CLEARPAY MERCHANT GENERAL TERMS
IMPORTANT NOTE: Please read this Agreement carefully as it governs your relationship with us and your use of the Services.
Please note that provision of the Services is subject to verification of your identity and the provision of direct debit details in accordance with Section 2.1 of these General Terms. We also draw your attention to Section 1.2 of these General Terms and our rights to vary this Agreement. Please also read our Privacy Policy.
You must comply with our procedures and policies on financial promotions as set out in Section 8 of the General Terms and our Marketing Rules available on the Clearpay website. You and Clearpay are subject to the rules on financial promotions, regulated by the UK Financial Conduct Authority, to the extent that any communication made in connection with this Agreement constitutes a financial promotion under the Financial Services and Markets Act 2000. This may include where Clearpay and/or you promote the activities under this Agreement or Clearpay’s Services through marketing, advertising, and promotional material.
1 How this Agreement works
1.1 Agreement Terms. These Clearpay Merchant General Terms (“General Terms”), together with the Clearpay Merchant Supplementary Terms (“Supplementary Terms”), which are incorporated herein (together, the “Agreement”) are entered into between the merchant entity set out under Part A of the Supplementary Terms (“Merchant”, “you”, or “your”) and Clearpay Finance Limited (company number 05198026) (“we”, “us”, “our” or “Clearpay”) (each individually a “Party”, and collectively, the “Parties”) as of the earlier of: (a) the date the Supplementary Terms are accepted by you, (b) the date these General Terms are provided to you under Section 1.2, or (c) the date you commenced using the Services (the “Effective Date”). The Parties agree that this Agreement supersedes any and all prior executed merchant agreements between the Parties with respect to the Services. In the event of any inconsistency or conflict between these General Terms and the Supplementary Terms, the Supplementary Terms will control. All schedules to these General Terms are expressly made part of the Agreement.
1.2 Changes to this Agreement. We may update this Agreement from time to time. We will give you notice of any material change to this Agreement. If you do not want to continue receiving the Services as a result of any such material change, you may terminate this Agreement in accordance with Section 10.2 of the General Terms. If you continue to use the Services following our notification to you of a material change in this Agreement, this will be treated as you agreeing to comply with the updated terms of this Agreement. You agree that we can provide notices regarding the Services to you through our Website or through the Merchant Hub, or by mailing notices to the email or physical addresses you have provided to us. Notices may include notifications about your merchant account, changes to the Services or this Agreement, or other information we are required to provide to you.
1.3 Term. The Term of this Agreement is set out under Part B of the Supplementary Terms.
2 General Obligations
2.1 Required Documentation. You must complete and return to us all documentation we require (including the Compliance Documentation and Debit Authorisation) (collectively, the "Required Documentation") so we can review these details. We may suspend our Services or suspend the Payment Date until such details have been approved. We may terminate this Agreement immediately if the Required Documentation cannot be approved. You agree to provide reasonable cooperation, assistance and information required by us in order to enable us to approve the Required Documentation promptly.
2.2 Merchant Hub. The individuals designated by you, as communicated by you to us in writing or via email will be granted access to the Merchant Hub. You must not share access to the Merchant Hub with anyone other than those individuals that you identify to us in writing who are granted access to the Merchant Hub. You will be responsible for the actions of any third party or individual you grant access to the Merchant Hub.
2.3 Compliance. You must: (i) comply with all Applicable Laws in your use of the Services; and (ii) have obtained and maintain and comply with all necessary licenses, approvals, permissions and consents required in connection with your obligations and activities under this Agreement. You must assist us to comply with our obligations under any Applicable Laws as reasonably directed by us. You agree to fully and promptly cooperate and provide all reasonable assistance, data and access to your staff to us and our auditors: (i) on request to enable us to comply with our own obligations under Relevant Laws, FSMA, the FCA Rules or any direction or instruction from the FCA or the UK Financial Ombudsman Service (the "FOS") in connection with the Services or the Extended Repayment Feature; and (ii) in respect of all requests or enquiries from regulatory bodies or authorities (including the FCA and persons appointed by it and the FOS). You agree to comply with any Applicable Requirements notified by us from time to time, including policies and standards applicable to the Extended Repayment Feature and financial promotions governance.
2.4 Cooperation. You agree to fully and promptly cooperate and provide reasonable assistance to us in respect of all requests or enquiries from regulatory bodies or authorities, including requests for information and regulatory investigations arising out of or related to the Extended Repayment Feature and the Services.
2.5 Websites. Both Parties agree that they control and will continue to control the content of their respective Websites and will not provide Customers with any information about the Extended Repayment Feature or our Services that is false, misleading or inaccurate. You must not use any technology (including any device, software or hardware) to damage, intercept or interfere with our Services, or any software or technology that we use to provide the Services.
2.6 Misleading information. You must not provide us with any information that is false, inaccurate or misleading.
2.7 Damaged Goods. You must have appropriate insurance policies in place to protect your Delivery of the Goods to Customers. We are not responsible for any damage caused to Goods during Delivery, or any loss or damage caused in connection with the supply of Goods.
2.8 Reserves. We reserve the right to: (a) temporarily suspend or delay payment of the Purchase Amounts to you; (b) designate an amount of funds to be provided and maintained by you in an account held by Clearpay; and/or (c) withhold a certain amount from the Purchase Amounts that may be payable to you, for the purposes of setting aside a reserve in order to secure the performance of your obligations under this Agreement (“Reserves”). We may set aside a Reserve if we determine in our sole but reasonable discretion that there may be a higher than acceptable level of risk associated with you, your business model or your performance under this Agreement including where:
(i) we have not yet approved your Required Documentation under Section 2.1;
(ii) your average expected Delivery period exceeds fourteen (14) days in respect of Goods that are goods or ninety (90) days in respect of Goods that are services;
(iii) your average expected Delivery period for Extended Delivery Goods exceeds the parameters you provided us when we authorised any Extended Delivery Period;
(iv) we reasonably consider that your business model or industry has a higher than acceptable rate of Chargebacks or disputes;
(v) you materially change your business model;
(vi) we reasonably consider that you are subject to a Material Adverse Effect;
(vii) there are issues relating to excessive disputes or refunds;
(viii) we reasonably determine that you are experiencing a material deterioration in your financial performance and position;
(ix) we reasonably consider that other activity associated with your use of our Services is in breach of any Applicable Law;
(x) you are subject to, or we reasonably consider that you may be at a higher than acceptable risk of becoming subject to, an Insolvency Event; or
(xi) required by law, court order or regulatory body.
