Terms & Conditions
Pay Set Limited (“us” or “we” or “our” or “Pay Set”), an authorised electronic money institution FCA reference number 900920, incorporated under the laws of England and Wales, with registered office at 23 Berkeley Square, London, United Kingdom, W1J 6HE.
The activity of Pay Set is regulated by the Payment Services Regulation 2017 and the Electronic Money Regulation 2011 (SI 2011/99). This Agreement is an electronic agreement between you and Pay Set. This Agreement emphasises certain risks associated with the use of our services. This Agreement is made in English and the English version of the Agreement prevails over any other version translated into any other language, which may be provided by us to you for convenience purposes.
1. APPLICATION SCOPE
This Agreement and our Services are not intended for distribution to, or use by, any person in any country or jurisdiction where such distribution or use would be contrary to local law or regulation. It is the responsibility of users of our Services to ascertain the terms of, and comply with, any local law or regulation to which they are subject. Certain full or partial restrictions may apply to certain geographic areas, as shall be notified by us from time to time, and a list of such areas may change from time to time for reasons which include but are not limited to licensing requirements and any other legal and regulatory changes.
The following terms when used in this Agreement or any document referred to herein shall have the following meaning:
“Account” means the Customer’s non-interest-bearing payment account(s) opened at the Bank (as defined below) or using an existing account of Pay Set at the Bank on a segregated basis, and which will be used for the execution of Pay Set Services. On the Software, the Customer shall have access, using the Account reference, to a record of information, including without limitation Transactional history, balance, and the Customer information.
“Action” has the meaning as defined in Clause 16.3.
“Authorised Person” means a person authorised by the Customer to give us instructions and act on the Customer’s behalf. A Referring Third Party (as defined below) shall be deemed an Authorised Person unless you have agreed otherwise;
“Bank” means any credit institution or financial institution in which the Account is opened.
“Customer” shall mean the person using the Services (also referred hereinafter as “you” and “your”).
“Data Protection Laws” means (i) the General Data Protection Regulation ((EU) 2016/679) (GDPR) as and if applicable during the term of this Agreement; (ii) any other laws, regulations and secondary legislation enacted from time to time in the United Kingdom relating to data protection, the use of information relating to individuals, the information rights of individuals and/or the processing of Personal Data, and any UK statute which implements any provisions of the same; and (iii) any guidance or codes of practice issued by Working Party 29, the European Data Protection Board or the Information Commissioner from time to time (all as amended, updated or re-enacted from time to time, and as and if applicable during the term of this Agreement).
“Fee” means each and every fee payable by you to Pay Set, including without limitation the Transaction Price.
“Force Majeure” shall mean any act or event beyond the Bank or Pay Set's reasonable control, including without limitation non-delivery or defective delivery of third party services necessary to provide the Services (including but not limited to those of our partners, vendors and suppliers), strike, lock-out or other industrial action by third parties, civil commotion, riot, invasion, terrorist activity or threat thereof, war (whether declared or not) or threat or preparation for war, fire, explosion, lightning storm, flood, earthquake, subsidence, epidemic or other natural disaster, failure of public or private telecommunications networks, power failure, and acts of government or other competent authorities.
“Maturity Date” has the meaning as defined in Clause 20.1.
“Order” means the Customer’s instruction submitted to Pay Set via the Software in order to receive Services.
“Referring Third Party” shall designate that third party which has introduced you, the Customer, to us in order to create a contractual relationship between us.
“Services” shall have the meaning given in Clause 3 of this Agreement.
“Software” shall mean a platform owned by, or licensed to, and used by, Pay Set and enabling the provisions of Services in respect of transferring Transaction Orders and obtaining information regarding the Account.
“Transaction” means any financial operation that results in a movement of Customer’s funds to and from the Account or the exchange of currencies within the Account.
“Transaction Price” shall mean the total amount paid by the Customer for any Transaction performed through the Services denominated in any currency.
“Website” shall mean the website www.payset.io and/or the Pay Set mobile application, including their data and content.
3.1 Pay Set provides you the Services as follows:
3.1.1 Opening of an Account
3.1.2 Performing Transactions in relation to the Account;
3.1.3 managing the Account and providing all customer-related services;
3.1.4 granting access to the Software for the Client to manage its Transactions and obtain information related to the Account;
3.1.5 collecting Pay Set Fees in accordance with the Agreement; and
3.1.6 Processing the exchange of currency in accordance with the Bank's policies.
3.2 Should the Customer request additional services (such as any additional payment account or additional currencies) the Customer will be charged additional fees either pursuant to the then-applicable pricing list or as informed from time to time.
3.3 It is hereby agreed and understood that all Transactions are subject to the Bank’s approval for execution. For the avoidance of doubt, no Transaction will be executed without the consent of the Bank, despite the receipt of any Order. Any transaction not approved by the Bank shall not be executed and Pay Set shall not bear any liability towards the Customer. Notwithstanding anything to the contrary elsewhere, the Customer understands, acknowledges and confirms that the Transaction's time of execution shall be subject to the Bank’s cut-off times for execution.
4. OPENING THE ACCOUNT
4.1 Before opening the Account and accepting this Agreement, the Customer must provide all requested information and documents to Pay Set in order to verify Customer’s appropriateness subject to internal procedures of Pay Set. For the avoidance of doubt, Pay Set has no obligation to accept you as a Customer and open an Account.
