Terms and Conditions

INTRODUCTION

(A) paymenTechnologies is incorporated and registered in England with company number 13174165 . Party A's registered office is 13 Maddox Street, London, England, W1S 2QG ("Party A").

(B) Party A provides a service of assisting payers by negotiating and / or concluding transactions on their behalf³. To this end, the Customer under this Agreement authorises and instructs Party A as a service to negotiate and / or conclude Transactions on behalf of the Customer.

(C) Party A may also agree with the Customer to provide the Customer with foreign exchange services, in accordance with the terms of this Agreement.

AGREED TERMS

1. INTERPRETATION

• 1.1 The definitions and rules of interpretation in this clause apply in this Agreement.

  "Adequate Procedures"	means in respect of any person, adequate procedures designed to prevent persons associated with it from undertaking conduct causing it to be guilty of an offence under the Bribery Act 2010;
  "Anti-Bribery Laws"	means any and all statutes, statutory instruments, bye-laws, orders, directives, treaties, decrees and laws (including without limitation any common law, judgment, demand, order or decision of any court, regulator or tribunal) which relates to anti-bribery and/or anti-corruption and including without limitation the Bribery Act 2010;
  "Applicable Law(s)"	means all applicable laws, legislation, statutes, rules, regulations, regulatory rules and guidance, any and all directives, requirements and/or guidelines issued by any applicable regulator, agency, government, authority, commission, card association and/or other applicable financial institution;
  "Business Day(s)"	means any day other than Saturday or Sunday or a public or bank holiday in the United Kingdom;
  "Cancellation Period"	has the meaning set out in clause 5.3;
  "Commencement Date"	means date on which the Customer has confirmed acceptance of the terms of this Agreement by clicking the relevant acceptance box on the Website;
  "Dispute"	has the meaning set out in clause 20.2;
  "Issue"	has the meaning set out in clause 5.2;
  Licensor	has the meaning set out in clause 10.2;
  "Mediation Notice"	has the meaning set out in clause 20.2;
  "Payee"	means the recipient of a payment from Party A as part of concluding and / or negotiating a Transaction;
  "Payee Agreement"	means any agreement entered into by Party A and a Payee which is connected to the subject matter of this Agreement;
  "Prohibited Act"	means: (A) directly or indirectly offering, promising or giving any person a financial or other advantage to: (i) induce that person to perform improperly a relevant function or activity; or (ii) reward that person for improper performance of a relevant function or activity; (B) directly or indirectly requesting, agreeing to receive or accepting any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with this Agreement; and / or (C) committing any offence under Anti-Bribery Laws, legislation creating offences concerning fraudulent acts and / or at common law concerning fraudulent acts relating to this Agreement or the Services;
  "Refund"
  "Services"	has the meaning set out in clause 2;
  "Termination Date"	means the date on which termination takes effect and the Services are no longer provided in accordance with clause 11;
  "Transaction"	means the contracts for the sale or purchase of goods and / or services to be negotiated and / or concluded with the Payee by Party A on behalf of the Customer under the terms of this Agreement;
  "Website"	means https://www.tracopia.com
  "Virus"	means: (i) any software, thing or device which contains any malicious code, file, program, or other internal component which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network; or which may prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses, time bombs and other similar things or devices; as well as (ii) any weakness, glitch or bug in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability.

  ¹ Name of the company white labelling the service.

  ² This document has been provided as a template for providing the Services on the basis of the UK commercial agent exemption from the requirement to be authorised for payment services. This document should be treated merely as an assist for drafting your own documentation, and you should use your own independent legal counsel to draft your documentation. We do not accept any responsibility or liability for any reliance placed on this document, and we make no representation or warranty, express or implied, as to the accuracy or completeness of it.

  ³ Depending on the facts, it may be that Party A and the Customer agree the exact scope for any negotiation of agreements, however that would be outside of these more general terms.

• 1.2 References to clauses and Schedules are to the clauses of and Schedules to this Agreement. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the Schedules. Clause and Schedule paragraph headings shall not affect the interpretation of this Agreement.

• 1.3 A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other document or agreement as amended or varied in accordance with its terms from time to time. A reference to a "party" shall include that party's personal representatives, successors and permitted assigns. A reference to "writing" or "written" includes email but not faxes.

• 1.4 Unless the context otherwise requires, words in the singular shall include the plural and the plural shall include the singular, and a reference to one gender shall include a reference to the other genders.

• 1.5 A "person" includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.

• 1.6 Any words following the terms "including", "include", "in particular", "for example", "such as" or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

• 1.7 A reference to a statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time, and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts and subordinate legislation for the time being in force made under it.

• 1.8 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

2. THE SERVICES

• 2.1 From the Commencement Date, Party A is authorised to negotiate and / or conclude Transactions on behalf of the Customer, and as such Party A may provide the following services (the " Services"):

  • 2.1.1 Negotiation and/or conclusion of Transactions on behalf of the Customer; and

  • 2.1.2 Foreign exchange services (if applicable).

• 2.2 In providing the Services:

  • 2.2.1 Party A may affect the legal relations of the Customer and may bind the Customer to a Transaction with a Payee;

  • 2.2.2 Party A shall use reasonable commercial endeavours to conclude each Transaction any make any initial payment to the Payee within 7 Business Days of an instruction by the Customer to conclude the relevant Transaction (and, to the extent that Party A and the Payee agree that Party A shall either pay the Payee in instalments or shall make recurring payments to the Payee, to meet the Payee's deadlines in relation to such additional payments);

  • 2.2.3 In affecting legal relations on behalf of the Customer, Party A has full authority to conclude (and potentially negotiate) Transactions without having to defer to either a Payee's fulfilment of any conditions or any confirmation by the Customer; and

  • 2.2.4 Payment by Party A to a Payee shall conclude the Customer's relevant Transaction(s) with the Payee, and as such payments made by Party A in relation to Transactions shall constitute settlement of the Customer's debt to the Payee in relation to those Transactions, and the Customer shall be bound to those Transaction(s).