If we require a Reserve we will use reasonable efforts to provide you with fourteen (14) days’ written notice. However, there may be circumstances where we need to take immediate action to comply with Applicable Law or to address a material business or security risk. We will communicate the terms of the Reserve to you, including the general reason for the Reserve and the conditions upon which the funds in the Reserve will be released to you.
We may, acting reasonably, change or condition the terms of the Reserve based on our continuous assessment and understanding of the risks associated with you, your business model, or the performance of your obligations under this Agreement and we will communicate this to you. You can monitor your Reserve balance via the reserve activity report in the Merchant Hub.
Our rights under this Section 2.8 and related set-off rights under Section 4.3 below will continue in effect for up to one hundred and twenty (120) days after termination of this Agreement for any reason.
2.9 AML Requirements. Each Party must comply with all Applicable Laws on anti-money laundering, counter-terrorism financing, export control, and economic sanctions regulations (together “AML”). In accordance with AML, anti-fraud, and other compliance and security policies and procedures, we may impose reasonable limitations and controls on your ability to utilise the Services, including rejecting payments or suspending/restricting any Services with respect to certain transactions or Customers and prospective Customers of yours. We may be required by Applicable Laws to report suspicious transactions to the relevant authorities without informing you.
2.10 Records. You must, for the duration of this Agreement and for a period of three (3) years following its termination, keep and maintain all accounts, books, materials records and data relating to your use of the Services and your distribution of the Extended Repayment Feature (“Records”) as may reasonably be required by Applicable Laws and Regulatory Guidance and/or the FCA Rules, and on not less than seven (7) days’ written notice from Clearpay, provide Clearpay with such Records as Clearpay may reasonably request. You must: (i) comply with all Applicable Law relating to anti-bribery and anti-corruption including the UK’s Bribery Act 2010 ("Relevant Requirements"); and (ii) have and maintain, monitor and enforce throughout the Term policies and procedures to ensure compliance with the Relevant Requirements including adequate procedures to prevent any of your associated persons from committing an offence under any Relevant Requirements (with the terms “adequate procedures” and “associated persons” having the meanings set out in the UK’s Bribery Act 2010).
2.11 You shall not, and shall procure that your employees, agents and representatives do not, engage in any Pressure Selling Practices in connection with any Domestic Premises Visit or any subsequent contact regarding Goods. Without limitation, you shall not and shall procure that your employees, agents and representatives do not: (i) state or imply artificial time constraints or scarcity (including “today-only” offers, or that finance is available only if the Customer signs immediately); (ii) remain at the premises beyond a reasonable time or after being asked to leave, or make repeated or persistent follow-up visits or calls intended to wear down the Customer’s decision-making; (iii) misrepresent any statutory or contractual rights (including cancellation and withdrawal rights) or the nature, cost, availability or terms of any Extended Repayment Feature or the Services; (iv) take, request or accept any Clearpay Purchase before providing to the Customer all legally required pre‑contractual information in a durable medium; (v) complete, submit, encourage or facilitate any application in relation to the Extended Repayment Feature or the Services without the Customer’s fully informed, freely given and explicit consent; or (vi) exploit a Customer’s vulnerability, including age, infirmity, mental or physical disability, limited comprehension, low financial resilience or language barriers.
3 Clearpay Services
3.1 Services. Our Services allow Customers to use the Extended Repayment Feature to pay for Goods offered by you on your Website(s) and/or in your Store(s) as follows (as applicable):
(a) The “Clearpay E-Commerce Services” allow Customers to pay for Goods using the Extended Repayment Feature on your Website(s) through a Direct API Integration; and
(b) The “Clearpay Card Services” allow Customers to pay for Goods using the Extended Repayment Feature in your Store(s). These Clearpay Purchases are made by Customers using a virtual card in a digital wallet which will be processed via your PSP.
3.2 Cross Border Trade. We may authorise you to use the Services for transactions relating to certain Customers located outside the United Kingdom which allows those Customers to use their Clearpay Affiliate account to purchase Goods offered on your Website(s) for delivery outside the United Kingdom (“Cross Border Trade”). The Cross Border Trade Terms set out in Schedule 1 of these General Terms apply to any Cross Border Transactions under this Agreement.
3.3 Additional Terms. Where we approve you to sell Goods in verticals set out in Schedule 3 of these General Terms, you agree to be bound by the Additional Terms in Schedule 3.
3.4 General Requirements
(a) Technical Integration of Clearpay Gateway. You agree to follow our reasonable directions regarding the technical integration of the Clearpay Gateway on your Website(s) and/or in-Store (as applicable). If the Clearpay express checkout functionality is made available for technical integration (“Express Checkout”), you agree to integrate Express Checkout on your Website(s) where relevant and technically possible. You must obtain written approval from us if your implementation of the Clearpay Gateway deviates from any guidelines provided by us (including the Brand Management Materials).
(b) Availability. You must make the Extended Repayment Feature available for use by Customers on your Website(s) and/or in-Store (as applicable) as soon as reasonably practicable or as otherwise reasonably agreed by us in writing. You must continuously allow Customers to make Clearpay Purchases during the Term, except: (i) during any period of suspension imposed by us under this Agreement; or (ii) as otherwise reasonably agreed with us.
