MERCHANT GENERAL TERMS OF SERVICE

IMPORTANT NOTE: Please read this Agreement carefully. This Agreement governs your relationship with Clearpay and your use of the Services.

Please note that you may not offer Clearpay to your Customers until we have successfully verified your identity for anti-money laundering purposes and direct debit details in accordance with clause 1.2(c) of these General Terms.

We draw your attention to clause 1.1(b) of these General Terms and our right to make amendments to this Agreement and/or Clearpay Policies.

You must comply with our procedures and policies on financial promotions as set out in clause 2.3(j) to (l) of the General Terms and our marketing and other best practice guidelines available on the Clearpay website. You and Clearpay are subject to the rules on financial promotions which are regulated by the UK Financial Conduct Authority to the extent that any communication made in connection with this Agreement constitutes a financial promotion under the Financial Services and Markets Act 2000. This may include where Clearpay and/or you promote the activities under this Agreement or Clearpay’s Services through marketing, advertising, and promotional material.

1. This Agreement

1.1. How this Agreement works

(a) These Merchant General Terms of Service (these “General Terms”) together with the Merchant Supplementary Terms (the “Supplementary Terms”), which by this reference are incorporated herein (together, the “Agreement”) are entered into between the merchant entity set out under Part A of the Supplementary Terms (“Merchant”, “you” or “your”) and Clearpay Finance Limited (company number 05198026) ("we", "us", "our" or "Clearpay") (each individually a “party” and collectively the “parties”) as of the date that the Supplementary Terms are accepted by you, or as of the date these General Terms are provided to you under clause 1.1(b) of these General Terms, as applicable (the “Effective Date”).  Except as otherwise expressly provided by us in writing, the parties agree that this Agreement supersedes any and all prior executed merchant agreements between the parties with respect to the Services. In the event of any inconsistency or conflict between the terms and provisions of these General Terms and the Supplementary Terms, the terms and provisions of the Supplementary Terms shall control. By authorising this Agreement, you agree to be bound by its terms. If you have not authorised the Agreement prior to using the Services, your use of the Services shall constitute acceptance of the Agreement. All schedules to these General Terms are expressly made part of the Agreement.

(b) Clearpay may update this Agreement and/or Clearpay Policies from time to time. Clearpay will give you notice of any material change to this Agreement and/or Clearpay Policies. If you do not want to continue receiving the Services as a result of any such material change, you may terminate this Agreement in accordance with clause 8.1(c) of the General Terms. If you continue to use the Services following our notification to you of a material change in this Agreement and/or Clearpay Policies, this will be treated as you agreeing to comply with the updated terms of this Agreement and/or Clearpay Policies.

1.2. Clearpay Services

(a) The Clearpay Services consist of a retail technology platform which allow your Customers to pay for goods or services offered by you. Clearpay permits you to use our Services online and in your Store (as applicable), as may be set out under Part C of the Supplementary Terms, or as otherwise agreed in writing by Clearpay. When your Customers make an authorised Clearpay Purchase, we will pay you on behalf of that Customer in accordance with the terms of this Agreement, in exchange for payment of Fees set out under Part D of the Supplementary Terms and in accordance with clause 3 of the General Terms.

(b) We will assume all risk in collecting payments from Your Customers that make Clearpay Purchases, except where liability transfers to You in accordance with clauses 2.2(c), 2.2(d) and 4(b) of these General Terms.

(c) We have no obligation to supply our Services, and you may not permit your Customers to make any Clearpay Purchases, until you have completed and returned to us: (i) the AML Documentation; and (ii) the Direct Debit Request, (collectively, the "Required Documentation"), and we have Verified the Required Documentation.

(d) You agree to provide all cooperation, assistance and information and do all other things reasonably required by us in order to enable us to Verify the Required Documentation promptly.

(e) Clearpay may, in its absolute and sole discretion, authorise you to:

(i) use its Services for transactions in your Stores, in which case you agree to be bound by the terms set out in Schedule 4 (Clearpay Card Services) to these General Terms;

(ii) use its Services for transactions relating to certain of your Customers located in certain territories outside the United Kingdom (as notified to you by Clearpay) to allow those Customers to use their Clearpay Affiliate account to purchase Goods offered on your Website (“Cross Border Trade”). Where, Clearpay authorises you for Cross Border Trade under this clause, you agree to be bound by the terms set out in Schedule 3 of these General Terms. Notwithstanding this, to the extent your Agreement permits you to offer our Services in-Store (as applicable), if Clearpay is able to offer you its Services in respect of Cross Border Transactions at your Stores at a later date and the parties agree in good faith to offer this capability to your Customers, this Agreement and Schedule 3 of these General Terms will also apply to your Stores; and/or

(iii) use its Services for transactions involving Extended Delivery Goods, in which case you agree to be bound by the terms set out in clause 2.2(h) of these General Terms.

(f) Where Clearpay approves you to sell Goods in verticals set out in Schedule 1 of these General Terms, the additional terms in Schedule 1 of the General Terms will apply and you agree to be bound by these additional terms.

1.3. Clearpay policies

(a) We will provide the Services in accordance with: (i) Clearpay’s UK Privacy Policy; and (ii) Clearpay’s UK PCI DSS Policy, (collectively, the "Clearpay Policies").

(b) To the extent of any inconsistency between this Agreement and a Clearpay Policy, this Agreement will prevail.

1.4. Changes to this Agreement

Subject to clause 1.1(b) of the General Terms, any variation to the parties’ respective rights and/or obligations or any of its terms under this Agreement must be agreed in writing by the parties.

1.5. Term

The Term of this Agreement is set out under Part B of the Supplementary Terms.

2. Obligations

2.1. General obligations

(a) You agree to comply with any reasonable direction given by us in respect of the integration of the Clearpay Gateway on your Website and/or in-Store (as applicable). You must obtain written approval from Clearpay if your implementation of the Clearpay Gateway deviates from the Promotional Materials provided by us.

(b) Once the Required Documentation has been Verified, you must make Clearpay available for use by your Customers on your Website and/or in-Store (as applicable) as soon as reasonably practicable or as otherwise agreed by Clearpay in writing, acting reasonably. You must continue to allow your Customers to make Clearpay Purchases as permitted under this Agreement for the Term, except: (i) during any period of suspension imposed by us in accordance with the terms of this Agreement; or (ii) as otherwise reasonably agreed by us in writing.

(c) You must not provide your Customers with any information about Clearpay, the Clearpay Gateway or our Services that is false, misleading or inaccurate. Without limiting this clause 2.1(c), you must not make any warranty, term, representation or statement to any of your Customers relating to Clearpay, the Clearpay Gateway or our Services, other than those: (i) contained in Clearpay’s User Agreement; (ii) included on our website; or (iii) included in materials provided to you by Clearpay, as these may be updated from time to time, or as otherwise expressly permitted by Clearpay in writing.

(d) You agree to comply with any reasonable directions provided by Clearpay in relation to the display, manner of display or removal of marketing assets and other Promotional Materials on your Website and/or in-Store (as applicable) or used in independent marketing activities as agreed in writing by Clearpay. Any such materials may be provided by or on behalf of Clearpay.

(e) Without limiting clause 2.1(d) of the General Terms, you agree to:

(i) feature Clearpay on your product page of all products where Clearpay is offered during the Term in accordance with the Promotional Materials where relevant and technically possible;

(ii) include on your Website and/or in-Store (as applicable) a description of the Services in such terms as may be otherwise provided or approved by us in writing;

(iii) (where relevant and technically possible) present such description as a 'lightbox' on your Website as may be provided or approved by us in writing from time to time;

(iv) comply with any reasonable directions we give about how any such description is to be displayed on your Website and/or in-Store (as applicable);

(v) promptly, but in all cases within seven (7) Business Days, comply with any reasonable direction we give you to modify, replace or remove such description on your Website and/or in-Store (as applicable); and

(vi) not provide, communicate or publish any description of the Clearpay Services which does not comply with this clause 2.1(e) of the General Terms, our Promotional Materials or has not otherwise been approved by us in writing.

(f) If we are concerned that any content or materials displayed on your Website or in-Store (as applicable) do not comply with clause 2.1(c), (d) or (e) of the General Terms, we may request that you modify or delete the relevant content or materials or remove them from display. You must comply with any request made under this clause 2.1(f) as soon as practicable and, at the latest, within seven (7) Business Days of the request unless you can otherwise establish to our reasonable satisfaction within this time frame that the content or materials comply with the requirements of this Agreement.

(g) You must co-operate with us and provide us with all information and assistance as may reasonably be required in all matters relating to this Agreement and to promptly resolve all disputes with your Customers (including where necessary, taking any action reasonably directed by us).

(h) You must: (i) comply with all Relevant Laws in fulfilling your obligations under this Agreement in relation to each Clearpay Purchase, and in relation to the Goods; (ii) act in accordance with Good Industry Practice in connection with this Agreement; and (iii) have obtained and maintain and comply with all necessary licenses, approvals, permissions and consents required in connection with your obligations and activities under this Agreement. You must assist us to comply with our obligations under any Relevant Laws as reasonably directed by us.

(i) You must not provide us with any information that is false, inaccurate or misleading.

(j) Both parties agree that they control and will continue to control the content of their respective websites and will not provide Customers with any information about the Services that is false, misleading or inaccurate. You must not use any technology (including any device, software or hardware) to damage, intercept or interfere with our Services, or any software or technology that we use to provide the Services.

(k) You must not without prior written approval from Clearpay, held at our absolute discretion, allow the Services to be used to purchase Restricted Goods or Services via your Website and/or in-Store (as applicable) as outlined in Schedule 2 of these General Terms. You must notify us of any intention to commence advertising or offering Restricted Goods or Services for sale using the Services.

(l) As a Clearpay merchant, you have effectively delegated to us your PCI DSS responsibilities for sensitive customer credit card information and data collected in connection with Clearpay Purchases. Please remember that you may have other PCI DSS responsibilities that are independent of this Agreement and our relationship, as outlined in Clearpay's PCI DSS policy.

(m) The individuals designated by you, as communicated by you to us in writing or via email will be granted access to Clearpay’s Merchant Portal. You must ensure that the appropriate role is assigned to each individual. You must not share access to Clearpay’s Merchant Portal other than those individuals that you identify to us in writing who will be granted access to Clearpay’s Merchant Portal in connection with this Agreement. Regardless of whether such third parties or individuals have been identified to us, you will be responsible for the actions of any third party or individual who accesses Clearpay’s Merchant Portal using the credentials assigned to any individuals referred to above.

(n) You shall keep and maintain materials and records relating to your use of the Services (“Records”) and on not less than seven (7) days’ written notice from Clearpay, provide Clearpay with such Records as Clearpay shall reasonably request. You must: (i) comply with all Relevant Law relating to anti-bribery and anti-corruption including but not limited to the UK’s Bribery Act 2010 ("Relevant Requirements"); and (ii) have and maintain, monitor and enforce throughout the Term policies and procedures to ensure compliance with the Relevant Requirements including adequate procedures to prevent any of your associated persons from committing an offence under any Relevant Requirements (with the terms “adequate procedures” and “associated persons” having the meanings set out in the UK’s Bribery Act 2010).

