1. Overview of this Agreement
These general terms and conditions, including the terms, policies, guidelines and instructions referred to herein, (“General Terms and Conditions”) is an agreement between Smarter Payments (“we”, “our” or “us”) and you, the sole trader, company or other business entity having created an account with us (the “Merchant”, “you” or “your”), governing your access to and use of our services, including our mobile software applications (the “App”), hardware, our websites (the “Website”) and other products and services provided under the Smarter Payments brand (together, the “Services”).
By creating and using a Smarter Payments Account (defined below) you accept and agree to comply with these General Terms and Conditions. You also accept and agree to comply with to any additional terms and conditions specific to the products and services you use (“Additional Terms”), such as the Payment Terms and Conditions, which become part of your agreement with us. If you do not agree to these General Terms and Conditions and any Additional Terms that apply to you (or if you do not have the right to bind the company or other business entity you are representing), you are not permitted to access or use the Services.
Where applicable, you assume responsibility for ensuring that any of your employees or other representatives using the Services on your behalf, have read, understood and accept to be bound by these General Terms and Conditions and any Additional Terms.
It is important that you understand the risks and liabilities associated with the use of the Services, and you should read these General Terms and Conditions and any Additional Terms carefully before agreeing to them and before you start using the Services.
In order to use the Services, you must create an account with us: a “Smarter Payments Account”. The Services are only made available to sole traders, companies or other entities that operate a business selling goods and services, and are not available for personal, family or household purposes. You may create only one Smarter Payments Account, unless we approve the creation of additional Smarter Payments Accounts.
You must register as a sole trader or as a company or other business entity accepted by us. If you create a Smarter Payments Account as a sole trader, you warrant to us that you are not acting on behalf of, or for the benefit of, anyone else. If you create a Smarter Payments Account as a company or other business entity, you warrant to us that you are duly authorised to create a Smarter Payments Account in the name of that company or business entity.
If you create a Smarter Payments Account as a company or other business entity, the terms “Merchant”, “you” or “your” will mean you, the natural person, as well as such company or other business entity. You further warrant to us that: a) you are either a legal resident or citizen of the United Kingdom or a company or other business entity duly authorised to conduct business in said country, b) you will use the Services solely for trade, business or professional purposes in such country, c) you will not directly or indirectly use the Services in or into any other country unless otherwise agreed with us, and d) you, as a natural person, are at least 18 years of age and have full legal capacity to accept these General Terms and Conditions and use of the Services in the manner prescribed by us. If you register on behalf of a company or under a business name, you represent that you are a legal representative of the business, and that you are authorised to provide any information about the business, and accept these General Terms and Conditions and any Additional Terms on its behalf.
You maybe required on an on-going basis, be required to provide certain information about you and your business, including your name, registered trade name, registered address, names you are doing business under, business addresses, purpose and nature of your business, a complete description of your products and services and, where applicable, information about beneficial owners and principals of your business. You must provide accurate and complete information when creating your Smarter Payments Account. You must also make sure that all information that you provide is and remains accurate, complete and up to date. You must inform us of any changes and update the information in your Smarter Payments Account accordingly without undue delay.
We reserve the right to suspend your access to and use of the Services and to terminate and close your Smarter Payments Account if you provide us with inaccurate, untrue, or incomplete information, or if you fail to comply with any account registration requirements.
- Smarter Payments Role
The Services will enable you to, among other things, account for cash and certain other accepted payment methods through the use of the App installed on your smartphone or other compatible mobile device as well as to collect, analyse and track information generated in connection with such transactions.
You agree that we may at any time update or modify the Services. We will always attempt to notify you of any such updates or modifications with reasonable notice in accordance with section 17 However, we reserve the right to implement such updates and modifications with immediate effect without prior notice to you where necessary to maintain the security of our systems or to comply with applicable laws, rules and regulations.