(c) Display of Clearpay Materials on your Website. We will make available marketing assets and other promotional material for use on your Website(s) and in-Store to market the Extended Repayment Feature. You agree to:
(i) (where relevant and technically possible) represent the Extended Repayment Feature and applicable Clearpay Intellectual Property on the product page of all products, including where the Extended Repayment Feature is offered, solely in accordance with our Brand Management Materials, guidelines, and directions as provided by us in writing;
(ii) include on your Website(s) and/or in-Store (as applicable) a description of the Extended Repayment Feature in such terms as may be provided or approved by us in writing;
(iii) (where relevant and technically possible) present such description as a 'lightbox' on your Website(s) as may be provided or approved by us in writing from time to time;
(iv) where applicable, implement and display in-Store any marketing collateral and other promotional materials marketing the availability of the Clearpay Card Services we provide to you (at our cost) in accordance with this Agreement or as otherwise instructed by us, acting reasonably;
(v) promptly, but in all cases within fourteen (14) days, comply with reasonable directions we provide regarding any description or display of the Extended Repayment Feature or applicable Clearpay Intellectual Property on your Website(s) and Store(s), as applicable, including modifying, replacing, or removing any description or display of the Extended Repayment Feature or Clearpay Intellectual Property, unless you can otherwise establish to our reasonable satisfaction within this time frame that the content or materials comply with the requirements of this Agreement.
For the avoidance of doubt, other than pre-approved materials provided by us (including the Brand Management Materials), you agree that you will not use the Clearpay Intellectual Property in marketing or promotional materials on your Website(s) or in-Store or in any public announcement or press release without our prior written approval.
(d) Reimbursement. You must reimburse us any Chargeback amounts (including associated Chargeback fees or other costs incurred) and/or any part of the Sale Price and associated Shipping Costs that we cannot, or do not, recover, from a Customer, or are required to refund to a Customer, in connection with that Clearpay Purchase to the extent that we reasonably determine, based on evidence, that the Chargeback, Customer non-payment or Customer refund is because of:
(i) any conduct (including false or misleading representations), contract, representation or warranty by you, your officers, directors, employees or sellers, relating to the Services or an Clearpay Purchase;
(ii) the Goods which are the subject of the relevant Clearpay Purchase (including, without limitation, any product liability or warranty claim relating to those Goods);
(iii) the non-Delivery of any Goods, late Delivery of Goods, or damage to Goods caused during Delivery, or a breach of your obligations under Sections 3.5(a), 3.5(b) and 3.5(c) of these General Terms; or
(iv) a breach of your representation and warranties under Section 11.2 of these General Terms.
Any reimbursement under this Section will be limited to the Purchase Amount (plus any Chargeback costs, if applicable) of any Clearpay Purchase(s) impacted by Sections 3.4(d)(i)-(iv) above, as applicable. You authorise us to collect such reimbursement via your Debit Authorisation and set-off rights pursuant to Section 4.3 of these General Terms, including against any Purchase Amounts we hold in Reserve under Section 2.8 of these General Terms.
(e) Customer Disputes. The Parties agree to cooperate in good faith to promptly resolve all disputes raised by Customers with respect to Clearpay Purchases (including where necessary, taking any action reasonably directed by us and as required to protect our legitimate interests). To the extent any such Customer dispute results in a refund of the Purchase Amount to the Customer, we reserve the right to set off such Purchase Amount from you.
(f) Restricted Goods. You must not, without our prior written approval allow the Services to be used via your Website(s) or Store(s) to purchase Restricted Goods as outlined in Schedule 2. You agree that we may immediately terminate this Agreement if you are unable to or refuse to comply with any request by us relating to Restricted Goods.
(g) Clearpay Card Services (In-Store) - Training Requirements
(i) As a condition of offering the Clearpay Card Services, you agree to provide appropriate training regarding the Clearpay Card Services to your Store Personnel which consists of written materials provided by us to you (the “Clearpay Card Training”). The Clearpay Card Training must include the rules on how Regulated Materials may be marketed in your Store and/or by your Store Personnel in compliance with section 21 of the UK's Financial Services and Markets Act 2000. For the avoidance of doubt, such written materials are for internal training purposes only and are not to be used as external marketing materials to Customers which are provided separately.
(ii) At least fourteen (14) days before the launch of Clearpay Card Services, and upon request, no more frequently than annually, you will provide a certification to us that the training of all relevant Store Personnel has been completed.
(iii) You remain responsible and liable for the appropriate training of your Store Personnel at all levels. If we reasonably believe that your Clearpay Card Training is not sufficient, including if we receive Customer complaints about the Clearpay Card Services, the Parties will cooperate to deploy a mutually agreeable solution to enhance your Clearpay Card Training.
(h) Acknowledgement. You attest that your use of the Clearpay Services is for: (i) business purposes and not for personal, family or household purposes; and (ii) business-to-consumer sales and not to facilitate Clearpay Purchases with another business, unless we explicitly permit you to do so. You acknowledge that the arrangement for the sale by you to Customers of any Goods is a separate consumer contract between you and each Customer and the Customer’s rights and remedies as a consumer in respect of that sale by you (including any Return of or rights to seek and obtain Refunds for those Goods) are as between you and the Customer, to the exclusion of Clearpay (to the maximum extent permitted by law).
