General Terms & Conditions for Payment Services

Effective date: 12th of March 2021Version: 1.1

Preliminary Provisions


The Terms & Conditions for Payment 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 Client (as defined below) on the other. Collectively hereinafter FMPay and the Client shall be referred to as “Parties” and singularly to as the “Party”.

The Agreement applies to all Clients who use Payment Services provided by FMPay. The Agreement describes the general terms and conditions that apply to the Client’s use of the Payment Services. If the Client does not understand any terms of the Agreement it should contact FMPay before accepting this Agreement and starting to use the Payment 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 general rights and obligations of the Client and FMPay with regard to the use of the Payment Services. Each Payment Method shall be governed by this Agreement and subject to terms and conditions outlined under the specific Service Schedule.

    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:


    Account Currencies

    – means currencies in which Payment Accounts (including Payment Sub-accounts) are made available to the Client.

    Allowed Currencies –

    means currencies that are available for operations with a specific Payment Method.

    API –

    means application programming interface connection that allows the Client to perform different operations relating to Payment Services.

    Business Day

    – means a natural or legal person who has entered into the Agreement with FMPay for the purpose of using Payment Services and who has executed the Service 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 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.

    Fees

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

    FMPay Dashboard

    – means an information management account available on FMPay Website where the Client can perform different operations relating to Payment Services.

    FMPay Website

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

    Intermediary Institution

    – means an institution which participates in the process of effecting the Payments.

    Client’s Application

    – means an application developed by FMPay and submitted by the Client 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) intended use of the Payment Services.

    Client Credentials

    – means credentials used to authenticate the Authorised User when logging into the FMPay Dashboard and/or connecting via API, including but not limited to login, password, API key, and certificate.

    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.

    Other Charges

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

    Service Schedule

    – means Schedule setting out information about the entity accepted as the Client, type of the Payment Methods that the Client can utilise, Fees for Payment Services provided, together with other additional specifications relating to the Payment Method in question.

    Payment

    – means an act of placing, transferring or withdrawing funds, irrespective of any underlying obligations between the payer and the payee.

    Payment Account

    – means an account opened by FMPay to the Client which allows to effect Payments.

    Payment Method

    – means a manner in which the Client may receive and send Payments, such as Faster Payments, BACS, SEPA, SWIFT, Visa Direct, Mastercard Send, Mastercard MoneySend, UnionPay MoneyExpress.

    Payment Order

    – means an action or instruction to FMPay to initiate a Payment.

    Payment Sub-account

    – means a sub-account in a different currency opened for the same Client that exists alongside the Payment Account.

    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/policy-privacy/

    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

    – means the Payment Services Regulations 2017.

    Payment Service

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

    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 Payment Services that are governed under the Agreement consist of Payment Account management and provision of one or more Payment Methods. There can be separate Service Schedules for different Payment Methods and such Payment Methods are subject to additional terms indicated therein.

    4.2. By default, the Client is allowed to have only one Payment Account held in its name. It is prohibited to try deceiving the onboarding system and register multiple times. In such situations, FMPay reserves the right to close multiple Payment Accounts and combine balances without prior notice.

    4.3. FMPay may decide to provide the Payment Services on a conditional basis by imposing certain restrictions or limits. Thus, access to certain features of the Payment Services may be limited, and Payment Services provided to the Client may be subject to limits associated with such aspects as maximum balance, transactions volume, and number of Payments as provided in the Service Schedule.

    4.4. Access to the Payment 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 Payment 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 Payment Services need be applied. In the abovementioned situations, interruptions of or interferences with the Payment Services are deemed in conformity with the Agreement and do not result in FMPay’s liability towards the Client. Unless suspension of the Payment Services stems from unplanned and unforeseen disruptions, FMPay will inform the Client about the Payment Services suspension in advance.

    5.1. FMPay may offer the possibility to store different Account Currencies on the same Payment Account in Payment Sub-accounts. All allowed Account Currencies which are available for the Client are indicated in the appropriate Service Schedule.

    5.2. FMPay may offer Payment Methods in one or more Allowed Currencies. All Allowed Currencies which are available to the Client for the sake of effecting Payments are indicated in the Specific Agreement governing the Payment Method in question.

    6.1Under the Agreement FMPay shall:

    6.1.1. open a Payment Account for the Client;

    6.1.2. offer the possibility to the Client to utilise Payment Services;

    6.1.3. offer one or more Payment Methods.

    6.2. FMPay shall offer the possibility for the Client to access Payment Services via FMPay Dashboard and/or via API. The manner in which the Client can utilised Payment Services will be indicated in the Service Schedule.