4.2 After being approved as a Customer and accepting this Agreement, setup fee will be deducted from the first transfer made to your Account.
4.3 You have the right to change your passwords to access the Software. We will request you to change the passwords automatically once in 180 days if you have not changed them during this term.
4.4 You undertake to ensure safety and confidentiality of the access details to the Software and the Account and not to disclose such information to any unauthorised person.
4.5 In case access details to the Software were disclosed to an unauthorised person, you shall immediately inform Pay Set about that and request to provide new access details to the Software. In such event Pay Set will block any additional Transactions from being processed through the Software until the new access details are presented to you.
4.6 In case of fraud or unauthorised access to the Software as well as unauthorised Transaction, you must immediately, and with no delay when you learn about such circumstances, inform Pay Set.
4.7 If our investigation shows that an access or a Transaction reported by you as unauthorised was in fact authorised by you, or you have acted fraudulently or with gross negligence (for example, by failing to keep your security information secure), Pay Set may, in its sole discretion, cancel the Transaction and restore your Account to the state it would have been if the Transaction had not taken place, and/or terminate this Agreement, close your Account, and deny you from using the Services in the future. Depending on the particular circumstances, Pay Set may decide to submit information about the Transaction and your related activities to the relevant authorities for further investigation.
4.8 Pay Set at its sole discretion has a right to unilaterally block the access to the Software and/or block the funds to be sent by or on behalf of the Customer from the Account and/or return the funds sent to the Account to the respective sender in case of suspicious, illegal or fraudulent activities, non-compliance with this Agreement and/or due to legal requirements. In case of such circumstances, Pay Set has a respective legal duty set in the applicable laws to inform the competent authorities hereof. Pay Set will not be liable to you or any third party for the execution of its rights or obligations under this Clause.
4.9 You hereby acknowledge that you may use the services of the Referring Third Party for the application process and/or throughout your use of the Services, including upon requesting the execution of a Transaction, and such Referring Third Party shall be considered an Authorised Person. You hereby acknowledge that you remain fully and exclusively liable as to the content, accuracy, authenticity and completeness of the documents and Orders that you transfer to us or via the Software, whether or not via the Referring Third Party.
4.10 You hereby further acknowledge that the Referring Third Party may be under a separate contractual relationship with Pay Set to which you are not a third-party beneficiary.
5.1 To use the Services, you (and your Authorised Person, where applicable):
(i) must be at least 18 years old (and at least the legal age in your jurisdiction), be of sound mind and capable of taking responsibility for own actions;
(ii) must establish the Account in accordance with the instructions given on the Website and/or the Software, including indicating your consent to be bound by this Agreement;
(iii) must not be in violation of any of the provisions of this Agreement or otherwise have a limited access to your Account, or have your Account closed by Pay Set;
(iv) confirm that all details provided to us, either during the registration process or at any time afterwards (including as part of any use of the Services), are true, current, accurate, complete and not misleading and, as appropriate, match the name(s) on the credit/debit card(s) or other payment accounts to be used to transfer or receive currency. Any attempt to use other means of payment shall be considered fraudulent; you must notify Pay Set immediately upon any change of the information provided for the Account registration by sending an email at firstname.lastname@example.org.
(v) confirm that your Account with Pay Set is solely for your benefit and that your use of the Services, the Software and the Website is at your option, discretion and risk;
(vi) confirm that you are responsible for the security of your private key, username and password on your own PC or Internet access location. If this username password combination is “hacked” from your computer due to any viruses or malware that is present on the computer that you access your account with, this is your sole responsibility. You should report immediately to Pay Set any possible hacking attempts or security breaches from your computer terminal;
(vii) confirm that you are solely responsible for recording, paying and accounting to any relevant governmental, taxation or other authority for any tax or other levy that may be payable on any amounts transferred to you or which you receive with respect to your use of the Services;
(viii) confirm that you are responsible for obtaining access for your device to telecommunications networks and the Internet and for acquiring any other consents and permissions required for your device to connect with the Website and the Software and receive the Services;
(ix) waive any claim and demand against Pay Set and its licensors in respect of any delay in accessing or using the Software and/or the Website, or technological issue that would affect the availability of the Software and/or the Website; and
(x) confirm that you may not use the Website or the Software or the Services for any unlawful, criminal or fraudulent activity or any prohibited transaction (including money laundering) under the laws of any applicable jurisdiction.
5.2 You further represent that you will not violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while using the Services. Without limiting the generality of the foregoing, you agree that you will not:
(i) use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services, or that could damage, disable, overburden or impair the functioning of our Services in any manner;
(ii) use the Services to pay for, support or otherwise engage in any illegal gambling activities, fraud, money-laundering, terrorist activities, or other illegal activities;
(iii) use any robot, spider, crawler, scraper or other automated means or interface not provided by Pay Set to access the Services or to extract data;
(iv) use or attempt to use another Customer's Account without authorisation;
(v) attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of our Services that you are not authorised to access; and
(vi) develop any third-party applications that interact with the Services without our prior written consent.
5.3 Complaints Handling
(i) If you wish to make a complaint about the Services, you can email us at email@example.com, with brief details of your complaint and the phone number and email address associated with your Account.
(ii) If the complaint is not resolved by the end of a reasonable period or if you are dissatisfied with our assessment and ruling, you are entitled to refer the complaint to the Financial Ombudsman Service (“FOS”) in accordance with the applicable regulations.