3.5 Obligations in respect of Clearpay Purchases
(a) Delivery of Goods. You are responsible for ensuring that all Goods are Delivered in accordance with Applicable Law and for Clearpay Purchases made:
(i) online, you are responsible for ensuring the Goods are Delivered within the expected Delivery period as represented to the Customer at the point of sale, and subject to Section 3.5(b) of these General Terms, up to a maximum of fourteen (14) days in respect of Goods that are goods and ninety (90) days in respect of Goods that are services. Unless you have received specific written approval from us, Goods must be available to be shipped to the Customer at the time of the Clearpay Purchase; and
(ii) in-Store, the Goods must be Delivered immediately after Approval Confirmation, unless you expressly agree an alternative Delivery time with the Customer and subject to Section 3.5(b) of these General Terms, up to a maximum of fourteen (14) days in respect of Goods that are goods and ninety (90) days in respect of Goods that are services.
(b) Extended Delivery Goods. If we have authorised you to allow Customers to make a Clearpay Purchase on Extended Delivery Goods:
(i) before the Customer completes their Clearpay Purchase for Extended Delivery Goods, you must, no later than the point of sale: (1) notify the Customer that the Extended Delivery Goods are available on an extended delivery basis and that payment will be taken at completion of the Clearpay Purchase, and (2) provide an accurate Delivery period for the Extended Delivery Goods (“Extended Delivery Period”);
(ii) if, prior to Delivery of Extended Delivery Goods, there is a material change to the Extended Delivery Period, you must notify the Customer of this change; and
(iii) you will Deliver any Extended Delivery Goods to Customers within the Extended Delivery Period.
We have no liability to you for any Extended Delivery Goods that you Deliver to the Customer after the Extended Delivery Period. For any Clearpay Purchases for Extended Delivery Goods, we reserve the right to: (1) extend the Payment Date to up to seven (7) Business Days, (2) create a Reserve pursuant to Section 2.8 of these General Terms; and (3) seek reimbursement of any Purchase Amounts and Chargeback fees from you under Section 3.4(d). We reserve the right to remove the availability of the Services for Extended Delivery Goods where we determine in our sole but reasonable discretion that doing so is necessary to comply with Applicable Laws or to avoid a higher than acceptable level of risk to Clearpay.
(c) Non-Delivery of Goods. If we suspect Goods have not been Delivered pursuant to Sections 3.5(a) or 3.5(b) of these General Terms or a Customer refuses to pay us or issues a Chargeback request on the basis that Goods have not been delivered, we may ask you to provide us with proof of Delivery. If requested, you agree to provide us with: (i) for Goods that are goods, shipping carrier name, tracking number and confirmation that the Goods were Delivered to the address specified by the Customer when making the Clearpay Purchase, and (ii) for Goods that are services, proof of supply.
If you do not provide this information, or otherwise demonstrate to our reasonable satisfaction that Goods have been Delivered, within two (2) Business Days of our request, or such other greater timeframe communicated to you, then:
(i) we may seek reimbursement from you of the Purchase Amount and any Chargeback fees we incur in connection with the relevant Clearpay Purchase under Section 3.4(d);
(ii) we will, subject to any accepted Chargebacks, refund to the Customer any amounts paid by the Customer to us in connection with the Clearpay Purchase upon our receipt of the Purchase Amount from you; and
(iii) we will have no further liability to you in connection with the Clearpay Purchase.
You agree that we also reserve the right in our sole discretion to withhold any Purchase Amounts owed to you until we are satisfied that Goods have been Delivered to the Customer.
(d) Surcharges. You must not impose a surcharge on the Customer or discriminate against the Customer in any way for using the Extended Repayment Feature. A surcharge includes any charge or increase in the Sale Price, Shipping Costs or any other Customer fees and charges (e.g. a restocking fee) that are applied because the Customer has elected to use the Extended Repayment Feature.
(e) Customer Payments. You must not accept payments or ongoing repayments for any Goods on our behalf. If you receive any part of a payment relating to an Clearpay Purchase directly from a Customer ("Customer Payment"): (i) you will promptly notify us of the Customer Payment, including the identity of the Customer, the Goods to which the Customer Payment relates, and the amount of the Customer Payment; and (ii) you authorise us to set off any Customer Payment against amounts we owe to you under this Agreement in accordance with Section 4.3.
(f) Provision of Transaction Data. You must provide us with accurate business and transaction data for the purpose of facilitating Clearpay Purchases and Refunds made using the Clearpay Card Services, including merchant category code, acquiring ID, merchant ID, terminal ID and such other information required by us.
(a) Purchase Confirmation. When a customer attempts to make a Clearpay Purchase, our systems will promptly issue an Approval Confirmation or Decline Confirmation to you. We exercise sole discretion regarding the decision to issue an Approval Confirmation or Decline Confirmation. You must only Deliver Goods to a Customer after you have received Approval Confirmation. We have no liability to you for Goods for which you have not received an Approval Confirmation or for which you have received a Decline Confirmation.
(b) ‘Fees” are the fees for Services as outlined under Part D of the Supplementary Terms. The Fees for each Clearpay Purchase are due on the Payment Date and will be paid in accordance with Section 4.2 of these General Terms. The Fee is not refundable unless paid incorrectly or otherwise required by Applicable Law.
(c) Payment. With respect to each Clearpay Purchase, we will disburse, or cause to be disbursed to you, payment on behalf of the Customer for the Goods purchased from you in exchange for payment of Fees pursuant to the terms of this Agreement. We will assume all risk in collecting payments from Customers that make Clearpay Purchases, except where liability transfers to you in accordance with this Agreement. You agree to pay all amounts owed to us when due pursuant to this Agreement. Your failure to pay amounts owed to us under this Agreement is a breach, and you will be liable for any costs or expenses we incur during collection, in addition to the amount you owe us.
(a) Clearpay E-Commerce Services (Online). For Clearpay E-Commerce Services we will pay you the Purchase Amounts on the Payment Date for such Clearpay Purchase, once daily, as a single transaction, netting the aggregate Purchase Amounts for all Clearpay Purchases due to you on the Payment Date against all amounts then due to us under this Agreement including the Fee, any Refund Amounts, and Customer Payments (as applicable). We will remit such amounts by direct transfer to the bank Account listed in the Debit Authorisation. We do not guarantee against any delays of receipt of Purchase Amounts caused by the banking system or other external factors.
