMPay from the Merchant under the Agreement or otherwise as stemming from the provision of Services

    FMPay Website

    – means website owned and operated by FMPay which is available by the means of the following link https://fmpay.co.uk

    Fixed Reserve

    – a pre-defined amount of funds which are excluded from the Payout for a fixed period of time in order to secure any possible claims of Acquiring Institution against the Merchant.

    Fraud Risk Controls

    – means a set of filters and rules aimed at the identification of unwarranted Payments submitted to the Payment Gateway.

    Intermediary Institution

    – means an institution which participates in the process of transferring Acquired Funds in favor of the Merchant in order to execute a Payment, including Acquiring Institutions and Issuing Institutions.

    Internal FMPay Program

    – means a program developed by FMPay which aims to reduce the number of Chargebacks of the Merchant.

    Issuing Institution

    – means a member of any Card Scheme that is authorised to issue Cards for the Cardholders.

    Hosted Payments Page

    – means the payment interface where the Cardholder is redirected from the Merchant’s Website to a payment site hosted by FMPay, on which Payment details are entered by the Cardholder.

    Merchant Category Code (MCC)

    – means the four-digit number assigned by Card Schemes, which is used to classify the business by the type of product and services.

    Merchant

    – means a natural or legal person whose name was indicated in the Merchant’s Application, who has entered into the agreement with FMPay for the purpose of using Acquiring Services and who has executed the Parameter Schedule.

    Merchant Account

    – means a dedicated information management account available on FMPay Website where the Merchant can perform different operations relating to Services

    Merchant’s Application

    – means an application developed by FMPay and submitted by the Merchant to FMPay, whether in electronic or in other tangible form, detailing information regarding: (i) company’s information, (ii) company’s owners, (iii) director(s) and representative(s), (iv) business information, and (v) processing estimates.

    Merchant Credentials

    – means credentials used to authenticate the Authorised User when logging into the Merchant Account, including but not limited to login, password, and certificate.

    Merchant’s Website

    – means a website(s) indicated in the Parameter Schedule.

    Micro-enterprise

    – means an autonomous enterprise whose annual turnover and /or balance sheet total does not exceed €2 million and employs fewer than 10 (ten) people.

    Minimum Payout Amount

    – means a minimum amount of funds that must be accumulated for a single Payout, as indicated in the Parameter Schedule.

    Other Charges

    – means any assessment, fines, fees, charges or expenses of any nature which Card Schemes or Intermediary Institutions levy on FMPay at any time directly or indirectly in relation to any aspect of FMPay’s relationship with the Merchant.

    Parameter Schedule

    – means Schedule attached to the Agreement setting out information about the entity accepted as the Merchant, Fees for Services provided hereunder, together with other additional specifications relating to the Agreement.

    Payment

    – means a payment transaction initiated by the Cardholder via the Payment Gateway in consideration for goods or services purchased from the Merchant at the Merchant’s Website. The term “Payment” also includes credits, errors, returns and adjustments.

    Payment Gateway

    – means a software technology that allows transferring data related to Payments to Intermediary Institutions and Card Schemes.

    Payout

    – means a transaction transferring Acquired Funds to the Settlement Account.

    Payout Currency

    – means a currency in which Payouts will be carried out.

    PCI SSC Standards

    – means 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.

    Personal Data

    – has the meaning given to it in the Data Protection Legislation, as amended from time to time, and is any information relating to the Data Subject.

    Privacy Notice

    – means a document detailing the manner in which FMPay protects personal data as is available by means of the following link: https://fmpay.co.uk/privacy

    Processing Statement

    – means a document detailing acquired Payments, Fees, Chargebacks, Refunds, Reversals, and amounts retained on the Reserve Account for a particular period.

    PSRs 2017

    – PSRs 2017 –

    Recurring Payment

    – means a repetitive period Payment for which the Merchant charges the Cardholder.

    Refund

    – means repayment of funds to the Cardholder initiated by the Merchant and effected by FMPay.

    Reversal

    – means a reversal of the funds originally transferred as Payment, initiated by the Cardholder or the Intermediary Institution, particularly adiv a result of (i) absence of the Cardholder’s consent to make a Payment, (ii) withdrawal of previous consent, or (iii) inconsistency in the Cardholder’s data that was provided when effecting a Payment.

    Reserve Account

    – means a separate account with the Acquiring Institution where the Rolling Reserve or Fixed Reserve (as the case may be) is retained.

    Reserve Amount

    – means the amount of funds that are retained on the Reserve Account.

    Rolling Reserve

    – means a pre-defined percentage of Acquired Funds which are excluded from the Payout for a fixed period of time in order to secure any possible claims of Acquiring Institution against the Merchant.

    Trading Limit

    – means the maximum aggregate value of single or multiple Payments that the Merchant may complete as indicated in the Parameter Schedule.

    Service

    – means all services rendered by FMPay to the Merchant under the Agreement.

    Settlement Account

    – means a payment account in the name of the Merchant with a duly authorised financial institution which is indicated in the Parameter Schedule.

    3.1. Where the Merchant is not a Micro-enterprise the Merchant and FMPay agree, with respect to the PSR 2017, that:

    3.1.1. regulations 41 to 62 shall not apply in accordance with regulation 40(7); and

    3.1.2. all of regulations 66(1), 67(3) and (4), 75, 77, 79, 80, 83, 91, 92 and 94 shall not apply in accordance with regulation 63(5); and

    3.1.3. the time period in regulation 74(1) (notification of authorised or incorrectly executed payment transactions) shall be 2 (two) months.

    4.1. The Services that are governed under the Agreement consist of:

    4.1.1. Provision of the Payment Gateway to the Merchant;

    4.1.2. Acquiring Service;

    4.1.3. Fraud Risk Controls;

    4.1.4. Provision of the Merchant Account and possibility to administer Payments;

    4.1.3. Payouts of Acquired Funds.

    4.2. To provide Services FMPay relies on Intermediary Institutions, where Intermediary Institution will act as an Acquiring Institution, such Intermediary Institution shall be indicated in the Parameter Schedule. In case that different Acquiring Institutions process Payments for different Card Schemes, FMPay shall notify the Merchant of the respective Acquiring Institutions that are engaged in the processing of Cards for different Card Scheme.',

    4.3. Access to the Services may be changed, or partially or completely suspended, when, and to the extent, justified by pertaining circumstances, including but not limited to where it is necessary to ensure a secure and stable environment for the Services, where changes in the applicable law so require, where repairs, maintenance works, adaptations, changes or additions to the software are required, or where measures to locate and remove the malfunctions of the Services need be applied. In the abovementioned situations, interruptions of or interferences with the Services are deemed in conformity with the Agreement and do not result in FMPay’s liability towards the Merchant. Unless suspension of the Services stems from unplanned and unforeseen disruptions, FMPay will inform the Merchant about the Services suspension in advance.