(o) You and we will, when performing under this Agreement, each (i) comply with all applicable Data Protection Laws, and (ii) adhere to the obligations in the Data Sharing Terms. If there is any conflict between the terms in this Agreement and the Data Sharing Terms, the Data Sharing Terms shall take precedence.

2.2. Obligations in respect of Clearpay Purchases

(a) When your Customer makes a Clearpay Purchase from you, Clearpay’s systems will promptly issue or withhold Approval Confirmation. Clearpay exercises sole discretion regarding the decision to issue an Approval Confirmation or decline a transaction using a Clearpay Purchase. We shall have no liability to you for Goods for which you have not received an Approval Confirmation.

(b) Subject to clauses 2.2(c) and 2.2(d) of the General Terms, where your Customer makes an online Clearpay Purchase, you are responsible for ensuring that all Goods are Delivered to the Customer promptly in accordance with Relevant Laws, and within the expected Delivery period as represented to the Customer at the point of sale, and subject to clause 2.2(h) (Extended Delivery Goods) of these General Terms, up to a maximum of: (i) fourteen (14) days in respect of Goods that are goods; and (ii) ninety (90) days in respect of Goods that are services. Where your Customer makes a Clearpay Purchase in-Store (as applicable), the Goods must be Delivered (or provided) to the Customer immediately after Approval Confirmation, unless you expressly agree an alternative Delivery time with your Customer, where the expected Delivery period is up to a maximum of fourteen (14) days in respect of Goods that are goods and ninety (90) days in respect of Goods that are services.

(c) You must only Deliver or provide Goods to your Customer after you have received Approval Confirmation. Clearpay will not be liable to pay the Settlement Amount to you for Goods Delivered or provided without Approval Confirmation.

(d) If we suspect that Goods have not been Delivered (or provided) to a Customer within the agreed upon time frame or in accordance with Relevant Laws or your Customer refuses to pay us on the basis that Goods have not been Delivered or provided, we may ask you to provide us with proof of Delivery. If we make such a request, you must notify us via the Merchant Portal or by email:

(i) for Goods that are goods: the shipping carrier name, tracking number and confirmation that the goods were Delivered to the address specified by your Customer when making the Clearpay Purchase; and

(ii) for Goods that are services: provide proof of supply of the services to your Customer.

If you do not provide this information, or otherwise demonstrate to our reasonable satisfaction that the Goods have been Delivered or provided to your Customer, within two (2) Business Days of our request, then:

(iii) you must refund to us any Settlement Amount we have paid you, and reimburse us any chargeback fees we may incur, in connection with the relevant Clearpay Purchase, and we may elect to be paid such amounts in accordance with clause 3.1(d) of the General Terms;

(iv) we will, subject to any accepted chargebacks, refund to your Customer any amounts paid by your Customer to us in connection with the relevant Clearpay Purchase upon our receipt of the Settlement Amount from you; and

(v) we will have no further liability to you in connection with the Clearpay Purchase.

(e) You must not increase the Sale Price or Shipping Costs, or otherwise charge your Customer any other fees, increase the overall cost to your Customer, reject a request for a Refund or discriminate against your Customer in any way because your Customer has elected to use Clearpay as the method for payment.

(f) You are responsible for your supply of Goods to your Customers and ensuring that appropriate insurance policies are in place for your Delivery or supply of the Goods to your Customers. Clearpay will not be responsible to you and/or your Customer for any loss or damage caused in connection with your Delivery or supply of Goods to your Customers.

(g) If you provide us with a Cancellation Notice, then, within two (2) Business Days of us receiving the Cancellation Notice: (i) you must refund to us any Settlement Amount we have paid you, and reimburse us any chargeback fees we may incur, in connection with the relevant Clearpay Purchase, and we may elect to be paid such amounts in accordance with clause 3.1(d) of the General Terms; (ii) we will refund to your Customer any amounts paid by your Customer to us in connection with the Clearpay Purchase; and (iii) we will have no further liability to you in connection with the Clearpay Purchase.

(h) Notwithstanding clause 2.2(b), provided that you charge at order across all tender types for the duration of the Term and we have authorised you in accordance with clause 1.2(e)(iii) of the General Terms to allow Customers to make a Clearpay Purchase for Extended Delivery Goods:

(i) before the Customer completes their Clearpay Purchase for Extended Delivery Goods, you must, no later than the point of sale, notify the customer that the Extended Delivery Goods are available on an extended delivery basis and that payment for the Clearpay Purchase will be taken at completion of the Clearpay Purchase, and provide an accurate Delivery period for the Extended Delivery Goods (“Extended Delivery Period");

(ii) if, prior to Delivery of Extended Delivery Goods, there is a material change to the Extended Delivery Period, you must notify the Customer of this change; and

(iii) you will Deliver Extended Delivery Goods to Customers within the Extended Delivery Period.

We will have no liability to you for any Extended Delivery Goods that you Deliver to the Customer after the Extended Delivery Period. For any Clearpay Purchases that are Extended Delivery Goods, we reserve the right to: (1) extend the Payment Date to up to seven (7) Business Days; (2) create a Reserve pursuant to clause 3.1(c) of the General Terms; and (3) in the event that Extended Delivery Goods are Delivered after the Extended Delivery Period, seek a refund from you on any Settlement Amounts we have paid you as well as reimbursement of any chargeback fees that we incur in connection with the relevant Clearpay Purchase. We reserve the right to remove the availability of the Services for Extended Delivery Goods where we determine in our sole but reasonable discretion that doing so is necessary to comply with Relevant Laws or to avoid a higher than acceptable level of risk to Clearpay.

2.3. Intellectual Property and Financial Promotions

General

(a) Except as expressly provided in this Agreement, neither party will acquire any rights in respect of the Intellectual Property of the other party. Neither party may use the Intellectual Property of the other party in any way except: (i) with the prior written approval of the other (such approval not to be unreasonably withheld); and in accordance with the terms of any such approval; or (ii) as specifically authorised in this Agreement (including this clause).

Clearpay Intellectual Property

(b) We grant you during the Term and solely within the United Kingdom a non-exclusive, non-transferable, non-sublicensable, revocable and royalty free licence to use: (i) the Clearpay Trade Marks; and (ii) any other Clearpay Intellectual Property provided to you in connection with this Agreement, solely for the purposes of and to the extent reasonably necessary for you to perform your obligations or exercise your rights under this Agreement in accordance with the terms of this Agreement or any other written directions we may give you, including but not limited to any Promotional Materials or use guidelines that we may notify to you from time to time. You must not copy, modify, amend or supply to any third party or use for any other purposes any Clearpay Intellectual Property without our prior written consent. We confirm that Clearpay will not revoke this licence in a manner inconsistent with your rights and obligations under this Agreement.

(c) You must submit each proposed application or use of Clearpay Intellectual Property to us for written approval prior to use, except to the extent that such use is expressly permitted under this Agreement or otherwise expressly agreed in writing by Clearpay. For the avoidance of doubt, you may use materials provided by us which incorporates Clearpay Intellectual Property (including any approved description of the Services provided by us and any Promotional Materials) without obtaining our prior written consent, provided you use such materials in accordance with this Agreement.

(d) You must immediately discontinue the use of any Clearpay Intellectual Property or change the manner in which the Clearpay Intellectual Property is used whenever we reasonably request that you do so.

(e) Without limiting clause 2.3(e) of the General Terms, if this Agreement is amended to remove any of your rights relating to any Clearpay Intellectual Property (including but not limited to your right to offer the Clearpay Gateway online or in-Store as applicable), you must immediately discontinue the use of any Clearpay Intellectual Property associated with the discontinued right, and must return any associated Clearpay Intellectual Property (including but not limited to any Promotional Materials or materials incorporating such Clearpay Intellectual Property) to Clearpay, unless otherwise agreed in writing by Clearpay.

Your Intellectual Property

(f) You grant Clearpay and its Affiliates during the Term a non-exclusive, non-transferable, revocable and royalty free licence to use any of your Intellectual Property provided to us in connection with this Agreement solely for the purposes of and to the extent reasonably necessary in enabling us to perform our obligations or exercise our rights under this Agreement in accordance with the terms of this Agreement. You confirm that you will not revoke this licence in a manner inconsistent without rights and obligations under this Agreement.

(g) You grant Clearpay and its Affiliates during the Term a non-exclusive, non-transferable, revocable and royalty free licence to use your name, logo, and details of your Website in our marketing materials and channels, including, without limitation: in directory listings of Clearpay’s merchants; product listings; email marketing; social media marketing; and affiliate network marketing for the purpose of promoting, marketing and advertising Clearpay and/or your brand and/or Goods, to refer individuals to your Website and the ability to make Clearpay Purchases in respect of the Goods.

(h) You also grant Clearpay and its Affiliates during the Term a non-exclusive, non-transferable, revocable and royalty free licence to use one or more image(s) of our choosing from your Website in our marketing materials and channels. You agree to obtain on our behalf any third-party consents or licenses required to enable us to use any such image as contemplated by the Agreement, without attribution and without charge to us. If you notify us that you would like your name, logo, and/or details of your Website removed from this marketing material, or would prefer us to use a different image, we will do so as soon as reasonably practicable. You also permit us and our Affiliates to use your name in public announcements or press releases without your prior written approval.

(i) You further agree that we may share, re-post and otherwise use any images and other content you include on your social media accounts or pages on our websites, social media accounts and pages, without your consent, and without any payment to you, provided we: (i) credit you as the source of such image or content, or include any other statement of attribution that you reasonably require; and (ii) promptly remove or alter such image or content at your written request.

Financial Promotions and Approvals

(j) To the extent any content, materials, documentation and/or information you (or those acting on your behalf) produce in connection with the activities anticipated under this Agreement would constitute a financial promotion under section 21 of the UK's Financial Services and Markets Act 2000 ("FSMA") ("Regulated Materials"), you will (and will procure that any persons acting on your behalf will): (i) prior to any use by or disclosure to your Customers of any Regulated Materials, provide such Regulated Materials to us so as to enable us to procure any relevant approvals that may be required from a financial promotions perspective under FSMA from an appropriately authorised entity; and (ii) not use or disclose such Regulated Materials unless and until we have notified you in writing that the relevant Regulated Materials have been so approved for publication as required from a financial promotions perspective under FSMA. 

(k) You will (and will procure that any persons acting on your behalf will) comply with our instructions and directions in respect of any amendments that need to be made to any Regulated Materials so as to ensure that such Regulated Materials are compliant with FSMA and the UK Financial Conduct Authority's rules in relation to the publication of financial promotions.

(l) You acknowledge that your provision of any Regulated Materials to us for the purposes of clause 2.3(j) of the General Terms, and our procurement of any approvals that may be required, is not (and should not be taken to be) an indication of review and approval by us of such Regulated Materials from a financial promotions perspective under FSMA. We are only responsible for procuring that an appropriately authorised entity reviews and (as applicable) provides approval for the Regulated Materials. 

