These Merchant Services Terms and Conditions (the “Terms and Conditions”) have been drafted on the basis that the agreement between the Merchant and eCOMM Merchant Solutions Limited (“EMS”) relating to merchant services (the “Agreement”) is comprised of each of the following documents:

1. The Terms and Conditions; and
2. The Merchant Services Agreement (the “MSA”).

Each of the Terms and Conditions and the MSA, together with such other documents as the parties may from time to time agree shall constitute the Agreement between EMS and the Merchant.

The Merchant is obliged to review carefully all of the documents comprising the Agreement between the Merchant and EMS which set out the terms on which the Merchant will receive merchant services. Save as where otherwise indicated, references in the Agreement to capitalised terms are to terms as defined in the Terms and Conditions, and/or the MSA.

1. Definitions and Interpretation

1.1 In the Agreement the following words and expressions have the following meanings:

1.1 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights

1.2 Headings in the Agreement are for ease of reference only and do not affect its interpretation.

1.3 The plural includes the singular and the other way around.

1.4 Where anything in the Agreement requires any Party to do or refrain from doing anything, the Party agrees that it is its obligation to ensure that its Representatives comply with the requirement.

1.5 The Agreement is concluded in the English language and all communications (including any notices or the information being transmitted) shall be in English. In the event that the Agreement is translated, for your convenience, into any other language, the English language text of the Agreement shall prevail.

2. Merchant Services and Technical Services

2.1 The Agreement governs the process by which EMS will make available the Merchant ID and provide Merchant Services for the Merchant to accept Payments.

2.2 In return for the Fees, EMS shall supply the Merchant with the Merchant Services in accordance with the Agreement, with reasonable care and skill, and in compliance with Applicable Law and the Card Scheme Rules.

2.3 In return for the Fees related to the Technical Services, EMS shall supply the Merchant with the Technical Services in accordance with the Agreement, with reasonable care and skill, and in compliance with Applicable Law, however, the Parties acknowledge that 

Technical Services are not regulated under the Payment Services Regulations 2009.

2.4 If the Merchant’s annual turnover and/or annual balance sheet total exceeds

€2 million and the Merchant has at least ten (10) employees (a “Large Enterprise”), or the Merchant is a charity with annual income of €1 million or more (a “Large Charity”), the Merchant:

2.4.1 confirms that it is not a consumer, micro-enterprise or a charity within the meaning of the Payment Services Regulations;

2.4.2 agrees that none of the provisions of Part 5 of the Payment Services Regulations applies to the Agreement; and

2.4.3 agrees that regulations 54(1), 55(2), 60, 62, 63, 64, 67, 75, 76 and 77 of the Payment Services Regulations do not apply to the Agreement.

2.5 EMS reserves the right to change the Agreement (including, the level of any Fee) on 1 months’ notice at any time, without liability, in which case the Merchant may terminate the Agreement immediately and without charge before the proposed changes take effect, otherwise the Merchant shall be deemed to have accepted such changes when that notice period expires.

2.6 For the avoidance of doubt, while EMS shall be responsible for the Verification of Cards via the Schemes, the Merchant shall be solely responsible for Chargebacks, Chargeback Costs and Chargeback fees charged by the Card Scheme, as per the MSA.

3. Merchant Payment Account and Merchant IDs

3.1 The Merchant Payment Account is a data account in EMS’ systems that includes Transaction details (including applicable Fees, dates and, where relevant, the currency of the Transaction and any applicable exchange rate(s)) and certain details about the Merchant.

3.2 To be eligible for a Merchant Payment Account, the Merchant must be a Merchant incorporated in the Territory.

3.3 Each time the Merchant seeks to access the Merchant Payment Account EMS will check the Merchant’s identity by asking for Access Codes. As long as the correct Access Codes are entered, EMS will assume that the Merchant is the person giving instructions and making Transactions and the Merchant will be liable for them, except to the extent provided for in Clause 3.5. The Merchant must therefore keep the Access Codes secret and make sure that they are not stored in a way that enables others to impersonate the Merchant. If the Merchant discloses the Access Codes to any person or entity whom the Merchant employs or otherwise retains, appoints or authorises to access the Merchant Payment Account, the Merchant is also responsible and liable for any access, use or misuse or disclosure of the Merchant’s Access Codes or Merchant Payment Account by such person or entity.

3.4 EMS can refuse to act on any instruction that EMS believes: (i) was unclear; (ii) was not given by the Merchant; or (iii) might cause EMS to breach a legal or other duty; or if EMS believes the Service is being used for an illegal purpose.

3.5 Unless and until the Merchant notifies EMS by email to csr@ecomm365.com that the Merchant believes that someone else knows the Access Codes or can use the Service by impersonating the Merchant:

3.5.1 the Merchant will be responsible for any instruction which EMS receives and acts on, even if it was not given by the Merchant; and

3.5.2 EMS will not be responsible for any unauthorised access to confidential information about the Merchant in the Merchant Payment Account.

3.6 EMS will do all that EMS reasonably can to prevent unauthorised access to the Merchant Payment Account. As long as the Merchant has not breached the other terms contained in this Clause 3, EMS will accept liability for any loss or damage to the Merchant resulting directly from any unauthorised access to Merchant Payment Account pursuant to Clause 15 of the Agreement.

3.7 Amounts shown in the Merchant Payment Account are denominated in the currency the Merchant has chosen from among the Supported Currencies. Interest does not accrue on any funds corresponding to such amounts. The Merchant Payment Account is not a bank account and the Merchant Services are not covered by the Financial Services Compensation Scheme.

3.8 Funds in the EMS Merchant Funds Account will be held in one or more segregated bank accounts separately from EMS’ own funds, in accordance with the provisions of the Payment Services Regulations 2009. No interest will be paid by EMS on funds held in the EMS Merchant Funds Account.

3.9 Merchant IDs may only be introduced and operated with the formal written consent of EMS. EMS may at its discretion withhold its consent to any Merchant ID, or to any changes being made to any Merchant ID (such discretion to be exercised reasonably; and for the avoidance of doubt any withholding of consent for reasons relating to available resources and temporary staffing shortage shall be considered a reasonable exercise of discretion).

3.10 Prior to the allocation by EMS of any Merchant ID, the Merchant must provide full details of the proposed use of such Merchant ID to EMS. The details must include, but not be limited to:

3.10.1 The use of each Merchant ID by the Merchant must:

3.10.1.1 be and remain fully compliant with any provisions of the Card Scheme Rules (as notified to the Merchant by EMS or otherwise);

3.10.1.2 be and remain fully compliant with all Applicable Law, as well as EMS’ policies and procedures including those described in the MSA Schedule.