    5.1. FMPay may offer Acquiring Services in one or more Acquiring Currencies. All allowed Acquiring Currencies which are available to the Merchant for the sake of effecting Payments are indicated in the Parameter Schedule.

    5.2. FMPay may offer Payouts in one or more Payout Currencies. All allowed Payout Currencies which are available for the Merchant for the Payouts are indicated in the Parameter Schedule. In case that there are more Acquiring Currencies than Payout Currencies, FMPay shall have a right to convert Acquired Funds due for Payout into any Payout Currency.

    6.1Under the Agreement FMPay shall:

    6.1.1. act as an Acquiring Institution or facilitate connection to an Acquiring Institution and perform all necessary ancillary activities for the Merchant to be able to accept the Payments utilising Cards of Card Schemes that are identified in the Parameter Schedule;

    6.1.2. provide the Merchant with access to the Services while enabling to collect the Payments;

    6.1.3. asprovide the Merchant with a connection to the Payment Gateway by the means of a Hosted Payments Page, E-invoicing Page, and/or API Integration, as detailed in the Parameter Schedule entered into by and between the Merchant and FMPay;dasdsadas

    6.1.4. enable the Merchant to transfer Payment data from the Payment Gateway to Intermediary Institutions and Card Schemes which then will enable processing of the Payment;

    6.1.5. set up the Fraud Risk Controls for monitoring fraudulent or suspicious activities of the Cardholders and adjust filters that are aimed at the reduction of fraudulent Payments;

    6.1.6. open a Merchant Account which will allow the Merchant to view, register, manage, administer submitted Payment data, and, in particular, view lists of Payments made, their score in accordance to Fraud Risk Controls, authorisation and sales errors lists, lists of Refunds, Reversals and Chargebacks, and manually initiate Refunds, as well as view the Reserve Amoun

    6.1.7. provide the Merchant with the Merchant Credentials which will allow the Merchant to access information and perform operations on the Merchant Account;

    6.1.8. provide ongoing support to the Merchant that relates to the Services;

    6.1.9. provide the Merchant with the information regarding the Payments made, whether within the Merchant Account or by issuing Processing Statement(s);

    6.1.10. transfer the Acquired Funds, less any Fees, Other Charges, and Reserve Amount to the Settlement Account;

    6.1.11 provide the Merchant with all the information necessary to effectively integrate the Merchant’s Website with the Payment Gateway.

    6.2. FMPay has the right to demand from the Merchant any such confirmation as appropriate that the Merchant has supplied goods and/or services for which the Payment has been made.

    6.3. FMPay has the right to require the Merchant, within a period determined by FMPay, that a person or persons reasonably acceptable in FMPay’s sole and absolute discretion, provide FMPay with additional Collateral.

    6.4. FMPay reserves the right and the Merchant agrees, that at any time, both before and after the conclusion of the Agreement, FMPay is entitled to:

    6.4.1. take action to identify the Merchant and apply risk-based appropriate measures to identify and verify its identity, and that of its Authorised Users, directors, representatives, shareholders and ultimate beneficial owners;

    6.4.2. monitor business relations with the Merchant, including verification of Payments carried out;

    6.4.3. obtain information concerning the purpose and nature of business relations intended by the Merchant and additional information allowing FMPay to assess the Merchant and each Payment, including data held by the Merchant;

    6.4.4. assess the Merchant’s compliance with the provisions of the Agreement;

    6.4.5. evaluate the Merchant’s performance of obligations towards Cardholders related to Payments and verify the manner of handling these Payments;

    6.4.6. suspend the provision of Services in the circumstances and in accordance with the provisions of the Agreement.

    7.1. Under the Agreement the Merchant shall:

    7.1.1. use the Services in accordance with applicable laws, Card Scheme rules, and the Agreement;

    7.1.2. use the Services solely in connection with receiving Payments exclusively for such goods and/or services that fall into the MCC reported to and accepted by FMPay and only those that are offered by the Merchant on the Merchant’s Website previously approved by FMPay;

    7.1.3. integrate the Payment Gateway in the manner indicated in the Parameter Schedule and in accordance with the guidance and documentation supplied by FMPay;

    7.1.4. restrict the possibility of making payments via the Payment Gateway only to those Card Schemes which are identified in the Parameter Schedule;

    7.1.5. regularly review and control Payments initiated with the use of the Payment Gateway, and notify FMPay promptly of any suspected unauthorised activity or of any unauthorised activity;

    7.1.6. deliver timely and diligently all goods and/or services sold by the Merchant;

    7.1.7. collect, store and transmit appropriate Payment information in a secure manner, protect the privacy of such data, and comply with requests from FMPay to take reasonable actions to maintain the security and integrity of the Services.

    7.2. As long as the provision of Acquiring Services is concerned, the Merchant shall authorise FMPay to collect funds on behalf of the Merchant via Payment Gateway for the purpose of subsequent Payout to the Merchant in accordance with the terms of the Agreement.

    7.3. The Merchant undertakes to install and use 3-D Secure for all Payments, unless otherwise explicitly agreed in writing with FMPay in the Parameter Schedule.

    7.4. The Merchant must not accept Payments if it has a reason to believe that a particular Card is being used by an unauthorised person or a payment made in contrary to Card Scheme rules or applicable laws, in particular for illegal purposes

    7.5. The Merchant shall obey Card Scheme rules regulating among other: (i) security of Payments, (ii) allowed website content, (iii) Payment floor limit (which is 0 for all card-not-present transactions), (iv) selling goods and/or services which fall within of the Merchant’s MCC, (v) procuring authorisations, and (vi) use of trademarks of Card Schemes. The Merchant accepts and acknowledges that Card Schemes may change standards applicable to Card Payments at any time, and prohibit the Merchant from engaging in any conduct the Card Schemes deem potentially contrary to their rules.

    7.6. The Merchant is obliged to fully cooperate with FMPay, Intermediary Institutions, and Card Schemes, in order to explain all doubts connected with Payments made with Cards, including but not limited to any complaints connected with them. In particular, the Merchant is obliged to provide promptly, but in no case later than within ten (10) Business Days, at each and every request of FMPay or the Intermediary Institution, all necessary information and documents regarding the any Payment including but not limited to contract from which the Payment results, as well as evidence attesting to provision of the goods and/or services for which the Payment has been made.

    7.7. The Merchant shall promptly, but not later than within three (3) Business Days, inform FMPay of any changes to the Merchant’s business, its legal form, address, type of goods and/or services offered, changes in the ownership structure of the Merchant, as well as of any significant changes in the Merchant’s terms and conditions regulating provision of goods and/or services. The Merchant shall be fully liable for damages incurred by FMPay or Intermediary Institutions as a result of failure to transmit the information about such changes to FMPay promptly.