3. Fees, billing and payments

3.1. Payments to us and our fees

(a) All payments made under this Agreement must be made in Sterling.

(b) You must pay Clearpay the Fee for each Clearpay Purchase on or before the Payment Date in consideration for the provision of our Services to you. The Fee for our Services will be charged against each Clearpay Purchase. You will pay Clearpay the Fee as outlined under Part D of the Supplementary Terms for each Clearpay Purchase due on the Payment Date.

(c) Clearpay reserves the right to seek a certain amount of funds from you to set aside as a reserve, or withhold amounts from the Settlement Amounts that may be payable to you for the purposes of setting aside a reserve (“Reserves”), to secure the performance of your obligations under this Agreement, if Clearpay determines in its sole but reasonable discretion that there may be a higher than acceptable level of risk associated with you, your business model, or your performance under this Agreement. If we require a Reserve under this Agreement, we will communicate the terms of the Reserve to you, including the conditions upon which the funds in the Reserve will be released to you. You grant us a set-off right against any and all funds held in any Reserves and also authorise us to make any withdrawals or debits from the Reserves without prior notice to you using your Direct Debit Request, to collect amounts that you owe us under this Agreement. We may change or condition the terms of the Reserve based on our continuous assessment and understanding of the risks associated with you, your business model, or the performance of your obligations under this Agreement. Clearpay’s rights under this clause 3.1(c) of the General Terms shall continue in effect for up to one hundred and twenty (120) days after termination of this Agreement for any reason.

(d) Without notice and without prejudice to any other rights or remedies, Clearpay may, at its sole discretion: (i) set off against any amounts we are obliged to pay to you under this Agreement; (ii) debit from your nominated Account in accordance with the Direct Debit Request, any and all amounts owed by you to us under this Agreement (including, without limitation, any Fees, Refund Amounts and Customer Payments which you are liable to pay us under this Agreement); or (iii) collect or set off amounts owed to us under the Agreement from funds that we hold in Reserve pursuant to clause 3.1(c) of these General Terms. Any amounts that we set off or debit against payments owing to us will nonetheless be treated as a payment from you to us for all tax, accounting, invoicing and other relevant purposes.

(e) You authorise us to debit your Account for the amounts set out in clause 3.1 of the General Terms.

(f) The Fee is not refundable unless paid incorrectly or a refund of the Fee is otherwise required by law.

3.2. Payments from us to you

(a) We will pay you the Settlement Amount to you on the Payment Date for such Clearpay Purchase, once daily, as a single transaction, netting the aggregate Settlement Amounts for all Clearpay Purchases due to you on the Payment Date against all amounts then due to us under this Agreement and as described in this clause including the Fee, any Refund Amounts and Customer Payments. We will remit such amounts by direct transfer to your Account. We make no warranties or guarantees against any delays or receipt of Settlement Amounts caused by banking systems or other factors outside of our control.

(b) You must not accept payments or on-going repayments for any Goods on our behalf. If, for any reason, you receive any part of a payment relating to a Clearpay Purchase directly from a Customer (“Customer Payment”): (i) you will promptly notify us of the details of the Customer Payment, including the identity of the Customer, the Goods to which the Customer Payment relates, and the amount of the Customer Payment; and (ii) if we have effected a payment to you in respect of that Clearpay Purchase, you will hold the full amount of the Customer Payment for our benefit until the Customer Payment is paid to Clearpay by you. Clearpay may elect to be paid the Customer Payment in accordance with clause 3.1(d) of the General Terms.

(c) Notwithstanding clause 1.2(c) of the General Terms, if you permit Customers to make Clearpay Purchases before Verification has been completed, we may withhold payment of any Settlement Amount due to you until Verification has been completed.

(d) Clearpay reserves the right to suspend, extend or delay the Payment Date or otherwise suspend, extend or delay the payment of Settlement Amounts to your Account should Clearpay determine, in its sole but reasonable discretion, that your business presents a high level of risk, including but not limited to issues relating to excessive non-Delivery or non-supply of Goods, excessive late Delivery or late supply of Goods, excessive Customer complaints, excessive disputes or Refunds, issues in connection with Extended Delivery Goods, Clearpay is unsuccessful in debiting your Account, you are subject to an Insolvency Event (to the extent permitted by applicable laws),  other suspicious activity associated with your use of our Services, or if required by law, court order or regulatory authority. For the avoidance of doubt, where payment of the Settlement Amounts to your Account are suspended, extended or delayed, Clearpay reserves the right to deduct from the Settlement Amounts any amounts you owe Clearpay under this Agreement. If we suspend, extend or delay the Payment Date for any reason, we will communicate the general reason to you and provide you with a timeline for releasing the funds, if applicable.

3.3. Taxes

(a) Taxes on Underlying Clearpay Purchases. You agree and acknowledge that Clearpay shall not be responsible for determining, or calculating, paying or remitting to the applicable Tax Authority any Taxes that may be assessed, incurred, or required to be collected, paid, reported, or withheld for any reason with respect to transactions or payments initiated by any Customer or otherwise in connection with your use of the Services or any Clearpay Purchase. In the event that a Tax Authority assesses additional Tax on any underlying transaction to Clearpay, you shall fully indemnify, defend, and hold Clearpay harmless against such Taxes and any other related expenses or costs. For the avoidance of doubt, Clearpay shall not be liable to you for any Taxes (or any charges similar to a Tax) assessed on or upon any Clearpay Purchase. Such limitation of liability shall cover assessments by any Tax Authority as well as any other indemnification claim.

(b) Taxes on Fees and Services. The Fees payable by you to Clearpay as set forth in this Agreement are exclusive of any Taxes. You agree to pay any Taxes (other than any income Taxes of Clearpay) imposed in connection with the Fees or otherwise in respect of the Services, unless you provide Clearpay with documentation satisfying the requirements under applicable law to establish that the otherwise applicable Taxes are not required to be charged. In the event that such Taxes are applicable, such Taxes shall be calculated by Clearpay, and presented to you as required under applicable Tax law, for payment to Clearpay. In addition, you agree to fully indemnify, defend and hold Clearpay harmless against any Tax imposed by a Tax Authority for failure to apply correct Taxes if such failure is a result of your failure to provide Clearpay with the correct evidence to support your exemption from such Taxes.

(c) Withholding Taxes. If applicable, Clearpay shall be entitled to deduct from any payments to you the amount of any applicable withholding Taxes with respect to amounts payable, or any other Taxes, in each case required to be withheld by Clearpay to the extent that Clearpay remits to the appropriate Tax Authority on behalf of you such Taxes. Any amounts so deducted or withheld shall be treated as having been paid for all purposes of this Agreement and Clearpay will not be obliged to increase or gross-up any payment on account of any withholding of Tax. If Clearpay eliminates or reduces withholding Tax in accordance with any treaty or other Tax claim by you and a relevant Tax Authority determines a higher withholding Tax amount should have been paid than that which was withheld by Clearpay, then you agree to fully indemnify and hold Clearpay harmless for the full amount of such underwithholding as well as any related penalties, interest and other costs.

(d) Tax Information Reporting. Clearpay may be obligated under applicable law to report certain information to Tax Authorities (“Tax Information”) and/or to you with respect to amounts payable to you under this Agreement. Prior to payment, you shall provide Clearpay with the necessary Tax forms, Tax identification details and other Tax documentation to complete any applicable Tax Information reporting and recertify such documentation from time to time, as may be required by applicable law. You acknowledge and agree that Clearpay will report to the applicable Tax Authority the required Tax Information. Clearpay also may, but is not obligated to, send to you the Tax Information reported.

(e) No Tax Advice. You acknowledge that Clearpay is not providing any Tax advice and nothing Clearpay says or provides to you should be interpreted as such. For any Tax-related inquiries in connection with the Services or this Agreement, you should consult your own Tax or legal advisor.

4. Payment, returns and refunds by Customers

(a) You will ensure that your policies and agreements (including but not limited to your terms of purchase and refund policy) with a Customer comply with Relevant Laws and Good Industry Practice. You will consider and process any Customer’s request for Return or other remedies in good faith and in accordance with your policies, Relevant Laws and Good industry Practice.

(b) Subject to clause 4(e) of the General Terms, if Goods are Accepted for Refund (in whole or in part) by you then any Refund Amount due in relation to the Return is owed to Clearpay and not the Customer. You must promptly upon receipt of the returned Goods (and, at the latest, within three (3) Business Days of such receipt), inform us via the Merchant Portal of the Return and enter the Refund Amount for those Goods in the Merchant Portal or the associated API. For the avoidance of doubt, all Clearpay Purchases that are Accepted for Refund (in whole or in part) must, subject to clause 4(e) of the General Terms, be refunded via the Clearpay tender type. If a refund for such Goods is processed using another payment method, you will be liable for any Customer payments owed for the Goods which are more than fourteen (14) days overdue.

(c) You will be liable to us for the sums to be refunded to the Customer if you Accept for Refund (in whole or in part) any returned Goods. We may recover those sums in accordance with clause 3.1(d) of the General Terms.

(d) If you agree with your Customer that you will provide them with a Discount, or agree to Refund any part of the Sale Price for any reason, in respect of any Goods:

(i) if we have made a payment to you in respect of those Goods, you will be liable to us for the amount of that Discount or Refund on the applicable Payment Date and we may recover those sums in accordance with clause 3.1(d) of the General Terms; or

(ii) if we have not effected a payment to you in respect of those Goods, the amount of the Discount or Refund will be deducted from the Settlement Amount relating to those Goods payable by us to you; and

(iii) Clearpay will: (A) cancel any future payments due by the Customer to Clearpay in relation to the Goods purchased from you; and/or (B) refund to the Customer any amounts paid by the Customer to Clearpay in relation to the Goods purchased from you, as required in order to ensure that your Customer receives the agreed Discount or Refund. Any Refund due to your Customer in respect of the relevant Goods purchased from you will be issued in accordance with Clearpay’s User Agreement.

(e) For Returns processed more than one hundred and twenty (120) days after the date on which Approval Confirmation was provided or for Returns processed more than sixty (60) days after termination or expiry of this Agreement (to the extent Clearpay, in its sole discretion, permits any Returns after the termination or expiry of this Agreement), the terms of this clause 4 of the General Terms shall not apply and Clearpay shall have no liability to you in respect of such Returns. You must deal directly with your Customer with respect to such Returns and the associated refund and process such refund via another tender type. Without limiting this clause, any assistance we may provide to you to effect payments to your Customers for any Refunds or Discounts for such Goods shall be at our discretion.

(f) Any dispute between you and Clearpay in relation to the Acceptance for Refund of any returned Goods and the payment of the unaccepted Refund Amount will be resolved in accordance with clause 6 of the General Terms.

(g) If a Customer raises a dispute with you in relation to a Clearpay Purchase prior to us paying the Settlement Amount for that Clearpay Purchase to you, we may withhold payment of any disputed amounts (or, in the absence of a liquidated figure, such amount as Clearpay reasonably considers may be disputed) until the dispute is resolved.

(h) Nothing in this clause will prevent any Customer from exercising any other rights and remedies in respect of any Goods including but not limited to the exchange or repair of the Goods, store credit for the goods or repeat performance of services.