• 2.3 Party A does not:

  • 2.3.1 act for, nor does Party A have any authorisation to act for, the Payee.

  • 2.3.2 except as specifically set out in this Agreement, guarantee any aspect of the performance of any Transaction which has been concluded under the terms of this Agreement.

  • 2.3.3 provide the Customer or the Payee with any form of credit or lending as part of the Services.

  • 2.3.4 provide the Customer with any form of cancelation or Refund respect of any Transaction, except as set out at clauses 5 and 8.3.

3. ELIGIBILITY FOR SERVICES

• 3.1 If the Customer is a corporate entity, in agreeing to this Agreement and / or using the Services the Customer represents that at all times that the Customer:

  • 3.1.1 is duly organised and validly existing under the laws of the jurisdiction of the Customer, and has full power, authority and right to bind itself to this Agreement and to receive the Services, including as regards performing all actions and obligations under this Agreement, which therefore constitute valid and legally binding obligations;

  • 3.1.2 is legally permitted under all Applicable Laws and requirements to receive and make use of the Services, there is no other reason to prevent the Customer from entering into this Agreement, and the Customer has taken all actions required to execute and agree to this Agreement and perform its obligations under this Agreement; and

  • 3.1.3 has established, implemented and maintains reasonable and effective policies and procedures to ensure that it and any related parties complies with all Applicable Laws.

• 3.2If the Customer is an individual, in agreeing to this Agreement and / or using the Services the Customer represents that at all times the Customer:

  • 3.2.1 is over 18 years of age and acting in his / her own capacity;

  • 3.2.2 is acting as a sole individual only;

  • 3.2.3 is legally permitted under all Applicable Laws to receive and make use of the Services, and there is no other reason to prevent the Customer from entering into this Agreement;

  • 3.2.4 has taken all actions required to execute and agree to this Agreement and perform the Customer's obligations under this Agreement; and

  • 3.2.5 will otherwise comply with all Applicable Laws.

• 3.3 The Customer must only use the Services where the Customer has independently determined that the Services are suitable for the Customer's requirements.

• 3.4 In the event that the Customer is not or for any reason ceases to be eligible for the Services, the Customer must immediately inform Party A using a method of communication in accordance with clause 15.

4. FOREIGN EXCHANGE SERVICES

• 4.1 Before authorising Party A to negotiate and / or conclude Transaction(s), the Customer may provide an amount to Party A in a different currency to that which will be used by Party A as the starting point before negotiating and / or concluding the relevant Transaction(s). Where this is the case, Party A will either use the relevant exchange rate as stated on the Website, or another rate as agreed between Party A and the Payee using a form of communication as set out in clause 15, and, before authorising Party A to negotiate and / or conclude Transaction(s), the Customer shall also authorise Party A to apply the proposed exchange rate to the currency received.

• 4.2 The Customer acknowledges that the provision of any foreign exchange service by Party A, as detailed in clause 4.1, shall occur before Party A negotiates and / or concludes a Transaction, and as such consent to the exchange rate applied shall not constitute a condition of any Transaction or a result in a requirement for the Customer to confirm any Transaction (see clause 2.2.3).

5. CANCELATIONS AND REFUNDS

• 5.1 Subject to clauses 5.3 and 5.4, and to the extent allowed under Applicable Law, the Customer accepts that, in respect of Party A, the Customer may not cancel the Services or any Transaction, nor claim from Party A any Refund in relation to the Services or any Transactions. Any monies received by Party A from the Customer will constitute settlement of the Customer's debt to the Payee in relation to the relevant Transaction(s), and:

  • 5.1.1 such monies will no longer be owned, managed or controlled by the Customer; and

  • 5.1.2 Party A does not hold any such monies in any form of trust for the Customer and / or Payee, nor does Party A hold in such monies in any form of safeguarded and / or segregated account.

• 5.2 Notwithstanding clause 5.1, under the contractual terms agreed between the Customer and the Payee as a result of a Transaction, the Customer may have rights of cancellation under those terms and / or under Applicable Law, and, to the extent that this is the case, the Customer shall exercise those rights directly in relation to the Payee, and Party A shall not have any obligations to assist the Customer in exercising these rights.

• 5.3 If the Customer is a consumer the Customer may have the right under Applicable Law to cancel this Agreement for the Services within 14 days of entering into this Agreement without being required to give any reason (a "Cancellation Period"). This cancellation right does not apply to any foreign exchange services provided under this Agreement. To cancel, the Customer must inform Party A of the Customer's decision to cancel this Agreement by a clear statement communicated in accordance with clause 15. The Customer may use the cancellation form provided at Schedule 1, but this is not obligatory. To meet the cancellation deadline, it is sufficient for the Customer to send the communication concerning the Customer's right to cancel before the Cancellation Period has expired.