    6.3. 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:

    6.3.1. take action to identify the Client 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;

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

    6.3.3. 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;

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

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

    6.4 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, and the Agreement;

    7.1.2. regularly review and control Payments carried out through a Payment Account, and notify FMPay promptly of any suspected unauthorised activity or of any unauthorised activity.

    7.2. If the Client is allowed to employ API when utilising Payment Services, the Client is obliged to follow the rules and guidance provided by FMPay when setting up and using API.

    7.3. The Client is obliged to fully cooperate with FMPay in order to explain all doubts connected with Payments. In particular, the Client is obliged to provide promptly, but in no case later than within ten (10) Business Days, at each and every request of FMPay, all necessary information and documents regarding any Payment including but not limited to the underlying documentation under which the Payment is executed and details of the counterparty involved in the transaction.

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

    Merchant’s Website

    7.5. The Client 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 Client authorises FMPay to treat and execute all Payment Orders and actions by all Authorised Users as if the Client has given that Payment Order or carried out that action itself.

    7.6. It is the Client’s responsibility to withdraw authority granted to any Authorised User. The Client is also responsible for all Payment Orders and actions relating to this Agreement by all Authorised Users.

    7.7. The Client shall ensure that the Client Credentials are not disclosed to any other person than the Authorised User. The Client shall take all reasonable actions to ensure that there is no unauthorised use of the Client Credentials or of any other Confidential Information employed in the provision of Payment Services. However, if the Client suspects that there may be or has been or is aware that there has been unauthorised use of the Client Credentials or of any other Confidential Information used in the provision or use of Payment Services, the Client shall notify FMPay immediately by means of an email written to the general support email address indicated in the Service Schedule. FMPay will use all reasonable endeavours to prevent unauthorised use of the Payment Services 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. The Fees applicable to the Agreement are set out in the Service Schedule that relates to specific Payment Method. All applicable Fees are immediately due and payable subsequent to the provision of Payment Services.

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

    9.3. The Fees due from the Client to FMPay shall be displayed in the FMPay Dashboard and/or transferred via API and/or provided on a periodic basis in the statements supplied to the Client.

    9.4. FMPay may also charge the Client for Other Charges that are not provided in the Service Schedule to the extent permitted by law. Such situations include but are not limited to instances where Other Charges levied by Intermediary Institutions reasonably correspond to FMPay’s actual cost and arise out of a relationship between the Parties.

    9.5. The Client 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 Clients liabilities (including but not limited to Fees and Other Charges) to FMPay under the Agreement against any sums (whether or not related to the Payment that gave rise to the liability) held by FMPay or owed to the Client under the Agreement.

    9.6. FMPay may collect any Fees or Other Charges, by: (i) debiting such amounts from the funs held on the Payment Account (ii) invoicing the amount of the Fees and/or Other Charges to the Client; and/or (iii) taking any lawful collection measures, in court or otherwise to collect such sums.

    9.7. Where the Fees and/or Other Charges are collected by invoicing the amount to the Client, the Client 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 Client to FMPay at the rate of 0.1% for each day of delay. The Client shall pay the interest together with the overdue amount.

    10.1. All information related to Payments shall be displayed in the FMPay Dashboard and/or provided via API and will be accessible to Authorised Users of the Client. All Payment Orders must be submitted exclusively through the FMPay Dashboard and/or API.

    10.2. The exact manner of submitting Payment Orders is outlined within the Service Schedule for specific Payment Method to which it relates. Nevertheless, all Payment Orders of the Client must be complete, accurate, precise and reliable to avoid mistakes.

    10.3. The Client acknowledges that the Payment Order and/or instruction submitted to FMPay may be irrevocable and henceforth the Client shall take due care whenever submitting any Payment Orders and/or instructions to FMPay. It is the responsibility of the Client to provide complete, accurate, precise and reliable Payment Orders and/or instructions, and, by providing Payment Orders, the Client authorises FMPay to rely on them.

    10.4. The Client authorises FMPay to execute those Payment Orders and/or instructions which FMPay reasonably considers being from the Client and accept the Payment Orders and/or instructions as being genuine whether or not they are actually from the Client. If there is more than one Authorised User who can issue Payment Orders and/or instructions on behalf of the Client, the Client authorises FMPay to execute such Payment Orders and/or instructions which were submitted by any such Authorised User.

    10.5. There is no obligation for FMPay to execute Payment Orders and/or instructions received not through the FMPay Dashboard and/or API. However, there may be some situations, where the FMPay Dashboard and/or API is not functional or not accessible (e.g., due to the termination of the Agreement and closure of the Payment Account). In such situations, FMPay may accept Payment Orders and/or instructions submitted in writing (including e-mail). In such a case it is expressly agreed that only the document received or, as the case may be, drawn up by FMPay shall conclusively prove the Payment Order and/or instruction given by the Client. FMPay will keep such all such documents for a period of five (5) years from the execution of the Payment. Additionally, FMPay will take all reasonable measures to identify the Client and verify the supplied documentation properly.