(i) Customers may have the right to exercise rights and remedies under the CRA where you breach the implied warranties under the CRA as follows:

(i) Goods that are goods: if a Customer exercises its right to reject the Goods due to such breach in accordance with the CRA, you shall treat the Goods as a Return in accordance with this clause; or, if applicable, a Customer exercises its right to require you to repair or replace the Goods, you will repair or replace the Goods at your own cost and expense; or

(ii) Goods that are services: if a Customer exercises its rights to require repeat performance of services from you, you will reperform the services at your own cost and expense; or if applicable, provide a price reduction (full or partial) to the Customer in accordance with this clause.

(j) Where a Customer cancels the purchase of the Goods in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (as amended or re-enacted from time to time), you shall process the Goods for a Refund in accordance with this clause.

5. Confidentiality

(a) Each party undertakes not to use any Confidential Information of the other party other than is necessary to exercise its rights or fulfil its obligations under this Agreement. Except as expressly permitted or required by this Agreement, each party must not use or disclose any of the other party’s Confidential Information for any other purpose.

(b) Each party may disclose the Confidential Information of the other party:

(i) when required to do so by Relevant Law, court order or any regulatory authority of competent jurisdiction (provided that the receiving party provides the disclosing party with reasonable prior written notice of such disclosure, if legally permitted, to allow disclosing party adequate opportunity to seek a protective order preventing or limiting the disclosure) or registered stock exchange offering either party’s securities;

(ii) to a director, officer, employee, agent, contractor, professional adviser, investor or financing source (or potential investor or financing source) of the receiving party and those of its Affiliates whose duties reasonably require such disclosure, provided such person has agreed to keep the information confidential;

(iii) with respect to your Confidential Information provided in connection with a specific Clearpay Purchase, Clearpay may disclose such information to process transactions and service Customer accounts and otherwise in accordance with Clearpay’s or its Affiliates privacy policies in any applicable jurisdiction; and

(iv) when reasonably necessary for the purposes of any legal or arbitral proceedings involving the receiving party or any of its Affiliates.

(c) Each party must take all reasonable steps to ensure that no Confidential Information of the disclosing party is used, directly or indirectly, in any way that is detrimental or adverse to the disclosing party and that each person to whom any Confidential Information of the disclosing party must be or has been disclosed does not use or disclose such Confidential Information except as is consistent with these confidentiality commitments.

(d) Each party must take steps no less rigorous than those which it takes in respect of its own information to prevent any unauthorised use, disclosure or loss of, or unauthorised access or damage to, the Confidential Information of the disclosing party under its possession or control.

6. Disputes

(a) We will use reasonable endeavours to acknowledge receipt of all complaints by you within two (2) Business Days and resolve all complaints by you as quickly as practicable and, in any event, within fifteen (15) Business Days. However, you acknowledge that this may not be possible in all circumstances.

(b) If you wish to raise a dispute or submit a complaint to us, you must contact us using the details listed in clause 10 of the General Terms or any alternative contact details we provide to you for this purpose from time to time. Such disputes must be raised with us as soon as is practicable and not later than fourteen (14) days after you become aware of the grounds for dispute.

(c) We may request additional documentation from you to assist us in resolving any complaints or disputes (including Customer complaints and disputes), and you must provide all reasonable assistance to us to facilitate us in resolving any complaints or disputes (including Customer complaints and disputes). You agree to respond to any correspondence received from Clearpay in relation to Customer disputes promptly and at the latest within two (2) Business Days. You must also ensure the contact details you provide to Clearpay are complete and accurate.

(d) Where we cannot resolve a dispute with you within fifteen (15) Business Days, we will notify you of the reason for the delay as well as an indication of whether we believe that: (i) we are able to resolve the dispute and, if so, an indication of the further time that we estimate this will take; or (ii) we will not be able to resolve the dispute, in which case you may pursue your rights under Relevant Law with respect to the dispute.

7. Suspension

(a) Without prejudice to any other rights or remedies available, we may suspend your access to the Services including the ability to process Refunds immediately (or from such other date as we may nominate) by giving you written notice if:

(i) you have breached, or we reasonably suspect that you have breached, any provision of this Agreement;

(ii) we reasonably believe that paying or processing a Clearpay Purchase in connection with this Agreement will or may breach any Relevant Law;

(iii) you undergo a change of Control and we are unable to Verify your new ownership or we are prohibited from doing business with you under Relevant Laws;

(iv) we consider that the Services are being used by you in a fraudulent manner or the Clearpay Purchases are persistently fraudulent or being undertaken for fraudulent reasons;

(v) we reasonably consider your behaviour or activities to be suspicious or is in breach of applicable laws; or

(vi) we reasonably consider that you are subject to a Material Adverse Effect.

(b) This suspension will remain in place until the reason for the suspension has been remedied to Clearpay’s reasonable satisfaction.

(c) Without limiting your other obligations under the Agreement, while any suspension is ongoing, you must promptly comply with all reasonable directions that we give regarding your advertisement and offer of the ability to undertake Clearpay Purchases in respect of your Goods, including your use of Clearpay Intellectual Property.

8. Termination

8.1. Termination for cause

General

(a) Either party may terminate this Agreement immediately (or from such other date as it may nominate) by giving the other party written notice of termination if:

(i) the other party breaches any provision of this Agreement, and: (A) such breach is incapable of remedy; or (B) the other party has failed to remedy such breach within fourteen (14) days of the date of a written notice issued to it by the first party requiring remedy of the breach;

(ii) the other party engages in any fraudulent activity or conduct;

(iii) Clearpay ceases providing the Services;

(iv) the other party is unable to perform its obligations as a result of a Force Majeure Event, and such event continues for a period of thirty (30) days or more; or

(v) the other party is the subject of an Insolvency Event (if termination is permitted by applicable law).

By Clearpay

(b) Clearpay may terminate this Agreement immediately (or from such other date as we may nominate) by giving you written notice of termination if:

(i) we reasonably believe that your consumer agreements with Customers do not reflect the original basis of our contracted agreement (including, without limitation, where you change your policies in any way that affects the ability of any Customer to Return any Goods in the manner intended under this Agreement);

(ii) we reasonably believe that you have breached any of the warranties in clause 9.1(c) of the General Terms on a repeated basis;

(iii) the Monthly Default Rate is four percent (4%) or higher;

(iv) you are offering for sale or selling Restricted Goods or Services through your Website or in-Store (if applicable);

(v) you undergo a change of Control and we are unable to Verify your new ownership or we are prohibited from doing business with your new owner under Relevant Laws; or

(vi) required to do so by any regulatory authority or in order to comply with any Relevant Law or any change in Relevant Law.

By Merchant

(c) Merchant may terminate this Agreement immediately by giving written notice to us if you do not want to continue receiving the Services as a result of any material change to the Agreement and/or Clearpay Policies, as anticipated by clause 1.1(b) of these General Terms.

8.2. Termination for convenience

(a) Either you or we may terminate this Agreement for any reason giving at least thirty (30) days prior written notice. 

(b) To the extent that Part B of the Supplementary Terms includes an “Initial Term”, clause 8.2(a) of these General Terms will not apply during such Initial Term.

8.3. Consequences of termination

(a) Termination or expiry of this Agreement does not affect any right or obligation which arose under this Agreement before such termination or expiry, or which arises in respect of any Goods that are Returned after such termination or expiry and is without prejudice to the parties' other rights and remedies. Clearpay in its sole discretion, may permit or require Returns processed within sixty (60) days following the termination or expiry of this Agreement to be processed through the Clearpay tender type in accordance with clause 4 of the General Terms. For the avoidance of doubt, Clearpay's rights under clause 3.1(c), (d) and (e) of the General Terms continue in relation to Customer Payments received by you, and Refunds approved by you, after termination.

(b) Upon termination of this Agreement for any reason: (i) each party must promptly return to the other any Confidential Information or property of the other party in the first party's possession or control; and (ii) all rights and licences granted under this Agreement will terminate immediately, except as expressly provided in this Agreement. Further, you must permanently delete all copies of the Clearpay Software in your possession or control, immediately cease using all Clearpay Intellectual Property, including by removing all references to Clearpay from your Website and in-Store (if applicable) and return any associated Clearpay Intellectual Property including any Promotional Materials or other materials incorporating such Clearpay Intellectual Property.

(c) Any amounts owing to you under this Agreement which are due to be paid to you after the date of termination may be withheld until we are satisfied that the obligations in clause 8.3(b) of the General Terms have been met.

(d) Subject to clause 8.3(a) of the General Terms, all rights and obligations of the parties under this Agreement shall cease to have effect immediately upon termination or expiry of the Agreement. Without prejudice to the preceding sentence, clauses that are expressed to survive termination or expiry shall continue in force including but not limited to clauses 3.1(c), (d) and (e), 3.2(b), 4, 5, 8.3, 9 and 10 of the General Terms.

9. Warranties, Liability and Indemnity

9.1. Representations and warranties

Mutual representations and warranties

(a) Each party warrants and represents that: (i) it has all necessary authority, power and capacity to enter into and perform this Agreement; and (ii) this Agreement is executed by a duly authorised representative of that party and once duly executed, this Agreement shall constitute its legal, valid and binding obligations.

Your representations and warranties

(b) You warrant and represent to us that on the date of this Agreement (and on an ongoing basis throughout the Term):

(i) you have not done and will not do anything to prevent any amounts owing to us in connection with your Customer’s Clearpay Purchase from you from being valid and enforceable against the relevant Customer;

(ii) our use of any of your Intellectual Property which you provided to us in accordance with this Agreement shall not infringe the Intellectual Property of any third party;

(iii) you control the content of the Website;

(iv) all information you provide in the Required Documentation, or otherwise in connection with this Agreement, is complete, true, accurate and not misleading in all material respects (and you will notify us promptly if any such information ceases to be complete, true, accurate or not misleading for any reason);

(v) the person who completed the Required Documentation and Direct Debit Request was duly authorised to do so and bind you;

(vi) your entry into this Agreement will not cause you to be in breach of any other agreement to which you are a party or any of your constitutional or organisational documents; and

(vii) there are not actions, suits or proceedings or regulatory investigations pending or to your knowledge, threatened against or affecting you before any court or administrative body or arbitration tribunal that may adversely affect your ability to meet and perform your obligations under this Agreement.