6. SERVICES USE - TRANSACTIONS
6.1 You will be able to use our Services immediately upon your Account opening and activation.
6.2 Unless otherwise provided by this Agreement, all transactions are non-refundable, irrevocable and cannot be changed after being executed.
6.3 The Customer undertakes to provide the requested information on all its Authorised Persons upon opening its Account.
6.4 Any Order must contain all information required by the Software in order to execute the Transaction.
6.5 Pay Set reserves the right to seek additional confirmations of any Order from the Customer prior to executing the Transaction.
6.6 The Customer undertakes to provide the list of banks and payment service providers and their accounts it is using and Pay Set will only accept payments directly from the accounts authorised by Pay Set.
6.7 Pay Set shall have the sole discretion to decide if the Customer complies with Pay Set’s internal rules and policies for executing a Transaction from the Account or receiving Transactions to the Account, and shall have the right to block a Transaction in case such requirements are not met.
6.8 It is your responsibility to check the appropriateness of all your clients and payees that will transfer funds to or will receive funds from the Account. For any Transaction in relation to any client or payee of yours and anytime at the request of Pay Set, the Customer must provide Pay Set with information and/or documents about its clients and payees.
6.9 Pay Set has a right at its sole discretion to refuse to execute any Order and/or Transaction when execution of such Order and/or Transaction violates or could violate any applicable law or when the activities with the Account are suspicious. In case of such circumstances, Pay Set has a respective legal duty set in the applicable laws to inform the competent authorities thereof. Pay Set will not be liable to the Customer or any third party for the execution of its right under this Clause.
6.10 Pay Set is entitled to suspend and freeze any amount of any incoming Transaction onto the Account where such incoming Transaction raises reasonable suspicion as to the origin of the funds. Pay Set is likewise entitled to refuse such incoming Transaction and return the funds to the sender, or to request any additional document or evidence in order to justify the origin of the funds and lift the suspicions. For the avoidance of doubt, Pay Set will not assume any liability to the Customer or any third party for its actions based on this Clause.
6.11 Pay Set does not assume any liability to the Customer or any third party for any consequences attributable to the time of the execution of the Transaction by the Bank or by other financial and/or credit institution.
6.12 Pay Set, at its discretion or, where applicable, at the Bank’s request, may suspend any Transaction, without giving any reason and without liability, when Transaction is suspended under instruction of a public authority or when such Transaction must be suspended due to the requirements of any applicable laws. For the avoidance of doubt, Pay Set will not assume any liability to the Customer or any third party for suspension of a Transaction based on this Clause.
6.13 The Customer is responsible for the accuracy of information submitted to Pay Set with the Order and must not withhold or omit any information that would render those details false or inaccurate. The Customer undertakes to notify Pay Set immediately and with no delay if it becomes aware of any error or omission, or if any relevant information given to Pay Set changed in any way that might affect the Order.
6.14 You may not revoke an Order Submitted unless it has not been processed yet by Pay Set and Pay Set has granted you the exceptional right to revoke the Order after the Authorised Person has sent a request to revoke the Order via the Software. Notwithstanding the above, Pay Set does not commit to proceeding with the request if the circumstances prevent the revocation of the Order or if the revocation is burdensome for Pay Set.
6.15 Transactional Thresholds. Pay Set is entitled to set transaction thresholds in respect of your Account and each of the potential Transactions. You may refer to your account manager in order to obtain further information.
6.16 Notwithstanding the above, the execution of a Transaction may be limited by any error or failure, whether technical, digital, or from human nature, and is subject to the limitations set forth below.
7.1 The compensation for the Services rendered under this Agreement shall be deducted by Pay Set in accordance with the then-applicable pricing list.
7.2 All payments made by the Customer under this Agreement shall be free from and without set-off, withholdings, counterclaims or deductions whatsoever. Pay Set shall make all payments due to the Customer under this Agreement in full unless required by law to make deductions including, without limitations, deductions or withholdings in respect of any taxation liabilities. For the avoidance of doubt, the Fees will be deducted by Pay Set in accordance with the then-applicable pricing list.
7.3 If the Customer breaches any material obligation under this Agreement, the Customer’s funds held in the Account may be appropriated and/or set off by Pay Set to cover any loss Pay Set may incur. The Customer shall be solely responsible for satisfaction of all commissions, fees, expenses, liabilities and losses incurred by Pay Set due to the placed Order or Transaction processed in accordance with instructions provided by the Customer.
7.4 In the event the Customer fails to make any payments due to Pay Set, the Customer shall pay interest in the amount of 0.2% per day until payment of the overdue amount.
8. CUSTOMER VERIFICATION/DUE DILIGENCE
You will not be able to use some of the Services until you have passed our identity and security validation and verification checks, and provided information and documents requested in accordance with the applicable anti-money laundering regulations. We may check all personal and identity verification information you provide Pay Set with credit reference or fraud prevention agencies and other organisations, including potentially the Referring Third Party. These agencies may keep a record of your or your Authorised Persons’ information and the searches made, and you hereby unequivocally agree to it (and shall procure the consent of any Authorised Person, as and if required). Any search will be recorded as such. We shall keep records of the information and documents we obtain to verify your and your Authorised Persons’ identity in accordance with all applicable legal and regulatory requirements.