• 5.4 To the extent that the Customer is entitled to any Cancellation Period, the Customer expressly requests that the Services be provided with effect from the Commencement Date, and, to the extent that this is before the end of the Cancellation Period, the Customer accepts that the Customer will pay for any Services received during the Cancellation Period. To the extent that the Customer has paid for any Services which have not been supplied, the Customer will be reimbursed for these within 14 days of the day on which Party A is informed of the Customer's decision to cancel the contract, using the same means of payment as used to pay for the Services (unless agreed otherwise), and the Customer will not incur any fees as a result of a reimbursement. To the extent that any Transactions have been concluded during the Cancellation Period, Party A does not accept any responsibility or liability for cancelling any such Transactions, and the only recourse the Customer may have in terms of cancelling any Transaction shall be by the Customer directly contacting the Payee to request that the relevant contract is cancelled.

6. CUSTOMER ANTI-MONEY LAUNDERING OBLIGATIONS

• 6.1 The Customer will at all times before and whilst using the Services:

  • 6.1.1 provide Party A any information Party A may request for the purposes of verifying the Customer's identity (including, to the extent relevant, that of any of the Customer's beneficial owners) and for the purposes of any checks Party A may require in relation to prevention of money laundering, terrorist financing, fraud, or any other financial crime; and permit Party A to keep a record of such information. This includes completing any verification procedures and customer identity checks that Party A may require in relation to the Services.

  • 6.1.2 authorise Party A to make any inquiries, whether directly or through third parties, that Party A considers necessary to verify the Customer's identity or to protect the Customer and/or Party A against fraud or other financial crime, and to take any action Party A may at its sole discretion deem required based on the results of such inquiries.

• 6.2 The Customer acknowledges that:

  • 6.2.1 Party A may, acting at its sole discretion, complete similar verifications and checks at any time and in relation to any (potential) Payee, and Party A may, as a result of the information provided, decide (acting within Party A's sole discretion). Party A will not be liable for any delay or loss caused as a result of such a decision.

  • 6.2.2 the Customer's access to the Services may be altered, on an ongoing basis, as a result of the information provided under this clause 6.

• 6.3 The Customer acknowledges that in carrying out inquiries, the Customer's personal information may be disclosed by Party A to third parties including identity verification, credit reference and fraud prevention or financial crime agencies and that these agencies may respond to inquiries in full. This is an identity check only and should have no adverse effect on the Customer's credit rating.

7. CUSTOMER GENERAL OBLIGATIONS

• 7.1 The Customer acknowledges and agrees that:

  • 7.1.1 the Customer is solely responsible for all use the Customer makes of any of the Services;

  • 7.1.2 the Customer will ensure that information provided by the Customer is correct, complete and accurate; and

  • 7.1.3 all monies transferred by the Customer to Party A are within the full ownership and control of the Customer, and not subject to any third party rights.

• 7.2 The Customer agrees that the Customer will not:

  • 7.2.1 use the Services to make a payment to a Payee except where this relates to Party A concluding and / or negotiating a genuine and legitimate Transaction for goods and / or services with a third party Payee which is not in either a corporate or personal capacity related to, affiliated with or otherwise linked to the Customer.

  • 7.2.2 use the Services to make a payment to a Payee in relation to a Transaction which has already been concluded before entering into this Agreement.

  • 7.2.3 use the Services to make a payment to a Payee where this would require Party A to have any form of authorisation and / or licence which Party A does not already have in place.

  • 7.2.4 enter or initiate, nor otherwise cause Party A to participate in, any Transaction which is or may be in breach of any Applicable Law, or which may otherwise be considered immoral (including but not limited to anything relating to gambling or pornography) and / or malicious.

  • 7.2.5 interfere with or disrupt the provision of any of the Services or use any of the Services in a way that interferes with anyone else's use of any Services.

  • 7.2.6 use the Services to further any criminal or fraudulent activity or to impersonate another person.

  • 7.2.7 breach the rights of any person (including, but not limited to rights of privacy and intellectual property rights).

  • 7.2.8 use or access the Service on behalf of any third party.

  • 7.2.9 republish, redistribute or re-transmit the Website or any information provided in relation to the Services and / or Website, or otherwise copy or store such information, other than for the Customer's use of the Services as permitted by this Agreement and as may occur incidentally in the normal course of such use.

  • 7.2.10 attempt to circumvent the security of or interfere with the proper working of the Services and / or Website, or any server on which they are hosted, or otherwise introduce, or permit the introduction of, any Virus into any software used in relation to the Services.

  • 7.2.11 use the Services in a way that might damage Party A's name or reputation or that of any of its affiliates.

  • 7.2.12 otherwise use the Services to do anything that it is not permitted by this Agreement.

8. FEES AND TRANSACTION COSTS

• 8.1 To the extent that Party A does not receive the relevant fees, Party A shall have no obligation to provide the relevant Services and shall not be liable in the event of a failure or delay in doing so. Where fees relate to concluding and / or negotiating a Transaction, Party A will only conclude and / or negotiate a Transaction after Party A has agreed its fee with either the Customer or the Payee (or both), as determined at Party A's sole discretion. Further information regarding Fees is set out at Schedule 2 and provided on the Website.

• 8.2 The Customer may pay monies to Party A, for the purposes of enabling Party A to conclude Transactions, through any of the means set out on the Website, or as otherwise agreed between the Parties.

• 8.3 Notwithstanding clause 5, Party A may from time to time return monies provided by the Customer under clause 8.2. This may be:

  • 8.3.1 because the Customer has not provided full, complete and correct details regarding the relevant Transaction(s);

  • 8.3.2 because Party A for whatever reason is unable to conclude and / or negotiate a Transaction or is otherwise unable to provide the relevant Services;

  • 8.3.3 because Party A otherwise decides (at its sole discretion) not to conclude a Transaction; or

  • 8.3.4 for any other reason Party A considers that it would be appropriate to return the monies.