Your ability to use the Services is dependent on services, including software applications, provided to you by third parties (such as Internet, data traffic, network services and point of sale solutions). Such third parties may charge you fees for accessing and using such services and applications to use the Services and you are solely responsible to pay such fees. We do not own, control or have any responsibility or liability for any third-party services or software applications you select to use in connection with the Services. We do not accept or assume any responsibility or liability for the operation or security of any third-party services or software applications, for your inability to use the Services as a result of any third-party services or software applications or for your breach of the terms of your contract with any third-party services or software applications as a result of using the Services or otherwise.
Although we will use all commercially reasonable efforts to provide the Services continuously, we do not warrant that the Services will be free from interruptions, delays or errors caused by our systems or other third party services providers, general Internet failures or force majeure. You must notify us without undue delay through our Website or by contacting our customer success team at firstname.lastname@example.org if you experience any interruptions, delays or errors in the Services, and provide all reasonably requested information and assistance in identifying and resolving such interruptions, delays or errors.
From time to time, we will perform maintenance and upgrades of the Services, which may result in interruptions, delays or errors in the Services. Although we will do our best to notify you in advance of any planned maintenance in accordance with section 13, we cannot guarantee that such notification will always be provided.
- Customer Services and Complaints
We will provide you with regular customer services by email, web or telephone during normal business hours to help resolve any issues relating to your use of the Services, the Website and through your Smarter Payments Account. You are solely responsible for providing service to your customers for any and all issues related to your products and services. You can contact us at any time if you have any complaints pertaining to our Services through the Website.
If the outcome of any complaint about our Services, after completing the complaint escalation process, is not to your satisfaction, you can escalate it by contacting:
– the UK Financial Ombudsman Service (FOS) within six (6) months of the date we send our response to you . The FOS is a free, independent service, which might be able to settle a complaint between you and us. You may obtain further information regarding the FOS and contact the FOS at https://www.financial-ombudsman.org.uk
- Errors, Unauthorised or Illegal Use
You must notify us immediately through our Website or by contacting our customer success team at email@example.com if you discover or suspect that there has been an error or unauthorised or illegal use of your Smarter Payments Account and, where possible, change your Account Credentials to prevent any further errors and/or unauthorised or illegal use. You must provide us all information and documentation in your possession as to the circumstances of any such error and/or unauthorised or illegal use of your Smarter Payments Account and take all reasonable steps requested by us to assist in an investigation.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, reported, paid, or withheld for any reason for the sale of your products and services and any payments you receive in connection with your use of our Services (“Taxes”). You are solely responsible for collecting, withholding, reporting and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply or assume any liability in relation thereto, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
- Your Privacy
We are responsible for protecting the security of personal information in our possession. We have implemented administrative, technical and organisational procedures to protect personal information that is stored in our servers from unauthorised access and accidental loss, modification or disclosure. However, we cannot guarantee that unauthorised third parties will never be able to defeat those measures or use such information for improper purposes.
- Privacy of Others
You confirm and agree that you will protect and, save where required by law, not disclose, register or otherwise process any information that you may receive about your customers or other third parties while using the Services. You must notify us through our Website or by contacting our customer success team at firstname.lastname@example.org without undue delay if you become aware of or suspect any unauthorised access to or disclosure of such information. You may not disclose or distribute any information about your customers or other third parties or use such information for marketing or other purposes unless you have ensured an applicable legal ground in accordance with applicable data protection laws prior to such disclosure or distribution. You are solely responsible for compliance with any applicable privacy laws and regulations of your specific jurisdiction, including current requirements for e.g. registration or notification to the relevant supervisory authority, where applicable, implementing appropriate security measures and providing customers and third parties with information regarding the use of their personal data.