    7.8. The Merchant shall resolve any disputes of the Cardholders relating to the goods and/or services directly between the Merchant and such Cardholders. The Merchant must not include a clause in its terms and conditions that prevent or limit the Cardholders from raising any claims against the Merchant, or that refer the Cardholders to a third party for claim handling, unless otherwise agreed in writing by FMPay.

    7.9. The Merchant shall keep the documents attesting to the performance of obligations as contracted for against the Payment, and all other documents related to Payments (estimates, invoices, proof of delivery, etc.), for at least two years of making of Payments, and deliver them promptly at each and every request of FMPay. This Clause 7.9 shall remain in force notwithstanding termination of the Agreement

    Merchant’s Website

    7.10. The Merchant shall ensure the Merchant Website which has been integrated with the Payment Gateway will remain in a working state while prominently displaying the following:

    7.10.1. legal and trading name of the Merchant, as well as contact details, including the exact addresses of registered office and branches and telephone number;

    7.10.2. a detailed description of goods and/or services offered on the Merchant’s Website, with a clear indication of the prices for each product and/or service;

    7.10.3. privacy policy of the Merchant, including information about transferring personal data of the Cardholders to FMPay, compliant with the applicable law;

    7.10.4. terms and conditions with a confirmation function of delivery of goods and/or provision of services by the Merchant that outline: (i) rules for the delivery of goods and/or services, (ii) return, refund policy in case the Cardholder’s complaint is accepted, (iii) the complaint procedure including the contact data (email address or telephone number) of the customer service office;

    7.10.5. trademarks of relevant Card Schemes that are accepted by the Merchant;

    7.10.6. specification of the available currency(ies), fees charged for the delivery, packaging, taxes, and all other applicable fees;

    7.10.7. manner of communication to the Cardholder, where the Merchant’s Website or services are provided for a trial period, by the Merchant, prior to the end of the trial period but no later than when the obligation to pay arises, how the Cardholder may cancel the service without incurring any subsequent charges;

    7.10.8. subsequent notification of the Cardholder, after submission of an order by the Cardholder and successful authorisation of Payment(s), that the Payment was accepted and type of goods and/or services purchased;

    7.10.9. any export restrictions;

    7.10.10. any other information required by the applicable law and Card Scheme rules.

    Specific Rules

    7.11. The Merchant shall comply with the following rules:

    7.11.1. it is forbidden to reiterate initiation of a particular Payment where the Payment was previously rejected by the Intermediary Institution;

    7.11.2. it is forbidden to accept Payments with Cards for goods and/or services which are not offered by the Merchant in the course and within the scope of its own business, or which are provided by order of a third party, or which are provided by different providers;

    7.11.3. the Merchant’s commercial offers must not mislead or otherwise give a false impression that FMPay or Card Schemes are themselves providers of the goods or services offered by the Merchant;

    7.11.4. it is forbidden to discriminate against Payments made with Cards or against Cardholders who use that method of payment, especially by way of imposition of extra charges for Payments made with Cards or requiring additional protection (securities, guarantees, or alike);

    7.11.5. it is forbidden to accept Payments made with a Card on loans granted by the Merchant, or in virtue of repayment of cash paid by the Merchant or redemption of bad debts or bad checks;sadasdas

    7.11.6. it is forbidden to establish a minimum or maximum limit on Payment value with respect to Payments made with a Card;

    7.11.7. it is forbidden to accept the so-called split sales transactions, that is to accept payment for a given product and/or service made in several separate Payments;

    7.11.8. it is forbidden to demand from the Cardholder to waive the right to dispute a Payment made with a Card;

    7.11.9. it is forbidden for the Merchant to share or sell data connected with Cards.

    Recurring Payments

    7.12 If the Merchant is allowed by FMPay, as is indicated in the Parameter Schedule, to offer and offers the possibility to make Recurring Payments for goods and/or services:

    7.12.1. he Merchant shall explain on the Merchant’s Website how to cancel the Recurring Payments order for goods and/or services;

    7.12.2. the Merchant shall perform first Payment upon Cardholder signing up for Recurring Payments through 3-D Secure;

    7.12.3. the Merchant shall refrain from initiating Recurring Payments if the Cardholder has cancelled the relevant order;

    7.12.4. he Merchant shall notify the Cardholder at least seven (7) Business Days prior to the recurring payment taking place if:

    1. the Payment amount has changed;
    2. the Payment date has changed;
    3. more than twelve (12) months have elapsed from the last recurring payment; or
    4. a trial period has ended or promotional activity has expired.

    Authorized Users

    7.13. The Merchant shall have the right to register more than one Authorised User. Each additional Authorised User, whether it is an employee or a third-party, must undergo the identification and verification procedure to be registered with FMPay. The Merchant authorises FMPay to treat and execute all orders and actions by all Authorised Users as if the Merchant has given that order or carried out that action itself.

    7.14. It is the Merchant’s responsibility to withdraw authority granted to any Authorised User. The Merchant is also responsible for all orders and actions relating to this Agreement by all Authorised Users.

    7.15. The Merchant shall ensure that the Merchant Credentials are not disclosed to any other person than the Authorised User. The Merchant shall take all reasonable actions to ensure that there is no unauthorised use of the Merchant Credentials or of any other Confidential Information employed in the provision of Services or use of the Merchant Account. However, if the Merchant suspects that there may be or has been or is aware that there has been unauthorised use of the Merchant Credentials or of any other Confidential Information used in the provision or use of Services and/or the Merchant Account, the Merchant shall notify FMPay immediately by means of an email written to the general support email address indicated in the Parameter Schedule. FMPay will use all reasonable endeavours to prevent unauthorised use of the Services and Merchant Account upon receiving such notification.

    8.1 Under the Agreement the Merchant is prohibited from following acts and/or omissions:

    8.1.1. use of the Services in a manner that violates applicable laws, Card Scheme rules, is contrary to good practices, or infringes any third-party rights;

    8.1.2. sublicensing, subcontracting, or otherwise making any part of the Services available for use to any third party;'

    8.1.3. providing information that is false, inaccurate or misleading;

    8.1.4. refusing or evading to confirm its identity or any other information provided to FMPay, including refusing to supply additional documents, clarifications, and information that was requested by FMPay;

    8.1.5. conducting business or using the Services in a way which may result in complaints, disputes, Chargebacks, Fees, or Other Charges being imposed on FMPay,the Merchant, Intermediary Institutions, or third parties;

    8.1.6. any such action or omission which may expose FMPay to credit or fraud risk, risk of breaching any of the legal obligations, reputational risk, or sudden increase of such risks, which shall be determined in the sole and absolute discretion of FMPay;

    8.1.7. tampering or attempting to tamper the Merchant Account or Payment Gateway;

    8.1.8. taking any action which imposes an unreasonable or disproportionately large workload on FMPay.

    9.1. Once FMPay has confirmed receipt of the Payment from the Cardholder, such information shall be automatically displayed in the Merchant Account.

