Terms & conditions for merchant acquiring services

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.

The Services that are governed under the Agreement consist of:

• Provision of the Payment Gateway to the Merchant;

• Acquiring Service;

• Fraud Risk Controls;

• Provision of the Merchant Account and possibility to administer Payments;

• Payouts of Acquired Funds.

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.

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;

Under the Agreement FMPay shall:

• 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;
  

• Provide the Merchant with access to the Services while enabling to collect the Payments;

• Provide 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;

• 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;

• 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;

• 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 Amounts;

• Provide the Merchant with the Merchant Credentials which will allow the Merchant to access information and perform operations on the Merchant Account;

• Provide ongoing support to the Merchant that relates to the Services;

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

• Transfer the Acquired Funds, less any Fees, Other Charges, and Reserve Amount to the Settlement Account;

• Provide the Merchant with all the information necessary to effectively integrate the Merchant’s Website with the Payment Gateway.

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;

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;

Under the Agreement the Merchant shall:

• Use the Services in accordance with applicable laws, Card Scheme rules, and the Agreement;

• 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;

• Integrate the Payment Gateway in the manner indicated in the Parameter Schedule and in accordance with the guidance and documentation supplied by FMPay;

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

• 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;

• Deliver timely and diligently all goods and/or services sold by the Merchant;

• 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.

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;

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;

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;

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;

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, especially any complaints connected with them. In particular, the Merchant is obliged to provide promptly, but in no case later than within thirty (30) calendar days, at each and every request of FMPay or the Intermediary Institution, all necessary information and documents regarding the complained Payment, 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;

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;

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;

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;

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:

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

• 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;

• Privacy policy of the Merchant, including information about transferring personal data of the Cardholders to FMPay, compliant with the applicable law;

• 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;

• Trademarks of relevant Card Schemes that are accepted by the Merchant;

• Specification of the available currency(ies), fees charged for the delivery, packaging, taxes, and all other applicable fees;

• 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;

• 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;

• Any export restrictions;

• Any other information required by the applicable law and Card Scheme rules.

The Merchant shall comply with the following rules:

• It is forbidden to reiterate initiation of a particular Payment where the Payment was previously rejected by the Intermediary Institution;

• 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;

• 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;

• 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);

• 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;

• 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;

• It is forbidden to demand from the Cardholder to waive the right to dispute a Payment made with a Card;

• It is forbidden for the Merchant to share or sell data connected with Cards.

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:

• The Merchant shall explain on the Merchant’s Website how to cancel the Recurring Payments order for goods and/or services;
  The Merchant shall perform first Payment upon Cardholder signing up for Recurring Payments through 3-D Secure;

• The Merchant shall refrain from initiating Recurring Payments if the Cardholder has cancelled the relevant order;

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

  • The Payment amount has changed;

  • The Payment date has changed;

  • More than twelve (12) months have elapsed from the last recurring payment;

  • A trial period has ended or promotional activity has expired.

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;

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;

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

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;

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;

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;

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;

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;

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;

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;

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

  • 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;

  • 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.

If it comes to the attention of FMPay that the Cardholder has filed a Chargeback with the issuing bank, FMPay will promptly inform the Merchant thereof; and the Merchant will have seven (7) calendar days to provide the decision (i) to accept or (ii) to contest the chargeback;

In cases where the Merchant decides to contest a chargeback, they shall promptly, but no later than the period stated in section 10.2, provide appropriate information and submit required documents to FMPay. Appropriate information includes a Rebuttal Letter and other compelling evidence and it must be in the format requested by FMPay;

FMPay will conclude that the Chargeback has been accepted by the Merchant if the Merchant fails to respond in the stipulated time;

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;

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;

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;

The Merchant using the API Interface must at all times fully comply with the current PCI SSC Standards and on FMPay’s first request demonstrate such compliance and provide valid certification of its compliance with any other documents which may be requested by FMPay. If the Merchant cannot prove the compliance or its prior certification becomes invalid, the Merchant shall notify FMPay immediately;

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;

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;

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;

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;

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;