(c) In addition, you warrant and represent to us in relation to each Customer’s purchase of Goods from you as a Clearpay Purchase:

(i) neither you nor your employees or agent will engage in any fraudulent, suspicious or misleading conduct in connection with the Clearpay Purchase, the Clearpay Purchase will represent a bona fide sale of the Goods by you to your Customer in the ordinary course of your business and you will provide us with complete and accurate purchase information with respect to each Clearpay Purchase;

(ii) you hold all required licenses, approvals and consents necessary to provide the Goods offered by you;

(iii) you will maintain in full force and effect at all times during the operation of this Agreement appropriate insurance policies to cover you and your respective employees, officers, contractors and agents for their respective rights, interests and liabilities to thirds parties for loss or damage to any property and personal injury (including death) to any person arising from or in connection with the provision of any Goods offered by you;

(iv) you will Deliver (or provide) or will arrange for Delivery (or the provision) of, all the Goods involved in the Clearpay Purchase in accordance with the terms of this Agreement;

(v) in relation to Goods that are goods: (A) the Customer has, or will have, title to the goods listed and clear of all encumbrances, liens and claims; (B) the goods, at the time they were Delivered to the Customer, were of satisfactory quality; fit for any purpose of which the Customer has notified to you and is as described; and (C) the goods match any sample or demonstration model shown to the Customer; and (D) the Goods duly comply and conform with all terms, conditions and any warranties (express or implied) applicable to the transaction;

(vi) in relation to Goods that are services: (A) the services have been, or will be, provided with reasonable care and skill; (B) information about your services will be treated as binding if it is taken into account by your Customer when deciding to purchase your services or it is taken into account by your Customer when making any decision about your services after purchasing your services; and (C) the services will be supplied within the agreed time frame, or within a reasonable time frame if no time has been agreed for provision of the services, in each case up to a maximum time frame of ninety (90) days from the date of the Clearpay Purchase;

(vii) you will not, without the prior written permission from Clearpay, allow the Services to be used to purchase Restricted Goods or Services as outlined in Schedule 2 to these General Terms via your Website and/or in-Store (if applicable); and

(viii) you will not seek or obtain, any special arrangement or condition from, nor discriminate in any way against, the Customer with respect to the terms of the Clearpay Purchase.

9.2. Disclaimer

(a) Given the nature of our Services (including our Services' reliance on systems and services that we do not own or control), we cannot guarantee continuous, uninterrupted or secure access to our Services, and we make no representations, terms or warranties regarding the amount of time needed to complete processing of payment transactions.

(b) Except for: (i) the express terms and warranties set out in this Agreement or given in writing to you by us directly; and (ii) those implied terms or warranties that are imposed by statute that are mandatory and cannot be excluded, we do not give any representation, term or warranty to you, and we hereby exclude to the fullest extent permitted, express and implied terms, conditions, representations and warranties concerning the subject matter of this Agreement, the continued availability or suitability of the Services and the performance of our obligations including any representation, warranty, term or condition of fitness for purpose, merchantability or satisfactory quality.

9.3. Limitation of Liability

(a) Nothing in this Agreement shall limit or exclude either party's liability for fraud or fraudulent misrepresentation, death or personal injury caused by its negligence, or any other matter that may not otherwise be limited or excluded by applicable law.

(b) Subject to clause 9.3(a) of the General Terms, under no circumstances shall Clearpay and its Affiliates be liable, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, indemnity or otherwise for any indirect, incidental, consequential, special or exemplary damages, loss of profits, loss of revenue, loss of sales or business, loss of agreements or contracts, loss or damage to goodwill, loss of use or corruption of software, data or information or for any pure economic loss arising from or relating to this Agreement, the use of or inability to use the Services, the Clearpay Gateway or the Merchant Portal or our or your liabilities to third parties arising from any source.

(c) Subject to clauses 9.3(a) and 9.3(b) of the General Terms, Clearpay and its Affiliates’ total liability to you whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, indemnity or otherwise for all claims arising out of or related to this Agreement or your use or inability to use the Clearpay Gateway or the Merchant Portal, will not exceed £5,000. For the avoidance of doubt, this does not limit Clearpay's obligations to pay you any Settlement Amount due to you under the Agreement.

(d) Subject to clause 9.3(a) of the General Terms, Clearpay limits its liability (including its liability for breach of any implied condition or warranty) for all claims that cannot be limited under clause 9.3(c) of the General Terms to, at our option: (i) the re-supply of the relevant services; or (ii) the payment of the cost of having the relevant services supplied again.

(e) To the extent permitted by law, a party's liability to the other party arising out of or related to this Agreement is reduced to the extent, if any, to which the other party's acts or omissions (including as a result of negligence, wilful misconduct or a breach of this Agreement) cause or contribute to its own loss or damage.

(f) The parties must take all reasonable steps to mitigate any loss (including under indemnities) incurred by them under this Agreement.

9.4. Indemnification

(a) You will indemnify and hold harmless in full and on demand us and our Affiliates (and their respective officers, directors, employees and agents) from and against all claims, actions, losses, offsets, liabilities, damages, taxes, judgments, amounts paid in settlement, costs and expenses (including reasonable legal fees and disbursements and collection fees) resulting from or arising in connection with:

(i) any transaction, contract, understanding, promise, representation, warranty or other relationship, actual, asserted or alleged, between you and your Customer relating to the Clearpay Purchase or the Goods;

(ii) any Goods (including, without limitation, any product liability or warranty claim relating to goods, any claim that the supply of the services breaches a statutory guarantee or that the services were not performed by your personnel with reasonable care and skill or with the appropriate certification and training or any claim by the Customer relating to the quality or sufficiency of the goods, and any loss arising from a Return);

(iii) any false or misleading representation or fraudulent conduct by you or your officers, directors, employees or agents in connection with a Clearpay Purchase, Goods, the Services, or any related matter, or any inaccuracy in any Tax Information provided by you hereunder;

(iv) our infringement of Intellectual Property rights of a third party in the provision, receipt or use of any of your intellectual Property in accordance with this Agreement; and

(v) any breach by you of the provisions of clauses 1.2(c), 2.1(c), 2.1(h), 2.1(n), 2.3(j) and 2.3(k) of the General Terms.

(b) This indemnity is a continuing obligation, independent of your other obligations under this Agreement and continues after this Agreement ends. It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this Agreement. However, we will not exercise the right of indemnity under clause 9.4 of the General Terms where it relates to a particular Customer's Clearpay Purchase until after we have raised the relevant issue with you for discussion, and you have had a reasonable time to respond or to remedy the issue with that Customer to our reasonable satisfaction.

10. General

10.1. Notices

(a) Any notice given or served under this Agreement to the other party must be in legible writing in English and shall be deemed validly given or served if sent by electronic mail as follows:

(i) If to Clearpay: to [email protected] or an email address otherwise notified to you by Clearpay; and

(ii) If to you: to an email address you provide through the Merchant Portal.

(b) Without limiting any other means by which a party may be able to prove that a notice has been received by another party, a notice that complies with this clause is regarded as given and received: (i) before 5.00pm on a Business Day at the place of receipt, on the day and at the time it is sent (as recorded on the sender’s equipment); and (ii) otherwise at 9.00am on the next Business Day at the place of receipt.

10.2. Relationship of the parties

Clearpay does not: (i) enter into a partnership, joint venture, agency or employment relationship with you; (ii) guarantee the identity of any Customer who may place an order to buy goods or services from you or (iii) assume any other responsibility for that Customer other than as set out in this Agreement; or (iv) determine if you are liable for any Taxes or collect or pay any Taxes that may arise from your use of our Services.

10.3. Governing Law and Jurisdiction

(a) This Agreement is governed by the laws of England and Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.

(b) The arrangements for the sale and purchase of any Goods is a separate consumer contract between you and the relevant Customer and the Customer’s rights and remedies as a consumer in respect of that sale and purchase are as between you and the Customer, to the exclusion of Clearpay (to the maximum extent permitted by law).

10.4. Entire Agreement

This Agreement including these General Terms, together with the Supplementary Terms, and all Schedules, Exhibits or Addenda attached hereto constitutes the entire agreement between with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. The parties acknowledge and agree that the other has not made any representations, warranties or agreements of any kind except as expressly set forth in this Agreement.

10.5. Waiver

A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that wavier unless made in writing.

10.6. Severability

If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.

10.7. Force Majeure

(a) Neither party shall be liable for its failure to comply with any term of this Agreement to the extent that such failure is caused by a Force Majeure Event.

(b) On the occurrence of a Force Majeure Event, the affected party will notify the other party in writing as soon as reasonably practicable. The affected party shall use all reasonable endeavours to mitigate the effects of the Force Majeure Event and facilitate the continued performance of this Agreement.

(c) The affected party shall notify the other party as soon as reasonably practicable after the Force Majeure Event ceases or no longer causes it to be unable to comply with its obligations under this Agreement. Following such notification, the Agreement shall continue to be performed on the terms existing immediately prior to the occurrence of the Force Majeure Event.

(d) Either party shall be entitled to terminate this Agreement in the circumstances described in clause 8.1(a)(iv) of the General Terms.

10.8. Third Party Rights

A person who is not a party to this Agreement shall not acquire any rights under it or be entitled to benefit from any of its terms, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise. The rights of the parties to vary or terminate this Agreement are not subject to the consent of any other person.

10.9. Counterparts

Each of these General Terms and the Supplementary Terms may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

10.10. Transfers or assignments

(a) You may not transfer or assign any rights you may have under this Agreement without our prior written consent, not to be unreasonably withheld.

(b) We may transfer or assign this Agreement, and any right under this Agreement, to a third party or an Affiliate, and we will notify you in advance of such a transfer or assignment.

Definitions

Terms in these General Terms which are capitalised but not otherwise defined above or in the Supplementary Terms have the following meanings:

Accepted for Refund means, in respect of any Goods that are Returned to you, your acceptance of those Goods for refund (whether in accordance with your policies, as required by Relevant Law or otherwise).

Account means your bank account held at your financial institution from which Clearpay (or a third party) is authorised to arrange for funds to be debited as detailed in the Direct Debit Request.

Affiliates means a person or entity that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the respective party. For the purposes of this Agreement, control shall mean ownership (directly or indirectly) of at least 50% of either (i) the voting shares or similar voting instruments or the combined voting power in an entity or association or the power to direct or cause the direction of the general management or policies of an entity or (ii) the total value of all stock, capital interest, or profits interest in such entity or association.

AML Documentation means the documentation which we are required to obtain from you and Verify under the MLR, which will be provided to you or made available on our website.

Approval Confirmation means electronic notice from us to you that a Clearpay Purchase has been approved by us.

Business Day means a day other than a Saturday, Sunday, or national public holiday in the United Kingdom.

Cancellation Notice means written notice we receive from you, in relation to a Clearpay Purchase, that you have cancelled the relevant Clearpay Purchase prior to you Delivering (or providing) the Goods to a Customer.

Clearpay Gateway means the Clearpay electronic payment gateway system we provide to participating merchants as part of our Services, which allows participating merchants to offer their Customers the ability to pay for Clearpay Purchases in instalments.

Clearpay Intellectual Property means all Intellectual Property owned or licensed by Clearpay, including the Clearpay Gateway, Clearpay Software, Clearpay Trade Marks, Merchant Portal and Promotional Materials but excluding your Intellectual Property.

Clearpay Policies has the meaning given to it in clause 1.3(a) of the General Terms.

Clearpay Purchase means a purchase by your Customer of any Goods from you via your Website or in-Store (as applicable) up to the value permitted by Clearpay, for supply in-Store or Delivery, using Clearpay’s facilities (as offered by you) as a mechanism for paying for Goods from you and for which Clearpay has provided Approval Confirmation to you.