    9.2. The Fees applicable to the Agreement are set out in the Parameter Schedule. All applicable Fees are immediately due and payable subsequent to the provision of Services.

    9.3. Unless agreed otherwise between FMPay and the Merchant, all Fees are exclusive of VAT and any other taxes under any relevant law. The Merchant will be solely responsible for paying any applicable taxes.

    9.4. To the extent Acquiring Services are rendered in the Merchant’s favour, the Payout of the Acquired Funds, less any Fees, Other Charges, and Reserve Amount, will be initiated to the Merchant within the term stipulated in the Parameter Schedule, notwithstanding the foregoing, such Payout shall occur not earlier than the moment when the funds are actually received by FMPay and have reached the Minimum Payout Amount.

    9.5. Any Payout involving currency conversion shall be performed at the exchange rate of FMPay which will be indicated in the Merchant Account or otherwise communicated to the Merchant by FMPay at the time of the execution of the order, unless the Merchant and FMPay have agreed that a pre-determined exchange rate shall be applicable.

    9.6. The Fees due from the Merchant to FMPay and amounts on Reserve Account shall be displayed in the Merchant Account and/or provided on a periodic basis in the Processing Statements. Insofar as Acquiring Services are concerned, the total amount of Acquired Funds due for Payout shall be shown in the Merchant Account and/or the Processing Statement.

    9.7. The Merchant hereby irrevocably authorises FMPay, from time to time without notice and both before and after demand, to set off by whatever means the whole or any part of Merchants liabilities (including but not limited to Fees and Other Charges) to FMPay under the Agreement, against any Payout due to the Merchant or against any sums (whether or not related to the Payment that gave rise to the liability) held by FMPay or owed to the Merchant under the Agreement.

    9.8. FMPay may collect any Fees or Other Charges, by: (i) debiting such amounts from the Acquired Funds, without notice or demand, before Payouts; (ii) debiting such amount from the Reserve Account (iii) invoicing the amount of the Fees and/or Other Charges to the Merchant; and/or (v) taking any lawful collection measures, in court or otherwise to collect such sums.

    9.8.1. Fees related to repayments (including but not limited to Refunds, Reversals, or Chargebacks) of funds to Cardholders are subject to the following:

    1. any and all repayments which FMPay makes on behalf of or for the Merchant shall correspondingly reduce the amount of Acquired Funds due for Payout. In case that the Acquired Funds are insufficient to cover the costs of repayment then such repayment may be made from Rolling Reserve or Fixed Reserve. If the Acquired Funds or Reserve Amount are insufficient to cover the costs of repayment then the Merchant shall pay the difference on the basis of an invoice or a debit note issued by FMPay within the due date indicated therein;
    2. where the Merchant does not have sufficient funds held with FMPay to cover the costs of the repayment, or where the satisfaction of the repayment request would involve excessive difficulties or costs disproportionate to the amount of the actual repayment, FMPay may refuse the request, excluding instances relating to Chargebacks and/or Reversals, and in so doing it must inform the Merchant thereof.

    9.9. Where the Fees and/or Other Charges are collected by invoicing the amount to the Merchant, the Merchant must pay sums due under any invoice under this Agreement within ten (10) Business Days from the date of receipt of the invoice. Interest shall accrue on any unpaid invoice owed by the Merchant to FMPay at the rate of 0.1% for each day of delay. The Merchant shall pay the interest together with the overdue amount.

    10.1. Any repayment (including but not limited to Refunds, Reversals, or Chargebacks) of funds to Cardholders are subject to the following:

    10.1.1. the Merchant is solely responsible for those repayments, and also for any additional fees or penalties connected therewith as imposed by FMPay, Intermediary Institution or Card Scheme;

    10.1.2. Fees collected by FMPay for processing the Payment which subsequently has been repaid shall not be returned to the Merchant;

    10.1.3. if it comes to the attention of FMPay that the Cardholder demands repayment of any given Payment, FMPay will promptly inform the Merchant thereof;

    10.1.4. the Merchant shall fully cooperate with FMPay and shall promptly, but no later than within ten (10) Business Days, provide appropriate information and submit required documents, in order to explain the circumstances regarding the request for repayment;

    10.1.5. the repayment of funds for a particular Payment shall be made via the same payment method through which the Payment was originally made.

    11.1. The type of payment interface which the Merchant will use for the enjoyment of Acquiring Services shall be indicated in the Parameter Schedule. The Merchant is obliged to follow the rules and guidance provided by FMPay when setting up one or another type of payment interface.

    11.2. As a general rule and unless the Merchant is allowed to use the API Integration, the Merchant shall not capture, register or make Cardholders complete any Payment details on the Merchant’s Website but shall use for such purposes the Hosted Payment Page or E-invoicing Page. The Merchant shall ensure that Cardholders submit all of the Payment Details therein. The Merchant shall not use screen grabbing or other emulation technologies to input payment details into the Hosted Payment Page or E-Invoicing Page.

    11.3. Only where FMPay explicitly and in writing agreed to allow the Merchant to accept Payments by the means of API Interface the Merchant shall be entitled to use such for Acquiring Services.

    11.4. The Merchant must at all times fully comply with the current PCI SSC Standards and on FMPay’s first request demonstrate such compliance and provide self-assessment questionnaires and/or valid certification (as the case may be) of its compliance together with any other documents which may be requested by FMPay. If the Merchant cannot prove the compliance and/or its prior certification becomes invalid, the Merchant shall notify FMPay immediately.

    11.5. FMPay has right to immediately suspend the provision of its Services to the Merchant in case FMPay has any indication that the Merchant is not compliant with the PCI SSC Standards which Merchant cannot immediately prove to be unfounded. The Merchant shall fully indemnify and hold FMPay harmless for any losses, claims (including those of Card Schemes), costs, or damages FMPay incurs as a result of the Merchant’s breach of its obligations outlined under this Section 11.

    12.1. In order to reduce the level of transaction risk and to ensure security in and of the Services and FMPay itself, Trading Limits shall be fixed for the Merchant in proportion to the level of risk involved in its activity as determined by FMPay in its sole and absolute discretion. Trading Limits as indicated in the Parameter Schedule may not be exceeded. Any changes to the Trading Limits are subject to consent by FMPay and also, if necessary, grant by the Merchant adequate protection against the risk involved, including but not limited to such an undertaking as an increase of the amounts held in the Rolling Reserves, Fixed Reserves, or procurement of additional Collateral.

    12.2. FMPay will establish the Trading Limit which Merchant agrees to respect. FMPay is entitled to refuse the total value of a Payment, which exceeds its respective Trading Limit. In the event that FMPay accepts Payment above the Trading Limit, the Merchant acknowledges that such Payment may be charged back in total to the Merchant at a later date. The Merchant shall not exceed the Trading Limit or complete a Payment in excess of the Trading Limit without the prior written approval of FMPay.