9. PARTY A LIABILITY

• 9.1 Party A only (rather than any Licensor and / or any of Party A's licensors, contractors (including sub-contractors), partners, consultants, delegees, members, employees, affiliates or related entities, personnel, and / or any third party service providers) provides the Services to the Customer, and as such Party A alone is be responsible for the performance of the Services and this Agreement. The Customer agrees that the Customer will not bring any claim for any losses incurred by the Customer as a result of or in connection with any breach of contract, breach of trust, breach of fiduciary duty or tort (including negligence) or other civil liability in connection with any Services provided to the Customer against person other than Party A.

• 9.2 Nothing in this clause 9 or any other term of this Agreement shall limit or exclude Party A's liability:

  • 9.2.1 for death or personal injury caused by Party A's negligence;

  • 9.2.2 for Party A's fraud and / or fraudulent misrepresentation; and / or

  • 9.2.3 for any other liability that, by law, may not be limited or excluded.

• 9.3 Subject to clause 9.2, Party A is in no event liable for:

  • 9.3.1 any losses other than where caused directly and reasonably foreseeably by Party A's negligence (and in no event shall Party A be liable for any indirect or consequential losses, or for any loss of profit, revenue, contracts, data, goodwill or other similar losses); and

  • 9.3.2 more than the fees received by Party A from the Customer in relation to the relevant Services.

• 9.4 Subject to clause 9.2, Party A is also not liable for any loss (regardless of whether that loss is foreseeable and / or consequential) as a result of:

  • 9.4.1 the Website, any Transaction and / or the Services not being fit for a particular purpose or otherwise not meeting the any person's requirements, except to the extent these are described explicitly in this Agreement;

  • 9.4.2 the Customer breaching the terms of this Agreement;

  • 9.4.3 the Customer using the Services in any way which either causes Party A to perform a regulated activity for which Party A is not authorised, or which otherwise results in a breach of Applicable Law;

  • 9.4.4 any cost, penalty and / or fee incurred by the Customer in relation to a Transaction not being concluded by a particular time, so long as Party A has complied with its obligations under this Agreement;

  • 9.4.5 the actions of any third party providers Party A may use in providing the Services, including but not limited to any software hosting providers, payment providers and / or identity verification providers, so long as Party A has exercised reasonable due diligence and oversight over such providers;

  • 9.4.6 exercising any of its rights under this Agreement, including any right to suspend or terminate provision of the Services; and / or

  • 9.4.7 events outside Party A's reasonable control.

• 9.5 Whilst the Website and the Services are, under normal circumstances, intended to be provided twenty-four (24) hours per day, seven (7) days a week, Party A reserves the right, for technical, maintenance or security reasons, to take appropriate measures to maintain the Services and Website, which may temporarily suspend their availability. Such measures shall to the extent possible be taken during night-time in the United Kingdom to reduce the risk of disturbance. Any maintenance does not constitute grounds for reimbursement or damages. To the extent any planned downtime is required to maintain the Website, where practicable Party A will provide reasonable prior notice of this via the Website.

• 9.6 As long as Party A uses commercially reasonable endeavours to provide the Website and the Services on a continuous, uninterrupted, secure, error-free and Virus-free basis, they accept no liability in the event that they are not continuous, uninterrupted, secure, error-free and Virus-free.

• 9.7 Party A also does not provide, nor accepts responsibility for, legal, tax or accounting advice. It is the Customer's responsibility to assess which taxes may apply to any Services and whether or not any amounts paid by the Customer may or should be increased or decreased with any taxes. Party A is not responsible for assessing whether or not any taxes are payable or for the collection, charging or payments of possible taxes.

• 9.8 Please note that, whilst Party A may provide the functionality for the Customer to interact with third party systems, any activities the Customer engages in with, or services the Customer receives from, third parties are between the Customer and that third party directly. Party A does not have any oversight over the Customer's activities with third parties, and as such Party A does not and cannot make any representation regarding their appropriateness and suitability for the Customer. Party A therefore does not take responsibility or liability for anything the Customer does with a third party. For the avoidance of doubt "a third party" includes, but is not limited to, a Payee.

• 9.9 Although Party A will take all reasonable care to ensure all electronic communications and attachments Party A sends to the Customer are free from any known Virus, Party A will not be responsible for any loss or damage resulting from any attack by a third party on Party A's systems, any Virus or any other malicious or technologically harmful material that may infect the Customer's computer equipment, computer programs, data or other material due to the Customer's use of the Services. This Customer also acknowledges and accepts the risks inherent in communicating by email, particularly of its unauthorised interception and of its not reaching the intended recipient.

10. CUSTOMER LIABILITY

• 10.1 The Customer agrees to indemnify Party A for:

  • 10.1.1 actual, reasonable costs and expenses (including legal costs) directly related to any regulatory inquiry, legal action, litigation, dispute or investigation, whether such situations occur or are anticipated, that relate to the Customer.

  • 10.1.2 any loss (including but not limited to losses in connection with any Transaction and / or the Services, economic loss, and reasonable legal costs) resulting from:

  • 10.1.2 any loss (including but not limited to losses in connection with any Transaction and / or the Services, economic loss, and reasonable legal costs) resulting from:

    • 10.1.2.1 the Customer's negligent act or omission, wilful default, misconduct or fraud;

    • 10.1.2.2 the Customer providing incorrect or misleading information or instructions;

    • 10.1.2.3 the Customer's unauthorised use of the Website and/or the Services;

    • 10.1.2.4 the Customer's unauthorised use or disclosure of the confidential information and/or personal data of any party;

    • 10.1.2.5 the Customer taking any action that may result in Party A providing, or being perceived as providing, any activity which requires any form of regulatory licence and / or authorisation;

    • 10.1.2.6 the Customer taking any action which results in Party A becoming liable to and / or incurring a liability in respect of a third party;

    • 10.1.2.7 any action or inaction by and / or caused by the Customer that breaches or leads to a breach of Applicable Law (by the Customer, the Payee, Party A or otherwise);

    • 10.1.2.8 the Customer's infringement of the intellectual property rights of any third party; and

    • 10.1.2.9 any breach of any of the terms of this Agreement by the Customer, to the extent such loss is not already otherwise covered by this clause 10.1.