For the purposes of anti-money laundering prevention and combating terrorist activities, Pay Set reserves the right to request any additional information and documents from you about you, your Authorised Persons and/or your Transactions, and suspend your or any of your Authorised Persons’ access to the Account anytime in case the documents or information provided by you are unsatisfactory or insufficient, as Pay Set decides in its sole discretion.
Should the documents fail our internal identity or security checks standards – for example, if we suspect that they have been tampered with, or are in any way proven to be misleading or misrepresenting – we shall be under no obligation to accept such documents as valid, and under no obligation to provide feedback on the exact nature of our findings with regards to these documents. In addition, we may request that any of your Authorised Persons attend a video call to verify their identity.
9. ACCOUNT SECURITY
It is your responsibility to keep your identification, security information, password, security questions and answers and other information specific to your Account confidential and never disclose them to anyone. Should another person gain access to your Account by passing all security validation and verification checks, Pay Set may be entitled to treat any Transaction conducted by that person as valid and authorised by you and will not be responsible for any loss or damage you may incur as a result.
Your Account access will be protected by a security mechanism to ensure your Account is protected from an unauthorised access and use. An Account access authorisation shall include a user, a password and an SMS verification that will request you to enter an SMS-code sent by Pay Set every time before accessing the Account.
If you have any indication or suspicion that your Account, password, or other security details are lost, stolen, misappropriated, used without authorisation or otherwise compromised, you should change your password and contact Pay Set immediately by sending an email firstname.lastname@example.org. Any delay in notifying Pay Set will result in you being liable for any and all losses associated therewith.
If you have acted fraudulently or have with intent or gross negligence failed to keep your Account security details safe or allowed anyone who is not an Authorised Person to access the Account, Pay Set will not be responsible for any loss or damage you may incur as a result and you will also be liable for all losses we suffer in connection with the any unauthorised Transaction, including but not limited to the cost of any investigation we carry out in relation to the Transaction.
10. CUSTOMER'S REPRESENTATIONS AND WARRANTIES
The Customer warrants and represents that on the signing day of the Agreement and continuing during the duration of the Agreement:
10.1 all information supplied by the Customer or any Authorised Person on its behalf to Pay Set is complete, true, accurate and not misleading in any material respect and in case of any changes in information provided to Pay Set, the Customer undertakes to update Pay Set and provide any other information requested by Pay Set;
10.2 the Customer’s obligations under this Agreement do not contravene any existing agreement binding upon the Customer, any laws or regulations applicable to the Customer and/or to the said agreements, or any rulings or decisions of courts and/or any other administrative institutions;
10.3 there are no court, arbitration or administrative disputes or proceedings where the result may affect the Customer’s capability to duly perform obligations under this Agreement;
10.4 its Authorised Persons are entitled and duly authorised to represent the Customer and that the right and authorisation vested in them has not yet expired or been revoked and, upon concluding the Agreement, will not be exceeded;
10.5 the Customer is entitled to enter into the Agreement, undertake any and all duties and obligations arising therefrom, and the Agreement and the obligations hereunder create lawful and valid duties legally enforceable against the Customer;
10.6 the Customer has any and all permits, authorisations and consents necessary for entering into the Agreement.
11. DATA PROTECTION
The parties hereto agree and acknowledge that for the purpose of Data Protection Laws the parties shall follow the provisions of Schedule 1.
12.1 Information related to this Agreement, the Pay Set Services, including Fees, are considered to be confidential and cannot be disclosed to any third party without a prior written consent of Pay Set.
12.2 Confidential information excludes information that: (i) is or becomes public knowledge other than as a result of the information being disclosed in breach of this Agreement; (ii) lawfully becomes available to the Customer and which is not subject to any obligation of confidentiality; or (iii) Pay Set agrees in writing with the Customer which information is not considered to be confidential.
13. RISK DISCLOSURE
For the avoidance of doubt, you acknowledge and agree that Pay Set does not act as a financial advisor, does not provide any investment advice in connection with the Services contemplated by this Agreement, and any communication between you and Pay Set cannot be considered as investment advice. Without prejudice to our foregoing obligations, in asking us to enter into any Transaction, you represent that you have been solely responsible for making your own independent appraisal and investigations into the risks of the Transaction. You represent that you have sufficient knowledge, market sophistication and experience to make your own evaluation of the merits and risks of any Transaction and that you received professional advice thereon. We give you no warranty as to the suitability of the Services and assume no fiduciary duty in our relations with you.
Pay Set makes no representations concerning the tax implications of the Transactions or the possession or use of the Account. The Customer bears the sole responsibility to determine if any currency or potential appreciation or depreciation in the value of such currency over time has tax implications for the Customer in the Customer’s home jurisdiction. By using the Services, and to the extent permitted by law, the Customer agrees not to hold Pay Set liable for any tax liability associated with or arising from the Customer’s use of the Services.
15. DISCLAIMER OF WARRANTIES
15.1 You expressly agree that you are using the Services at your sole risk and that the Services are provided on an "as is" basis without warranties of any kind, either express or implied, including, but not limited to, warranties of title or implied warranties, merchantability or fitness for a particular purpose (except only to the extent prohibited under the applicable law), completeness and/or accuracy of the Website and/or the Software and/or the Services and/or infringement of applicable laws and regulations. The entire risk as to the use, quality and performance of the Services and/or Website lies with you.