    12.3. The Acquiring Service is conditional on enabling the Fraud Risk Controls. FMPay shall have discretion in determining which tools to use and for setting or modifying filters that provide which Payments to accept or decline on the Merchant’s behalf and flags Payments as potentially fraudulent.

    12.4. FMPay does not represent or warrant that the Fraud Risk Controls are error-free or that their employment will identify all fraudulent Payments. In addition, FMPay shall not be liable for any loss of the Merchant resulted from a Payment which was accepted or rejected due to the Fraud Risk Controls.

    13.1. The Merchant shall be subject to ongoing monitoring which shall include, but is not limited to, the periodic review of the Merchant’s Website, Chargeback/Payment Ratio, and of customer due diligence documentation submitted to FMPay.

    13.2. Where the Merchant is obliged to provide additional or updated documentation or make any change to the Merchant’s Website or exceeds Chargeback/Payment Ratio in light of said ongoing monitoring procedure the Merchant shall be automatically placed into an Internal FMPay Program.

    13.3. The Merchant agrees that FMPay shall have an undisputed right to place the Merchant under supervision in Internal FMPay Program, which the Merchant will be obliged to follow. Such right does not limit FMPay’s right to suspend the provision of the Services and suspend the effects of the Agreement where the Merchant experiences escalation of Chargebacks. Such suspension shall not require prior notice provided that, upon the determination by FMPay that it shall suspend its Services and/or the effects of the Agreement, it shall notify the Merchant in writing of the same and require the Merchant to carry out corrective measures it deems necessary.

    13.4. The terms of the Internal FMPay Program on which the Merchant is placed shall be notified to the Merchant in a timely manner.

    14.1. The Merchant can contact the customer support service of FMPay at all times. The Merchant can contact FMPay’s support services via the email written to a dedicated email address. Technical questions or questions related to the performance of the obligations under the Agreement (as a case may be) should be addressed via the means of the email written to a dedicated email address.

    14.2. Whenever communicating via the email, depending on the type of the issue, the Merchant should contract either (i) general support or (ii) technical support. The dedicated email addresses of both general support and technical support are indicated in the Parameter Schedule.

    15.1 When executing Parameter Schedule, the Merchant provides its email, phone, address and other contact details. By providing such contact details, the Merchant authorises FMPay to send all communications and notices by such means. The Merchant shall be obliged to notify FMPay of any changes to its contact information without undue delay but in whichever case no later than three (3) Business Days after such change. If some notice or communication was not received by the Merchant since its details have changed, but the Merchant did not provide timely notice of such change, FMPay shall not be responsible for such undelivered notice and such notice will be treated as properly delivered.

    15.2. Each notice or other communication sent to the Merchant hereunder shall be deemed received if one or more of the following applies:

    15.2.1. FMPay delivered it by hand or sent by courier, on the day it is delivered;

    15.2.2. FMPay sent it via a regular post, three (3) Business Days after the date it was sent if it is sent to an address in the United Kingdom, or five (5) Business Days after the date it was sent if it is sent to an address not in the United Kingdom;

    15.2.3. by email on the date transmitted, unless FMPay receives a delivery failure report or other message showing failure to deliver.

    15.2.4. FMPay delivered it by hand or sent by courier, on the day it is delivered;

    15.3. When a notice or communication is delivered, transmitted or received in a way described in Clause 15.2 on a day that is not a Business Day, the notice or communication shall be deemed delivered or received by the Merchant on the next Business Day.

    15.4. FMPay reserves the right to use a communication method that it deems appropriate for each notice or other communications on its sole discretion. By entering into the Agreement, the Merchant undertakes the responsibility to check communication channels indicated herein regularly. FMPay shall not be responsible or liable for the failure of the Merchant to check communication channels.

    15.5. All information received from the Merchant will be stored and secured in according to standards enshrined in the Privacy Notice. Nevertheless, when relying on communication channels such as email, the Merchant bears the risk arising of transmitting the information via the Internet and third parties over which FMPay does not have control. Accordingly, the identity of the Merchant and FMPay as users of the Internet, including the content of the operations, and the existence and contents of a business relationship cannot be kept confidential.

    16.1. FMPay strives to resolve any concerns in an amicable manner and in case of any issues the Merchant should contact customer support of FMPay first. In case that the issues cannot be resolved by contacting customer support, the Merchant is directed to submit an official complaint to FMPay. FMPay will process complaints regarding the Services offered by FMPay as filed by the Merchant in a timely manner. When receiving a complaint, FMPay will acknowledge the receipt of the complaint in writing as soon as practically possible but in whichever case not later than within two (2) Business Days from its receipt.

    16.2. The complaints must be sent electronically to complaints@fmpay.co.uk

    16.3. The Merchant must note that FMPay does not respond to anonymous complaints. Each complaint must include at least the following:

    16.3.1 The Merchant’s name;

    16.3.2. The email address the Merchant uses to sign into the Merchant Account;

    16.3.3. The Merchant’s telephone number;

    16.3.4. A clear description of the complaint.

    16.4. More details on the complaints handling procedure of FMPay can be found by the means of the following link: https://fmpay.co.uk/complaint

    16.5. Where investigation into a complaint requires additional information or documents, the Merchant shall provide the same to FMPay at FMPay’s request without delay.

    16.6. FMPay will strive to resolve any complaint without undue delay and no later than within fifteen (15) Business Days of their submission or of their completion by necessary additional information and/or supporting documents by the Merchant. In complex cases while FMPay is unable to provide the response within the above time limit, FMPay shall:

    16.6.1. inform the Merchant of the reasons for the delay;

    16.6.2. indicate which additional issues need to be addressed;

    16.6.3. indicate the date on which the final response will be provided, which will not be longer than thirty-five (35) Business Days of the date of the submission of a complaint or its completion by necessary additional information and/or supporting documents by the Merchant.

    16.7. If the complaint is not resolved in a timely manner or the complaint is not resolved to the Merchant’s satisfaction, eligible complainants (consumers and Micro-enterprises) may be entitled to refer the complaint to the FOS for further investigation. Complaint forms for businesses and consumers available at https://www.financial-ombudsman.org.uk. Alternatively, the FOS contact details are available at https://www.financial-ombudsman.org.uk/contact-us.

    17.1. • To the extent that any of the details provided by the Merchant to FMPay in accordance with the Agreement, together with such information as may be subsequently supplied by the Merchant in any manner, whether orally or in writing, constitutes the Personal Data, the Merchant agrees to the processing of such data for the following purposes:

    17.1.1. for FMPay to supply the Merchant with Processing Statements and provide its products and Services.

    17.1.2. for assessment and analysis (including credit and/or behaviour scoring, market and product analysis);

    17.1.3 for the detection and prevention of money laundering, terrorist financing, fraud and other criminal activity which FMPay is bound to prevent and/or report; and

    17.1.4 to develop and improve FMPay’s products and services.