Clearpay Software means the software provided by Clearpay to you pursuant to this Agreement.

Clearpay Trade Marks means all Trade Marks owned or licensed by Clearpay, excluding your Trade Marks.

Confidential Information means the terms of this Agreement and any information (of whatever form and nature) disclosed by a party to the other party but Confidential Information does not include information which (a) at the time of the first disclosure to a party, was already in the lawful possession of the party; (b) is in or comes into the public domain otherwise than by disclosure in breach of this Agreement; or (c) becomes available to a party legitimately from any other third party source that is legally entitled to that information.

Control means either the ownership of at least twenty five per cent (25%) or more of the voting shares in an entity or the power to direct or cause the direction of the general management and policies of an entity (whether as a result of the ownership of shares, through control of the board of directors, by contract, under powers conferred by constitutional documents, or through any other means) (and the terms Controlled, Controlling and Controls shall be construed accordingly).

CRA means the Consumer Rights Act 2015 (as amended or re-enacted from time to time) and regulations made under it from time to time.

Cross Border Trade has the meaning given to it in clause 1.2(e) of the General Terms.

Cross Border Transaction Fee means the cross border transaction fee set out in Part D of the Supplementary Terms.

Customer means a person who buys Goods from you via your Website or in-Store (as applicable) by making a Clearpay Purchase.

Customer Payment has the meaning given to it in clause 3.2(b) of the General Terms.

Data Protection Laws means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including: (i) in the UK, the UK GDPR as defined in The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (“UK GDPR”), Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (ii) in the European Economic Area, the General Data Protection Regulation EU 2016/679 (“GDPR”) and any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC) if applicable; in each case as updated, amended or replaced from time to time.

Data Sharing Terms means the data sharing terms set out on our website at www.clearpay.co.uk/attachment/303/download/datasharingterms and incorporated into this Agreement, as updated from time to time by Clearpay.

Delivered means in the case of Goods that are goods, delivered to your Customer; and in the case of Goods that are services, supplied in full, to your Customer (and the terms Delivery and Deliver shall be construed accordingly).

Direct Debit Request means the direct debit instruction in the form provided by us or a third party to you which authorises us or a third party to withdraw monies from your Account in accordance with its terms and this Agreement.

Discount means a discount to the Sale Price for any Goods purchased by your Customers under a Clearpay Purchase or from any related Shipping Costs.

Extended Delivery Goods means Goods that will be delivered: in respect of Goods that are goods, more than fourteen (14) days after Approval Confirmation; and (ii) in respect of Goods that are services, more than ninety (90) days after Approval Confirmation.

Extended Delivery Period has the meaning given in clause 2.2(h) of the General Terms.

Fee means the fee set out in Part D of the Supplementary Terms.

Final Returns Date means in relation to a Clearpay Purchase, means the date that is one hundred and twenty (120) days after Clearpay provided Approval Confirmation for the Clearpay Purchase to you.

Force Majeure Event means an event beyond the reasonable control of the affected party which does not relate to its fault or negligence, including acts of God, epidemics or pandemics, government intervention, war, hostilities, terrorist activities, local or national emergencies, floods, natural disasters, earthquakes, fires, explosions and strikes, lock-outs and labour disputes.

Good Industry Practice means in respect of a person, using processes and practices and exercising that degree of skill and care which would reasonably be expected from a suitably skilled and experienced professional organisation engaged in the activities and business of such person.

Goods means the good(s) or service(s) supplied by you to your Customer under a Clearpay Purchase.

Insolvency Event means an event where a party (i) voluntarily or involuntarily (and such involuntary petition or proceeding is not dismissed within sixty (60) days) commences (or is the subject of, as the case may be) any proceeding or files any petition seeking relief under domestic or foreign bankruptcy, insolvency, moratorium, liquidation or similar law or proceedings; (ii) applies for or consents to the appointment of a receiver, trustee, custodian, sequestrator or similar official for such other party or for a substantial part of its property or assets; (iii) makes a general assignment for the benefit of creditors; (iv) commences the winding up or liquidation of its business or affairs (including ceasing a substantial portion of its business that alters its operations); (v) takes corporate action for the purpose of affecting any of the foregoing; (vi) suffers a material adverse change in business where the other party reasonably believes that a party will not be able to perform its obligations under this Agreement including suspending payment of its debts; or (vii) or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that is analogous to any of the events set out in sub clauses (i) to (vi) above.

Intellectual Property means all (i) Trade Marks, service marks, and other indications of origin, and all goodwill associated therewith and all applications, registrations and renewals associated with the foregoing; (ii) inventions, discoveries and ideas (whether patentable or unpatentable and whether or not reduced to practice), and all patents, patent rights, applications for patents (including divisions, continuations, continuations-in-part and renewal applications), and any renewals, extensions or reissues thereof; (iii) trade secrets, know-how, Confidential Information, and other proprietary rights and information; (iv) copyrights and works of authorship, whether copyrightable or not and all applications registrations, renewals and extensions in connection therewith (whether presently available or subsequently available as a result of intervening legislation); (v) domain names; (vi) databases; and (vii) other similar intellectual property or proprietary rights; whether registered or unregistered and including all rights of action, powers and benefits of the foregoing.

Live Date means the date on which a Customer is first able to make a purchase for Goods from you under a Clearpay Purchase on your Website or Store (whichever is earlier).

Material Adverse Effect means any event or circumstance which: (a) is likely to materially and adversely affect your ability to comply with any of your obligations under this Agreement.; or (b) is likely to materially and adversely affect your business, operations, property, condition (financial or otherwise) or prospects (including any such events or circumstances that will or are likely to result in you being subject to an Insolvency Event to the extent lawful).

Merchant Portal means the online interface provided to you by us which is accessible via our website.

MLR means the Money Laundering and Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, as updated, amended or replaced from time to time.

Monthly Default Rate means, at any point in time, the value of losses Clearpay incurs for Customer non-payment of Clearpay Purchases occurring on your Website(s) and in your Store(s), as applicable, in a single calendar month for which the Customer’s payments to Clearpay are overdue divided by the total value of Clearpay Purchases occurring on your Website(s) and in your Store(s) as applicable, during that calendar month.

Payment Date means as the context requires:

For Settlement Amounts and Fees: up to five (5) Business Days immediately following the date of the Clearpay Purchase.

For Refund Amounts, including Shipping Costs and Discounts: The Business Day following the day on which the Goods are Accepted for Refund and you enter the Refund of the Goods via the Merchant Portal.

PCI DSS means the Payment Card Industry Data Security Standard as managed by the PCI Security Standards Organisation.

PCI DSS Policy means our PCI DSS policy as made available via our website and as amended from time to time.

Privacy Policy means our privacy policy as made available via our website and as amended from time to time.

Promotional Materials means the Clearpay brand, logo, website integration materials, marketing guidelines, electronic banners, lightboxes, point of sale materials, and any other marketing, advertising and promotional materials relating to Clearpay and provided by us to you and as amended from time to time.

Records has the meaning given to it in clause 2.1(n) of the General Terms.

Regulated Materials has the meaning given to it in clause 2.3(j) of the General Terms.

Refund means a partial or whole refund of the Sale Price for any Goods purchased by your Customer under a Clearpay Purchase and/or of any related Shipping Costs.

Refund Amount means in respect of any Goods:

(a) an amount equal to the Sale Price for those Goods; or

(b) if any lower amount is due to the Customer in accordance with your policies or Relevant Laws, that lower amount.

Relevant Law means all applicable laws, regulations, codes, rules or other legislative instruments or any guidelines issued by any governmental or regulatory body or statutory authority (including, without limitation the Data Protection Laws or consumer laws) which apply to the Clearpay Purchase.

Relevant Requirements has the meaning given in clause 2.1(n) of the General Terms.

Required Documentation has the meaning given in clause 1.2(c) of the General Terms.

Restricted Goods or Services has the meaning given in Schedule 2 of these General Terms.

Return means the return of any Goods to you by a Customer in connection with a sale by you under a Clearpay Purchase (and other than a return of Goods by the Customer for the purposes of an exchange, the grant of store credit or for repair) initiated by the Customer on or before the Final Returns Date.

Sale Price means the purchase price of the Goods supplied by you (including VAT).

Services means (i) marketing and promotional services as contemplated under this Agreement; (ii) your access to and use of the Clearpay Gateway; and (iii) our provision of deferred payment services to your Customers as contemplated by this Agreement.

Settlement Amount means, in respect of each Clearpay Purchase, the relevant Sale Price plus any Shipping Costs, subject to any adjustments for Discounts.

Shipping Costs means any fees, costs or expenses charged by you to a Customer for the Delivery or supply of Goods purchased under Clearpay.

Sterling means the lawful currency of the United Kingdom.

Store means any physical location in the United Kingdom at or from which you supply the Goods or conduct transactions for the supply of the Goods and where we provide the Clearpay Card Services to you as set forth in this Agreement.

Tax means any taxes, including sales, use, VAT, goods and services, consumption, or other similar taxes, withholding taxes (including backup withholding), income, gross receipts, ad valorem, property, unclaimed property, escheat, franchise, transfer, stamp, or any other duties, levies, fees, excises or tariffs imposed by any federal, state, foreign, provincial or local governmental taxing authority, whether disputed or not, and including any penalties, interest, fine, surcharge or additions to tax.

Tax Authority means any taxing, revenue or other authority (in any jurisdiction) competent or responsible for imposing, administering, regulating or collecting any Tax.

Term has the meaning given to it in Part B of the Supplementary Terms.

Trade Marks means signs, trade marks, service marks, brand names, rights in get up or trade dress, logos, slogans, stylizations, devices and similar rights, whether registered or unregistered and whether within or outside the United Kingdom.

User Agreement means the agreement between Clearpay and a Customer relating to the payment terms your Customers agree to in respect of a Clearpay Purchase, as made available via our website and as amended from time to time.

VAT means value added tax charged pursuant to the Value Added Tax Act 1994 as the same may be amended from time to time.

Verification means with respect to the AML Documentation, verification of that documentation by or on behalf of Clearpay in accordance with the requirements of the MLR; and with respect to the Direct Debit Request, verification that the details provided in that form are complete and sufficient to enable Clearpay (or a third party) to process direct debit transactions in accordance with this Agreement and Relevant Law, (and the terms Verify and Verified shall be construed accordingly).

Website means any electronic retail sales facility (including any website and mobile or tablet sites or applications) operated by you including the websites listed under Part C of the Supplementary Terms.

Schedule 1

Additional Terms – Marketplaces

These additional terms (‘Additional Terms’) will only apply in the Agreement if these are
relevant to your business and you are approved by Clearpay to sell Goods in this category. These Additional Terms apply to your business and expressly form part of the Agreement with Clearpay. For the avoidance of doubt, to the extent these Additional Terms do not replace any terms set out in the General Terms, the General Terms will continue to apply.

1. Notwithstanding Schedule 2 of the General Terms, in accordance with Clearpay’s approval (communicated to you separately in writing or otherwise), you are permitted to use the Services to allow for the sale of Goods by Marketplace Sellers on your Website.