15.2 Pay Set Services depend in large part on the performance of the internet services provided or controlled by third parties. Actions or inactions caused by these third parties can produce situations where Pay Set’s connection to the internet may be impaired or disrupted. Although Pay Set will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, Pay Set cannot guarantee that they will not occur. Accordingly, Pay Set does not assume any and all liability to the Customer or any third party resulting from or related to such events.
16. LIMITATIONS OF LIABILITY
16.1 In no event will Pay Set, its affiliates, shareholders, directors, employees and representatives be liable to the Customer or any third party for any damages, whether direct or consequential, losses, liabilities, costs and expenses incurred by the Customer arising out of or resulting from any misuse of the Services and/or the Software by the Customer, any mistake or negligence from the Customer, any failure or omission on the Customer's side, any missing documentation despite our request, any fraud or attempt of fraud, any upset of the Software due to telecommunication connections, any Force Majeure event, or any other cause of action or claim that does not directly result from a fault of Pay Set in the performance of the Services.
16.2 Pay Set does not assume any liability to the Customer or any third party for the funds that have been transferred from the Account based on an Order.
16.3 The Customer will indemnify and hold Pay Set, its affiliates, shareholders, directors, employees, and representatives harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and fees of experts) arising out of any claim, suit, action or proceeding initiated by the Customer against the third party or by the third party against the Customer (each an “Action”). The Customer will pay any settlement reached or judgement entered thereon against Pay Set and/or against any third party.
16.4 The Customer will provide Pay Set with a prompt written notice upon the existence of any Action immediately when it becomes aware of it. Such notification must provide information on possibility for Pay Set to participate in the defense thereof.
16.5 Notwithstanding anything contrary in this Agreement, Pay Set’s maximum aggregate liability to the Customer as a result of Pay Set's wilful wrongdoing will be limited to the total Fees paid by the Customer to Pay Set hereunder for the six (6) months period prior to the event for which Pay Set shall be liable solely for direct damage, which must be evidenced accordingly, and caused as a result of wilful misconduct. Pay Set shall not be liable for the benefits (lucrum cessans) that Customer would have had if the damage had not occurred.
16.6 The Customer shall indemnify and hold Pay Set harmless against any loss or damage (including costs) that may be awarded or agreed to be paid to any person in respect of a claim or action arising of (i) any breach of the Agreement or (ii) violation of any law or the rights of a third party by the Customer.
16.7 To the maximum extent permitted by applicable law, Pay Set makes no warranty that the Website and/or Services and/or the Software will meet your requirements, will be uninterrupted or error-free, timely or secure, that defects will be corrected, and/or that Website, the Software and the servers that makes them available are free of viruses and bugs and/or represents the full functionality, accuracy, reliability of the materials and/or as to results or the accuracy of any information obtained by you through the Services and/or the Software and/or the Website.
16.8 Pay Set has no obligation to maintain your Account name or password. If you misplace, forget or lose your Account name or password because of anything other than Pay Set’s gross negligence or wilful misconduct, Pay Set shall not be liable.
16.9 To the maximum extent permitted by applicable law, in no event will Pay Set, its affiliates and/or their respective service providers, and/or any of their respective officers, directors, agents, joint venturers, employees and their representatives, be liable to you or anyone on your behalf, for any direct, consequential, indirect, incidental or special damage or loss of any kind whatsoever; and/or any loss of business, profits, revenues, contracts or anticipated savings; and/or loss or any damage arising from your use of the Website or the Services or the Software, all whether based in contract, tort, negligence, strict liability or otherwise, arising out of or in connection with authorised or unauthorised use of the Website and/or the Software and/or Services.
16.10 You agree that the statute of limitations in respect of any claim or cause of action which you may have arising out or related to the Services and/or the use of the Software shall be limited to one (1) year after such claim or cause of action arose. Any action passed that delay shall be barred.
17. INTELLECTUAL PROPERTY AND THIRD-PARTY CONTENT
You may only install and use the Software and all content derived from the Software, including without limitation the patents, copyrights, design rights, trademarks and any other intellectual property rights in the Software, in connection with the Services, for your personal and non-commercial use and in accordance with this Agreement. The Software's code, structure and organisation are protected by intellectual property rights which are the exclusive property of Pay Set or its licensors, as the case may be. You must not: (i) copy, interfere with, tamper with, redistribute, publish, reverse engineer, decompile, disassemble, amend, modify, translate or make any attempt to access the source code to create derivative works of the source code, or otherwise; (ii) sell, assign, sublicense, transfer, distribute or lease the Software; (iii) make the Software available to any third party through a computer network or otherwise; (iv) export the Software to any country (whether by physical or electronic means); or (v) use the Software in a manner prohibited by any laws or regulations which apply to the use of the Software (collectively the “Forbidden Practices”).
You will be liable to us and our licensors, as the case may be for any damage, cost or expense we suffer or incur that arise out of or in connection with your committing any of the Forbidden Practices. You shall notify us as soon as reasonably possible after becoming aware of the commission by any person of any of the Forbidden Practices and shall provide us with reasonable assistance with any investigation we may conduct in light of the information provided by you in this respect.