    17.2. The Merchant consents to the disclosure of information to, and to the exchange thereof, with all FMPay employees, subsidiaries, associates, agents, fraud monitoring solution providers, Intermediary Institutions, Card Schemes, and any other member or controlling body of the relative operational network for the settlement and clearing of Payments.

    17.3. The Merchant has the right to request access to, and rectification of, the Personal Data concerning the Merchant, which is held by FMPay.

    17.4. FMPay shall hold data regarding Merchants for a period of 5 years after the end of the relationship or execution of the last Payout whichever occurs last, in order to fulfil its legal obligations.

    17.5. Clauses from 17.1. to 17.4. of the Agreement are in addition rights and obligations of the Merchant and FMPay are outlined in the Privacy Notice. By entering into the Agreement, the Merchant acknowledges that it has read and understood the content of the Privacy Notice.

    17.6. The Merchant represents and warrants to FMPay that, in relation to the processing of the Personal Data in the context of the Services, it acts as a Data Controller and that it:

    17.6.1. Complies with the Data Protection Legislation and Privacy Notice in respect of the processing of the Personal Data, and only gives lawful instructions to FMPay. The Merchant must comply with the personal data protection laws of the Merchant’s country of origin and of those countries in which the Merchant offers its products and/or services and, in particular when processing and sending the Personal Data to FMPay in the context of using the Services and submitting Payments.

    17.6.2. Relies on a valid legal ground under the Data Protection Legislation for each purpose of its personal data processing activities, including obtaining Data Subjects’ appropriate consent if required or appropriate under the Data Protection Legislation.

    17.6.3. Provides appropriate notice to the Data Subjects regarding:

    1. the processing of the Personal Data for the purpose of providing the Services, in a timely manner and at the minimum with the elements required under the Data Protection Legislation;
    2. the existence of Data Processors located outside of UK and/or EEA, as the case may be.

    17.6.4. Takes reasonable steps to ensure that the Personal Data is accurate, complete and up-to-date; adequate, relevant and limited to what is necessary in relation to the purposes for which is processed; and kept in a form which permits identification of Data Subjects for no longer than is necessary for the purposes for which the Personal Data is processed unless longer retention is required or allowed under the relevant law.

    17.6.5. Implements appropriate technical and organisational measures to ensure, and to be able to demonstrate, that the processing of the Personal Data is performed in accordance with the Data Protection Legislation, including, as appropriate, appointing a data protection officer, maintaining records of processing, complying with the principles of data protection by design and by default and, where required, performing data protection impact assessments and conducting prior consultations with supervisory authorities.

    17.6.6. Upholds and responds to the Data Subject requests to exercise their rights of: (i) access; (ii) rectification; (iii) erasure; (iv) data portability; (v) restriction of processing of the Personal Data; and (vi) objection to the processing of the Personal Data in accordance with the Data Protection Legislation.

    17.6.7. Cooperates with FMPay to fulfil its respective data protection compliance obligations in accordance with the Data Protection Legislation.

    17.6.8. Ensures that all Merchant’s staff are appropriately trained in line with their responsibilities under the Data Protection Legislation.

    17.7.9. With respect to the processing of the Personal Data by means of automated decision-making, including profiling, Merchant has put in place suitable measures to safeguard the Data Subject’s rights and freedoms and legitimate interests and the right to obtain human intervention on the part of the Merchant, to allow Data Subjects to express their point of view and to contest the decision made in relation to the Data Subject.

    17.7. The Merchant authorises (and confirms that it has obtained, on FMPay’s behalf, the required informed consents, or relied on other appropriate legal grounds, when interreacting with the Data Subjects) FMPay to transfer the Personal Data processed in connection with the Services outside of the UK and/or the EEA in accordance with lawful data transfer mechanisms that provide an adequate level of protection under the Data Protection Legislation and appropriate or suitable safeguards as required by relevant law.

    18.1. FMPay may create a Rolling Reserve from the funds collected on the Reserve Account. The amount and period of possession of the Rolling Reserve shall be determined in the Parameter Schedule.

    18.2. FMPay may create a Fixed Reserve by the means of Merchant prefunding a certain amount on the Reserve Account. The amount and period of possession of the Fixed Reserve shall be determined in the Parameter Schedule.

    18.3. FMPay may convert a Rolling Reserve into a Fixed Reserve at any time it deems relevant and retain such funds on the Reserve Account. The amount and period of possession of the Fixed Reserve shall be determined by FMPay at the time of conversion and notified accordingly to the Merchant.

    18.4. FMPay may require the Merchant that a person or persons reasonably acceptable in FMPay’s sole and absolute discretion, would provide FMPay, within a period determined by FMPay, with additional Collateral.

    18.5. The Collateral is subject to the following:

    18.5.1. FMPay may satisfy itself from the Collateral once its secured claims are due and payable;

    18.5.2. the satisfaction of the secured claim from the Collateral shall be by offsetting financial receivables due from the Merchant to FMPay against the amount of the Acquired Funds;

    18.5.3. once offset has been made in satisfaction of the secured interest, FMPay will inform the Merchant of the amount of the offset, and where Collateral is not sufficient to satisfy the claims, FMPay will notify the difference that the Merchant must additionally pay to FMPay and the payment date;

    18.5.4. the remainder of the Collateral after full satisfaction of the secured claims and expiration of the retention term as may be applicable to such Collateral shall be paid out to the Merchant on terms as specified in the Agreement;

    18.5.5. the financial pledge is maintained over the specific financial receivables until they are paid out to the Merchant or until FMPay has satisfied itself from the Collateral, whichever event occurs first;

    18.5.6. FMPay may charge the Merchant for all reasonable external costs (including legal fees) incurred in obtaining the Collateral and shall not be liable for any of the costs incurred by the Merchant;

    18.5.7. The rights of FMPay in regard to the Collateral shall survive the termination of the Agreement.

    19.1. If the Cardholder submits a claim, that in particular demands a return of funds in connection with a Payment made, FMPay may freeze the funds collected to the extent necessary to wholly cover the claim. Such freezing does not limit or otherwise hamper the right to Payout of the non-frozen funds.

    19.2. If FMPay has justified reasons to believe that the Merchant (or a third party acting on behalf or otherwise with the consent of the Merchant) engages in prohibited activities mentioned in Section 8 of the Agreement or it undertakes other actions which expose FMPay or any other third parties, Card Schemes and Intermediary Institutions included, to the risk of claims, Chargebacks, Reversals, Refunds, Other Charges, or the Merchant’s financial standing has significantly deteriorated, FMPay, without incurring any liability whatsoever towards the Merchant, may:

    19.2.1. block the Merchant Account, or suspend Services in their entirety or in part;

    19.2.2. block the Merchant Account and freeze all or part of the Acquired Funds in accordance with provisions of the Agreement;

    19.2.3. place the Merchant into Internal FMPay Program;

    19.2.4. increase the level of the Fixed Reserves or Rolling Reserve above the one defined in the Agreement;

    19.2.5. demand additional Collateral;

    19.2.6. change hitherto existing, or introduce additional, Trading Limits applicable to the Merchant;

    19.2.7. decline any Payment, especially in case of justified doubts as to the legality of the transaction underlying the Payment or as to the legality of the Payment itself;

    19.2.8. demand additional information or documents from the Merchant;

    19.2.9. terminate the Agreement with immediate effect.

    19.3. The Acquired Funds may be withheld if there is a justified necessity to protect FMPay or the Merchant against the risk of liability. In this regard, if Payments are made with the Card the risk may last at least until the right to initiate a Chargeback or a Reversal by the Cardholders has expired.

    19.4. FMPay will release the frozen funds when it determines that the risk associated with the Payment or the risk associated with the Merchant or his business has expired. The Merchant agrees to cooperate closely with FMPay in order to determine whether the above risk ceased to exist, in particular by providing necessary information and documents whose request is justified in the given circumstances.

    19.5. If the Merchant disputes FMPay’s decision regarding the freezing of the Acquired Funds, the Merchant may terminate the Agreement with FMPay in accordance with Section 24. In such case, the funds in question will be nevertheless held for a period of up to 6 months from the termination of the Agreement. In order to contain the risk connected with processing Payments in the Merchant’s favour, FMPay may also limit the amount of a single Payout to the Merchant or change the dates of Payouts, or require the Merchant to offer other Collateral to secure its obligations toward FMPay or any third parties.

    20.1. Each Party shall treat Confidential Information as strictly confidential and neither Party shall disclose Confidential Information without the written consent of the other Party, except as permitted by Clauses 20.2 to 20.4.

    20.2. Each Party shall be entitled to disclose Confidential Information without prior notice to the other:

    20.2.1. if required under applicable law and regulation, including of England and Wales; and/or

    20.2.2. if requested by any government, law enforcement, supervisory or regulatory body or by any court, tribunal or other judicial or quasi-judicial body, in each case having jurisdiction over that Party; and/or

    20.2.3. in order to disclose Payment data and information about Refunds and Chargebacks to the Intermediary Institutions; and/or

    20.2.4. if the disclosure is to its professional advisers acting under a duty of confidentiality in relation to that Confidential Information.

    20.2.5. FMPay is entitled to disclose Confidential Information about the Merchant to Intermediary Institutions or Card Schemes.

    20.2.6. Each of the Parties shall be entitled to disclose the fact of signing the Agreement without prior notice to the other.

    20.2.7. The obligations in this Section 20 shall survive the termination of the Agreement.

    21.1. “FMPay” is a trademark and “fmpay.co.uk” is a domain of FMPay (collectively referred to in this Section 21 as “Marks”). These Marks may neither be used in connection with third-party products or services in any manner that may be misleading to existing or potential customers nor be used so as to discredit or otherwise damage the reputation of any entity within FMPay group or their services. These Marks may be used by the Merchant exclusively in a manner as defined in this Section below.

    21.2. FMPay grants the Merchant a non-exclusive and non-transferable license to use Marks in order to inform Cardholders and users of the Merchant’s Website about the cooperation established with FMPay and the possibility to make Payments via the Payment Gateway. The license is granted for the term of the Agreement.

    21.3. Without written permission from FMPay, it is strictly forbidden to sell, license, rent, modify, distribute, reproduce, transmit, publish, adapt, publicly display or create (derivative) works from materials or content that FMPay provides on its website or within the Services.

    21.4. The Merchant grants FMPay, without extra remuneration, a non-exclusive license to use, present and copy the Merchant’s logo exclusively for the purposes of marketing FMPay services.

    21.5. The Merchant acknowledges that trademarks of the Card Schemes and Intermediary Institutions are their own property, and the Merchant commits to refrain from challenging any rights therein. The Card Schemes and Intermediary Institutions may, at any time, without prior notice and for any reason, prohibit the Merchant from using their respective trademarks or order the Merchant to use them in a different way.

    22.1. Insofar as and to the extent that the same is permitted by law, all implied terms are excluded from the Agreement.

    22.2. FMPay does not guarantee the completion of Payments; neither does it guarantee that the Intermediary Institution or Card Schemes will complete the Payment. The Merchant agrees to assume the risk connected with such Payments and defend FMPay against and hold harmless from liability in this respect.

    22.3. FMPay is not a party to an agreement concluded between the Merchant and the Cardholder or an agreement between the Cardholder and the Intermediary Institution, and does not assume any liability whatsoever for proper performance by those parties of their contractual obligations. In particular, FMPay does not assume any liability with respect to goods and/or services provided by the Merchant or contents of the Merchant’s Website.

    22.4. The Merchant assumes full liability for any and all repayments mentioned in Section 10 of the Agreement, as well as for other, fees, penalties and Other Charges incurred by FMPay in connection with the use of the Services or breach of the Agreement by the Merchant. The Merchant shall reimburse FMPay for all costs and expenses as set out in the preceding sentence.

    22.5. FMPay shall not be liable for any damage suffered by any third party, including the Cardholders, where such damage is caused by the Merchant’s failure to comply with its obligations under the Agreement.

    22.6. FMPay may not be held liable as regards the provision to FMPay servers of Payment data regarding Payments. The Merchant shall be exclusively responsible for the security of data transmission to FMPay servers, as well as for correctness and appropriate format of the data. As regards a loss of data after it has been submitted by the Merchant to FMPay, FMPay disclaims any and all liability for any harm, loss or injury resulting from the fact that no proper backup copy was made by the Merchant (or a third party authorised by the Merchant in this respect) on the Merchant’s systems prior to transmission, if such backup is permitted under the applicable law and requirements of relevant Intermediary Institutions or Card Schemes.

    22.7. The Services and all their features, as well as FMPay Website, are provided on an ‘as is’, ‘as available’ basis. FMPay makes no representation of any kind whatsoever for the Services or the content, materials, information and functions made accessible by the Services. FMPay obligations are limited only to those expressly specified in the Agreement. FMPay does not grant warranties of any kind, either express or implied, as regards the Services, FMPay Website or its content.

    22.8. Both Parties agree that, to the extent permitted by law, FMPay shall not be liable for any direct or indirect loss, loss of revenue or anticipated profits, pure financial loss, damage to reputation resulting from or connected with the execution by FMPay (or persons it is responsible for) of obligations under the Agreement.

    22.9. The restrictions and limitations of liability as defined in the Agreement are effective irrespective of the nature or cause of the Merchant’s claim or demand, be it contractual, tortious or otherwise.