2. You control your Website, which allows Customers to purchase Goods from Marketplace Sellers. The parties acknowledge and agree that: (i) by making a purchase on your Website, a Customer agrees to pay the Sale Price associated with the Goods as specified by the Marketplace Seller and the Customer enters into a sale agreement with the Marketplace Seller; (ii) where a Clearpay Purchase is rejected by a Marketplace Seller, you will process the Refund for the Customer as soon as the rejection is notified in accordance with clause 4 of the General Terms; (iii) the timing for Delivery of Goods must be communicated clearly to the Customer by the Marketplace Seller at the point of purchase; and (iv) once a Clearpay Purchase has been made by a Customer, you are responsible for settlement of the Sale Price (and any other applicable delivery and other fees) with the associated Marketplace Seller, provided that any such settlement process does not breach the terms of your Agreement.

3. You agree to comply with any reasonable direction given by us to provide product information to Clearpay (such as SKU-level data and cart information).

4. You must continue to allow Customers to make Clearpay Purchases from all Marketplace Sellers on your
Website as permitted under and in accordance with your Agreement.

5. You will obtain any information we require from any Marketplace Seller (including shipping information) to demonstrate that the Goods were Delivered to the address specified by the Customer when making a Clearpay Purchase.

6. If a Customer: (i) disputes that the Marketplace Seller has Delivered the Goods; disputes that the Goods have been Delivered to an acceptable standard, or disputes any policies imposed by you or Marketplace Sellers, and (ii) is unable to reach a resolution directly with the Marketplace Seller, you will use commercially reasonable efforts to mediate a resolution between the Customer and the Marketplace Seller. If the Customer and the Marketplace Seller are not able to come to a resolution following any mediation facilitated in accordance with this clause, you will make a final determination about whether or not the Customer is entitled to a Refund in accordance with your standard business practices.

7. You are authorised to and will ensure compliance with the terms of this Agreement by all Marketplace Sellers in relation to Clearpay Purchases through your Website, including but not limited to, obligations set out in clause 2.2(e) and 4(a) of the General Terms.

8. The parties will collaborate to reduce risk and fraud via the Services across their respective fraud teams. This will include: (i) you providing any agreed risk metrics via the Clearpay Gateway/Admin Portal which will include at a minimum - Marketplace Seller name or identification details, basket details and, if Clearpay has approved services for your Website, the date of future bookings (including but not limited to, expected date of service delivery); (ii) where a party detects any fraud on your Website, that party promptly notifying the other party of the details of the alleged fraud, and the parties will, as soon as reasonably practicable, collaborate to determine the appropriate steps to reduce the risk of fraud; and (iii) Clearpay monitoring Customer non-payments, fraud and other losses in relation to the Clearpay Purchases (“Loss Rates”). If Clearpay determines that the Loss Rates are too high, Clearpay shall discuss means to limit the Loss Rates and you shall assist with any reasonable and commercially practical solution to mitigate the Loss Rates.

9. The terms of your Agreement, including the Fee, do not extend to any of your Affiliates, nor any website owned and operated by any individual Marketplace Seller outside of your Website.

10. Notwithstanding any terms in your Agreement, Clearpay retains the right to withhold reserves or otherwise hold any amount of the Settlement Amount if Clearpay determines, in its sole discretion, that there are any material concerns with the performance of your obligations under this Agreement.

11. Clearpay may also exercise its rights to terminate your Agreement under clause 8.1(b)(i) of the General Terms where a Marketplace Seller changes its policies in any way that affects the ability of any Customer to Return any Goods in the manner intended under your Agreement.

12. You confirm that you make the representations and warranties set out in clause 9.1(c) of the General Terms on your behalf and on behalf of each Marketplace Seller.

13. You acknowledge and agree that any reference to you or your in the indemnity in clause 9.4(a) of the General Terms also includes a reference to Marketplace Sellers and their personnel.

14. In these terms, “Marketplace Seller” means a person or business registered as a seller on your Website who offers their Goods and/or Services to Customers on Your Website.

Schedule 2

Restricted Goods or Services

i. goods or services that infringe third party Intellectual Property, including (without limitation) counterfeit goods and pirated content;

ii. dangerous goods, being goods that cause damage, harm or injury, including (without limitation), recreational drugs (chemical or herbal), psychoactive substances, equipment to facilitate drug use, weapons, weaponised knives, self-defence products, ammunition, explosive materials and fireworks, instructions for making explosives or other harmful products, tobacco products, e-cigarettes or vaping products, weaponised hunting equipment, militarised products or armoured goods and clothing;

iii. pornographic materials, experiences and content;

iv. gang or hate group affiliated products;

v. multi-level marketing or pyramid structure businesses;

vi. jamming and/or interference devices;

vii. pay-to-remove services;

viii. financial services or products;

ix. pre-paid financial cards (including calling cards and debit cards);

x. business to business sales;

xi. no-value-added services;

xii. utilities;

xiii. pre-orders or regular subscriptions;

xiv. lottery, games of chance, raffles and/or gambling-related content;

xv. Selective Androgen Receptor Modulators or Peptides;

xvi. products that enable dishonest behaviour, including (without limitation) hacking software or instructions, fake documents, essay mills and academic cheating products;

xvii. beauty or cosmetic treatments that are physically invasive;

xviii. cannabis products (prescription or otherwise);

xix. gift cards, cash, or cash equivalents;

xx. adult merchandise, including (without limitation) sexual enhancement products;

xxi. food, including restaurants/cafes, fresh, pre-packaged and delivery;

xxii. medicines and dietary supplements;

xxiii. services in the following categories:

A. non-cosmetic tattoo art;

B. “experiences”;

C. ticketing; 

D. software; 

E. health services and other personal services;

F. cleaning services;

xxiv. sale of Goods through a marketplace or aggregator;

xxv. dropshipping;

xxvi. hype or high demand / low supply products;

xxvii. sale of automotive Goods;

xxviii. without limiting the above, any goods or services which are required by law to be sold to your Customers over eighteen (18) years of age; and

xxix. any other goods or services which Clearpay considers, in its reasonable discretion, to be dangerous, inappropriate or high risk.

Schedule 3

Cross Border Trade

(a) If Clearpay authorises you to carry out Cross Border Trade under clause 1.2(e)(ii) of the General Terms, this Schedule 3 applies and will form part of your obligations under this Agreement.

(b) All references in this Agreement to “Clearpay Purchase” shall also include Cross Border Transactions and apply as they would in relation to any Clearpay Purchase.

(c) Clearpay may, at its own discretion, provide written authorisation to you detailing the list of locations where you may allow Cross Border Transactions. The limitations on the purchase of Goods from, and the Delivery or supply of Goods to, locations outside the United Kingdom do not apply in respect of Cross Border Transactions provided that such locations outside the United Kingdom are authorised by Clearpay in writing.

(d) Subject to clause 2.2(h) and in accordance with clause 2.2(b) of the General Terms, you must ensure that all Goods are Delivered or supplied to your Customer promptly, and within the expected Delivery period as represented to your Customer at the point of sale, and in the case of Goods that are goods, up to a maximum of twenty-one (21) days (where shipping must occur within ten (10) days), or in the case of Goods that are services, up to a maximum of ninety (90) days if it is a Cross Border Transaction. You are responsible for arranging Delivery in respect of all Cross Border Transactions.

(e) You are responsible for any and all additional costs and charges (including without limitation any applicable taxes, duties, levies, import and export fees, delivery charges and other applicable amounts) associated with any Cross Border Transaction.

(f) You must ensure that any and all additional costs and charges associated with a Cross Border Transaction (including without limitation any applicable taxes, duties, levies, import and export fees, delivery charges and other applicable amounts) charged by you to your Customer in respect of a Cross Border Transaction are included in the Sale Price and Shipping Costs (as applicable) or are otherwise clearly represented to your Customer prior to the point of purchase.

(g) To allow for foreign exchange settlement on a Cross Border Transaction, the Payment Date for Settlement Amounts and Fees, and for Refund Amounts for a Cross Border Transaction may be extended in each case by three (3) additional Business Days.

(h) In accordance with clause 3.1 of the General Terms, Clearpay will make all payments to you in respect of a Cross Border Transaction in Sterling.

(i) In addition to any Fee payable by you for a Clearpay Purchase that is a Cross Border Transaction, a Cross Border Transaction Fee will be payable by you to Clearpay for each Clearpay Purchase as set out in Part D of the Supplementary Terms.

(j) To the extent that your Website supports multi-currency presentment so that a Customer is able make a Cross Border Transaction in a currency other than Sterling (the “Foreign Currency”), we will convert the Foreign Currency to Sterling on the date of the Cross Border Transaction using the same conversion rate that Clearpay must pay, plus a fee of 1% of the converted amount, to calculate the payments referenced in clause (h) above and the Cross Border Transaction Fee.

(k) The terms of clause 3 of the General Terms apply to the Cross Border Transaction Fee in the same way as they apply to the Fee (including that the Cross Border Transaction Fee is not refundable unless paid incorrectly or otherwise required by law). For the avoidance of doubt, the Cross Border Transaction Fee will not be refunded or repaid to you in respect of goods that are returned to you by your Customers.

(l) In addition to the other rights of termination under this Agreement, Clearpay may terminate the provision of Cross Border Trade to you for any reason immediately by written notice to you (including without limitation where Clearpay ceases to offer Cross Border Transaction capability in connection with its Services). If Clearpay terminates Cross Border Trade, this Schedule 3 shall not apply, the remaining provisions of this Agreement shall not be affected, and the Agreement shall remain in full force and effect and shall continue to be legally binding on the parties. For the avoidance of doubt, if either party terminates this Agreement pursuant to its terms, this shall also terminate your provision of the Services to your Customers located outside the United Kingdom.

(m) You and we will, when performing obligations in relation to Cross Border Transactions for Customers located outside of the United Kingdom, each comply with the applicable Cross Border Transaction Privacy Terms available here: https://www.afterpay.com/attachment/409/download/XBPrivacy.

(n) For the avoidance of doubt, Clearpay is not performing any cross-border business and is not acting as agent for any Clearpay Affiliate in relation to the Cross Border Transactions.

(o) Additional definitions pursuant to this Schedule 3:

(i) “Cross Border Transaction” means a Clearpay Purchase between you and a Customer who is located in, and resides outside, the United Kingdom, where Delivery takes place outside the United Kingdom;

(ii) “Customer” means a customer of a Clearpay Affiliate who uses such Clearpay Affiliate’s services where they are offered outside of the United Kingdom; and

(iii) “we” includes a Clearpay Affiliate, where applicable.

Schedule 4

Clearpay Card Services

1. Introduction

1.1 If Clearpay provides such authorisation to you to use its services for transactions in your Stores under clause 1.2(e)(i) of the General Terms, this Schedule 4 (“Schedule”) shall apply and will form part of your obligations under this Agreement. This Schedule is incorporated into and subject to the terms of the Agreement. In the event of a conflict between any provision of this Schedule and any provision of the Agreement with respect to the Clearpay Card Services, the provisions of this Schedule shall control. Capitalised terms used but not defined in this Schedule shall have the meanings set forth in the Agreement.