  • 10.2 In providing the Services, Party A may rely on the intellectual property of and services provided by third parties (each a "Licensor"). The Customer and the Payee are, together, jointly responsible for ensuring that they do not, acting reasonably and in good faith, take any course of action or inaction that either considers likely to cause loss to a Licensor. The Customer and the Payee (under the terms of the Payee Agreement) accept joint and several liability to a Licensor for any such loss, direct or indirect, which results from such action or inaction. As such, the Customer shall indemnify the Licensor for the full extent of such losses and costs, to the extent that the relevant Payee does not for whatever reason indemnify the Licensor for the relevant loss. For the avoidance of doubt, a Licensor shall have no obligation to seek any form of compensation for loss from any Payee, or to enter into a Payee Agreement, prior to or as a condition of seeking compensation from the Customer under this clause 10.2.

  • 10.3 The Customer and the Payee are, together, jointly responsible for ensuring that all Transactions at all times and in all respects comply with Applicable Law. Should any aspect of a Transaction, including any aspect or obligation which arises after the conclusion of a Transaction, in any way breach Applicable Law, the Customer and the Payee (under the terms of the Payee Agreement) accept joint and several liability to Party A for all losses and costs, direct or indirect, which result from such breach. As such, the Customer shall indemnify Party A for the full extent of such losses and costs, to the extent that the relevant Payee does not for whatever reason indemnify Party A for the relevant losses and costs. For the avoidance of doubt, Party A shall have no obligation to seek any form of compensation for loss from any Payee, or to enter into a Payee Agreement, prior to or as a condition of Party A seeking compensation from the Customer under this clause 10.3.

  • 10.4 Furthermore, whilst Party A will negotiate and / or conclude Transactions on behalf of the Customer with the Payee, Party A is not responsible for the performance of the Transaction itself or any related obligation, and, as such, in the event of any (potential) dispute, disagreement, cancellation and / or Refund, in relation to a Transaction or any related obligation (an "Issue"):

    • 10.4.1 the Issue will be resolved between the Customer and the Payee only, and Party A shall not be held responsible for and / or have any obligation to be involved in or otherwise resolve any such Issue;

    • 10.4.2 any consequential matter(s) in relation to an Issue, for example the making of a payment or a transfer of funds, shall also be a matter for the Customer and the Payee only, and Party A shall have no obligation in relation to any such consequential matter(s); and

    • 10.4.3 should Party A, for whatever reason, suffer loss as a result of an Issue, and / or otherwise incur any costs as a result of an Issue, the Customer and Payee (under the terms of the Payee Agreement) accept joint and several liability for indemnifying Party A for all losses and costs, direct or indirect, which result from such Issue. As such, the Customer shall indemnify Party A for the full extent of such loss and costs, to the extent that the Payee does not for whatever reason indemnify Party A for the relevant losses and costs. For the avoidance of doubt, Party A shall have no obligation to seek any form of compensation for loss from any Payee, or to enter into a Payee Agreement, prior to or as a condition of Party A seeking compensation from the Customer under this clause 10.3.3.

11. SUSPENSION AND TERMINATION

• 11.1 Each party to this Agreement may at any time terminate it for convenience with immediate effect, by informing the other party in writing of its intention to terminate in accordance with clause 15.

• 11.2 Party A may also (at Party A's sole discretion) suspend provision any or all of the Services at any time with immediate effect by informing the Customer in writing of Party A's intention to suspend the Services, in accordance with clause 15.

• 11.3 In the event that this Agreement is suspended and / or terminated by Party A for any reason, Party A shall, in relation to Services which have been agreed but not yet provided or completed either (at its sole discretion):

  • 11.3.1 complete the provision of the relevant Services, and the Customer shall be bound by the terms of this Agreement in relation to those Services (including as regards the payment of any applicable fees, costs and / or charges); or

  • 11.3.2 in lieu of providing the relevant Services, provide a Refund of the relevant monies to the relevant persons.

• 11.4 On the Termination Date, the Customer will no longer be able to use or have any right to the Services. In addition, the Customer:

  • 11.4.1 will become directly liable for all obligations related to a Transaction concluded before the Termination Date, including any fees or charges due in relation to that Transaction to the Payee; and

  • 11.4.2 must pay all outstanding fees and any other amounts which the Customer owes to Party A and will not receive a Refund for any fees paid in relation to Services received up to the Termination Date.

12. THE WEBSITE

•   Content

• 12.1 There is no guarantee that access to the Website, or the content on it, will always be available or uninterrupted. The Customer's right to access the Website is given on a temporary basis only.

• 12.2 The Website and the content on it may be changed, including without limitation by adding or removing content or functionality, at any time.

• 12.3 There is no guarantee that all content on the Website is accurate, complete or up to date, and as such there are no warranties, representations, undertakings or guarantees that the content on the Website is accurate, complete or up to date, or that the Website or any content on it will be free from errors or omissions.

• 12.4 The content on the Website is provided for general information purposes only. Nothing on the Website is intended to be advice on which the Customer should rely. The Customer should always obtain appropriate specialist advice before taking, or not taking, any action on the basis of any content on the Website.