- Your Warranties
By accepting these General Terms and Conditions, you agree that you will not use our Services in connection with the businesses or business activities including:
You shall not use our Services to receive payment for goods and/or services that:
(I) relate to (a) prescription drugs (unless the seller has all applicable authorisations for the supply of such drugs and such supply is made in accordance with applicable laws and regulations); (b) steroids and narcotics; (c) drug paraphernalia; (d) are weapons;
(II) relate to live streams, dating (including sex dating), erotic dance or comparable services; relate to pornography, including child pornography, sex clubs, escort services, prostitution, magazines, videos or images with pornographic content and sex toys in cases where such products are the only products marketed; relate to time-sharing (such as where the customer can purchase partial ownership of the right to use an accommodation during certain weeks of the year); are human body parts; promote hate and racism or other extreme political views; are illegal wildlife trade;
(III) constitute financial services; are pyramid or Ponzi schemes or multi-level marketing programs; relate to fortune telling / clairvoyant; relate to travel agencies/ airline tickets; relate to virtual currency which can be converted/exchanged to real money; relate to vouchers with a longer duration than 36 months; relate to gambling, betting, lotteries, bingo and other casino services or are binary option trades; are file hosting services (including cyberlockers); are marketplaces; are aggregators; are illegal activities (such as illegal sale of prescription drugs/tobacco/alcohol products), services, replica products and the peripheral support (service providing) of illegal activities (counterfeit goods, illegal electronic devices, and products or services which infringe upon copyright, trademarks and intellectual property rights); are circumvention devices; relate to so-called anonymity services, if the purpose of the service is to cover a persons identity on the internet;
(IV) are prohibited by law; are listed in the card network rules (including BRAM/GBPP) or, at Smarter Payments sole discretion, are otherwise doubtful from a risk, complaint or reputational perspective.
Smarter Payments shall at its sole discretion decide whether your use of the Services shall be deemed attributable to any of the above products or services and therefore not in accordance with Smarter Payments terms and conditions.
Additional prohibitions for card not present transactions
In addition, you shall not use our Services when accepting a card not present transaction to receive payment for goods and/or services that:
(I) relate to (a) pharmaceuticals and pharmaceuticals services (including prescription and no-prescription drugs and chemicals); (b) nutraceuticals;
(II) contain tobacco (including vape/ e-cigarette);
(III) are donations;
(IV) are illegal according to laws and legislation in the country where you target your sales and/or marketing.
and that you will comply, at all times,
In addition to any other warranties set out in these General Terms and Conditions and any Additional Terms, you warrant to us that: a) you are eligible to register and use the Services and have the right, power and ability to enter into and perform these General Terms and Conditions, b) the name identified by you when you registered is your name or business name under which you sell products and/or services, c) you and your use of the Services will comply with all laws, rules and regulations applicable to your business, including but without limitation consumers rights in accordance with Directive 2011/83/EU on consumer rights, Directive 2005/29/EC on unfair business-to-consumer commercial practices, and Directive 93/13/EEC on unfair terms, and Directive 2000/31/EC on electronic commerce, as implemented into applicable local law as well as any applicable tax laws and regulations, and d) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Services.
- Your Liability and Indemnification
You are responsible for all liabilities incurred by a third party and/or us caused by your access to and use of the Services and/or arising from any breach by you of any provision of these General Terms and Conditions and any Additional Terms. You agree to reimburse such third party and/or us for any and all such liability.
Notwithstanding the above or any other provision of these General Terms and Conditions or any Additional Terms, you agree to defend, indemnify, and hold us and our respective directors, agents, affiliates and representatives harmless from and against any claim (including all third-party claims), cost, suit, demand, loss, liability, damage, action, proceeding, judgment, penalty, interest and expense (including without limitation reasonable attorneys fees) arising out of or relating to: a) any actual or alleged breach by you of any provision of these General Terms and Conditions or any Additional Terms, b) your wrongful or improper use of the Services, c) your violation of any third party right, including without limitation any right of privacy, publicity rights or intellectual property rights, d) third party indemnity obligations we incur as a direct or indirect result of your acts or omissions, e) your violation of any applicable law, rule or regulation of your specific jurisdiction, and f) errors made by you in providing information or instructions to us, whether through your Account or any other means of communication.
- No Warranties
We provide the Services to you on an as is and as available basis without any warranty or condition, express or implied, except as specifically stated in these General Terms and Conditions. We do not warrant continuous, uninterrupted or secure access to any part of the Services, and we will not be liable for any disruption or impairment of the Services under these General Terms and Conditions.