4. Merchant’s Bank Account and Security Account

4.1 During the Term, the Merchant must maintain a Merchant’s Bank Account at a duly authorized credit institution in the sole name of the Merchant to which EMS may pay any Settlement Amount, and the Merchant shall have the sole mandate in respect of such account.

4.2 The Merchant shall notify EMS in writing in advance of any changes proposed by the Merchant or any third party in respect of the Merchant’s Bank Account (including, without limitation, the location of the branch at which such account is held) and shall not implement such changes without EMS’ prior written consent (such consent not to be unreasonably withheld or delayed). If any change in the Merchant’s Bank Account details is imposed on it, the Merchant shall notify EMS in writing immediately, giving full details of such changes and the reasons for them.

4.3 EMS may at any time require the Merchant to maintain with the Merchant’s bank an instruction to authorise EMS to directly debit from the Merchant’s Bank Account all sums that become due and payable by the Merchant to EMS under or in connection with the Agreement in the event that any amount remains due and payable by the Merchant to EMS after the Settlement Process has been followed. The Merchant will ensure that the Merchant’s Bank Account shall at all times have a credit balance sufficient to meet any sums due and payable to EMS under or in connection with the Agreement. EMS shall if practicable notify the Merchant in advance of any sums payable by the Merchant to EMS which EMS intends to debit by direct debit. This Clause 4.3 shall not prejudice any rights the Merchant may have under Applicable Law or the UK Direct Debit Guarantee Scheme to recover payments made to EMS by direct debit.

4.4 EMS may at any time require the Merchant within 30 days after receiving EMS’ written request that a person or persons reasonably satisfactory to EMS, provide EMS with a guarantee, indemnity or other security (including the replacement of any existing security) in such form and over such assets as EMS may reasonably require to secure to its reasonable satisfaction the performance of the Merchant’s obligations (including contingent or potential obligations) from time to time under the Agreement.

4.5 The Merchant shall ensure that any Security Account that EMS requires under Clause 4.4 will contain sufficient funds to cover any fees, unbilled processing costs plus EMS’ estimated exposure based on the Merchant’s susceptibility to Chargebacks, returns and unshipped merchandise and/or unfulfilled services. EMS may (but is not required to) apply funds in the Security Account toward and may set off any funds that would otherwise be payable to the Merchant against, the satisfaction of any amounts which are or become due from Merchant pursuant to the Agreement. The Security Account will not bear interest, and the Security Account shall be subject to EMS’ sole dominion and control. The Merchant hereby irrevocably grants to EMS a security interest in the Security Account and any and all funds on deposit therein, together with the proceeds thereof that may at any time be in EMS’ possession and control. The Merchant agrees to execute and deliver to EMS such instruments and documents that EMS may request to perfect and confirm the security interest and right of setoff set forth in this Clause 4.5. The Merchant hereby authorizes the Merchant’s financial institution where the Security Account is maintained to comply with the instructions originated by EMS with respect to the Security Account. The Merchant’s obligations and EMS’ rights under this Section shall survive termination of the Agreement.

5. Fees, Chargebacks and Settlement

5.1 The Merchant must pay to EMS in accordance with the Settlement Process:

5.1.1 the Fees relating to the Technical Services specified in the MSA;

5.1.2 the Fees relating to the Merchant Services as specified in the MSA;

5.1.3 All fees, fines or Assessments that EMS incurs with the Card Scheme and or Regulator in relation to the Transactions. If a fee or fine is imposed by the schemes or regulator then EMS will also pass on an additional fee for the same value for putting the EMS license at risk.

5.1.4 Any other fees EMS incurs in relation to the Services, subject to the prior written consent of Merchant, such consent is not unreasonably withheld;

1. EMS shall in accordance with the Settlement Process:

5.2.1 credit to the Merchant Payment Account(s) at the end of every Settlement Period the amount of funds received in relation to Payments, Refund Reversals, Representments during such Business Day from the Card Scheme, net of Chargebacks, Chargeback Costs, Refunds, Fees, amounts payable to EMS under any indemnity given by it under the Agreement, any other amounts referred to in Clause 5.1 and any deferral(s) under Clause 5.3,  and

5.2.2 disburse each Settlement Amount to the Merchant in the Supported Currency or as otherwise agreed with the Merchant.

In circumstances where a currency conversion is applied to the Settlement Amount, EMS shall use its prevailing exchange rate of the day, applied on the date of disbursement, or such other reference rate as EMS may notify the Merchant. The reference rate will fluctuate and is therefore indicative only.

5.3 EMS may defer payment of any Settlement Amount:

5.3.1 if, following any deductions pursuant to Clause 5.2, the amount of such Settlement Amount is less than the minimum threshold that EMS reasonably determine in our sole and absolute discretion (of which EMS will notify the Merchant from time to time), until the total Settlement Amount payable reaches that threshold as set in the MSA;

5.3.2 where EMS reasonably believes that a Transaction may be fraudulent or involves other criminal activity, until the satisfactory completion of EMS’ investigation or that of any Card Scheme, regulatory or third party; or

5.3.3 without limit in amount or time, if EMS becomes aware or reasonably believes that the Merchant is in breach of or likely to be in breach of its obligations under the Agreement.

5.4 The Merchant hereby irrevocably authorises EMS from time to time without notice and both before and after demand to set-off by whatever means the whole or any part of the Merchant’s liabilities to EMS under the Agreement against any Settlement Amount due to the Merchant against any sums owed by EMS to the Merchant under the Agreement. Any exercise by EMS of its rights under this Clause 5.4 shall be without prejudice and in addition to any other rights or remedies available to it under the Agreement or otherwise.

5.5 The Merchant is not entitled to set-off any of EMS’ liabilities to the Merchant under the Agreement or any other agreement (whether such liabilities are present, future, actual, contingent or potential) against any amounts due to EMS 

from the Merchant.

5.6 Any Fees or other sums payable under the Agreement are exclusive of any applicable Value Added Tax, which must, in all cases be paid by the Merchant. VAT is not currently chargeable on financial transactions but is chargeable on services. Should the rules on VAT change in the future in this regard, the new Vat rules will apply going forward. 