The brand names relating to the Website and the Software and any other trademarks, service marks and/or trade names used by us either on our own behalf from time to time (the “Trademarks”) are owned by us or our licensors. In addition to the rights in the Trademarks, we and/or our licensors own the rights in all other content of the Website and the Software (that is not considered as transactional or personal data (the “Content”). By using the Services, you shall not obtain any rights in the Trademarks or the Content and you may use the Trademarks and Content only in accordance with the provisions of this Agreement.
Pay Set makes no representations whatsoever about any other interface which you may access through the Website. Notwithstanding anything to the contrary herein, the Website may provide links or other forms of reference to other interfaces, resources or data, over which Pay Set has no control (“External Content”). Therefore, you acknowledge that any link to an External Content is provided on the Website for convenience purposes only. Pay Set is not responsible for the availability or any content of the External Content, including opinions, advice, statements, prices, activities and advertisements, and you use such content at your own risk. You have to review the policies posted on the External Content regarding privacy and other topics before using it.
18. ACCESS RIGHTS
We provide access to you on a non-exclusive non-transferable basis to use the Software and Website during the term of this Agreement as an integral part of the Services under this Agreement. Termination of this Agreement shall trigger the automatic termination of access to the Software and Website. The remuneration for the access is included in the Fees. You are not allowed to grant access to any third party other than to your Authorised Persons. The scope of access is territorially unlimited.
Any change affecting the Software or the Website, or any of its parts, however deemed necessary during the term of the Agreement does not constitute a change in this Agreement with you.
Except where necessary in order to view the information on the Website and/or the Software, or as permitted under the English law or this Agreement, no information or content on the Website and the Software may be reproduced, adapted, uploaded to a third party, linked to, framed, performed in public, distributed or transmitted in any form by any process without a specific written consent of Pay Set.
You hereby acknowledge that we may be bound by a license arrangement with a third-party software provider which governs our license to use the Software and provide with the Services. Your access to the Software therefore depends on our license and may be terminated at any time without prior notice and you hereby waive any claim against us and/or against the third-party licensor in that respect.
19. DORMANT ACCOUNTS
If the Account has not been active for consecutive 4 (four) months, it shall be classified as dormant. This type of Account will be charged dormant account maintenance fees per month starting from the 5th (fifth) month of inactivity. The dormant account maintenance fee will be deducted from the Account balance until the Account becomes active, or until the balance reaches zero. The Account becomes active as soon as the Customer logs in onto the Software and performs a Transaction.
20. SUSPENSION, CLOSURE AND TERMINATION
20.1 Duration of the Agreement is 1 (one) year after signing of this Agreement (the “Maturity Date”). Following the Maturity Date, the Agreement will be automatically renewed for consecutive one (1) year periods, until terminated pursuant to the below.
20.2 This Agreement may be terminated, your Account suspend or refused to be reactivated, immediately by Pay Set in one of the following events:
20.2.1 if you do not provide information upon the request of Pay Set or the information provided does not meet Pay Set's requirements;
20.2.2 if you fail to make any payment which is due in accordance with this Agreement;
20.2.3 if you are in breach of any relevant statute, law, regulation or instruction of public authority and/or any material term of this Agreement (including all schedules), and you fail (where such breach is curable) to resolve the matter in a timely manner;
20.2.4 if this Agreement becomes unlawful for Pay Set to perform for any reason, including without limitation if we need to do so to comply with the law or with a subpoena, court order, order or request of law enforcement or other government or regulatory agencies/authorities;
20.2.5 if use of your Account is subject to any pending litigation, investigation, or government proceeding or Pay Set perceives a heightened risk of legal or regulatory non-compliance associated with your Account activity;
20.2.6 if you are likely to become unable to pay its debts as they become due or have a bankruptcy petition presented against or any of the events specified above or anything analogous to them occurs under the laws of any applicable jurisdiction;
20.2.7 if Pay Set in its sole discretion decides that you no longer meet Pay Set clients’ profile;
20.2.8 if Pay Set believes that you adversely affect its reputation;
20.2.9 if you are reasonably suspected of carrying on illegal activities;
20.2.10 if you breach representations and warranties provided in this Agreement;
20.2.11 if we reasonably believe that your Account is associated with any account that has been suspended or terminated for breach of this Agreement or suspended for any other reason;
20.2.12 due to a Force Majeure event
20.2.13 if your Account remains inactive for 3 consecutive months;
20.2.14 if our service partners are unable to support your use of the Services;
20.2.15 if the Agreement of the Bank with Pay Set is terminated;
20.2.16 if you take any action that we deem as circumventing our controls;
20.2.17 if you attempt to gain unauthorised access to the Software or another Customer's Account or provide assistance to others attempting to do so;
20.2.18 if Pay Set is concerned about the security of your Account;
20.2.19 if we suspect your Account is being used in an unauthorised manner, including without limitation, by a person other than you, or that the Services are being used for the benefit of someone other than you, or used to commit fraud or for other illegal purposes;
20.2.20 if you act in a manner that is threatening or abusive to our staff or any of our representatives;
20.3 If the Customer becomes aware of the occurrence of any event referred to in Clause 20.2 above it must give Pay Set an immediate written notice.
20.4 Each of the parties to this Agreement is entitled to terminate the Agreement with a prior 30 (thirty) days written notice given to the other party.
20.5 Upon termination of the Agreement, Pay Set shall transfer or write-off outstanding Fees from the Account and transfer the remaining funds to a different bank account belonging to the Customer. The Customer will be responsible to compensate all outstanding Fees and any other payment to Pay Set despite the write-off under this Clause.