(b) Clearpay Card Services (In-Store)
(i) Transmission of Purchase Amounts. We will pay you the Purchase Amounts for each Clearpay Purchase made using the Clearpay Card Services by causing payment to be tendered to your PSP in an amount equal to the Purchase Amount. You acknowledge that (i) your PSP will pay you for each Clearpay Purchase made through the Clearpay Card Services; (ii) your PSP may deduct Processing Fees from the Purchase Amount; and (iii) the manner in which you receive the Purchase Amounts, the total Processing Fees, and the timing of settlement, will depend on your arrangements with your PSP. We do not guarantee against any delays or failure in receipt of Purchase Amounts caused by external financial systems, credit card systems, your PSP, or other external factors.
(ii) Authorisation. By authorising the Clearpay Card at your terminal in-Store, you communicate to us that a Customer is making an Clearpay Purchase, and the Goods have been, or will be, Delivered to the Customer with a total Sale Price, plus any applicable Shipping Costs, equal to the amount of the authorisation (the “Authorisation Amount”).
(iii) Capture. You have the Authorisation Validity Period to capture any portion of the Authorisation Amount, based on the currency value of Goods Delivered, or for Delivery, to the Customer (the aggregate amount of such Authorisation Amount so captured “Purchase Amount”). If you do not capture the full Authorisation Amount within the Authorisation Validity Period (i.e., if the Purchase Amount is less than the Authorisation Amount at expiry of the Authorisation Validity Period), we reserve the right to void and refund to the Customer the difference between the Authorisation Amount and the Purchase Amount. We may hold you liable for any amounts captured: (i) after the Authorisation Validity Period; (ii) that exceed the Authorisation Amount; and (iii) that are not tied to the associated Authorisation Amount (collectively, the “Unauthorised Capture Amounts”). We will recover any Unauthorised Capture Amounts and any associated fees in accordance with Section 4.2(b)(iv).
(iv) Fees and Invoicing. We will invoice you on a daily basis for any Fees, Unauthorised Capture Amounts, Non-Card Refunds, Unauthorised Refunds, Refunds incorrectly processed to the applicable Clearpay Card. We will then debit your account pursuant to the Debit Authorisation for amounts due to us under an invoice on the Business Day following the invoice date. Where that date is not a Business Day, we will debit your Account on the next Business Day. If any amounts reflected on an invoice remain unpaid for more than ten (10) Business Days, we may immediately terminate the Agreement by notice to you and issue you an invoice for any outstanding amounts which is payable immediately on receipt.
(v) Clearpay Interchange Fees. We will either credit you the Clearpay Interchange Fees or invoice you for the difference between your Fee listed in Part D of the Supplementary Terms and the Clearpay Interchange Fees. For the avoidance of doubt, we will invoice you for the Clearpay Interchange Fees associated with any Clearpay Purchases subsequently Accepted for Refund and returned to you via your PSP.
4.3 Set off, Debit and Invoice. We may, without notice: (i) set off against any amounts we owe you under this Agreement, all amounts we reasonably determine that you owe us under this Agreement (including, without limitation, the Fees, any Refund Amounts, Customer Payments, Unauthorised Capture Amounts, Clearpay Interchange Fees and any amounts under Sections 3.4(d); (ii) debit your Account for the amounts owed to us under this Agreement and in accordance with the Direct Authorisation; (iii) collect or set off amounts owed to us under this Agreement from funds that we hold in Reserve; or (iv) invoice you for any amounts you owe us under this Agreement (including the Fee, any Refund Amounts, Customer Payments, Unauthorised Capture Amounts, Clearpay Interchange Fees, as applicable) and any amounts for which we are unsuccessful in debiting your account pursuant to any Debit Authorisation. Any amounts that we offset or debit against payments owing to us will be treated as a payment from you to us for all Tax, accounting, invoicing, and other relevant purposes.
(a) Taxes on Merchant Sales. You have sole responsibility and liability for determining, collecting and remitting all Taxes that apply to your sales of products and services and any payments received or made in connection with your use of the Services, and we are not liable for any such obligations. In the event a Tax Authority assesses any such of your Taxes on us, you agree to indemnify us against such Taxes and any related expenses or costs.
(b) Taxes on Clearpay Fees. Fees payable by you to us pursuant to this Agreement are exclusive of any Taxes. You agree to pay any Taxes (other than our income Taxes) imposed in connection with the Fees or your use of the Services, unless you provide us with documentation required under Applicable Law to establish such Taxes are not required to be charged. Any such Taxes will be calculated by us, and presented to you as required under Applicable Law, for payment to us.
(c) Withholding Taxes. If we are required under Applicable Law to withhold any Taxes, we may deduct such Taxes from any amounts otherwise owed to you and must remit such Taxes to the appropriate Tax Authority. Any withheld amounts will be treated as having been paid for all purposes hereunder and we will not increase any payment to you.
(d) Tax Reporting. We may be obligated under Applicable Law to report certain information to you and/or Tax Authorities (“Tax Reporting Information”) hereunder. You agree to provide us with the necessary Tax related information and forms to complete any applicable Tax Reporting Information or as otherwise reasonably necessary, and to recertify such information as required by Applicable Law. We will report to the applicable Tax Authority the Tax Reporting Information to the extent required by Applicable Law.
5 Payment, returns and refunds by Customers
5.1 Obligations in respect of returns, refunds and chargebacks
(a) Your refund policies and agreements with a Customer must comply with Applicable Law. You must (i) consider and process any Customer’s request for Return in good faith and in accordance with your policies, and (ii) not treat Clearpay Purchases differently than any other purchases with respect to accepting Goods for a Refund, exchange, repair, or store credit.