    11.1. As soon as the Payment Account has been opened for the Client, it may be credited in accordance with the instructions displayed in the FMPay Dashboard and/or Service Schedule. The Payment Methods that the Client may utilise for incoming Payments will be indicated within the Service Schedule relating to specific Payment Method.

    11.2. FMPay may at any time refuse to accept any incoming Payment based on FMPay’s internal policies and under applicable laws and regulations of England and Wales including but not limited to incoming Payments from a high risk and non-cooperative jurisdictions; incoming Payments from countries considered as tax havens; incoming Payments from persons and jurisdictions that are subjects to the financial sanctions; incoming Payments that are otherwise not substantiated by the Client.

    11.3. Subject to Clause 11.2, FMPay will register the funds resulting from the incoming transfers as soon as possible, and no later than by the end of the Business Day when they were received by FMPay.

    11.4. Unless there is a written agreement between the Client and FMPay, any funds from incoming Payment in a currency other than those handled by FMPay, may be converted, at the FMPay’s discretion, into any Account Currency on the basis of the FMPay’s exchange rate prevailing on the date of the actual receipt of the funds by FMPay. If the Client does not hold a Payment Sub-account in the currency of the Payment, FMPay may open a Payment Sub-account in such a currency on behalf of the Client. Furthermore, FMPay may, in its sole and absolute discretion, elect to return such incoming Payment back to its source.

    11.5. Before or immediately after crediting the Payment Account with the amount received, FMPay will deduct any Fees and/or Other Charges which may be due to FMPay for processing the Payment.

    11.6. The Client expressly authorises FMPay to correct, by a simple book entry any material errors FMPay can make while crediting the Payment Account even in situations when the Payment Account balance has been expressly or tacitly approved. If, after such a book entry, the Payment Account has insufficient funds to cover the mistake, the difference will be automatically due, without formal notice, as from the effective date of the difference. The Client cannot make objections and request from FMPay refund or restitution by claiming that the Client disposed of the funds mistakenly credited to its Payment Account or that the Client could in good faith believe that it was the beneficiary of such funds.

    11.7. In all instances, the Payment Account will only be credited under the condition, even if not expressly mentioned, that the transferred funds actually enter FMPay account, meaning that any such credit is done under the condition of actual and unconditional receipt of the funds by FMPay. The Payments in favour of the Client via an account of FMPay held with an Intermediary Institution will be made accessible to the Client only from the moment at which the funds have actually been credited to the account of FMPay with the Intermediary Institution.

    12.1. The execution of Payments will be done within the time needed for the completion of the verification and processing procedure, and in accordance with the practices and rules of the Payment Method to which they relate. The Payment Methods that the Client may utilise for outgoing Payments will be indicated within the Service Schedule relating to specific Payment Method.

    12.2. Payments will be generally executed within the same Business Day, except where practices and rules of the Payment Method state the contrary or the Payment is based on the standing order. More precise information regarding the manner of carrying out a certain type of Payment can be found in the Service Schedule. Notwithstanding, the Client acknowledges that in some cases, submitted Payments are carried out via Intermediary Institutions and therefore may take longer than anticipated.

    12.3. The Client agrees that FMPay may refuse the execution of a Payment or suspend such execution if the Payment relates to transactions or products with which FMPay does not work in the ordinary course of its business, or the Client failed to provide supporting documentation for the Payment in question, or if the Client has failed to uphold obligations it has towards FMPay.

    12.4. FMPay may delay the execution of any Payment without thereby incurring any liability until it receives the necessary additional information and performs the validation of such information.

    12.5. If the Client does not have sufficient funds on the Payment Account to cover the Fees for any submitted Payment, FMPay may elect to cancel the Payment Order and not to execute the Payment to which it relates.

    12.6. The Client is aware that if the Allowed Currency employed in carrying out the Payment via a particular Payment Method is different to that of the beneficiary’s account, into which the Client is transferring the funds, currency exchange charges may be applied by the beneficiary’s payment services provider and hence the amount of transfer as received by the beneficiary might deviate.

    13.1. The Client shall be subject to ongoing monitoring which shall include but is not limited to the review of the activity on the Payment Account, publicly accessible information about the Client, customer due diligence documentation concerning the Client.