• 12.5 There are no warranties, representations, undertakings or guarantees that the Website is secure or free from Viruses. The Customer is responsible for ensuring that the device from which the Customer accesses the Website has suitable anti-Virus software in place.

•   Passwords and security requirements

• 12.6 If the Customer registers an account on the Website the Customer must provide accurate and complete registration information and keep that information up to date at all times.

• 12.7 Use of certain parts of the Website is password protected and/or access restricted requiring the Customer to access via a unique link sent to the Customer's nominated email address. In order to access and/or use these parts, the Customer may need use a user identification code, password, pre-selected answers to security questions and/or to click on or copy and paste into their web browser a unique link. It is the Customer's responsibility to keep this information secret and confidential and not to disclose it to any other person. In addition, the Customer must make sure that their nominated email address is completely secure and accessible only by persons with authority to act of the Customer's behalf.

• 12.8 If the Customer thinks that somebody else might know the Customer's user identification code, password and/or pre-selected answers to security questions and/or have access to their nominated email address then the Customer must either:

  • 12.8.1 log in to the Customer's account and change them. If this is done using a link sent to the Customer's email address, the Customer must make sure that the relevant email address is completely secure.

  • 12.8.2 let customer support know by emailing support@tracopia.com as soon as possible.

• 12.9 Party A reserves the right to disable the Customer's account, any user identification code, password, pre-selected answers to security questions and/or unique links at any time if, in Party A's reasonable opinion: the Customer fails to comply with any of the terms of this Agreement; Party A considers that the Customer is using the Website to download inappropriate content; the Customer will infringe in any manner the rights of any person; or Party A considers that there may be a security risk.

•   Intellectual property

• 12.10 Party A and/or its Licensors (as the case may be), own the copyright and all other intellectual property rights in the Website and all content on it other than content uploaded by or linked to by others.

• 12.11 The Customer may download content from the Website and/or print a reasonable number of copies of any page on the Website. The Customer must not make any changes to any content which the Customer has downloaded or printed from the Website.

• 12.12 If the Customer uses, downloads, prints or reproduces content from the Website in breach of this Agreement the Customer's right to use the Website will immediately end and the Customer must destroy all digital and paper copies of the content that the Customer has made.

• 12.13 The Website may contain links to other third party websites from time to time. These links are provided for the Customer's convenience, and in no way represent an endorsement of the third party or its website. Party A has no control over, and no responsibility or liability to the Customer for, those other websites or their content.

13. PERSONAL Information⁴

• 13.1 The Customer will provide Party A with all information required for Party A to provide the Services in accordance with this Agreement. If the Customer does not provide information requested by Party A, then Party A may be unable to provide all or any of the Services.

• ⁴ Please note that we have not included a specific confidentiality clause.

• 13.2 Party A may share information concerning the Customer, including personal information: (i) with Party A's professional service advisors (including, but not limited to, auditors, attorneys and legal advisors) to the extent necessary to conduct ordinary business operations; (ii) with appropriate regulatory and government authorities; (iii) with any assignee or delegee of Party A to the extent appropriate; (iv) with third party service providers as required to ensure proper delivery of the Services, including but not limited to identification verification providers; (v) as otherwise required by law, rule, regulation, legal process or a court of competent jurisdiction; and/or (vi) with Party A's Licensors and third party service providers. Where any such sharing comprises a transfer of personal information outside the EEA, this will be done in reliance on the legal mechanism described in Party A's privacy policy which is available on the Website.

• 13.3 Further information on how Party A processes personal data and complies with applicable data protection laws is available in Party A's privacy policy which is available on the Website.

14. CHANGING THE TERMS OF THIS AGREEMENT

• 14.1 Before Party A provides Services to the Customer, Party A will get the Customer's consent to the latest version of this Agreement before proceeding, and the Customer's acceptance of the latest version shall be deemed acceptance of any changes which have been made to it since the provision of any previous Services.

• 14.2 Where changes relate to a Service that is ongoing, for example they relate to payments Party A is continuing to make as part of a Transaction, Party A shall give the Customer as much prior notice as Party A reasonably can of them. In these circumstances changes may be made:

  • 14.2.1 to reflect changes to Applicable Law, or to reflect a court decision, including as regards the way Party A and / or the Services are taxed (including the requirement to pay any government or regulatory levy);

  • 14.2.2 to reflect changes required by any regulatory and / or tax authority or industry guidance or codes of practice;

  • 14.2.3 for reasons of ensuring security;

  • 14.2.4 to reflect changes to the manner in which the Services are provided, where this does not impact the characteristics of the Service; and / or

  • 14.2.5 as a result of circumstances beyond Party A's reasonable control, and Party A will always give the Customer as much prior notice as Party A reasonably can of any significant changes on the understanding that the Customer will then have the option of accepting them or terminating this Agreement without penalty, and termination in these circumstances will take effect, and the Services will no longer be provided, from the date the changes would otherwise come into effect. If the Customer does not terminate this Agreement before the date on which the changes come into effect (as notified to the Customer), this will mean that the Customer has accepted them.

• 14.3 In certain circumstances, Party A may have to make changes without giving the Customer prior notice, for example because of security issues, changes to relevant law or regulation, changes required by any regulatory or tax authority or industry guidance or codes of practice, or changes otherwise beyond Party A's reasonable control. Where this is the case, and the changes are not simply improvements in the Services, Party A will give the Customer appropriate opportunity to terminate this Agreement on a forward-looking basis without penalty.