1.2 Clearpay will provide you with the Services for use in your Stores or for use on your Websites for Customers using a digital wallet (the “Clearpay Card Services”) in accordance with this Schedule.

2. Description of the Clearpay Card Services

2.1 Clearpay Card Services. The Clearpay Card Services allow Customers to pay for Goods using a virtual card (“Clearpay Card”), which will be processed via your payment service provider and/or card acquirer (“PSP”). With respect to each use of the Clearpay Card by a Customer, Clearpay will make or cause payment to be made to you for the purchase of certain Goods on behalf of that Customer in accordance with the terms of this Schedule and the Agreement, in exchange for the payment of the Fees under clause 3 of this Schedule.

2.2 Clearpay Card Services Integration. You will integrate with the Clearpay Card Services by processing the Clearpay Card via your PSP.

2.3 Approval Confirmation for Clearpay Card Services. The successful authorisation of a transaction using the Clearpay Card through the card network constitutes Approval Confirmation to you. You must only Deliver or provide Goods to a Customer after you have received Approval Confirmation. Clearpay will not be liable to you for Goods Delivered or provided without Approval Confirmation.

2.4 Clearpay Card Authorisation. By authorising the Clearpay Card at your terminal in your Store or on your Website, you communicate to Clearpay that a Customer is making a Clearpay Purchase, and the Goods have been or will be Delivered to the Customer with a total Sale Price, plus any applicable Shipping Costs, equal to the amount of the authorisation (the “Authorisation Amount”).

2.5 Capture from Clearpay Card. You will have up to fourteen (14) days from the date of the Clearpay Purchase to capture any portion of the Authorisation Amount, based on the pound sterling value of Goods Delivered, or for Delivery, to the Customer (the aggregate amount of such Authorisation Amount so captured “Settlement Amount”). If you do not capture the full Authorisation Amount within fourteen (14) days of the Clearpay Purchase (i.e., if the Settlement Amount for a given Clearpay Purchase is less than the Authorisation Amount for that Clearpay Purchase fourteen (14) days or more after the Clearpay Purchase), we reserve the right to void and refund to the Customer the difference between the Authorisation Amount and the Settlement Amount as of the end of the fourteenth (14th) day after the purchase date. Clearpay reserves the right to hold you liable for: (i) amounts captured for a Clearpay Purchase more than fourteen (14) days after the Clearpay Purchase; (ii) amounts captured that exceed the Authorisation Amount for a particular Clearpay Purchase; and (iii) amounts captured which are not tied to the associated Authorisation Amount (collectively, the “Unauthorised Capture Amounts”). We will recover any Unauthorised Capture Amounts and any associated fees in accordance with clause 3 below.

2.6 Transmission of Settlement Amounts. Clearpay will pay you for each Clearpay Purchase made through the Clearpay Card Services by tendering payment in an aggregate amount up to the Settlement Amount to your PSP. You acknowledge that your PSP will deduct from the Settlement Amount any amount payable by you to the PSP in connection with the relevant Clearpay Purchase in respect of fees, including without limitation interchange fees, acquiring fees and other relevant scheme fees related to your receipt of the Settlement Amount via your PSP (collectively “Processing Fees”). The manner in which you receive the Settlement Amounts, the total Processing Fees payable, and the timing of settlement will depend on your arrangements with your PSP. We cannot guarantee and make no representations or warranties regarding delays or failure in receipt of all or any portion of any Settlement Amounts caused by external financial systems, your PSP, your systems, or other external factors.

2.7 Provision of Transaction Data. You must provide Clearpay with accurate business and transaction data for the purpose of facilitating Clearpay Purchases and Refunds made using the Clearpay Card Services, including scheme merchant name, merchant ID, terminal ID and such other information required by Clearpay.

3. Clearpay Card Services Fees and Invoicing

3.1 The Fee will be due on each Clearpay Purchase using the Clearpay Card Service. Clearpay will invoice you on a daily basis for any Fees, Unauthorised Capture Amounts, Non-Card Refunds, Unauthorised Refunds and Refunds incorrectly processed to the Clearpay Card in accordance with this Schedule (an “Invoice”). Clearpay may receive certain interchange fees with respect to Clearpay Purchases completed using the Clearpay Services (the “Clearpay Interchange Fees”). Clearpay will invoice you with respect to all Clearpay Purchases completed using the Clearpay Card Services for the difference between the Fee listed in Part D of the Supplementary Terms and the Clearpay Interchange Fees.  Further, Clearpay will invoice you for the Clearpay Interchange Fees associated with Clearpay Purchases subsequently accepted for Refund and returned to you via your PSP.

3.2 The Business Day following the date of the Invoice, Clearpay will debit your Account for the amounts due to us under such Invoice in accordance with the Direct Debit Request you provide us. You acknowledge and agree that Clearpay has provided you with the requisite advanced notice required to be provided to you under the Direct Debit Guarantee. The Invoice will be issued through the Merchant Portal and by email to you and such issuing will constitute notice of Clearpay’s debiting of your Account.

3.3 If Clearpay is unable to debit your Clearpay Account for amounts owed to us pursuant to this Schedule, we reserve the right to suspend your access to the Services consistent with the Agreement, or, at our option, set off such amounts against aggregate Settlement Amounts due from Clearpay Purchases made online from your Website(s) as applicable. If such amounts remain unpaid for more than ten (10) Business Days after the date on which they are due, we may immediately terminate the Agreement by notice to you and issue you an invoice for any outstanding amounts which is payable by Merchant immediately on receipt.

3.4 Merchant may change its Account from which the Fees, Unauthorised Capture Amounts, Non-Card Refunds, Unauthorised Refunds and Refunds incorrectly processed to the Clearpay Card are debited provided that it notifies Clearpay in writing with no less than ten (10) Business Days’ notice prior to any change in Account being effective.

4. Display and Use of Clearpay Name and Materials

4.1 Marketing Assets. Clearpay will make available marketing assets and other promotional material for use in your Stores to market the Clearpay Card Services. As a condition of offering the Clearpay Card Services, you agree to (i) only display descriptions of the Clearpay Card Services in terms provided or approved by us in writing; (ii) comply with any reasonable directions we give about how any description of the Clearpay Card Services or Clearpay are to be displayed in-store or on your Website(s); (iii) promptly, but in all cases within fourteen (14) days, comply with any reasonable direction we give you to modify, replace or remove any description of the Clearpay Card Services or Clearpay; and (iv) not provide any description of the Clearpay Card Services or Clearpay which does not comply with Promotional Materials, or has not otherwise been approved by us in writing. Other than pre-approved materials provided by Clearpay to you, including Promotional Materials for in-store use and as otherwise provided in this clause, you must not use Clearpay Intellectual Property in your marketing or promotional materials or on your Website(s) or Stores without obtaining the prior written approval from Clearpay.

5. Training Requirements

5.1 Training. As a condition of offering the Clearpay Card Services in your Stores, you will provide appropriate training regarding the Clearpay Card Services to your Store Personnel which shall consist of written materials provided by Clearpay to you and which include the rules on how Regulated Materials may be marketed in your Store and /or by your Store Personnel in compliance with section 21 of FSMA. For the avoidance of doubt, such written materials are for internal training purposes only and are not to be used as external marketing materials to Customers which shall be provided separately.

6. Refunds for Purchases using Clearpay Card Services

6.1 Refunds. With respect to Refunds for Clearpay Purchases made using the Clearpay Card Services: (i) If Goods are Accepted for Refund (in whole or in part) by you then any Refund Amount due in relation to the Return is owed by you to Clearpay (via the Clearpay Card) and not the Customer. You must promptly upon receipt of the returned Goods (and, at the latest, within three (3) Business Days of such receipt), process a refund to the Clearpay Card of the associated Clearpay Purchase(s). All Clearpay Purchases purchased using the Clearpay Card Services that are Accepted for Refund (in whole or in part) must be refunded via the Clearpay Card. Unless Clearpay directs you to do so, Clearpay will not accept or process a Refund Amount processed via the Clearpay Merchant Portal or the Clearpay API for Clearpay Card Clearpay Purchases. We reserve the right to hold you liable for the Refund Amounts associated with the Goods Accepted for Refund if they are refunded via any payment method or processed via any method except for the Clearpay Card (“Non-Card Refunds”); and (ii) When you agree to provide a Customer with a Refund, you will be liable to us for the Refund Amount. Clearpay will then cancel any future payments due by the Customer to Clearpay or refund to the Customer any amounts paid to Clearpay. If you process a refund amount to the Clearpay Card that has no associated Clearpay Purchase, we reserve the right to hold you liable for any disputed amounts raised by the Customers in relation to such Refund (each an “Unauthorised Refund”).

7. Changes to Agreement for Clearpay Card Services

7.1 Card Services Changes. This Schedule amends the Agreement solely with respect to the Clearpay Card Services. For the avoidance of doubt, this Schedule does not amend provisions with respect to the Services provided to you on your Website(s) via the Clearpay Gateway and each provision of this Schedule will continue in effect with respect to such Services provided to you on your Website(s) via the Clearpay Gateway without alteration.

Merchant Supplementary Terms

These are the Merchant Supplementary Terms (these “Supplementary Terms”) which, together with the Merchant General Terms of Service (the “General Terms”), a current version of which can be found at https://get.clearpay.co.uk/merchant-agreement-uk-static.html, comprise the terms of the agreement between us pursuant to which we provide the Services to you. The Supplementary Terms and the General Terms, together, referred to as the “Agreement”. In the event of any inconsistency or conflict between the terms and provisions of the General Terms and these Supplementary Terms, the terms and provisions of these Supplementary Terms shall control. All capitalized terms not otherwise defined in these Supplementary Terms will have the meanings given to them in the General Terms.

PART A. MERCHANT NAME

Merchant entity entering into this Agreement:

Merchant (Full legal name of business): _______________________________________________________

PART B. TERM

The Agreement will become effective on the date that you agree to these Supplementary Terms are agreed to by You will continue until the date that this Agreement is terminated in accordance with its terms (the “Term”).

PART C. USE OF CLEARPAY SERVICES

Clearpay grants you permission to use the Services to enable your Customers to make Clearpay Purchases on the following Website(s) operated by you.

1. ____________________________________________

2. ____________________________________________

3. ____________________________________________

4. ____________________________________________

PART D. FEE

E-COMMERCE (ONLINE) FEE

(i) The Fee for each Clearpay Purchase made on your Website(s) = Fee = ___% x Settlement Amount + £0.30.

CLEARPAY CARD SERVICES (IN-STORE) FEE

(ii) The Fee for each Clearpay Purchase made using the Clearpay Card Services = ____% x Settlement Amount + £0.30.

CROSS BORDER TRANSACTIONS

(iii) The Cross Border Transaction Fee for each Clearpay Purchase = ___% x Settlement Amount.

This means, for example, if the applicable Fee payable in the E-COMMERCE (ONLINE) FEE portion of Section D (Fee) above is ___% x Settlement Amount + £0.30, the amount payable by you for each Cross Border Transaction shall be: ___% x Settlement Amount + £0.30.