    23.1. FMPay shall not be liable for any damages arising from any events beyond FMPay’s reasonable control which are likely to interrupt, disorganise or disturb, totally or partially, the Services of FMPay, Intermediary Institutions or Card Schemes including (without limitation) acts of God, interruptions of telecommunications system, any industrial action, labour dispute fire, flood or storm, war, riot, civil commotion, security alert, act of terrorism or associated event, act of sabotage or vandalism, virus, compliance with any law or order, power cut failure, computer system malfunction including software hardware and internet connectivity, lockouts, boycotts and picketing, irrespective of FMPay being itself a party to the conflict or of its functions being only partly affected thereby, extraordinary fluctuations in any financial markets that may materially affect FMPay or the Merchant’s ability to perform obligations under the Agreement.

    23.2. FMPay shall not be liable if FMPay is unable to perform any of the FMPay’s obligations or FMPay’s performance of its obligations is delayed due to events provided in Clause 23.1. If any of events mentioned in Clause 23.1 occur then, the Agreement can be suspended for the period during which they continue or at FMPay’s discretion and in order to protect both the Merchant and FMPay, FMPay may terminate the relationship following the procedure provided in Section 24.

    24.1. The Agreement is effective on the date the Merchant accepts the Agreement, by electronic means or otherwise, and both Parties execute Parameter Schedule.

    24.2. Unless otherwise agreed in writing, the Agreement will continue in force until terminated by either Party, provided that FMPay may terminate the Agreement by giving the Merchant at least two (2) months written notice of its intention to terminate and the Merchant may terminate the Agreement by giving FMPay at least one (1) month written notice of its intention to terminate.

    24.3. Without prejudice to the foregoing, FMPay reserves the right to exercise immediate termination of the Agreement:

    24.3.1. in the event of a request of Acquiring Institution to terminate the Merchant;

    24.3.2. in the event of material changes in the business line or practices of the Merchant;

    24.3.3. in the event of unauthorised changes to Settlement Account details;

    24.3.4. in the event of the Merchant being inactive and/or not using Acquiring Services for a period of at least ninety (90) calendar days;

    24.3.5. if the Merchant is offering or has been offering poor quality goods and/or services;

    24.3.6. if the Merchant violates the terms and conditions of the Agreement, including, but not limited to, failure to pay to FMPay any Fees, Other Charges, and/or amounts due under the Agreement or otherwise;

    24.3.7. if the Merchant, in FMPay’s reasonably exercised judgment, is or may be engaged in fraudulent or illegal activity;

    24.3.8. if the Merchant was placed into Internal FMPay Program and fails to follow with its requirements;

    24.3.9. if the Merchant is insolvent or bankrupt, or goes into or commences proceedings for the liquidation or makes an agreement with its creditors generally;

    24.3.10. if the Merchant is a partnership, and the partnership ends;

    24.3.11. if the Merchant is a legal entity and control of the Merchant or its business changes;

    24.3.12. if the Merchant is a legal entity and control of the Merchant or its business changes;

    24.3.13. if documents are requested from the Merchant and such documents are not received by FMPay within ten (10) calendar days from the date of the request. In this instance, FMPay reserves the right to freeze funds and/or withhold any Payouts due to the Merchant as provided in the Agreement;

    24.3.14. if the Merchant does not comply with any request of FMPay made pursuant to Section 13;

    24.3.15. if the event outlined in Section 23 occurs and continues for a period of thirty (30) calendar days.

    24.4. Termination of the Agreement will not affect the liability of any of the Parties towards the other Party, existing at such date of termination, including but not limited to, any liability on the Merchant’s part in respect of Chargebacks or Other Charges which are notified to FMPay at any time after the Agreement has ended.

    24.5. If the Agreement is terminated by FMPay under Clause 24.3, the Merchant may be listed on the Databases.

    24.5. If the Agreement ends, the Merchant must promptly return to FMPay all equipment and materials supplied by FMPay and must pay FMPay immediately all and any amounts due under the Agreement.

    24.6. Termination of the Agreement shall not affect the Sections and Clauses that are intended by their nature to survive such termination.

    25.1. The relationship between Parties shall be governed by the laws of England and Wales.

    25.2. All disputes shall be of the exclusive competence of the courts of England and Wales, both Parties waive any objection to the courts of England and Wales on the grounds of inconvenient forum or otherwise as regards proceedings in connection herewith and agree that a judgment or order of such a court shall be conclusive and binding on them and may be enforced against them in the courts of any other jurisdiction.

    25.3. The Merchant shall ensure that, in all his dealings with FMPay, it complies with any legal, regulatory or other obligations incumbent upon it (such as but not limited to his tax obligations in the country(ies) in which the Merchant has to pay taxes). Should the Merchant fail to comply with such obligations, the Merchant shall be exclusively responsible for all consequences thereof (including possible financial or criminal sanctions), and FMPay shall not bear any responsibility in that respect. The Merchant is invited to consult relevant legal or other advisers in case of doubt as to the exact obligations incumbent upon it. The Merchant’s attention is also drawn to the fact that, based on legislation with extraterritorial effect, FMPay may have to disclose, within the limits provided for by such legislation, his name to competent foreign authorities (including possibly tax authorities).

    26.1. In particular, in the event of changes in the legal and regulatory framework of the financial sector, changes to banking practices or changes affecting the conditions on the financial markets, FMPay reserves the right at any time to amend and/or to add new provisions to the Agreement.

    26.2. Should FMPay intend to amend the Agreement or to add new provisions, it will notify the Merchant indicating the Clauses it intends to modify or add, as well as the contents of these amendments or additions.

    26.3. In particular, in the event of changes in the legal and regulatory framework of the financial sector, changes to banking practices or changes affecting the conditions on the financial markets, FMPay reserves the right at any time to amend and/or to add new provisions to the Agreement.

    27.1. The Merchant is not permitted to assign any of its rights or delegate obligations under the Agreement unless FMPay provides written consent to the contrary.

    27.2. FMPay shall be entitled, at any time, to assign, novate or otherwise transfer this Agreement or any of Merchant’s rights and obligations under it to another without the prior consent of the Merchant by providing written notice to the Merchant of such transfer.

    28.1. The Agreement, including all Annexes, Schedules, Exhibits and Attachments hereto, constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter hereof.

    28.2. No provision of the Agreement shall be considered waived unless such waiver is in writing and signed by both Parties. No waiver of any provision in the Agreement, however, will be deemed a waiver of any subsequent breach of such provision or a waiver of a similar provision. In addition, a waiver of any breach or failure to enforce any term or condition of the Agreement will not in any way affect, limit, or waive Party’s rights hereunder at any time to enforce strict compliance thereafter with every term and condition hereof.

    28.3. Neither Party shall be bound by any undertakings, representations or warranties not enshrined in the Agreement unless the Agreement stipulates otherwise.

    29.1. If any term, provision, covenant or restriction of the Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall, wherever possible, remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.