(b) Subject to this Section 5, if Goods are Accepted for Refund (in whole or in part) then any Refund Amount due in relation to the Return is owed to us and not the Customer and must be refunded via the payment method used for the associated Purchase.
(i) Clearpay E-Commerce Services (Online). Within three (3) Business Days of your receipt of returned Goods, as you define receipt under your internal policies and in accordance with Applicable Law, you must inform us of the Return and the Refund Amount via the Merchant Hub or the associated API. We reserve the right to hold you liable for the Purchase Amount associated with the Goods Accepted for Refund if they are refunded via another tender type. When you agree to provide a Customer with a Refund, you will be liable to us for the Refund Amount on the applicable Payment Date, and we may recover those sums in accordance with Section 4 (or, where we have not yet paid the Purchase Amount to you, by deducting the Refund Amount from the Purchase Amount relating to those Goods). We will then cancel any applicable future payments due by the Customer to us and refund to the Customer any applicable amounts paid to us.
(ii) Clearpay Card Services (in-Store). Within three (3) Business Days of your receipt of returned Goods, as you define receipt under your internal policies and in accordance with Applicable Law, you must process a refund to the Clearpay Card of the associated Purchase(s). All Purchases made using the Clearpay Card that are Accepted for Refund (in whole or in part) must be refunded via the Clearpay Card. Unless we direct you to do so, we will not accept or process a Refund Amount processed via the Merchant Hub or Direct API Integration for Purchases made using the Clearpay Card. We reserve the right to hold you liable for the Refund Amounts associated with the Goods Accepted for Refund if they are refunded via any payment method or processed via any method except for the Clearpay Card (“Non-Card Refunds”). When you agree to provide a Customer with a Refund, you will be liable to us for the Refund Amount. We will then cancel any future payments due by such Customer to us and/or refund to such Customer any amounts paid to us. If you process a refund amount to the Clearpay Card that has no associated Purchase, we reserve the right to hold you liable for any disputed amounts raised by a Customer in relation to such Refund (each an “Unauthorised Refund”).
(c) Return Period. We have no liability to you for Returns processed more than one hundred and twenty (120) days after the date on which Approval Confirmation was provided or for Returns processed more than sixty (60) days after the end of the Term. You must deal directly with the Customer with respect to such Returns and associated Refunds and process such Refunds via another tender type. Without limiting this Section, any assistance we may provide to you to effect payments to Customers for any Refunds for such Goods, including providing assistance outside of the time period as stated in this Section, is at our sole discretion. For the avoidance of doubt, our rights under Section 4.3 of these General Terms continue in relation to Customer Payments, and all Refunds approved by you, after termination.
(d) Other Returns. Nothing in this Section will prevent any Customer from exercising any other rights in respect of the Return of any Goods (including for the exchange or repair of the Goods) or store credit for the Goods.
(e) CRA. Customers may have the right to exercise rights and remedies under the CRA where you breach the implied warranties under the CRA as follows:
(i) Goods that are goods: if a Customer exercises its right to reject the Goods due to such breach in accordance with the CRA, you must treat the Goods as a Return in accordance with this Section; or, if applicable, a Customer exercises its right to require you to repair or replace the Goods, you will repair or replace the Goods at your own cost and expense; or
(ii) Goods that are services: if a Customer exercises its rights to require repeat performance of services from you, you will reperform the services at your own cost and expense; or if applicable, provide a price reduction (full or partial) to the Customer in accordance with this Section.
(f) Cancellations. Where a Customer cancels the purchase of the Goods in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (as amended or re-enacted from time to time), you must process the Goods for a Refund in accordance with this Section.
(g) In the event that a Customer exercises their right to withdraw from the credit agreement (between us and the Customer) under section 66A of the Consumer Credit Act 1974 (the "Withdrawal Right"), you acknowledge and agree that:
(i) the Customer owes us a debt in relation to the Goods and not you. The Customer is required to repay the Purchase Amount to us within thirty (30) days of the withdrawal notice and you shall not make any representations to the contrary;
(ii) exercise of the Withdrawal Right does not cancel the underlying purchase contract for the Goods between you and the Customer. Should the Customer request any Returns or Refunds of the Goods in conjunction with exercising the Withdrawal Right, then you will comply with your obligations under this clause in relation to that Return or Refund; and
(iii) where appropriate, you will make it clear to Customers that, if they exercise their Withdrawal Right, they will still need to make payment to us in respect of the Goods.
5A Consumer Duty
5A.1. You acknowledge that we are required to maintain and operate a process to undertake a value assessment and approval of the Extended Repayment Feature and any significant changes or adaptations to the Extended Repayment Feature before it is offered and promoted by you.
5A.2. We will monitor the outcomes that Customers are experiencing from the Extended Repayment Feature and regularly (at least annually) review the Extended Repayment Feature, taking into account any event that could materially affect the potential risk to the Target Market including: (A) whether the Extended Repayment Feature meets and/or continues to meet the identified needs, characteristics and objectives of the Target Market, including Customers with characteristics of vulnerability; and (B) whether the intended distribution strategy remains appropriate, including whether the Extended Repayment Feature is being distributed to the Target Market or reaching Customers outside the Target Market.
5A.3. We shall set out the outcome of our value assessment and approval of the distribution strategy and any significant changes or adaptations to the Extended Repayment Feature in a Product Information Sheet. We shall provide a completed Product Information Sheet to you in good time before any change or adaptation is implemented.
5A.4. If, through our regular monitoring, we identify any circumstances related to the Extended Repayment Feature that adversely affect Customers, cause foreseeable harm or result in the Extended Repayment Feature no longer providing fair value, we shall: (A) take appropriate action to mitigate the situation, remediate any harm caused to Customers where appropriate, and/or prevent any foreseeable harm; and (B) where appropriate promptly inform you about the circumstances that led to action being taken and the remedial action taken.