Without limiting the foregoing, we do not warrant that the Services are accurate, reliable or correct, that the Services will meet your requirements, that the Services will be available at any particular time or location, uninterrupted or secure, that any defects or errors will be corrected, or that the Services are free from viruses or other harmful components. Your use of the Services is at your own risk; any content or data downloaded or otherwise obtained through the use of the Services is downloaded at your own risk and you will be solely responsible for any damage to your property or loss of data that results from such download.
- Limitation of Liability
In no event will we be liable for any of the following types of loss or damage arising under or in relation to your use of the Services, these General Terms and Conditions, any Additional Terms or otherwise: a) indirect or consequential loss or damage (including loss of profits, goodwill, business, contracts, revenue or anticipated savings even if we are advised of the possibility of such damages), b) loss or corruption of data, c) loss or damage whatsoever which does not stem directly from our breach of these General Terms and Conditions or any Additional Terms, d) loss or damage whatsoever which is in excess of that which was caused as a direct result of our breach of these General Terms and Conditions or any Additional Terms (whether or not you are able to prove such loss or damage), or e) loss or damage incurred by you as a result of any acts or omissions by you or any third parties or our obligation to comply with applicable law, any act or omission of any governmental authority, act of war, accident, natural disaster, strike, blockade, or other similar event, regardless of if we are an instigator or subject of such event.
Notwithstanding any other conflicting provisions that may be contained in these General Terms and Conditions or any Additional terms, nothing in these General Terms and Conditions or any Additional Terms will limit our liability resulting from our fraud or fraudulent misrepresentation, gross negligence, wilful misconduct, for death or personal injury resulting from our negligence or to the extent such limitation or exclusion is not permitted by applicable law.
Our total liability to you under or in connection with these General Terms and Conditions and any Additional Terms in respect of any and all claims will not exceed in the aggregate the amount of the fees paid by you to us for the Services during the three-month period immediately preceding the event giving rise to the claim for liability, or if you have not used the Services for three (3) months, your average monthly fee multiplied by three (3).
- Information and Communication
You agree that we can provide written communication and information to you electronically by posting or on our Website, or by emailing it to your specified email address associated with your Smarter Payments Account. Such notices and information will be deemed received by you within 24 hours as of posted on our Website or within 24 hours as of emailed to you, unless we receive notice that the email was not delivered. For this purpose, you will at all times maintain at least one valid email address associated with your Smarter Payments Account. We will not be responsible for undelivered emails if the sole email address specified by you is not valid or if you have changed your email address but have not notified us of such change.
You are required to check for incoming notices and information regularly and frequently. Emails may contain links to further communication on our Website. Where any laws or regulations require us to provide information to you on a durable medium, we will either send you an email or send you a notification pointing you to information on our Website in a way that enables you to retain the information in print format.
Apart from notices to you via email, we reserve the right to contact you via letter or telephone, when appropriate. Any notices or information sent by post will be deemed received by you five days as of posting.
You hereby instruct us to notify you of any incidents we are legally obliged to inform our customers about to the e-mail address that you have connected to your Smarter Payments Account.
We will set your preferred language based on the country you choose during the registration process and we will send you standard notices and information in your chosen language. For non-standard communication, we reserve the right to communicate with you in English language.
- Your License
While we want you to enjoy the Services, you may not, nor may you permit any third party to, do any of the following: a) access or monitor any material or information on our systems using any manual process or robot, spider, scraper or other automated means unless you have separately executed a written agreement with us that expressly grants you an exception to this prohibition, b) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute the Services or any material or information that you receive, or is granted access to, from us, c) permit any third party to use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement, d) transfer any rights granted to you under these General Terms and Conditions or any Additional Terms, e) violate the restrictions on the Services, work around, bypass or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services, f) perform or attempt to perform any actions that would interfere with the proper functionality of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonably or disproportionately large load on our infrastructure, or g) otherwise use the Services except as expressly allowed under these General Terms and Conditions and any Additional Terms.
- Third Party Websites
Our Website may contain links to third party websites. The inclusion of any website link does not imply an approval, endorsement or recommendation by us. You agree that you access any such website at your own risk, and that such site is not governed by the terms and conditions contained in these General Terms and Conditions or any Additional Terms. We expressly disclaim any liability for these websites. Browsing and interaction on any other website, including those that have a link on our website, is subject to that websites own rules and policies.
- Term and Termination
These General Terms and Conditions and any Additional Terms are effective upon the date you agree to them and will remain in force until terminated by you or by us.
You may terminate these General Terms and Conditions and any Additional Terms at any time by closing your Smarter Payments Account in accordance with the instructions available on your contract.
We may terminate these General Terms and Conditions and any Additional Terms or suspend or close your Smarter Payments Account at our convenience by providing you with 30 days prior notice, or otherwise at any time upon prior notice to you in accordance with section 13.
We may also terminate these General Terms and Conditions and any Additional Terms or suspend or close your Smarter Payments Account without prior notice to you if: a) you breach or otherwise do not comply with any provision of these General Terms and Conditions b) we have reason to believe that you are in any way involved in any fraudulent activity, money laundering, terrorism financing or other criminal activity, c) you pose an unacceptable credit or fraud risk to us, or d) you are declared insolvent, become subject to debt relief proceedings, enter into composition proceedings or similar debt relief arrangements, are declared bankrupt or enter into restructuring proceedings.
If your Smarter Payments Account is suspended or closed or these General Terms and Conditions or Additional Terms are terminated (either by you or us) you agree: a) to continue to be bound by these General Terms and Conditions and any Additional Terms until any outstanding liabilities and obligations between you and us have been finally settled, b) to immediately cease your use of the Services, c) that we may delete all of your information and account data stored on our servers, unless we are required to retain such information under applicable law, and e) that we will not be liable to you for compensation, reimbursement or damages in connection with the deletion of your information or account data.
We will not be liable to you for compensation, reimbursement or damages in connection with any termination of these General Terms and Conditions, any Additional Terms or closing or suspension of your Smarter Payments Account. Any termination of these General Terms and Conditions, any Additional Terms or closure or suspension of your Smarter Payments Account does not relieve you of your obligations under these General Terms and Conditions or any Additional Terms.
- Amendments and Changes
We have the right to amend, delete or add to these General Terms and Conditions and any Additional Terms and change, delete, discontinue or impose conditions on any feature or aspect of the Services at any time. We will give you 30 days’ notice of any change, however always at least in accordance with mandatory law, in accordance with section 13 with the change taking effect once the 30 day notice period has passed, except that the 30 day notice period will not apply where a change is required by the Card Scheme Rules (as defined in the Payment Terms and Conditions) or applicable law or relates to the addition of a new service, extra functionality to the existing Services or any other change which we believe in our reasonable opinion to neither reduce your rights nor increase your responsibilities. Under such circumstances, the change will be made without prior notice to you and will be effective immediately.
- Force Majeure
18.Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster.
(b) epidemic or pandemic.
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations.
(d) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition.
(e) collapse of buildings, fire, explosion or accident.
(f) interruption or failure of utility service.
18.2 Provided it has complied with Clause 18.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
18.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
18.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 14 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
18.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 2 months the party not affected by the Force Majeure Event may terminate this agreement by giving 1 written notice to the Affected Party.
19.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
19.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
19.3 The obligations set out in this Clause 19 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this Clause 19; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
19.4 The obligations of confidentiality in this Clause 19 shall not be affected by the expiry or termination of this agreement.
This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
21. Third party rights
This agreement does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
23 Rights and remedies
26.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
If any provision or part-provision of this agreement is deemed deleted under Clause 24, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
28 Governing law
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
If you have any questions or concerns regarding the content of these General Terms and Conditions or any Additional Terms or would like to get a better understanding of how our services work, please do not hesitate to contact us.