    13.2. The Client agrees that FMPay shall have an undisputed right to suspend the provision of the Payment Services and block the Payment Account. Any such action shall not require prior notice provided that, upon the determination by FMPay that it shall suspend its Payment Services and/or the effects of the Agreement, it shall notify the Client in writing of the same. This right may be exercised in the following circumstances:

    13.2.1. the Client does not provide FMPay with any information and/or documents, which FMPay has requested from the Client, within the stipulated timeframe;

    13.2.2 FMPay has reasons to believe that the Client has intentionally or due to gross negligence:

    1. provided FMPay with incorrect or insufficient information and/or documents;
    2. violated or has intended to violate obligations enshrined in the Agreement;
    3. caused damage to FMPay or created a threat giving rise to such damage;
    4. there is a reasonable suspicion that any of Client’s activities may be linked to money laundering, terrorist financing, fraud or any other illegal activity and the Client is unable or unwilling to provide any information and/or documents capable of removing the suspicion. Whether or not documents and information are capable of removing the suspicion is based on FMPay’s sole discretion;

    13.2.3. there are circumstances related to the Client or a person, a business entity affiliated with the Client which indicate the intolerable risk of money laundering, terrorist financing, fraud or any other illegal activity. Such circumstances may include the situation when the Client is merely a politically exposed person;

    13.2.4. the Client, or a person, business entity affiliated with the Client is or has been the subject of financial sanctions;

    13.2.5. a jurisdiction of the Client, or a person, or a business entity affiliated with the Client is or has been the subject of financial sanctions;

    13.2.6. any Intermediary Institutions demand FMPay cease or suspend providing part or all Payment Services to the Client;

    13.2.7. any competent regulatory authority, including any competent law enforcement authority, supervision authority, tax authority, court or bailiff, has given FMPay a lawful order to arrest or freeze the Payment Account of the Client or to cease or suspend providing part or all Payment Services to the Client.

    13.2.8. the Client opens another Payment Account with FMPay without prior written permission from FMPay;

    13.2.9. there are circumstances that prompt FMPay to believe that the security of the Payment Account was compromised or can be compromised.

    13.3.If after the suspension of the Payment Services or blocking of the Payment Account, FMPay receives a Payment made to the Client, then FMPay may elect not to accept such a Payment and send the funds back while retaining all the applicable Fees and deducting Other Charges that are connected with handling such a Payment.

    14.1. The Client can contact the customer support service of FMPay at all times. The Client can contact FMPay’s support services via the email written to a dedicated email address. The dedicated email address is indicated in the Service Schedule.

    14.2. When executing the Service Schedule, the Client provides its email, phone, address and other contact details. By providing such contact details, the Client authorises FMPay to send all communications and notices by such means. The Client 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 Client since its details have changed, but the Client 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.

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

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

    14.3.2 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;

    14.3.3 the notice or other communication was sent by SMS, immediately, unless FMPay receives a delivery failure report;

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

    14.4. When a notice or communication is delivered, transmitted or received in a way described in Clause 14.3 on a day that is not a Business Day, the notice or communication shall be deemed delivered or received by the Client on the next Business Day.

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

    14.6. All information received from the Client will be stored and secured in according to standards enshrined in the Privacy Notice. Nevertheless, when relying on communication channels such as email, the Client 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 Client 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.

    15.1. 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.

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

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

    15.3.1 The Merchant’s name;

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

    15.3.3. The Merchant’s telephone number;

    15.3.4. A clear description of the complaint.

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

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

    15.6. 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:

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

    15.6.2. indicate which additional issues need to be addressed;

    15.6.3. 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.

    15.7. 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.

    16.1. 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:

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

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

    16.1.3 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

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

    16.2.The Client 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, and any other member or controlling body of the relative operational network for the settlement and clearing of Payments.

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

    16.4. 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.

    16.5. Clauses from 16.1. to 16.4. 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.

    16.6. The Client 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 Payment 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.

    17.1. 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.

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

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

    17.2.2. 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

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

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

    17.3. FMPay is entitled to disclose Confidential Information about the Client to Intermediary Institutions.

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

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

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

    18.2. 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.

    18.3. 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.

    18.4. 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.

    18.5. 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.

    18.6. 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.

    18.7. 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.

    18.8. 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.

    18.9. 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.

    19.1. 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.

    19.2. 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.

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

    20.2. 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.

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

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

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

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

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

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

    20.3.6. 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;

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

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

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

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

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

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

    20.3.13. 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;

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

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

    20.4. 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.

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

    20.5. 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.

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

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

    21.2. 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.

    21.3. 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).

    22.1. 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.

    22.2. 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.

    22.3. 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.

    23.1. 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.

    23.2. 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.

    24.1. 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.

    24.2. 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.

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

    25.1. 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.