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;

The Merchant can contact the customer support service of FMPay at all times. The Merchant can contact FMPay’s support services i) via the email written to a dedicated email address ii) via approved messengers (Telegram, Slack);

Whenever the Merchant communicates via the approved messengers, the Merchant should bear in mind that it is designated to provide answers to the general enquiries only. Specific technical questions or questions related to the performance of the obligations under the Agreement should be addressed via the means of the email written to a dedicated email address;

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;

The Merchant can contact customer support service of FMPay at all times via the email written to a dedicated email address indicated in the Parameter Schedule or via the approved messengers (Slack, Telegram);

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

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

• 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;
  

• FMPay sent it by email on the date transmitted, unless FMPay receives a delivery failure report or other message showing failure to deliver;

• FMPay sent it via approved messengers (Telegram, Slack), immediately;

When a notice or communication is delivered, transmitted or received in a way described in Clause 15.3 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;

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.

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;

The complaints must be sent electronically to complaints@fmpay.me.

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

• The Merchant’s name;

• The email address the Merchant uses to sign into the Merchant Account;

• The Merchant’s telephone number;

• A clear description of the complaint.

More details on the complaints handling procedure of FMPay can be found by the means of the following link: https://fmpay.me/resources/complaints-policy;

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

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:

• Inform the Merchant of the reasons for the delay;

• Indicate which additional issues need to be addressed;

• 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.

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:

• For FMPay to supply the Merchant with Processing Statements and provide its products and Services;

• For assessment and analysis (including credit and/or behaviour scoring, market and product analysis);

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

• To develop and improve FMPay’s products and services.

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;

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

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;

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;

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:

• 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;

• 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;

• Provides appropriate notice to the Data Subjects regarding:

  • 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;

  • The existence of Data Processors located outside of UK and/or EEA, as the case may be.

• 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;

• 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;

• 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;

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

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

• 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;

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

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;

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;

FMPay may require from 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;

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;

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:

• Block the Merchant Account, or suspend Services in their entirety or in part;

• Block the Merchant Account and freeze all or part of the Acquired Funds in accordance with provisions of the Agreement;

• Place the Merchant into Internal FMPay Program;

• Increase the level of the Fixed Reserves or Rolling Reserve above the one defined in the Agreement;

• Demand additional Collateral;

• Change hitherto existing, or introduce additional, Trading Limits applicable to the Merchant;

• 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;

• Terminate the Agreement with immediate effect.

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;

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;

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;

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

• If required under applicable law and regulation, including of England and Wales;

• 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;

• In order to disclose Payment data and information about Refunds and Chargebacks to the Intermediary Institutions;

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

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

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

“FMPay” is a trademark and “fmpay.co.uk”, "fmpay.me" are domains 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;

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;

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;

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;

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

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;

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;

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;

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;

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;

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;

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;

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;

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

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;

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

• In the event of a request of Acquiring Institution to terminate the Merchant;

• In the event of material changes in the business line or practices of the Merchant;

• In the event of unauthorised changes to Settlement Account details;

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

• In the event where the Merchant has not started processing activity in ninety (90) calendar days upon receipt of the technical integration documentation;

• 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;

• If the Merchant is offering or has been offering poor quality goods and/or services;

• If the Merchant, in FMPay’s reasonably exercised judgment, is or may be engaged in fraudulent or illegal activity;

• If the Merchant was placed into Internal FMPay Program and fails to follow with its requirements;

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

• If the Merchant is a partnership, and the partnership ends;

• If the Merchant is a legal entity and control of the Merchant or its business changes;

• If any event or a series of events occur, which in FMPay’s sole and absolute discretion may affect the Merchant’s ability or willingness to comply with any of his obligations under the Agreement or may damage FMPay’s reputation or that of any Card Schemes or Intermediary Institutions;

• If documents are requested from the Merchant and such documents are not received by FMPay within thirty (30) 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;

• If the Merchant does not comply with any request of FMPay made pursuant to Section 13;

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

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;

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

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;

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

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;

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;

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;

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;

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;

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;