20.6 When your Account is closed, it cannot be used. You will remain liable for all obligations relating to your Account even after your Account has been closed. Closing your Account does not mean that we delete the personal data that we hold on you and we will continue to store such data, including the history of your Transactions for a minimum period of 5 (five) years as required by law.
20.7 If the Customer decides to terminate this Agreement and close the Account at or before the Maturity Date, it is required to cover Pay Set expenses, including expenses for closing the Account.
20.8 The right to terminate this Agreement and to close your Account shall not prevent Pay Set from exercising any other right or remedy in respect of the breach concerned (if any) or any other breach.
21. GOVERNING LAW AND JURISDICTION
This Agreement and the relationship between you and us will be governed by and construed in accordance with the English law without reference to conflict of law or choice of law provisions, and you irrevocably submit to the exclusive jurisdiction of the courts in London, England, for determination of any dispute concerning this Agreement (provided that this shall not prevent Pay Set from bringing an action in the courts of any other jurisdiction). You further irrevocably waive any objection which you may have at any time to the laying of venue of any proceeding brought in any such court and agree not to claim that such proceedings have been brought in an inconvenient forum or that such court does not have jurisdiction over it.
22.1 Entire Agreement. This Agreement contains the entire agreement and supersedes all prior and contemporaneous understandings between the parties regarding the Services. In the event of any conflict between this Agreement and any other agreement you may have with Pay Set, the terms of this Agreement shall prevail.
22.2 Amendments. The Agreement can be amended or supplemented unilaterally by Pay Set which shall inform the Customer in writing no later than 5 (five) business days before any intended changes goes into effect. In case the Customer does not object to the proposed amendments, amendments are considered to take effect from the indicated term. In case the Customer disagrees with the proposed amendments, implementation of which would materially affect the Customer, Customer can terminate the Agreement with immediate effect.
22.3 Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, all of which shall remain in full force and effect.
22.4 Waiver. No delay in performing an obligation or in exercising any rights under this Agreement shall mean exemption of such obligation or waiver of such right, nor will separate or partial performance of any obligation or exercise of any right exclude further performance of such obligation or further exercise of such rights.
22.5 Force Majeure Events. Neither party shall be liable for any inaccuracy, error, delay in, or omission of the transmission or delivery of information; or any loss or damage arising from any Force Majeure.
22.6 Assignment. You may not assign or transfer any of your rights or obligations under this Agreement without prior written consent from Pay Set, including by operation of law or in connection with any change of control. Pay Set may assign or transfer any or all of its rights or obligations under this Agreement, at its sole discretion, in whole or in part, without obtaining your consent or approval.
22.7 Outsourcing: Subject to applicable laws and regulations, Pay Set may outsource any or all of the Services it provides under this Agreement to third parties.
22.8 Survival. Clauses “Eligibility”, “Services Use - Transactions”, “Payment”, “Disclaimer of Warranties”, “Limitation of Liability”; “Intellectual Property and Third-Party Content”, “Access Rights”; “Suspension, Closure and Termination”, “Governing Law and Jurisdiction” and this Clause “Miscellaneous” shall survive any termination of this Agreement.
In this Data Protection Schedule, the following words shall have the following meanings:
1.1 Controller, Process, and Processor shall have the meanings given to them in the Data Protection Laws;
1.2 Data Subject means an individual who is the subject of Personal Data, including Authorised Persons, as well as shareholders, directors, clients and payees of the Customer;
1.3 Data Protection Laws shall have the meaning given to it in the Agreement;
1.4 Personal Data means information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.
2. Compliance with Data Protection Laws
Each party hereto shall comply with the Data Protection Laws as it applies to Personal Data of Data Subjects Processed under the Agreement. This Section is in addition to, and does not relieve, remove or replace a party’s obligations under the Data Protection Law.
3. Data Processing
3.1 The parties hereto agree and acknowledge that for the purpose of Data Protection Laws, Customer will be acting as a data Controller and Pay Set will be acting as a data Processor in respect of the Personal Data of Data Subjects.
3.2 The Customer is solely and wholly responsible for establishing and maintaining the lawful basis for the Processing of Personal Data of Data Subjects by Pay Set under the Agreement in order to fulfil its obligations and with respect to including (where applicable) the obtaining of all necessary consents from Data Subjects.
3.3 A description of the data Processing carried out by Pay Set under the Agreement is set out in Part 1 of the Appendix to this Data Protection Schedule.
3.4 The Customer acknowledges that aggregated, anonymized data may be created based on Personal Data. Data Subjects are not identifiable from this data. This data may be used and or shared with third parties for the purposes of billing, product enablement and build, testing or product improvement and for the purposes of replying to requests from public authorities.
3.5 The Customer and Pay Set agree to ensure that all staff are appropriately trained in line with their responsibilities under applicable Data Protection Laws.