15. COMMUNICATIONS

• 15.1 Communications between the parties shall be in English. Should Party A receive a communication which purports to be from the Customer, for example because it comes from an email or online address or communication channel used by the Customer, Party A is entitled, but not obliged, to rely on and conclusively presume that such communication or instruction has been given by the Customer, whether or not the person communicating has actual authority to give instructions.

• 15.2 Communications to: ⁵

  • 15.2.1 Party A may be made:

    • 15.2.1.1 by email to support@tracopia.com;

    • 15.2.1.2 personally or by courier service to 13 Maddox Street, London, England, W1S 2QG; and / or

    • 15.2.1.3 using any online chat and/or messaging function including but not limited to WhatsApp, Telegram or Skype as may be made available by Party A to the Customer,

  as such details may from time to time be amended by each party providing written notice to the other.

• 15.3 Communications to the Customer may be made using any method agreed with the Customer, and this may include by email, telephone, courier service and / or through any agreed online chat function.

• 15.4 Communications:

  • 15.4.1 by email and / or online chat function will be deemed received on the earlier of the time at which it is accessed or 2 Business Days after receipt (except that as regards emails sent to Party A, if there is a bounce-back stating the communication has not been delivered, the communication shall be deemed not sent).

  • 15.4.2 if hand delivered, will be deemed received when delivered; and

  ⁵This should be tailored to the types of communication you are happy to receive.

  • 15.4.3 if delivered by courier, will be deemed received when proof of receipt is provided by the courier.

16. RECORDS

• 16.1 Without limitation to any duties imposed by Applicable Law, each party shall:

  • 16.1.1 maintain accurate and up to date records sufficient to evidence its compliance with its obligations under this Agreement;

  • 16.1.2 on reasonable advance notice in writing from the other, permit the other to obtain a copy of such records in such form as it reasonably requests; and

  • 16.1.3 retain such records for until at least the longer of six years after the relevant Transaction has completed or as required by Applicable Law.

17. REGULATORY TREATMENT OF THE SERVICES

• 17.1 The Services are provided on the basis of the commercial agent exemption to the requirement to be authorised under the Payment Services Regulations 2017. As such, they do not constitute activities requiring authorisation by the Financial Conduct Authority, and neither the Financial Ombudsman Service nor the Financial Services Compensation Scheme apply to the Services or any terms of this Agreement.

18. COMPLIANCE

•   General

• 18.1 In addition to the specific provisions set out in this clause 18 in relation to tax evasion and corruption, the Customer will also generally ensure that no action or inaction by the Customer shall either be in breach of any Applicable Laws, or cause Party A to breach any Applicable Laws. For example, the Customer will not instruct Party A to negotiate and / or conclude any Transaction(s) where this may cause or otherwise result in a breach of Applicable Laws.

•   Tax evasion

• 18.2 The Customer will ensure that none of the Customer, nor any person acting on the Customer's behalf in connection with this Agreement, shall by any act or omission commit, cause, facilitate or contribute to the commission by any person of a tax evasion offence or facilitation of a tax evasion offence. For these purposes, a tax evasion offence includes cheating a public revenue authority or being knowingly concerned in, or in taking steps with a view to, the fraudulent evasion of tax, and tax includes duties and social security contributions.

•   Corruption

• 18.3 The Customer will, and will take reasonable steps to ensure anyone connected with the Customer, will:

  • 18.3.1 not do or omit to do any act or thing which constitutes or may constitute a Prohibited Act.

  • 18.3.2 without prejudice to clause 18.2.1, not do or omit to do any act or thing which causes or may cause Party A to be guilty of an offence under the Bribery Act 2010 (or would or may do so if Party A were was unable to prove that Party A had in place Adequate Procedures designed to prevent persons associated with Party A from undertaking such conduct).

  • 18.3.3 have, and comply with, Adequate Procedures (to the extent relevant).

  • 18.3.4 from time to time, at Party A's reasonable request, confirm in writing that the Customer has complied with this clause 18 as relevant, and provide information as reasonably requested by Party A in support of such compliance.

•   Notification

• 18.4 The Customer shall as soon as reasonably practicable give Party A written notice upon a breach, or suspected breach, of any of the Customer's obligations in relation to this clause 18, and on the Customer becoming aware of any allegation, investigation, evidence or report relating to a breach or possible breach of any of requirement set out in this clause 18.

19. SET-OFF

• 19.1 Save as otherwise expressly provided in this Agreement or required by law, all payments to be made by the Customer to Party A under this Agreement will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.

• 19.2 In the event that Party A owes the Customer and / or a Payee any amount, for whatever reason, in relation to this Agreement, the Services and / or any Transaction, Party A has the right, acting at its sole discretion, to set-off this amount against any liability which Party A has to the relevant person, whether such liability is present or future, liquidated or unliquidated, under this Agreement or any other contract or other cause of action and irrespective of the currency of its denomination.

20. QUERIES AND MEDIATION

• 20.1 If the Customer has any queries, concerns or complaints in relation to any aspect of the Services the Customer may contact Party A through any of the means set out at clause 15.

• 20.2 If any dispute arises out of or in connection with this Agreement (including (without limitation) in relation to any non-contractual obligations) (a " Dispute") the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Either party may initiate a mediation by serving a written notice (a " Mediation Notice") on the other party identifying the Dispute it believes has arisen and requesting that Dispute be referred to mediation.

• 20.3 Unless a mediator has been agreed upon by the parties and has confirmed his / her appointment within 28 days of the date of service of the relevant Mediation Notice, a mediator will, at the written request of either party, be nominated by CEDR. The parties will use all reasonable endeavours to procure that the mediation will start within 42 days of the date of service of the Mediation Notice.