5.7 Each Chargeback and each Assessment represents a debt immediately due and payable by the Merchant to EMS. The Merchant acknowledges and agrees that it may be required to reimburse EMS for Chargebacks in circumstances where it has accepted payment in respect of the relevant sale or supply, even if it is under no legal liability in respect of the supply of the goods or services concerned. To the extent permitted by Applicable Law, EMS shall notify the Merchant as soon as reasonably practicable of any applicable Chargebacks and Chargeback Costs which have occurred or have been incurred. Any Chargebacks shall correspond to the whole or part of the value in the currency of the original Payment. In the event that the Merchant wishes to dispute a Chargeback, it is the Merchant’s responsibility to prove to EMS’, the Card Issuer’s or Card Scheme’s reasonable satisfaction that the debit of the Cardholder’s account was authorised by that Cardholder. The Merchant acknowledges and agrees that any decision or determination of the relevant Card Scheme as to the validity and extent of any Chargeback and/or Assessment shall be final and binding.

5.8 As Chargebacks may arise a considerable period of time after the date of the relevant Payment, the Merchant acknowledges and agrees that, notwithstanding any termination of the Agreement for any reason, EMS shall remain entitled to recover Chargebacks and Chargeback Costs from the Merchant under the Agreement (and, where relevant, from any person who has provided a guarantee or security under the Agreement) in respect of all Chargebacks that occur in relation to Payments processed by EMS during the Term.

5.9 The Merchant shall be liable for all Chargebacks, Chargeback Costs or Assessments.

5.10 For the avoidance of doubt, all scheme fines (for violations, non- compliance, etc.) will be passed through to the Merchant. Should EMS receive a fine from one Scheme it will be assumed the other Scheme will also charge the

same fine in due course and both fines will apply. EMS reserves the right to deduct these scheme fines from the Merchant’s Settlement Amount.

5.11 Without prejudice to all other rights and remedies available in law or in equity, EMS or where applicable the Merchant (“the Invoicing Party”) may assess a late charge at a rate of four percent (4%) per annum above base rate of Barclays Bank Plc on all undisputed amounts not paid within three (3) days after such payment becomes due and payable. Each Party acknowledges and agrees that the interest payments set out in this Clause 5.11 are, in the context of the activities contemplated under the Agreement, a “Substantial Remedy” (as this expression is used in the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from time to time). EMS may also suspend the Services, for as long as any such amount is not reasonably disputed and remains unpaid after the three (3) day period.

6. Obligations of Merchant

6.1 During the Term, the Merchant shall:

6.1.1 require Cardholders to complete Verifications which comply with the Card Scheme Rules and Applicable Law;

6.1.2 comply with its obligations under the Card Scheme Rules, to the extent that EMS and/or the relevant Card Scheme informs the Merchant of those obligations;

6.1.3 comply with all Applicable Law, including such as applies to any sale of goods and/or services by the Merchant in connection with the Transactions and the execution and performance by the Merchant of its obligations under the Agreement;

6.1.4 comply with its contractual obligations relating to any sale and/or supply of goods and/or services by it to Cardholders;

6.1.5 only undertake Transactions with Cardholders in connection with goods and/or services which the Merchant has sold and supplied to them;

6.1.6 only undertake Transactions with Cardholders in respect of goods and services the sale and supply of which commonly fall within the Merchant’s business or as identified to EMS;

6.1.7 only undertake Payments which a Cardholder has authorised in accordance with Applicable Law, the Agreement, the Card Scheme Rules and any other information or instructions provided by EMS to the Merchant from time to time;

6.1.8 refrain from doing anything which EMS reasonably believes to be disreputable or capable of damaging the reputation or goodwill of EMS or any Card Schemes;

6.1.9 take reasonable steps to ensure that its Representatives cannot procure, connive or be party to any fraud related to the Cards or Merchant Payment Account;

6.1.10 notify EMS immediately if it becomes aware of or suspects any security breach relating to Transaction Data or any Cardholder’s personal data (whether or not the Merchant has complied with the PCI DSS) and as soon as reasonably practicable, (without prejudice to any other remedy EMS has in respect thereof) immediately identify and resolve the cause of such security breach and take any steps that EMS may require, including but not limited to the procurement (at the Merchant’s cost) of forensic expertise from third parties recommended by EMS.

6.2 The Merchant is responsible for resolving all disputes and queries arising in respect of goods or services sold or supplied in relation to the Transactions, which occur with the Cardholders, subject to the Merchant’s liability for Chargebacks.

6.3 Either Party must inform the other Party within 30 days in the event of any relevant change in control. For the purposes of this Clause 6.3, a relevant change in control takes place if, in respect of the Merchant or any of its Holding Companies, a person becomes (for the first time) or ceases to become a “Relevant Controller”, meaning either

6.3.1.a director of that Merchant company (or an officer with similar powers to a director); or

6.3.2 the owner of at least 10% of the issued share capital of that Merchant company, or the holder or controller of 10% of the voting rights of that relevant Merchant company and “Holding Company” has the same meaning as it does in Section 1159 of the Companies Act 2006.

6.4 The Merchant shall perform its obligations in a timely manner and shall provide EMS with all reasonable cooperation reasonably required by EMS to perform its obligations under the Agreement.

6.5 Unless otherwise agreed by EMS in writing, the Merchant acknowledges and agrees that the Merchant shall (at its own cost) be solely responsible throughout the Term for the provision of all equipment, software, systems and telecommunications facilities which are required to enable the Merchant to receive the Services under the Agreement.

6.6 Unless otherwise agreed by EMS in writing in advance, where EMS provides the Merchant Services in the UK territory (as defined by the relevant Card Scheme), the Merchant agrees to maintain its registered office in the UK for the duration of the Agreement and provide EMS with prior written notice of any change to its location.

6.7 EMS may at any time review the Merchant’s use of the Services supplied to it under the Agreement to determine whether it is compliant in all respects with the provisions of the Agreement. If, whether on undertaking such review or otherwise, EMS considers or decides the Merchant’s activities are non-compliant, EMS will inform the Merchant accordingly (if that is not prohibited under Applicable Law), giving reasons why it so considers or decides and will (save in so far as this may be inconsistent with Applicable Law or the Card Scheme Rules or otherwise may be impracticable) give the Merchant 30 days to remedy any such non-compliance.

7. PR

Neither Party nor any Representative will give, make or cause to be given or made any Publicity relating to any other Party whether in relation to the performance and existence of the Agreement or any arrangement between the Parties, without the prior written consent of the other, except where this is required by Applicable Law. If Applicable Law requires Publicity, the publisher must, so far as practicable, consult the other Party prior to the Publicity and provide the other with a copy or record of the Publicity as soon as possible.

8. Accounting, Management Information and Reconciliation

8.1 The Merchant agrees:

8.1.1 to supply EMS with such information as may reasonably be necessary to enable EMS to monitor or review the operation of the Agreement and the processing of Transactions; and

8.1.2 to keep and maintain such records as may be necessary to enable EMS, its auditors and any Regulator to assess and satisfy themselves that there has been compliance with the matters referred to in the Agreement.

8.2 The information referred to in Clause 8.1 shall be provided when practicable at a frequency and form to be agreed between EMS and the Merchant, but in any event on 48 hours’ notice from EMS that such information is required (except where a different time period is stipulated in the Agreement, or in any case where the information is required even sooner due to need to comply with Applicable Regulations or request or direction from Regulator, in which case information must be provided upon request, without undue delay).

9. Rights of Assistance & Audit

9.1 The Merchant shall co-operate with any duly authorised employee, agent or other representative of EMS or the Financial Conduct Authority of the UK or any other Regulator in such matters as EMS reasonably requires, including in connection with the discharge of any duty under the Applicable Law. Such co- operation may include reasonable access upon prior written notice to relevant personnel, documentation, information, data, systems, premises and communications networks in the possession custody or control of the Merchant.

9.2 The Merchant shall keep all records of Transactions for 6 years from completion of such Transactions. The Merchant will produce a reasonable number of specific records on demand within 8 office hours of the request from EMS, or Regulator. Where there is an ongoing investigation by a Regulator which involves or may involve a specific Card, a Cardholder or Card Transaction, the records in relation to such Cardholder or Card Transaction must be kept beyond the limits set out above, until such time as the relevant investigation has been completed.

9.3 EMS shall be entitled from time to time on 7 days’ notice to require the Merchant to permit or procure permission for any of EMS’ duly authorised employees, agents or representatives or any Regulator to audit the Merchant’s relevant records, systems and procedures – and those of the Merchant’s clients – for any of the following purposes:

9.3.1 to assess the Merchant’s and the Merchant’s clients’ compliance with the Applicable Law or the Agreement: or

9.3.2 to enable EMS or its relevant employee, agent or representative to carry out any right or duty conferred or imposed by the Law or a Regulator, or to carry out any request made by a Regulator;

9.3.3 to assess any sums payable or receivable by EMS or in respect of which the Merchant is otherwise accountable to EMS.

 9.4 The Merchant shall for the purpose of an audit under Clause 9.3 at all reasonable times during office hours provide reasonable access to its premises, relevant records, procedures and staff as may be reasonably necessary or desirable in connection with the audit upon prior written consent and shall permit any employee, agent or representative to take copies of relevant documents or computer files.

10. Provision and Disclosure of Transaction Data & Information

10.1 EMS may, from time to time, reasonably request the Merchant to provide copies of Data, in which event the Merchant shall provide such copies to EMS within fourteen (14) days of such request being received.

10.2 Upon EMS’ request, the Merchant shall at all times throughout the Term (and for a period of 12 months thereafter):

10.2.1 disclose to EMS such information as EMS reasonably requires relating to the performance of the obligations under the Agreement, the Rules or Applicable Law;

10.2.2 take all reasonable steps to assist EMS in handling any Claim or query raised by a Cardholder, a Card Issuer, a Card Scheme or any other third party in relation to any Transaction;

10.2.3 co-operate in providing all information requested by EMS in order for Transactions to be accepted or otherwise to enable EMS to provide the Merchant with any of the services (or any part thereof) under the Agreement; and

10.2.4 to enable EMS to assess the Merchant’s financial position throughout the Term, provide EMS with the Merchant’s latest audited accounts (if any) and any other information EMS may reasonably require (including but not limited to management accounts).

10.3 The Merchant hereby authorises EMS to use, share and release Transaction Data and any other information relating to the Merchant to any person, including Group Companies of EMS and/or, Card Issuers, Card Schemes, law enforcement agencies and credit reference agencies (or, if instructed by EMS, the Merchant shall provide such Transaction Data or information or procure that such Transaction Data or information is provided to such persons):

10.3.1 for the purpose of fulfilling EMS’ obligations under the Agreement or the Card Scheme Rules or otherwise as required by Applicable Law;

10.3.2 to assess financial and insurance risks;

10.3.3 in relation to any breach of, or to enforce, the Agreement;

10.3.4 to recover debt or in relation to the Merchant’s insolvency;

10.3.5 to develop customer relationships, services and systems;

10.3.6 to prevent and detect fraud or crime;

10.3.7 in the course of any investigation by EMS or any third party into any suspected criminal activity;

10.3.8 regarding information security, the risk of fraud, sector risk and credit risk; or

10.3.9 to enable the Card Schemes to assign a Reason Code to any undesirable act or omission.

10.4 The Merchant shall advise EMS in writing as soon as the Merchant becomes aware of any:

10.4.1 other agreement that the Merchant enters into concerning its acceptance of Transactions;

10.4.2 act, omission or error which does or may:

(a) cause material loss or damage to EMS; or

(b) adversely affect the Merchant’s ability to perform its obligations under the Agreement;

10.4.3 actual or suspected violation or compromise of the security or integrity of any Transaction Data; or

10.4.4 any material change in the nature of the Merchant’s business or in the goods and/or services supplied to its customers or of any additional business commenced by the Merchant or of the cessation of the Merchant’s business.

10.5 If the Merchant contacts EMS electronically, EMS may collect its electronic identifier (for example, Internet Protocol (IP) address or telephone number) supplied by the Merchant’s service provider.

10.6 EMS may make periodic searches of and provide information about the Merchant to credit reference agencies, fraud prevention agencies, Card Issuers, Card Schemes and Group Companies to manage and take decisions about their relationship or prospective relationship with the Merchant. Such information may be used by other credit providers to take decisions about the Merchant and the Merchant’s financial associates. EMS may also review the Merchant and its business activities (including without limitation by electronic means) to monitor the Merchant’s compliance with the Agreement.

10.7 EMS may disclose information concerning the Merchant to third parties where EMS aggregates data to facilitate cross-industry analysis and comparisons.

10.8 The information which EMS collects from the Merchant may be transferred to, processed and stored at, a destination outside the European Economic Area (“EEA”).

10.9 In the event that EMS considers that any act or omission of the Merchant falls within a Reason Code, details of any such act or omission shall be advised to the Merchant and shall also be available on request. In addition, the fact of termination (if any) under Clause 14 and the Reason Code forming the grounds for termination shall be notified to (and may be recorded by) the Card Schemes and thereafter be maintained by them in accordance with their normal practice. The aforementioned database records are available for enquiry by any merchant acquirer and Card Issuer. In certain circumstances, they are also made available to crime enforcement authorities.

10.10 EMS shall have no liability to the Merchant for any inaccuracy in the information EMS provides to any third parties pursuant to this Clause 10. 10.11 EMS will provide or make available to the Merchant a written record of Account (statement), setting out the following details in respect of all account transactions; (a) A reference enabling the Customer to identify each transaction; (b) The amount of the transaction; (c) The amount of any charges applied to the transaction; (d) Where applicable, the exchange rate applied to the transaction; (e) The debit or credit value date of the transaction; Account statements will be provided or made available free of charge, in a PDF format. In line with the regulatory rules, we only store and make available information on transactions for six (6) years.

11. Intellectual Property

All Intellectual Property Rights belonging to either Party at the Commencement Date, shall remain at all times that Party’s property and neither Party will acquire any right, title and/or interest in the other Party’s Intellectual Property Rights as a result of the Agreement.

12. Confidential Information

12.1 All Confidential Information relating to either Party is passed to and shall be received and kept by the other Party and any Representative in the strictest confidence and shall be used only for purposes connected with the subject of the Agreement and for no other purpose.

12.2 The Merchant shall not and shall not permit any Representative to disclose, divulge or grant access to such information to anyone.

12.3 All Confidential Information relating to the Merchant and its Representatives that is passed to and shall be received and kept by EMS in the strictest confidence and EMS shall not disclose, divulge or grant access to the Confidential Information to any person.

12.4 Neither Party may make any use of Confidential Information, including for the avoidance of doubt information regarding Cardholders for any purposes other than purposes connected with the operation of the Agreement and compliance with Applicable Law and Card Scheme Rules.

12.5 Notwithstanding the foregoing provisions either Party may disclose Confidential Information if required to do so by a court of law or Regulator, or under any Applicable Law.

12.6 Subject only to any Applicable Law which requires otherwise, each Party will at the request of any other Party (the “Requesting Party”) at any time after the termination of the Agreement immediately destroy, irrevocably erase or return to the Requesting Party any Confidential Information provided by the Requesting Party to the other Party within 5 Business Days of being so requested provide the Requesting Party with a written statement clearly stating that this Clause has been fulfilled.

12.7 If and to the extent that any Applicable Law requires information to be preserved, so that a Party or any Representative cannot and does not destroy Confidential Information pursuant to a request under Clause 12.6, the Party retaining the Confidential Information must notify the Requesting Party in writing giving details of the Confidential Information which has not been destroyed.

13. Data Protection

13.1 The Parties agree that for the purposes of the Data Protection Law, as between the Parties, the Merchant is a Data Processor in respect of Cardholder Data and processes the Cardholder Data soley on behalf of and in accordance with the instructions of EMS which is the Data Controller. Each Party warrants to the other that: –

13.1.1 it is registered to deal in personal data as contemplated in the Agreement under Data Protection Law and has complied with and will for the duration of the Agreement continue to adhere to the provisions of the Data Protection Law;

13.1.2 it will maintain any license or registration needed to comply with Data Protection Law or other Applicable Law;

13.1.3 It shall comply and shall procure the compliance of its personnel with Data Protection Law;

13.1.4 It shall use appropriate technical and organisational security measures (which includes pseudonymising and encrypting personal data as appropriate) against unauthorised or unlawful processing of the Cardholder Data and against accidental loss or destruction of, or damage to, such Cardholder Data;

13.1.5 Not make any changes to its information security measures that would materially increase the risk of unauthorized access to any Cardholder Data unless required by Data Protection Law;

13.1.6 Notify the other Party without undue delay should it become aware of a security breach in respect of Cardholder Data held by it;

13.1.7 Only use a sub-processor with the consent of the other Party (specific or general, although where general consent is obtained each Party must notify changes to the other, giving the other an opportunity to object).

13.2 In relation to personal data disclosed and/or processed in connection with the Agreement the Merchant warrants it will:

13.2.1 process Cardholder Data in accordance with Data Protection Laws;

12.2.2 act only on instructions from EMS and, specifically, shall only process Cardholder Data (which shall include the disclosure of Cardholder Data to third parties) for the purposes notified by EMS to the Merchant including regarding international transfers, unless, subject to certain restrictions, the Merchant is legally required to transfer to a third country or international organization;

13.2.3 not transfer Cardholder Data outside the European Economic Area without the written approval of EMS unless the Merchant is able to demonstrate to the reasonable satisfaction of EMS that the country or territory of destination provides adequate security in accordance with the Eighth Principle of the Data Protection Act 1998 and the GDPR;

13.2.4 The Merchant shall obtain consent from each Cardholder to the use by EMS of their personal data for all of the purposes set out or contemplated by the Agreement including but not limited to the transfer of the Cardholder Data to and processing by the Processor (including as applicable the transfer of data outside the EU to the Processor’s country of establishment);

13.2.5 Prior to processing the Cardholder Data, implement appropriate technical and organisational measures to enable it to process Cardholder Data in compliance with obligations equivalent to those imposed on EMS by the Seventh Principle of the Data Protection Act 1998 and the GDPR;

13.2.6 Assist EMS in responding to requests from individuals (data subjects) exercising their rights;

13.2.7 Assist EMS in complying with obligations relating to security, breach notification, DPIAs and consulting with supervisory authorities as per Articles 32-36 of the GDPR);

13.2.8 Except as required by Applicable Law or a Regulator, not disclose personal data obtained under the Agreement or allow access to it other than to employees and to ensure that such employees are subject to written contractual obligations concerning the confidentiality and processing of personal data which are no less onerous than those imposed by the Agreement;

13.2.9 use appropriate technical and organisational security measures against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, such personal data;

13.2.10 Ensure that consent is obtained from each Cardholder to any use by the other Party of their personal data for all of the purposes set out or contemplated by the Agreement;

13.2.11 Not keep, use, share or distribute Cardholder information unless it meets the requirements of PCI DSS; and

13.2.12 Make available to EMS all information necessary to demonstrate compliance; allow/contribute to audits (including inspections) and inform EMS if its instructions infringe Data Protection Law.

14. Term and Termination

14.1 The Agreement shall commence on the date it has been signed by both Parties. The Agreement shall, unless terminated earlier pursuant to this Clause 14, operate for the Term.

14.2 In the event that:

14.2.1 either Party has received a bona fide written legal opinion (from a person qualified to practice law in an EEA jurisdiction) that the Agreement cannot lawfully be performed; or

14.2.2 new legislation, regulation or industry codes of practice are implemented which imposes additional material and reasonably unavoidable costs on either Party then the Parties will negotiate in good faith to modify the Agreement to the closest possible valid provisions giving effect to the Parties’ intentions upon signing the Agreement. In the event that the Parties are not able to reach agreement then either Party may terminate the Agreement on giving reasonable notice to the other without incurring further liability.

14.3 The Agreement may also be terminated by either Party forthwith by written notice if: –

14.3.1 in respect of the other Party a petition (other than a petition which is frivolous or vexatious or which is withdrawn or stayed within 20 Business Days) is presented or a notice of resolution is given for the winding up of the other Party (except for the purpose of a solvent amalgamation or reconstruction) or that other Party has suffered the appointment of a receiver, an administrator or administrative receiver to manage its business affairs and property or if that Party has ceased to be able to pay its debts as they fall due (or if any similar event occurs in any jurisdiction); or

14.3.2 the other Party has committed a material breach of the Agreement and (where such breach can be remedied) has failed to remedy it within 28 days after service upon it of a written notice specifying the breach in question and requiring it to be remedied; or

14.3.3 any license, approval or consent required by any Applicable Law for a Party to conduct any business which is essential to the operation of the Agreement is   

withdrawn, suspended or stopped; or

14.3.4 fees, fines, Damages or other liability incurred by EMS or the Merchant from the Card Scheme and or Regulator, in relation to the Transactions shall render the Agreement not economically viable for EMS or the Merchant as determined by the affected Party in the affected Party’s sole and absolute discretion.

14.4 If a Force Majeure Event continues to interrupt a Party’s material performance of its obligations for a period exceeding 28 days either Party shall be entitled to terminate the Agreement without further liability.

14.5 Any termination of the Agreement shall be without prejudice to any antecedent breach or liability or any continuing obligations or accrued rights.

14.6 In addition to the right of suspension under Clause 5.11, without prejudice to the other rights of termination in this Clause 14, EMS may, in its sole and absolute discretion, suspend or terminate the Agreement in whole or in part or suspend the processing of any Transaction immediately by giving written notice to the Merchant (or without notice if prohibited from giving notice under Applicable Law) if:

14.6.1 it is required to do so by a Regulator or Card Scheme;

14.6.2 the Merchant is in breach of any provision of Clauses 3, 4 or 6;

14.6.3 the Merchant fails to pay any amount which is properly due and payable to EMS (and is not reasonably disputed by the Merchant) within 30 days of such amount becoming due and payable. 

14.6.4 it discovers that the Merchant or any Group Company of the Merchant is subject to financial sanctions in accordance with a designation by the European Union, or the United Kingdom or Irish government.

14.6.5 the Merchant is subject to a security breach, threat, virus and or adverse event which in the reasonable opinion of EMS is likely to compromise and or impact the processing of the Transactions;

14.6.6 the Merchant fails to comply with any instruction, notice and or request from EMS in relation to the use and or display of any Intellectual Property, including but not limited to any trademark and or logo of EMS or Payment Application;

14.6.7 any event occurs in relation to the Merchant which in EMS reasonable opinion could damage EMS’ reputation or may give rise to fraud, suspicion of fraud or any other criminal activity, until the satisfactory completion of our investigation or that of any Bank, Other Financial Institution or any third party;

14.6.8 whether by reason of changes in Applicable Law or otherwise, the operation of the Agreement is or may be being or become conducted in breach of any provisions of the Card Scheme Rules or any Applicable Law;

14.6.9 a Card Scheme or financial institution ceases to provide EMS with any services necessary for EMS to provide the Services to the Merchant;

14.6.10 Cardholders are being treated unfairly by the Merchant;

14.6.11 the Merchant ID is not being operated in accordance with the provisions of the Agreement;

14.6.12 any security granted to EMS under Clause 4 ceases to be enforceable, is terminated or is withdrawn;

14.6.13 a third party enforces a guarantee or security against the Merchant or any other person who has granted security to EMS under Clause 4;

14.6.14 in the event of any failure by the Merchant to cure any non-compliance of which notice has been given to it under Clause 6.7 of the Agreement.

14.6.15 EMS provides the Merchant with 2 months written notice.

14.7 At any time and from time to time EMS may temporarily suspend or delay payments to the Merchant and/or designate an amount of funds that EMS will maintain in order to protect itself against the risk of existing, potential or anticipated Chargebacks and to satisfy the Merchant’s other obligations under the Agreement.

14.8 In the event that EMS exercises its rights of deferral, suspension or delay (as the case may be) under Clauses 5.3, 5.10, 5.11, 14.6 or 14.7, EMS shall notify the Merchant of any such action, the reasons for it and the procedure for rectifying any factual errors that led to the exercise, unless EMS is prohibited from doing so under the Applicable Law. EMS may charge the Merchant the reasonable costs of any such notification. The Merchant may enquire about the processing of any Transaction by emailing EMS at csr@ecomm365.com.

14.9 The Agreement shall automatically terminate without additional liability incurred by either Party if a Regulator or Card Scheme withdraws any of the permissions granted to EMS, or imposes restrictions on either of them, with the effect that EMS is or will be unable to perform its obligations under the Agreement.

14.10 For the avoidance of doubt, the obligations in Clauses 1, 2.4, 5, 6.2, 7, 8, 9, 10,

11, 12, 14.4, 14.9, 14.10, 15, 18, 19, 20, 21, 22, 23, 24, 25 and 26 shall continue after and notwithstanding termination of the Agreement.

14.11 Upon termination of the Agreement, the Merchant shall immediately pay to EMS all amounts owed by the Merchant to EMS under the Agreement and EMS shall immediately pay the Merchant all amounts owed to the Merchant by EMS under the Agreement, subject to the provisions of the MSA (with particular reference to the Settlement Process) and the Terminal Hire Agreement (where applicable).

15. Liability and Indemnities

15.1 Nothing in the Agreement shall operate to limit either Party’s liability to the other for:

15.1.1 fraud committed by the other Party, its employees, agents or subcontractors; or

15.1.2 for death or personal injury resulting from negligence of the other Party or that of its employees, agents or sub-contractors.

15.2 Except as expressly provided herein:

15.2.1 the services provided by EMS under the Agreement are provided during the Term “as is” and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement;

15.2.2 EMS gives no other representations, terms, conditions or warranties of any kind, either express or implied, statutory or otherwise, regarding the services, and

15.2.3 EMS specifically disclaims any implied warranties and/or terms of satisfactory quality or fitness for a particular purpose or non-infringement of Intellectual Property Rights;

15.2.4 EMS does not warrant that the services will meet the Merchant’s data processing requirements or that the operation of the services will be uninterrupted or error free;

15.2.5 EMS does not warrant or guarantee that Merchant will achieve any level of sales, revenue or profit;

15.2.6 EMS makes no representations regarding Transaction Data in terms of their correctness, accuracy, reliability or otherwise.

15.3 Subject to the provisions of Clauses 15.4 to 15.10 inclusive, each Party shall only be liable for loss or damage directly arising out of or in connection with its own breach of the Agreement, negligence or willful misconduct.

15.4 Each Party (“the indemnifying Party”) agrees to indemnify and hold harmless the other Party (“the indemnified Party”), in respect of any Damages, costs or expenses of the other howsoever arising, including any legal costs and expenses reasonably incurred by the indemnified

Party, whether incurred in seeking to mitigate, remedy or defend itself from the adverse consequences to it arising directly out of or in connection with:

15.4.1 the indemnifying Party’s breach of any provision of the Agreement, Applicable Law, the Card Scheme Rules, its own negligence or its own willful misconduct; or

15.4.2 Infringement of any Intellectual Property Rights of any third party to the extent attributable to the provision by the Party in breach of its (or its client’s) Material, trademarks or other marks under license to the other Party.

15.5 The Merchant agrees to indemnify and hold harmless EMS, in respect of any Damages, costs or expenses of the other howsoever arising, including any legal costs and expenses reasonably incurred by EMS, whether incurred in seeking to mitigate, remedy or defend itself from the adverse consequences to it arising directly out of or in connection with:

15.5.1 any misrepresentation, breach of contract, misstatement or other wrong-doing on the part of the Merchant or any of its Representatives in relation to any Cardholder or any contract for the sale of any goods and/or services the Cardholder;

15.5.2 any security breach in relation to the Merchant’s information technology systems, compromise or theft of Transaction Data held by the Merchant or on the Merchant’s behalf, including any breach by the Merchant of PCI DSS;

15.5.3 any allegation of fraud made in relation to the Merchant or the Merchant’s business, except, if and to the extent such claim is caused by EMS’ negligence, breach of contract or willful misconduct.

15.6 Subject to the provisions of Clause 15.7 or 15.8 (as the case may be), in case of an unauthorised Refund or a Refund that was incorrectly executed due to an error by EMS shall at the Merchant’s request immediately refund the amount including all directly related Fees.

15.7 If the Merchant is not a Large Enterprise or a Large Charity, the provisions of Clause 15.6 shall not apply:

15.7.1 where the unauthorised Refund arises from the Merchant’s failure to keep the personalised security features of the Merchant’s Merchant Payment Account safe in accordance with Clause 3 in which case the Merchant shall remain liable for the first 50 EUR (or equivalent in the currency of the Merchant Payment Account) unless Clause 15.7.3 applies;

15.7.2 if the Merchant fails to notify EMS without undue delay of any loss of the Merchant’s Access Codes or other event that could reasonably be expected to have compromised the security of the Merchant Payment Account after the Merchant has gained knowledge of such event in which case the Merchant shall remain liable for losses incurred up to the Merchant’s notification to EMS;

15.7.3 in case the transaction was unauthorised but the Merchant has compromised the security of the Merchant Payment Account with intent or gross negligence in which case the Merchant shall be solely liable for all losses; or

15.7.4 the Merchant fails to dispute and bring the unauthorised or incorrectly executed Transaction to EMS’ attention within 13 months from the date of the Transaction, provided that Clause 15.7.1 shall not apply to Transactions made after the Merchant has notified EMS in accordance with Clause 3.5 in which case EMS shall remain liable and refund any unauthorised Transaction immediately to the Merchant.

15.8 If the Merchant is a Large Enterprise or a Large Charity, the provisions of Clause 15.6 shall not apply:

15.8.1 where the unauthorised Refund arises from:

(a) the Merchant’s failure to keep the personalised security features of the Merchant’s Merchant Payment Account safe in accordance with Clause 3; or

(b) any breach of the Agreement by the Merchant, or the Merchant’s negligence or willful misconduct;

15.8.2 if the Merchant fails to notify EMS without undue delay of any loss of the Merchant’s Access Codes or other event that could reasonably be expected to have compromised the security of the Merchant Payment Account after the Merchant has gained knowledge of such event; or

15.8.3 the Merchant fails to dispute and bring the unauthorised or incorrectly executed Transaction to EMS’ attention within 60 days from the date after the Transaction.

15.9 Nothing in the Agreement shall limit or exclude the liability of either Party for death or personal injury resulting from negligence; fraud or fraudulent misrepresentation; the  indemnification obligations set out in Clause 15.4 and 15.5; or any other liability that cannot be excluded by Applicable Law.

15.10 Without prejudice to Clause 15.9:

15.10.1 EMS’ total liability arising under or in connection with the Agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to an amount equal the aggregate Fees paid by the Merchant in the six

(6) months immediately prior to the date on which the cause of action for such liability arose; and

15.10.2 neither Party shall be liable to the other, whether in contract, tort (including for negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any: losses that are not reasonably foreseeable; or loss of profit; or loss of goodwill or reputation; or loss of business; or loss of business opportunity; or loss of anticipated saving; or loss or corruption of data or information; or special, indirect or consequential damage or loss of any kind whatsoever, in each case that arises under or in connection with the Agreement.

15.11 The Merchant acknowledges and agrees that, given the nature of the Services, the availability of suitable alternative payment methods and its ability to choose other providers of services similar to the Services before entering into the Agreement, the limitations on liability contained in this Clause 15 are reasonable in all the circumstances and that the Fees have been calculated taking into account such limitations (which would be higher but for such limitations) and accordingly the Merchant has accepted the risk of any losses it may suffer because of the limitation on the EMS’ liability under this Clause 15.

16. Force Majeure

Neither Party shall be responsible or liable for any losses arising out of any delay in or interruption of the performance of its obligations under the Agreement (except for its payment obligations) due to any act of God, act of governmental authority of the public enemy or due to war or terrorism, the outbreak or escalation of hostilities, riot, civil commotion, insurrection, labour difficulty in relation to a third party (including, without limitation, any strike, or other work stoppage or slow down), severe or adverse weather conditions, communications line failure, or other similar cause beyond the reasonable control of the Party so affected at the time such causes arise (“Force Majeure Event”). The Party so affected shall be excused from its performance of its obligations for the duration of such Force Majeure Event provided that it shall at all times use all reasonable endeavors to mitigate the effects of such Force Majeure Event.

17. Anti-Corruption

17.1 The Merchant hereby represents, warrants and covenants that it will not, under any circumstances, and at all relevant times, make, or cause or authorise any third party acting on their behalf to make, directly or indirectly, any prohibited bribes, offers, promises or payments of money, or anything of value, to any foreign official (including but not limited to government officials, government employees, any political party or political party official, any candidate for political office, or any person otherwise acting in an official capacity) pursuant to all Applicable Law (including but not limited to any local anti-bribery laws), or any other third party, for the purpose of influencing such Party’s acts or decisions or in order to obtain or retain business or secure an unfair business advantage for either Party in performing their duties and obligations pursuant to the Agreement.

17.2 Each Party expressly agree that the Agreement is the result of arms-length negotiations, and that neither Party has entered into the Agreement with a corrupt motive

to obtain or retain business or to secure an unfair business advantage.

17.3 The Merchant hereby warrants and undertakes that it shall maintain and, for a period of at least six years, keep accurate and up to date accounting records to ensure that all transactions relating to the Agreement are sufficiently documented.

18. Modern Slavery

18.1 The Merchant undertakes warrants and represents that:

18.1.1 Neither the Merchant nor any of its officers, employees, agents or subcontractors has

(a) Committed an offence under the Modern Slavery Act 2015 (“MSA Offence”); or

(b)  Been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or

(c) Is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;

18.1.2 The Merchant shall comply with the Modern Slavery Act 2015 and shall ensure that its assignees and/or subcontractors shall do the same

18.1.3 The Merchant shall immediately notify EMS in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Merchant’s obligations under this clause and such notice shall set out full details of the circumstances concerning the breach or potential breach of the Merchant’s obligations.

18.2 Any breach of this clause by the Merchant shall be deemed a material breach of the Agreement and shall entitle EMS to terminate on one month’s notice

18.3 The Merchant shall indemnify and hold harmless EMS and its directors, officers and employees in full and on demand from and against any and all liabilities, claims, fines, demands, damages, losses or expenses (including legal and other professional advisers fees and disbursements) interest and penalties incurred by them howsoever arising whether wholly or in part resulting from a breach of this Modern Slavery Clause.

19. Entire Agreement

19.1 The Agreement contains the entire agreement between the Parties with regard to its subject matter to the exclusion of all other terms and conditions and prior or collateral agreements, negotiations, notices of intention and representations.

19.2 The Agreement may only be varied by e-mail written instruction sent to the duly authorised representative of each Party, unless it relates to fee changes where eCOMM can amend the fees by giving 30 days’ notice to the merchant. 

20. Assignment

20.1 The Merchant shall not without the written consent of EMS, assign, transfer, charge or deal in any other manner with the Agreement or any of its rights under it, nor purport to do any of the same, nor sub-contract the whole or any part of its rights or obligations under the Agreement, such consent not to be unreasonably withheld.

20.2 EMS may assign, transfer or change its rights or obligations under the Agreement by giving the merchant 30 days’ notice.

20.3 EMS shall be entitled to assign the Agreement where such assignment is made in connection with the sale or other transfer of substantially all of EMS’ equity or business assets, provided the assignee is a member of Card Scheme subject to Clause 20.5 below.

20.4 Each Party will notify the other in writing of any proposed change of control at least 1 month in advance, thereby permitting termination of the Agreement without any further liability under the Agreement save for EMS’ obligations under this Clause 20.5

20.5 Either Party shall be entitled to assign the agreement to a Group Company on giving reasonable notice to the other Party.

20.6 Either Party shall be entitled to assign the agreement to a Group Company on giving reasonable notice to the other Party.

21. No Joint Venture, Partnership or Agency

21.1 Neither the Merchant nor any Representative must at any time hold itself out as being, the agent of EMS for any purpose whatsoever and the Agreement shall not be construed as or treated as creating any partnership or joint venture between the Parties or between EMS and any Representative.

21.2 The Merchant acknowledges that it has no authority or power to bind EMS nor create any liability on behalf of EMS.

22. Severability

If any provision of the Agreement shall be found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to negotiate in good faith to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

23. Waiver

23.1 The Agreement shall not be waived in whole or in   part except where  agreed by both Parties in writing.

23.2 The delay of enforcement or the non-enforcement of any of the terms of the Agreement by either Party shall not be construed as a waiver of any of the other rights of that Party arising out of the breach or any subsequent breach of any of the terms of the Agreement and no right power or remedy conferred upon or reserved for either Party in the Agreement is exclusive of any other right, power or remedy available to that Party and each such right, power or remedy shall be cumulative. Any waiver shall not be deemed to be a continuing waiver.

24. Notices

24.1 All notices, requests, demands, approvals, consents and other communications under the Agreement (“Notices”) shall be given by written e-mail and shall be duly and validly given or made if given or served by hand or pre-paid registered or recorded delivery post to the of the relevant Party as stated herein or to any address subsequently notified by the relevant Party to the other Party in writing for such purpose.

24.2 Notices given or served by personal delivery shall be deemed to be given or served on the date of delivery. Notices sent by pre-paid registered or recorded delivery shall be deemed to be given or served on the first Business Day after the day of the recorded successful delivery.

25. Third Party Rights

Nothing in the Agreement is intended to confer a benefit on any third person except to the extent expressly provided herein, and no other person who is not a Party to the Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

26. Choice of Law

The Agreement shall be governed by and construed in accordance with English law and the Parties hereto agree to submit to the non-exclusive jurisdiction of the English Courts.

27. Complaints And Dispute Resolution

27.1 If the Merchant wishes to make a complaint about the complaint related to our service or product, they can email complaints@ecomm365.com outlining the details of the complaint along with any relevant information e.g. Merchant Account Number.

27.2 EMS’s complaints handling team will acknowledge the receipt of the complaint, provide contact details of the person responsible for handling it and outline the complaints handling process. This will be done in writing, within 3 business days after the day on which the complaint was received by EMS.

27.3 The complaint will be investigated, and EMS might revert back to the Complainant requesting more details or supporting documents. If the complaint is straightforward, EMS will do their best to resolve it within the initial 3 business days.

27.4 If we are not able to resolve the complaint in accordance with the paragraph 27.3, the final response will be sent by the end of 15 business days after the day on which EMS received the compliant.

27.5 In exceptional circumstances, if a final response cannot be given in accordance with the paragraphs 27.3 and 27.4, for reasons beyond our control, EMS will send a holding response to the complainant by the end of 15 business days after the day on which we received the complaint, indicating the reasons for the delay in answering the complaint and specifying the deadline by which we will send the final response. The final response will then be sent to the complainant by the end of 35 business days after the day on which the complaint was received by EMS.

27.6 If the Complainant is not satisfied with the response or the outcome provided by EMS, they can contact the Financial Ombudsman Service via email at: https://www.financial-ombudsman.org.uk/ or telephone: 0800 023 4567. The postal address is Exchange Tower, London E14 9SR.

The Financial Ombudsman Service will deal independently with a complaint from a personal customer or company with a turnover of less than £6.5 million.

27.7 The existence of, and the content of all disputes under the Agreement shall be treated as Confidential Information.