3.6 Data protection enquiries should be addressed to Pay Set’s Data Protection Officer at email@example.com.
3.7 In respect of the Personal Data Processed by Pay Set as a data Processor acting on behalf of the Customer under the Agreement, Pay Set shall:
a. Process the Personal Data only on the Customer’s written instructions (the provisions of this Agreement shall be considered written instructions by the Customer for this purpose), for compliance with legal obligations to which Pay Set is subject (in which case it shall, if permitted by such law, promptly notify the Customer of that requirement before Processing), and where Processing is necessary for the purposes of the legitimate interests pursued by Pay Set, including the prevention of fraud and the maintenance of information security (except where such interests are overridden by the interests or fundamental rights and freedoms of the Data Subject which require protection of Personal Data, or where the Data Subject is a child);
b. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised, unlawful or accidental Processing, including accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data, such measures in each case to be appropriate to the likelihood and severity of harm to Data Subjects that might result from the unauthorised, unlawful or accidental Processing, having regard to the state of technological development and the cost of implementing any measures;
c. ensure that persons engaged in the Processing of Personal Data are bound by appropriate confidentiality obligations;
d. keep a record of the Processing it carries out, and ensure the same is accurate;
e. comply promptly with any lawful request from the Customer requesting access to, copies of, or the amendment, transfer or deletion of the Personal Data to the extent the same is necessary to allow the Customer to fulfil its own obligations under the Data Protection Laws, including the Customer’s obligations arising in respect of a request from a Data Subject;
f. notify the Customer promptly if it receives any complaint, notice or communication (whether from a Data Subject, competent supervisory authority or otherwise) relating to the Processing, the Personal Data or to either party’s compliance with the Data Protection Laws as it or they relate to the Agreement, and provide the Customer with reasonable cooperation, information and other assistance in relation to any such complaint, notice or communication;
g. notify the Customer promptly if, in its opinion, an instruction from the Customer infringes any Data Protection Laws (provided always that the Customer acknowledges that it remains solely responsible for obtaining independent legal advice regarding the legality of its instructions) or Pay Set is subject to legal requirements that would make it unlawful or otherwise impossible for Pay Set to act according to the Customer’s instructions or to comply with Data Protection Laws;
h. ensure in each case that prior to the Processing of any Personal Data by any sub-Processor, terms equivalent to the terms set out in this Data Protection Schedule are included in a written contract between Pay Set and any sub-Processor engaged in the Processing of the Personal Data;
i. subject always to the requirement of sub-Section 3.7(h) above regarding a written contract, the Customer hereby gives its prior written authorisation to the appointment by Pay Set of each of the sub-Processors or categories of sub-Processors (as the case may be) who will Process Personal Data listed in Part 2 of the Appendix to this Data Protection Schedule, and to the extent this authorisation is in respect of a category of sub-Processors, Pay Set shall inform the Customer of any intended changes concerning the addition or replacement of other categories of sub-Processors;
j. only transfer the Personal Data outside of the European Union (including to the UK if it ceases to be a member of the European Union) if it has fulfilled one of the following conditions:
i. the Personal Data is transferred to a country approved by the European Commission as providing an adequate level of protection for Personal Data,
ii. the transfer is made pursuant to European Commission-approved standard contractual clauses for the transfer of Personal Data,
iii. or other appropriate legal data transfer mechanisms are used.
The transfer of Personal Data may take place worldwide subject to the aforementioned arrangements. If the legal means by which adequate protection for the transfer is achieved ceases to be valid, Pay Set will work with the Customer to put in place an alternative solution;
k. inform the Customer promptly (and in any event within one business day of becoming aware of such an event) if any Personal Data Processed under the Agreement is lost or destroyed or becomes damaged, corrupted, or unusable or is otherwise subject to unauthorised or unlawful Processing including unauthorised or unlawful access or disclosure;
l. inform the Customer promptly (and in any event within five (5) business days) if it receives a request from a Data Subject for access to that person’s Personal Data;
m. provide reasonable assistance to the Customer in responding to requests from Data Subjects and in assisting the Customer to comply with its obligations under Data Protection Laws with respect to security, breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
n. delete or return that Personal Data to the Customer at the end of the duration of the Processing as referred to in the Appendix, and at that time delete or destroy existing copies, subject to the requirements of any legal obligation arising from EU Member State law to which Pay Set is subject, which require continued storage of the End User Personal Data, (including, but not limited to, obligations arising from measures aimed at combating money laundering and the financing of terrorism);
o. subject to the requirements of commercial and client confidentiality, make available to the Customer such information as is reasonably required to demonstrate compliance with this Data Protection Schedule and, subject to any other conditions set out in this Agreement regarding audit, allow for and contribute to audits, including inspections, of compliance with this Data Protection Schedule conducted by the Customer or a professional independent auditor engaged by the Customer. The following requirements apply to any audit:
i. the Customer must give a minimum thirty (30) days’ notice of its intention to audit,
ii. the Customer may exercise the right to audit no more than once in any calendar year,
iii. commencement of the audit shall be subject to agreement with Pay Set of a scope of work for the audit at least ten (10) days in advance,
iv. Pay Set may restrict access to certain parts of its facilities and certain records where such restriction is necessary for commercial and/or client confidentiality,
v. the audit shall not include penetration testing, vulnerability scanning, or other security tests,
vi. the right to audit does not include the right to inspect, copy or otherwise remove any records, other than those that relate specifically and exclusively to the Customer,
vii. any independent auditor will be required to sign such non-disclosure agreement as is reasonably required by Pay Set prior to the audit, and
viii. the Customer shall compensate Pay Set for its reasonable costs (including for the time of its personnel, other than the client relationship manager) incurred in supporting any audit.
Appendix to the Data Protection Schedule
Part 1 – Description of the Processing
Part 2 – Authorised Sub-Processors and Categories of Sub-Processors