• 20.4 If the Dispute is not resolved within 84 days of the date of service of the Mediation Notice, either party may commence proceedings in accordance with clause 21.

• 20.5 Subject to clause 20.6, the procedures set out in clauses 20.2 to 20.4 will be followed prior to the commencement of proceedings by either party in relation to a Dispute.

• 20.6 Clauses 20.2 to 20.4 will not prevent or delay either party from:

  • 20.6.1 seeking orders for specific performance, interim or final injunctive relief;

  • 20.6.2 exercising any rights it has to terminate this Agreement; or

  • 20.6.3 commencing any proceedings where this is necessary to avoid any loss of a claim due to the rules on limitation of actions.

21. JURISDICTION

• 21.1 These terms of this Agreement, its subject matter and their formation, and any non-contractual obligations arising out of or in connection with them are governed by the laws of England and Wales, subject to any mandatory provisions of Applicable Law of the Customer's place of residence. The courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement, including in relation to any non-contractual obligations.

• 21.2 Notwithstanding clause 21.1, if the Customer is a consumer living in Scotland the Customer may bring legal proceedings in either the Scottish or English courts, and if the Customer is a consumer living in Northern Ireland the Customer may bring legal proceedings in either the Northern Irish or the English courts.⁶

• ⁶ Clause 21.2 can be deleted if Customer is always a non-consumer or an individual outside the UK. However, if the Consumer is an individual outside the UK, the local rules of that person's jurisdiction may mean that local mandatory consumer protections, including as regards the ability to use local courts, may apply.

22. GENERAL

• 22.1 The Customer will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under this Agreement. Party A will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under this Agreement.

• 22.2 Party A may delegate the provision of any of its obligations under this Agreement as well as any aspects of the Services, so long as Party A takes due skill and care in selecting and overseeing its delegee. The Customer may not delegate any of its obligations under this Agreement.

• 22.3 Each of the provisions of this Agreement are separate, severable and enforceable. If any provision of this Agreement is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from this Agreement and this will not affect the remainder of this Agreement which will continue in full force and effect.

• 22.4 No waiver or variation of any part of this Agreement shall be effective unless in writing. No failure or delay by a party to exercise any right, power or remedy under this Agreement shall operate as a waiver or variation of that right, or any other right, nor shall any single or partial exercise of any right, power or remedy preclude any other or further exercise of that right or any other right, power or remedy.

• 22.5 The terms of this Agreement constitute the entire agreement between the parties to it and supersedes any prior agreement or arrangement in respect of its subject matter and:

  • 22.5.1 neither party has entered into this Agreement in reliance upon, and will have no remedy in respect of, any misrepresentation, representation or statement which is not expressly set out in this Agreement;

  • 22.5.2 the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into this Agreement and which is expressly set out in these terms will be for breach of contract.

• 22.6 Except as set out in this Agreement, Party A does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, quality, fitness for purpose or originality of any information provided regarding the Services and, to the fullest extent permitted by law, all implied warranties, conditions or other terms of any kind are excluded and Party A accepts no liability for any loss or damage of any kind incurred as a result of the Customer or anyone else relying on such information.

• 22.7 The parties intend that any Licensors shall have the right to enforce any rights granted to them, under this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (the " 1999 Act"), however they shall not assume any liability as a result of receiving and / or exercising such rights. Save as aforesaid, the parties do not intend that the provisions of this Agreement shall be enforceable by virtue of the 1999 Act or otherwise by any person not a party to it. Notwithstanding any provision of this Agreement, the consent of any Licensors or any other third party is not required for any variation (including any release or compromise of any liability) or termination of this Agreement.

• 22.8 This Agreement may be executed in any number of counterparts and by the different parties on separate counterparts, each of which is an original and together shall constitute one and the same Agreement.

• 22.9 Party A will always endeavour to act in the Customer's best interests as Party A's client. However, circumstances can arise where Party A or one of Party A's other clients may have some form of interest in business being transacted for the Customer. If this happens or if Party A becomes aware that it could happen, Party A will take appropriate steps to manage the conflict of interests fairly.

• 22.10 This Agreement shall not prevent Party A from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

• 22.11 This Agreement takes effect and binds the parties to it with effect from the Commencement Date.

23. CONSENT

• 23.1 This Agreement applies to all Services provided by Party A to the Customer, and as such the Customer should only agree to this Agreement and / or use the Services if the Customer has read this Agreement carefully and is happy to be bound by the terms of this Agreement.

• 23.2 By agreeing to be bound by this Agreement, the Customer:

  • 23.2.1 acknowledges receipt of this Agreement, and confirms that the Customer has read this Agreement carefully and that the terms of this Agreement apply to the Services provided by Party A, including but not limited to the fact that the Customer:

    • 23.2.1.1 authorises Party A to negotiate and / or conclude Transactions on behalf of the Customer;

    • 23.2.1.2 confirms that the Customer is eligible for the Services (see clause 3) and agrees to be bound by the obligations set out in this Agreement (including but not limited to those set out at clauses 7 and 8);

    • 23.2.1.3 accepts the liability provisions set out in this Agreement, including by not limited to clause 10 (in respect of the Customer), and clause 9 (in respect of Party A); and

    • 23.2.1.4 understands that the Services provided are not regulated, on which see clause 17.

  • 23.2.2 consents to the processing of criminal offences data/records in connection with KYC and AML checks, and authorises the transfer of information, on a confidential basis, as set out in the privacy policy and this Agreement, with and between third parties outside the EEA, as specified in the privacy policy available on the Website or otherwise notified to the Customer.