5A.5. You will promptly provide us with any information that, in our reasonable opinion, is necessary to assist us in complying with Applicable Laws or Regulatory Guidance.
5A.6. In good time before the Services are commenced and/or before any changes to the Extended Repayment Feature are implemented, and/or when reasonably requested by you, Clearpay shall provide you with a Product Information Sheet for the Extended Repayment Feature.
6 Intellectual Property
6.1 General. Except as expressly provided herein, nothing in this Agreement confers to either Party, or any of its Affiliates, any right of ownership in any Intellectual Property of the other Party.
6.2 Our Intellectual Property. We grant to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license, during the Term in all regions in which you have been authorised to offer the Services, to use our Intellectual Property solely in connection with your use of the Services and/or to the extent authorised by us in writing. You agree that you will not use any of our Intellectual Property in marketing or promotional materials on your Website(s) or Store(s) or in any public announcement or press release without prior written approval from us. You must not copy, duplicate, reverse engineer, modify, amend, alter, or supply to any third-party, or use for any other purpose any of our Intellectual Property without our express prior written consent. All rights, title, and interest to any of our Intellectual Property, including, amongst others, modifications, enhancements, improvements, updates, additions, derivative works, and related material, before, during, and after the termination of this Agreement, continue to vest in us. If you acquire any rights, titles, or interests in our Intellectual Property, by operation of law or otherwise, you hereby irrevocably assign such rights to us. On expiration or termination of this Agreement or this Agreement or any amendment to remove your right to offer the Services online or in Store(s), you must, in accordance with such expiration, termination, or amendment, as applicable, and as soon as reasonably practicable: (a) permanently delete all copies of the Clearpay Software in your possession or control; and (b) discontinue the use or display of any of our Intellectual Property.
6.3 Your Intellectual Property. You grant us a royalty-free, non-exclusive, non-transferable, sublicensable, revocable, limited license, during the Term, to use your legal name, trade name, and Intellectual Property in all regions in which you have been authorised to offer the Services. You retain all of your Intellectual Property rights in such items. On expiration or termination of this Agreement or amendment removing our right to display your Intellectual Property, as applicable: (a) all licensed rights conveyed by you to us cease and all such rights revert to you; and (b) we will discontinue the use or display of your Intellectual Property in accordance with such expiration, termination or amendment as soon as reasonably practicable. You permit us to use your Intellectual Property, images and details of your Website(s), including for the purpose of hyperlinking, promotion, and referrals, in any: (i) marketing materials; (ii) social media posts, advertising, and messages; (iii) websites, mobile and web applications; (iv) push marketing emails; (v) public announcements; (vi) press releases, (vii) directory listings, and (viii) any other marketing or promotional activities agreed in writing. You further agree that we may share, re-post, and otherwise use any images and other content you include on your social media accounts or pages on our websites, social media accounts, and pages without your consent, and without any payment to you provided we credit you as the source of such image or content or include any other statement of attribution that you reasonably require, and promptly remove, or alter, such image or content at your written request. You agree to obtain on our behalf any third-party consents or licenses required to enable us to use such images and details as contemplated by this Agreement, without attribution and charge to us. If requested by you, we will, as soon as reasonably practicable, remove your Intellectual Property, images, or details of your Website(s) from marketing material, or modify any images used in our directory listings.
6.4 Feedback. If you, your agents, or contractors provide any feedback, including identifying potential errors or improvements, to us with respect to any aspect of a Service (“Feedback”), you assign to us all right, title, and interest in and to the Feedback, and we are free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment, or restriction, including to improve the Service or create other products and services. We will treat any Feedback as non-confidential and non-proprietary.
7 Confidentiality and Data Protection
7.1 Except as permitted or required by this Agreement, each Party must not use or disclose any of the other Party's Confidential Information.
7.2 Each Party may use the Confidential Information of the other Party to fulfil its obligations under this Agreement and may disclose the Confidential Information of the other Party:
(a) when required to do so by Applicable Law, at the request of any regulatory authority of competent jurisdiction, court order or registered stock exchange offering either Party’s securities;
(b) to a director, officer, employee, agent, contractor, professional adviser, investor or financing source (or potential investor or financing source) of the first Party whose duties reasonably require such disclosure;
(c) with respect to Confidential Information of ours provided to you, you may use such information solely to facilitate a Clearpay Purchase;
(d) with respect to your Confidential Information provided in connection with a specific Clearpay Purchase, we may use such information to process transactions and service Customer accounts, or as otherwise provided under an our and our Affiliate privacy policies; and/or
(e) when reasonably necessary for the purposes of any legal or arbitral proceedings involving the first party or any of its related bodies corporate or Affiliates.
7.3 Each Party must: (a) take all reasonable steps to ensure that no Confidential Information of the other Party is used, directly or indirectly, in any way that is detrimental or adverse to the other Party; (b) ensure that each person to whom any Confidential Information of the other Party must be or has been disclosed does not use or disclose such Confidential Information except as is consistent with these confidentiality commitments; and (c) take steps no less rigorous than those which it takes with respect of its own Confidential Information to prevent unauthorised use, disclosure, loss of, access to, or damage to the Confidential Information of the other Party in its possession or under its control.
7.4 Any and all Confidential Information disclosed by one Party and received by the other Party prior to the Effective Date will be subject to the obligations set out in this Section 7.
7.5 Data Protection. You and we will, when performing under this Agreement, each (i) comply with all applicable Data Protection Laws, and (ii) adhere to the obligations in the Data Sharing Terms. If there is any conflict between the terms in this Agreement and the Data Sharing Terms, the Data Sharing Terms will take precedence.
7.6 PCI DSS. We will maintain compliance with the applicable version of PCI DSS as set out by the PCI Security Standards Council.
8 Financial Promotions and Approvals.
8.1 To the extent any content, materials, documentation and/or information you (or those acting on your behalf) produce in connection with the activities anticipated under this Agreement would constitute a financial promotion under section 21 of the UK's Financial Services and Markets Act 2000 ("FSMA") ("Regulated Materials"), you will (and will procure that any persons acting on your behalf will):
(a) comply with our marketing usage rules and use our approved assets without modification as available at our website (as updated from time to time by Clearpay) (“Marketing Rules”). The Marketing Rules have been approved from a financial promotions’ perspective under FSMA by an authorised person (as defined in FSMA); or
(b) where the Regulated Materials do not comply with the Marketing Rules then (i) prior to any use by or disclosure of any Regulated Materials, provide such Regulated Materials to us for approval, as may be required from a financial promotions perspective under FSMA; and (ii) not use or disclose such Regulated Materials unless and until we have notified you in writing that the relevant Regulated Materials have been approved by us for publication as required from a financial promotions perspective under FSMA; and
(c) provide all approved and “live” marketing and promotional materials to us on request. For the purpose of this clause, “live” means any marketing or promotional material that is or may be used by you for any marketing activity. For the avoidance of doubt, you are not permitted to engage in any real-time promotional activity or interactive dialogue with or to your Customers.
8.2 You will (and will procure that any persons acting on your behalf will) fully cooperate with us and comply with our instructions in relation to the Regulated Materials to identify if there are any risks that the Regulated Materials are not compliant with FSMA or the FCA Rules for the lifetime of the Regulated Materials and provide data on the status of the status of the Regulated Materials. Further, you will (and will procure that any persons acting on your behalf will) comply with our instructions and directions promptly (and in any event before any deadlines set by us, any relevant third party and/or the FCA) in respect of any amendments that need to be made to any Regulated Materials or to withdraw the Regulated Materials so as to ensure that such Regulated Materials are compliant with FSMA and the FCA Rules in relation to the publication of financial promotions, for the lifetime of the Regulated Materials.
9.1 Unless prohibited by Applicable Law, we may suspend your access to any part the Services, including the ability to process Refunds and, in the event of non-delivery of Goods, suspected fraud or malicious activity, withholding of Purchase Amounts, immediately or from such other date we many nominate, by giving you written notice if:
(a) we can’t approve you based upon, the Required Documentation that you provide pursuant to Section 2.1 of these General Terms;
(b) you have breached (including persistent breaches), or we reasonably suspect that you have breached, any provision of this Agreement;
(c) we are unable to verify your ownership or are prohibited from doing business with you under Applicable Law;
(d) we reasonably consider it is necessary to protect our systems or the Services against harm, including fraud or malicious activity;
(e) we reasonably consider that you are subject to a Material Adverse Effect;
(f) we are unsuccessful in debiting your Account pursuant to the Debit Authorisation;
(g) we reasonably believe that continuing to process transactions is in breach of any Applicable Laws or our internal policies and procedures (which are required by us to meet our own obligations relating to Applicable Laws); or
(h) we are required to do so by Applicable Law, court order, or regulatory authority.
9.2 Any suspension will remain in place until the reason for the suspension has been remedied. Without limiting your other obligations under the Agreement, during any suspension you must promptly comply with all reasonable directions that we give regarding your advertisement and offer of the Extended Repayment Feature and your use of our Intellectual Property.
10.1 Termination for cause
(a) General. Either Party may terminate this Agreement immediately (or from such other date as it may nominate) by giving the other Party written notice if:
(i) the other Party breaches any provision of this Agreement, and: (A) such breach is incapable of remedy; or (B) the other Party has failed to remedy such breach within fourteen (14) days of the date of a written notice issued to it by the Party requiring remedy of the breach;
(ii) the other Party engages in any fraudulent activity or conduct;
(iii) the other Party is unable to perform its obligations as a result of a Force Majeure event, and such event continues for a period of thirty (30) days; or
(iv) the other Party experiences an Insolvency Event (where termination is permitted by Applicable Law).
(b) Clearpay. In addition, we may terminate this Agreement by giving you written notice if:
(i) we can’t approve you based upon, the Required Documentation that you provide pursuant to Section 2.1 of these General Terms,
(ii) we reasonably believe that you have breached any of your representations and the warranties in Section 11.2 on a repeated basis;
(iii) the Monthly Default Rate is 4% or higher;
(iv) you are offering for sale or selling Restricted Goods or Services through your Website(s) or in-Store without prior written approval from us;
(v) we are unable to verify your ownership or we are prohibited from doing business with your new owner under Applicable Law;
(vi) we cease providing the Services;
(vii) we are unsuccessful in debiting your account pursuant to the Debit Authorisation and any such default remains uncured for more than two (2) Business Days;
(viii) we reasonably believe that continuing to process transactions is in breach of Applicable Laws;
(ix) the cause for our suspension of your access to the Services pursuant to Section 8 is not cured for a period of fourteen (14) days; or
(x) we are required to do so if required by Applicable Law, court order or regulatory authority.
(c) Merchant. Notwithstanding Section 10.2, if we provide you with written notice of a proposed change in accordance with Section 1.2, at any time before the effective date of the proposed change, you may terminate this Agreement in response to the proposed change by giving us written notice at any time before the effective date of the proposed change.
10.2 Termination for convenience. Either you or we may terminate this Agreement for any reason by giving at least 30 days’ prior written notice.
10.3 Consequences of termination
(a) Termination of this Agreement does not affect any right or obligation which arose under this Agreement before such termination and is without prejudice to the Parties' other rights and remedies.
(b) Upon termination of this Agreement for any reason all rights and licences granted under this Agreement will terminate immediately, except as expressly provided in this Agreement. Any amounts owing to you under this Agreement which are due to be paid to you after the date of termination may be withheld until we are satisfied that the obligations in this Section 10.3(b) are met.
(c) Without limiting the other provisions of this Agreement, