Last Updated: 23 July 2019  |  Version: 1.0

These CurbPay Payment Service Terms and Conditions, including the terms, policies, guidelines and instructions referred to herein (these “Payment Terms and Conditions”), your CurbPay Merchant Application and Agreement (your “Application”), any other written agreements or addendums with respect to your access to or use of any of the Payment Service (each such written agreement or addendum, a “Supplemental Agreement” and, together with these Payment Terms and Conditions and your Application, this “Agreement”) constitute a legal and binding agreement between CurbPay®, a trading division of Curb Mobility Limited, a company organized under the laws of England and Wales having registration number 11105577, with its registered office at Gloucester House, 10 Camberwell New Road, Kennington, London SE5 0TA (“CurbPay”, “we”, “our” or “us”), and you, the sole trader, company or other business entity or organization having submitted an Application and/or created an account with us (the “Merchant”, “you” or “your”), governing your access to and use of our equipment, software, services or systems for the acceptance and/or processing of payment transactions (such equipment, software, services and systems, the “Payment Service”).
By submitting an Application, using the Payment Service, or otherwise agreeing to these Payment Terms and Conditions, you acknowledge that you have read, understood, and accept to be bound by this Agreement, including these Payment Terms and Conditions. If you do not agree to this Agreement, including these Payment Terms and Conditions (or if you do not have the right to bind the company or other business entity or organization you are representing), then you are not permitted to access or use the Payment Service, and you should not accept or agree to these Payment Terms and Conditions.
CurbPay has an application pending with the Financial Conduct Authority to become an authorized Payment Institution pursuant to the Payment Services Regulations 2017 (the “Regulations”), and is registered with, and supervised by, the Financial Conduct Authority.
As a merchant aggregator and/or payment facilitator, we facilitate the processing of payment transactions and, in order for us to do this, we have entered into agreements with acquiring financial institutions (“Acquirers”) and providers of payment gateways and other related services (“Service Providers” and, together with Acquirers, “Payment Service Vendors”). The Payment Service is governed by the requirements and guidelines established by our Payment Service Vendors and the requirements and guidelines (together, the “Card Scheme Rules”) established by Visa Europe Limited, MasterCard Europe S.A., American Express Limited, and other applicable card schemes (together, the “Card Schemes”), as well as this Agreement (including these Payment Terms and Conditions) and the Regulations.
It is important that you understand the risks and liabilities associated with the use of the Payment Service, and we, therefore, encourage you to read these Payment Terms and Conditions carefully before agreeing to them and before you start using the Payment Service.
If you have any questions or concerns regarding the content of these Payment Terms and Conditions or would like to get a better understanding of how the Payment Service works, please do not hesitate to contact us by telephoning our client services team at +44 (0) 203 890 2009 or by emailing us at MerchantServices@CurbPay.co.uk.

​

Part 1 – Access to and use of the payment service

1. Your CurbPay account

In order to get access to and use the Payment Service, you must create a CurbPay merchant account by

(i) completing and executing an Application, (ii) delivering the application and all supporting documentation to CurbPay, and (iii) being approved for a CurbPay merchant account (a “CurbPay Account” or an “Account”) by CurbPay.
You warrant to us that: (a) you will use the Payment Service solely for permitted trade, business or professional purposes in the United Kingdom identified in your Application, (b) you will not directly or indirectly use the Payment Service in or into any other country unless otherwise agreed with us, and (c) you, as a natural person, are at least 18 years of age or, if you are under eighteen 18 years of age, you have obtained the consent of your parent or legal guardian to your acceptance of these Payment Terms and Conditions and use of the Payment Service in the manner prescribed by us.
In order to get access to and use the Payment Service, you will be required to provide, and update when changed, information about you and your business, including your name, registered trade name, registered address, names you are doing business under, business addresses, business purposes and nature of your business, a complete description of your products and services, and information about the beneficial owner(s) (direct or indirect owner(s) of 25% or more of your business) and the principal(s) (directors, officers or other person that manage or have significant control over day-to-day operations) of your business. You must ensure that all information that you provide is and remains accurate, complete and up-to-date. You must promptly inform us of any changes to the information about your business, beneficial owners or principals, or your use of the Payment Service, without delay.
We reserve the right to suspend your access to and use of the Payment Service, and/or to terminate and close your CurbPay Account, if you provide us with inaccurate, untrue, or incomplete information, if you fail to comply with any Account registration or use requirements, or otherwise breach, or fail to meet your obligations under, this Agreement.
If there has been no activity on your CurbPay Account for at least two consecutive years and you have a balance on your CurbPay Account, we will notify you to the email address registered by you and/or associated with your CurbPay Account and give you the option to keep your CurbPay Account active or to close your CurbPay Account and request a withdrawal of any funds that we hold on your behalf. If you do not respond to our notice within thirty (30) days, we will automatically close your CurbPay Account and any funds that we hold on your behalf will be handled in accordance with applicable law and, if permitted, accrue to us.
In order for us to be able to pay out funds credited to your CurbPay Account in accordance with this Agreement, you must designate and, if we so request, verify a bank account held in your name in a bank in the United Kingdom. You authorize us to direct questions to, and obtain information from, the relevant bank, for the purpose of verifying your designated bank account and your ownership of said bank account. You agree, upon our request, to take all reasonable measures to assist us in verifying your bank account and your ownership thereof. In the event that your designated bank account is incorrect or incomplete, or if we for any reason cannot verify that the bank account is held in your name, we may de-connect the bank account from your CurbPay Account, and you confirm and agree that we will not be under any obligation to pay any funds to you until such time that you have provided correct and complete bank account information and we, as applicable, have been able to verify that you are the holder of the bank account.

2. Exclusive payment processing provider

You hereby grant to CurbPay the exclusive right to provide Merchant with equipment, software, systems and methods for the making, accepting and/or processing of payment transactions made for goods or services provided, sold, rented, leased, transferred or conveyed by Merchant. Merchant covenants and agrees not to use any equipment, software, systems or methods other than those made available via the Payment Service to accept and/or process payment transactions. Further to the foregoing, you will establish, and maintain for the duration of the Term (as defined in clause 30 (TERM AND TERMINATION) below), a merchant account with CurbPay and with any Payment Service Vendors designated by CurbPay from time to time.

3. Background checks; underwriting; eligibility

In connection with you creating a CurbPay Account and signing up for the Payment Service, we perform background and reference checks (which may include credit checks) and other verifications which may require that you supply such additional information and documentation as is reasonably required in order for us to verify your identity and otherwise to fulfil, and be satisfied that we have complied with, all our anti-money laundering, counter terrorist financing and similar regulatory obligations. We may perform additional credit checks and verifications from time to time to determine whether you continue to be eligible for access to and use of the Payment Service. We may also request your permission to do a physical inspection at your place of business and to examine your books and records that pertain to your compliance with these Payment Terms and Conditions. You agree to comply with any such requests without undue delay. You authorize our Acquirers and us to, from time to time, retrieve information about you from, and provide information about you to, third parties, including credit reporting agencies or bureaus and other information providers, and you authorize and instruct such third parties to compile and provide such information to us.
Once we have obtained, collected and verified all your information, we will assess whether you are eligible to get access to and use the Payment Service. You agree that we have the right, in our sole discretion, to determine whether or not you are eligible for access to and use of the Payment Service. We will only be bound by this Agreement once we have determined that you are eligible for access to and use of the Payment Service.
Notwithstanding any determination that you are eligible for access to and use of the Payment Service, we reserve the right to suspend your access to and use of any portion or all of the Payment Service and to terminate and close your CurbPay Account if (i) we determine that you are no longer eligible for access to and use of the Payment Service, (ii) you fail to promptly comply with any request for information made by us or any of our Payment Service Vendors, or (iii) we are instructed to do so by any Card Scheme, any Acquirer, the Financial Conduct Authority or any other government agency.

4. The CurbPay payment service

The Payment Service will enable you to accept and process payments from your customers (i) by credit, debit and other types of cards (“Cards”) through the use of a point-of-sale payment terminal provided to you by CurbPay or its Affiliates (as defined below) (a “Terminal”), (ii) by Card through the use of the CurbPay mobile software application (the “App”) installed on your smartphone, tablet or other compatible mobile computing device connected to a mobile point-of-sale (mPOS) device (aka Card reader) provided to you by CurbPay or its Affiliates (such mPOS device, a “Reader”), or (iii) when your customers pay for your products and/or services through a CurbPay payment link provided to your customer by email, text message or similar communication tool. As used herein, “Affiliate” means, with respect to any specified person or entity, any other person or entity that controls, is controlled by, or is under common control with, the specified person or entity.
In providing the Payment Service, we will facilitate the processing of payment transactions carried out through the use of the Payment Service on your behalf, credit the funds received by us from such transactions on your CurbPay Account, and settle such funds (less our Fees, Chargebacks (as defined in clause 19 (CHARGEBACKS) below),reversals, claims and other funds owed to us) to your designated bank account in accordance with these Payment Terms and Conditions. We or an Acquirer will hold an amount equal to the balance on your CurbPay Account, on your behalf separated from our own funds, but together with amounts held on behalf of other merchants, in a designated client account (“Client Account”) in a bank in accordance with the Regulations.
You authorize and instruct us to receive, hold and disburse funds in accordance with these Payment Terms and Conditions on your behalf. This authorization and instruction will remain in full force and effect until your CurbPay Account is closed or terminated.
You agree that we may at any time update or modify the Payment Service. We will always attempt to notify you of any such updates or modifications with reasonable notice via email and/or any interface made available to you by CurbPay for purposes of enabling you to access or monitor your Account (a “Merchant Portal”). However, we reserve the right to implement such updates and modifications with immediate effect without prior notice to you where necessary to maintain the security of our systems or to comply with applicable laws, rules and regulations, including the Card Scheme Rules.

5. Service level

Although we will use all commercially reasonable efforts to provide the Payment Service 24 hours a day, seven days a week, we do not warrant that the Payment Service will be free from interruptions, delays or errors caused by our systems, acts or omissions of our Payment Service Vendors, the Card Schemes or other third party service providers, general Internet failures or force majeure. You must notify us without undue delay by contacting our client services team at MerchantServices@CurbPay.co.uk if you experience any interruptions, delays or errors in the Payment Service, and provide all reasonably requested information and assistance in identifying and resolving such interruptions, delays or errors.
From time to time we will perform maintenance and upgrades of the Payment Service, which may result in interruptions, delays or errors in the Payment Service. Although we will do our best to notify you in advance of any planned maintenance either via email or a Merchant Portal, we cannot guarantee that such notification will always be provided.

6. Card scheme rules

By accepting these Payment Terms and Conditions, you confirm and agree that you will comply with the Card Scheme Rules insofar applicable to merchants and available online or provided to you by us, our Acquirers or the Card Schemes. Certain Card Scheme Rules are available to the public at: https://www.mastercard.us/en-us/aboutmastercard/what-we-do/rules.html, https://www.visaeurope.com/receiving-payments/. You confirm and agree that the Card Scheme Rules have precedence over these Payment Terms and Conditions and that, in case of any conflict between a provision in these Payment Terms and Conditions and the Card Scheme Rules, the latter will prevail.
We reserve the right to amend these Payment Terms and Conditions at any time. If any such amendment materially and adversely changes your rights and/or obligations with respect to your access to or use of the Payment Service, then, for a period of thirty (30) days following such amendment, you may immediately terminate this Agreement by providing written notice of such termination to CurbPay prior to the expiration of such thirty- (30-) day period.

7. The CurbPay App

In order to accept and process payment from your customers through the use of the App, you must download and install the App and obtain a compatible Reader. When available, you may download the App from the Apple App Store or Google Play. You must download and use the most recent version of the App that is available, including downloading and installing any updates that become available from time to time. The App may also be available in other formats, such as in software development kit format. Information about compatible Readers (if any) and how they can be purchased can be found on our website located at https://CurbPay.co.uk.

8. Restrictions and limitations

You confirm and agree that you will not use the Payment Service to accept payments in connection with (i) any business or business activities other than those specified in your Application, or (ii) the businesses or business activities included in the list of prohibited segments set forth in Exhibit A attached hereto (“Prohibited Segments”). You furthermore confirm and agree that you will not use the Payment Service to accept payments in connection with the following businesses or business activities without our express written approval, which approval we may withhold or revoke in our sole discretion where we find this to pose a risk to our business and/or reputation: (A) private healthcare services, (B) gambling and betting services (irrespective of if such gambling and betting services are provided in accordance with applicable laws and authorized by applicable regulatory authorities), (C) financial services (irrespective of if such financial services are provided in accordance with applicable laws and authorized by applicable regulatory authorities), (D) gift cards, or (E) event organisers.
In addition to any other obligations, requirements, restrictions or limitations set out in these Payment Terms and Conditions, you confirm and agree that you will not: (i) apply a price threshold for accepting a Card; (ii) apply a higher price or additional fees for the use of a Card in connection with a transaction, unless permitted to do so under any laws, rules and regulations of your specific jurisdiction; (iii) utilize any credit available on any Card to provide cash advances to customers; (iv) carry out transactions in territories other than the United Kingdom and in currencies other than pounds sterling; (v) discriminate between Cards for any reason, unless permitted to do so under any laws, rules and regulations of your specific jurisdiction; (vi) submit any transaction for processing that does not arise from your actual sale of products or services to your customer (i.e., you may not submit any transaction for processing which is originating from sales or activities offered by other parties); (vii) submit any transaction for processing that you know or should have known to be fraudulent or not authorized by the named Card holder; (viii) act as a payment intermediary or aggregator or otherwise resell the Payment Service; (ix) submit for processing any transaction representing the refinancing of an existing obligation of a customer; (x) require any customer to waive his, her or its right to dispute a transaction; (xi) require any customer to disclose his, her or its Card personal identification number (PIN) at any point during a Card transaction; or, (xii) where a customer uses a chip and PIN Card, print data referencing any customer’s PIN on any receipt.
Our Acquirers and the Card Schemes may from time to time impose certain limits with respect to our merchants’ annual Card transaction volume through the use of the Payment Service. If your annual Card transaction volume exceeds these limits we will notify you thereof and give you the option to enter into an extended agreement that includes our Acquirer or the relevant Card Scheme, as applicable, as a party in order to continue using the Payment Service. If you fail to complete such extended agreement or for any reason cannot be accepted under such extended agreement, we may not be able to facilitate transactions in excess of the aforementioned limits. In such case, we may also be required to suspend your access to and use of the Payment Service and/or to terminate and close your CurbPay Account.
You may not use the Payment Service to carry out Card transactions with your own Cards or any Cards that are issued in your name.
You may not in any way refer to us, our Acquirers or other Payment Service Vendors, or the Card Schemes as having endorsed your products and/or services.
The use of the Payment Service is subject to certain limits relating to daily Card transaction volume as we may establish from time to time.

9.  Errors and unauthorized or illegal use

We will assume that you are the sender of any transactions and other instructions to us when sent using your Account and/or devices connected thereto and/or associated therewith. You must notify us immediately through the Merchant Portal or by contacting our client services team at MerchantServices@CurbPay.co.uk if you discover or have reason to believe that there has been an error or unauthorized or illegal use of your CurbPay Account and, where possible, change your Account credentials to prevent any further errors and/or unauthorized or illegal use. You must provide us all information and documentation in your possession as to the circumstances of any such error and/or unauthorized or illegal use of your CurbPay Account and take all reasonable steps requested by us to assist in our investigation.

10. Accepted cards

The Payment Service can be used to accept payment transactions with most Cards bearing the trademarks of the Card Schemes specified by us from time to time. We may remove or add Cards that we accept at any time without notice to you. We will only process Card transactions that have been authorized by the applicable Card Scheme or Card issuer, as the case may be.
You understand that you are solely responsible for verifying the identity of your customers and the eligibility of each presented Card used to purchase your products and services and for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or Chargeback as further described in clause 19 (CHARGEBACKS) below.
You undertake to inform your customers of the possibility to pay by Card by displaying signage for all Card options provided by CurbPay as possible payment methods at your physical point of sale or online.

 

11. Fees

For the use of the Payment Service you agree to pay the fees, charges and other amounts (“Fees”) assessed and calculated by us in accordance with your Application, this Agreement and/or otherwise agreed to by you and CurbPay; provided that we reserve the right to adjust the Fees at any time as necessary to reflect any increase in third party costs incurred by CurbPay in connection with providing you with access to or use of the Payment Service and/or changes in Regulations or applicable law.
By accepting these Payment Terms and Conditions, you request and agree that we charge you the Fees (as a blended merchant service charge) assessed and calculated by us in accordance with the fee schedule set forth in your Application and/or otherwise agreed to by you and CurbPay.
Fees may be assessed at the time a transaction is processed and will be deducted from the funds received by us and credited to your CurbPay Account, but you remain directly responsible for payment of any Fees not collected in such manner. Fees or other charges not deducted by us from transaction proceeds may be invoiced to you via email, the Merchant Portal or post, and you hereby authorize CurbPay to debit your designated bank account for all such invoiced Fees and charges. Fees are exclusive of VAT, and you will be responsible for payment of VAT or any other taxes, surcharges or other amount required to be charged and/or collected by CurbPay under applicable law or Regulations.

12. Taxes

You understand and agree that we may from time to time be required to report to revenue or tax authorities, as required by law, your name, address and information regarding transactions processed by us on your behalf through your use of the Payment Service.

13. Processing of payment transactions

You must comply with any and all instructions provided by us to you regarding the acceptance and authorization of payment transactions, including those available on our Website or in any Merchant Portal. You undertake to ensure that all your employees and other eligible representatives who handle payment transactions on your behalf are informed of the content of these Payment Terms and Conditions in advance, and that they have received the training required in order to satisfy the requirements of these Payment Terms and Conditions.
When a payment transaction is made, we will update the transaction information in your CurbPay Account confirming that the transaction has taken place and setting out the details of the transaction as further described in clause 0 (TRANSACTION INFORMATION) below.
You must provide customers with a receipt if they request one.
An authorized payment transaction may not be withdrawn by you or your customer after the end of the day on which your customer authorized the transaction.
You agree that you will not provide any false or misleading descriptions of any payment transaction that you submit through the Payment Service and that the descriptions given within submitted payment transactions will be an accurate and true description of the products and/or services being purchased.
We reserve the right not to authorize or process any payment transaction that you submit through the Payment Service that we believe may be in violation of these Payment Terms and Conditions or any applicable laws, rules or regulations, or may expose you or us to harm, including, but not limited to, fraud or other criminal acts. You authorize us to share information with law enforcement about you, your transactions, or your use of the Payment Service if we reasonably suspect that your CurbPay Account has been used for unauthorized, illegal, or criminal purposes.

14. Processing card transactions

You may use the Payment Service to process card-present transactions (i.e., transactions where both the Card and the customer are present at the time of the transaction) by inserting the Card into the CurbPay Terminal or Reader or swiping the Card and obtaining the customer’s PIN or obtaining the customer’s signature. The Terminal or the App will prompt you as to what verification is necessary, based on a customer’s Card. If a customer’s Card includes an electronic chip, you must always look to obtain chip and PIN authorization before obtaining a signature.
You may also be able to use the Payment Service to process contactless transactions (i.e., transactions made using the contactless induction technology in a CurbPay Terminal or Reader supporting contactless transactions, including a Card, or smartphone/device transaction using near field communication technology through a CurbPay Terminal or Reader supporting contactless transactions), however you may not process a contactless transaction with a value exceeding the prevailing amount limit for that transaction set by an Acquirer, a Card Scheme and/or us from time to time.

15. Refunds and returns

You must submit any and all refunds and adjustments for returns of your products or services through the Payment Service in accordance with these Payment Terms and Conditions and the applicable Card Scheme Rules. All refunds and adjustments related to Card transactions must be made to the customer’s Card. You undertake to: (i) maintain a fair return, cancellation or adjustment policy, (ii) disclose your return or cancellation policy to customers at the time of purchase, (iii) not give cash refunds to a customer in connection with a Card transaction, unless required by law, and (iv) not accept cash or any other item of value for preparing a Card transaction refund.
Full refunds must be for the exact amount of the original transaction including taxes, fees and handling charges. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customer for postage costs incurred for product returns. Refunds processed through the Payment Service must be submitted within thirty (30) days of the original transaction. For processed refunds, we will deduct the refund amount (including any applicable fees) from funds owed to you from the processing of other transactions, or funds credited to your CurbPay Account. If these funds are not sufficient, you agree to pay all funds owed to us immediately on demand. You are solely responsible for accepting and processing returns of your products or services.

 

16. Payout of funds

Funds from a payment transaction credited to your CurbPay Account may be paid out to your designated bank account prior to the transaction being deemed completed; provided that, for the avoidance of doubt, CurbPay is not obligated or required to pay such funds to your designated bank account until after the transaction is deemed complete. A Card transaction will be deemed completed when we have received the funds from the relevant Card Scheme or Acquirer, as the case may be, on the Client Account. A payment transaction using another payment method will be deemed completed when we have received the funds on the Client Account. Once we have verified your designated bank account (if applicable), we may initiate payout of funds (less our Fees, Chargebacks, refunds, reversals, claims and other funds owed to us) to your designated bank account on the first business day following the date of the payment transaction, but such payout will be initiated no later than the third business day immediately following the business day on which we received the funds on the Client Account, unless otherwise set out in these Payment Terms and Conditions.
Payouts to your designated bank account are executed, at least in part, by third party financial institutions and we will not be responsible or liable for the ultimate credit of funds to your designated bank account once we have paid out the funds to your designated bank account. Furthermore, we will not be responsible or liable for any funds that, due to incorrect or incomplete bank account information provided by you, have been paid to a bank account that is not held in your name. For the avoidance of doubt, if CurbPay does not receive funds for any payment transaction into the Client Account, CurbPay may reverse any payout made to you in connection with such unfunded payment transaction and/or debit the amount of any such payout from your designated bank account.
We reserve the right to temporarily suspend and/or delay payouts to your designated bank account and/or restrict access to any funds credited to your CurbPay Account where we need to conduct an investigation or resolve any pending dispute relating to your CurbPay Account and/or as necessary to comply with the Card Scheme Rules, Regulations, applicable law or court order, or if otherwise requested by law enforcement or any governmental authority.

17. Transaction information

You may access your transaction information by logging into your CurbPay Account via the Merchant Portal. You will also be able to access downloadable reports. The transaction information will also show all Fees incurred, any other amounts charged to your CurbPay Account in the relevant period and information on payouts to your designated bank account.
We will provide you with information regarding payment transactions with a reference enabling you to identify the transaction, the amount of the transaction in the currency in which your CurbPay Account is credited and the amount of the Fees specifically for the transaction. By accepting these Payment Terms and Conditions, you request and agree that we may aggregate this information for all Card transactions by brand, application, payment instrument categories and rates of interchange fees applicable to the transaction, as applicable, and that we make this information available to you periodically, at least once per month, via your CurbPay Account in a format making it possible for you to store and reproduce the information in unchanged form.

18. Reserve

We reserve the right to designate a number of funds that you must maintain in your CurbPay Account and/or accrue a reserve on your behalf (a “Reserve”) to secure the performance of your payment and other obligations under this Agreement, including these Payment Terms and Conditions. We may require and/or hold a Reserve for any reason, including if you have a high rate of Chargebacks, refunds, or other indications of performance problems related to your use of the Payment Service.
The Reserve will serve as security to cover anticipated Chargebacks, refunds and/or unfulfilled products or services or credit risk based on your processing history, and we will have the right to collect and set off from the Reserve all amounts that you owe us under this Agreement, including these Payment Terms and Conditions. You authorize and instruct us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect and set off amounts that you owe us under this Agreement, including these Payment Terms and Conditions.

19. Chargebacks

Any amount attributable to a payment transaction may be reversed or charged back to your CurbPay Account (each, a “Chargeback”) if the transaction: (i) is disputed in any way, (ii) is reversed for any reason by the Card Scheme, our Acquirers, the cardholder or the Card issuer, (iii) was not authorized or we have reason to believe that it was not authorized, and/or (iv) is alleged to be illegal, suspicious or in violation of this Agreement, including these Payment Terms and Conditions.
For any payment transaction we determine may result in a Chargeback, we have the right to withhold the likely amount of the Chargeback in a Reserve. We may recover the amount of any Chargeback and any associated fees, fines, and/or penalties assessed by the Card Schemes or our Acquirers from funds credited to your CurbPay Account or any other funds due to you under these Payment Terms and Conditions. If we believe that a Chargeback is likely with respect to any payment transaction, we may withhold the amount of the potential Chargeback from payments due to you under these Payment Terms and Conditions until such time that: (i) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds, (ii) the period of time under Card Scheme Rules, Regulations or applicable law or regulation by which the customer may dispute the transaction has expired, or (iii) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately on demand and authorize us to debit such amount from your designated bank account. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all Chargebacks or other Fees unpaid by you.
If we determine that you are incurring an excessive number of Chargebacks or that Chargebacks related to you are too frequent, we may establish controls or conditions governing your CurbPay Account, including without limitation: (i) create a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, penalties or fines, (ii) suspend your access to and use of the Payment Service, and/or (iii) terminate and close your CurbPay Account.
You agree to assist us, upon request, at your expense, in investigating any transaction processed through the Payment Service. You further agree that we may share information about a Chargeback with your customer, the customer’s financial institution and your financial institution in order to investigate and/or mediate a transaction dispute. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary information and documentation within ten (10) calendar days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating transaction disputes or Chargebacks.

20. Your privacy and security

You acknowledge that you have read in full the terms of our Privacy Notice located at https://curbpyay.co.ukprivacy-notice, which Privacy Notice is incorporated into these Payment Terms and Conditions by reference, and which explains how and for what purposes we collect, use, retain, disclose and safeguard the information you provide to us.
With limiting the generality of the foregoing paragraph, you acknowledge that we are required to report your business name and the name of your beneficial owners and/or principals to the MATCH listing maintained by MasterCard and accessed and updated by American Express, the VMAS database upheld by Visa, if applicable, pursuant to the requirements of the Card Scheme Rules. You acknowledge that we must fulfil the obligations related to such listing and reporting, and you waive and agree to hold us harmless from all claims and liabilities you may have as a result of such listing and reporting.
We are responsible for protecting the security of Card information in our possession. We have implemented administrative, technical and organizational procedures to protect Card information that is stored in our servers from unauthorized access and accidental loss, modification or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such information for improper purposes.

 

21. Data protection

In this clause 21 (DATA PROTECTION), the terms “data controller,” “data processor,” “personal data,” and “processing” bear the respective meanings given them in the United Kingdom Data Protection Act 2018 (“DPA”). If, and solely to the extent that, CurbPay processes any personal data falling within the scope of the DPA on the Merchant’s behalf when performing its obligations under this Agreement (such personal data, “Relevant Personal Data”), each of Merchant and CurbPay hereby record its intention that Merchant shall be the data controller and CurbPay shall be a data processor, and, in any such case:
i.    Merchant acknowledges and agrees that the Relevant Personal Data may be transferred or stored outside the EEA or the country where Merchant is located in order to carry out CurbPay’s obligations under this Agreement. CurbPay shall not process (or cause to be processed) any Relevant Personal Data originating from the EEA in a country that has not been designated by the European Commission as providing an adequate level of data protection unless it has put in place such measures as are necessary to ensure such transfer is in compliance with the DPA, except where otherwise required by applicable law;
ii.    Merchant shall ensure that Merchant is entitled to transfer the relevant Relevant Personal Data to CurbPay so that CurbPay may lawfully use, process and transfer the Relevant Personal Data in accordance with this Agreement on Merchant’s behalf;
iii.    Merchant shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
iv.    CurbPay shall process the Relevant Personal Data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by Merchant from time to time; and
v.    CurbPay shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Relevant Personal Data or its accidental loss, destruction or damage.
Upon becoming aware of a Security Incident affecting Relevant Personal Data processed on behalf of Merchant, CurbPay shall notify Merchant without undue delay and shall provide reasonable cooperation as Merchant may require to fulfil any data breach reporting obligations it may have under the DPA. CurbPay shall further take such reasonably necessary measures or actions to remedy or mitigate the effects of the Relevant Personal Data breach and shall keep Merchant informed of all material developments in connection with the Relevant Personal Data breach.
Merchant agrees that CurbPay may transfer or subcontract the processing of the Relevant Personal Data to CurbPay Affiliates, Payment Service Vendors and third party sub-processors (“Sub-processors“) to process Relevant Personal Data on CurbPay’s behalf. Any contract between CurbPay and any Sub-processor will require the Sub-processor to protect the Relevant Personal Data to the standards required by applicable data protection laws. CurbPay shall remain responsible for any breach caused by a Sub-processor to the same extent it is liable under this agreement. CurbPay shall provide reasonable assistance to Merchant, insofar as this is possible, to enable Merchant to respond to requests from data subjects seeking to exercise their rights under the DPA. In the event such request is made directly to CurbPay, it shall promptly inform Merchant of the same. CurbPay shall, taking into account the nature of the processing and the information available to it, provide reasonable assistance needed at Merchant’s reasonable cost to fulfil Merchant’s obligation to carry out data protection impact assessments and prior consultations with supervisory authorities as required under the DPA. CurbPay shall maintain adequate documentation verifying its compliance with this clause 21 (DATA PROTECTION). CurbPay shall ensure that any personnel that it authorizes to process the Relevant Personal Data shall be subject to a duty of confidentiality. Upon expiry or termination of this Agreement, CurbPay shall delete, or return to Merchant, the Relevant Personal Data (including copies) in CurbPay’s possession in accordance with the terms of this Agreement. This requirement shall not apply to the extent that CurbPay is required by applicable law or regulation, Regulations, Card Scheme Rules or Payment Card Industry Data Security Standards (PCI-DSS) to retain some or all of the Relevant Personal Data, or to Relevant Personal Data archived on backup systems. Merchant warrants that by transferring or providing Relevant Personal Data to CurbPay and by allowing CurbPay to process Relevant Personal Data for the purposes of this Agreement, the Merchant will not be in breach, and will not cause CurbPay to be in breach, of the DPA or any other applicable data protection laws.
A description of the nature and purposes of the processing, the types of Relevant Personal Data, categories of data subjects and the duration of the processing are set out further below:
i.    Nature and purposes of the processing: Any such processing of Relevant Personal Data that is appropriate or necessary to enable CurbPay to provide the Payment Service under this Agreement, including these Payment Terms and Conditions and any Supplemental Agreements.
ii.    Type(s) of Relevant Personal Data processed: CurbPay will process payment transaction data on behalf of Merchant. This may include identification data of payees (name, email), payee payment information (credit card number, expiry date, CVV), IT information (UID, IP addresses) and similar data directly related to the processing of Relevant Personal Data on behalf of Merchant.
iii.    Categories of data subjects: The Relevant Personal Data to be processed may include, but is not limited to, the following categories of data subjects: (A) Merchant’s end-users and consumers (g., cardholder, payee); (B) Merchant’s employees, agents, consultants, service providers and vendors; and (C) Merchant’s customers, prospects and business partners.
iv.    Duration of processing: The Relevant Personal Data will be processed for the duration of the Term, unless otherwise agreed between the parties or subject to applicable law.
Merchant acknowledges that CurbPay’s performance of its obligations under this Agreement will involve the transfer of Merchant Data outside of the European Economic Area, to CurbPay’s United States Affiliates. Merchant agrees that the EU Model Contract Clauses (also referred to as Standard Contract Clauses) (“Model Clauses”) shall be deemed to be incorporated in full into this Agreement and shall apply to the transfer (if any) by Merchant to CurbPay or its United States Affiliates of any Relevant Personal Data falling within the scope of the DPA to be processed by CurbPay on behalf of Merchant, and CurbPay warrants on behalf of itself and its United States Affiliates that it shall comply with the Model Clauses and agrees that it shall (and shall procure that its United States Affiliates shall), if necessary, execute any further documents the Merchant may reasonably require to give effect to the Model Clauses. CurbPay confirms that neither it nor any of its U.S. Affiliates is a signatory of the EU-U.S. Privacy Shield (IP/16/216). If CurbPay or one of its U.S. Affiliates becomes a signatory of such Privacy Shield, or upon implementation of a replacement program, CurbPay reserves the right to choose (in its absolute discretion) to solely rely on such program in place of the Model Clauses, provided that CurbPay (or its applicable Affiliates) are approved to participate in any such program.

22. Your additional warranties

In addition to any other warranties set out in these Payment Terms, you warrant to us that: (i) you are eligible to register for and use the Payment Service and have the right, power, and ability to enter into and perform these Payment Terms and Conditions, (ii) any payment transaction submitted by you through the Payment Service will represent a bona fide sale by you, (iii) any payment transaction submitted by you through the Payment Service will accurately describe the products or services sold and delivered to your customer, (iv) you will fulfil all of your obligations to each customer on behalf of whom you submit a payment transaction and will resolve any customer dispute or complaint directly with the customer, (v) you and any payment transactions submitted by you through the Payment Service will comply with all laws, rules and regulations applicable to your business and the Payment Service, (vi) except in the ordinary course of business, no payment transaction submitted by you through the Payment Service will represent a sale to any principal, partner, proprietor, or owner of your business, and (vii) you will not use the Payment Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Payment Service.

23. Your additional liability and indemnification

You are responsible for all Chargebacks, reversals, refunds, fees, fines, penalties and other liabilities incurred by a third party or us as a result of or in connection with your access to or use of the Payment Service and/or arising from any breach by you of any provision of this Agreement, including these General Terms and Conditions. You agree to reimburse such third party or us for any and all such liability. Notwithstanding the foregoing, you will not be responsible for any liabilities incurred by a third party or us directly and primarily as the result of our gross negligence or wilful misconduct.
Notwithstanding the above or any other provision of these Payment Terms and Conditions, you agree to defend, indemnify, and hold us, our Acquirers, the Card Schemes and each of our respective directors, agents, affiliates and representatives harmless from and against any claim, cost, suit, demand, loss, liability, damage, action, proceeding judgement, penalty, interest and expense (including, without limitation, reasonable attorneys’ fees) arising out of or relating to: (i) any actual or alleged breach by you of any provision of this Agreement, including these Payment Terms and Conditions; (ii) any actual or alleged breach by you of the Card Scheme Rules or applicable law or regulation; (iii)
your wrongful or improper use of the Payment Service; (iv) any payment transaction submitted by you through the Payment Service; and (v) third party indemnification obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any Acquirer or Card Scheme).
In the event you are liable for any amounts owed to us, we may immediately collect such amounts from funds credited to your CurbPay Account or any other funds due to you under these Payment Terms and Conditions. If there are insufficient funds to cover your liability, you agree to reimburse us immediately on demand through other means.

 

24. No additional warranties from CurbPay

We provide the Payment Service (including any App, Merchant Portal, Terminal or Reader) to you on an “as is” and “as available” basis without any warranty or condition, express or implied, except as specifically stated in these Payment Terms and Conditions. We do not warrant continuous, uninterrupted or secure access to any part of the Payment Service, and we will not be liable for any disruption or impairment of the Payment Service.
Without limiting the foregoing, we do not warrant that the Payment Service is accurate, reliable or correct, that the Payment Service will meet your requirements, that the Payment Service will be available at any particular time or location, uninterrupted or secure, that any defects or errors will be corrected, or that the Payment Service is free from viruses or other harmful components. Any content or data downloaded or otherwise obtained through the use of the Payment Service is downloaded at your own risk and you will be solely responsible for any damage to your property or loss of data that results from such download.

 

25. Limitation of liability

In no event will we be liable for any of the following types of loss or damage arising under or in relation to this Agreement, including these Payment Terms and Conditions, or otherwise: (i) indirect or consequential loss or damage (including loss of profits, goodwill, business, contracts, revenue or anticipated savings even if we are advised of the possibility of such damages); (ii) loss or corruption of data; (iii) loss or damage whatsoever which does not stem directly and primarily from our breach of this Agreement; (iv) loss or damage whatsoever which is in excess of that which was caused as a direct and primary result of our breach of this Agreement; or (v) loss or damage incurred by you as a result of (A) any acts or omissions by you or any third parties, (B) our obligation to comply with Regulations, Card Scheme Rules and applicable law, (C) any act or omission of any governmental authority, act of war, accident, natural disaster, strike, blockade, or other similar event, regardless of if we are an instigator or subject of such event.
Nothing in these Payment Terms and Conditions will limit our liability (i) resulting from our fraud or fraudulent misrepresentation, gross negligence or wilful misconduct, (ii) for death or personal injury resulting from our negligence, or (ii) to the extent such limitation or exclusion is not permitted by applicable law.
Our total liability to you under or in connection with this Agreement, including these Payment Terms and Conditions, the Payment Service, any Merchant Portal, any Terminal or any App, in respect of any and all claims will not exceed in the aggregate the amount of the Fees paid by you to us for the Payment Services during the three- (3-) month period immediately preceding the event giving rise to the claim for liability, or if you have not used the Services for three (3) months, your average monthly Fees multiplied by three (3).
Subject to the foregoing two paragraphs, we are liable to ensure that payment transactions initiated through the Payment Service are properly transferred to the end customer’s payment service provider and that payment transactions carried out through the Payment Service are executed properly, provided that: (i) the transaction has been authorized by the end customer; (ii) the transaction complies with these Payment Terms and Conditions; and (iii) you have complied with your obligations under these Payment Terms and Conditions. We are further liable to ensure that funds credited to your CurbPay Account are paid out to your designated bank account in accordance
with clause 16 (PAYOUT OF FUNDS) above; provided that we have received such funds from the relevant Card Scheme, Acquirer or third party financial institution, as the case may be, on the Client Account.
If an authorized payment transaction is not executed properly or not executed at all, we will, upon your request, use reasonable endeavours to trace the transaction and attempt to rectify any errors that you or we discover and notify you of the result. If the error results in your receipt of less than the amount to which you were entitled, we will credit your CurbPay Account for the difference. If the error results in your receipt of more than the amount to which you were entitled, we will debit the extra funds from your CurbPay Account. We will only attempt to correct transactions that you process incorrectly if you notify us of such error without undue delay and no later than sixty (60) days of when the error first appeared on your electronic transaction history.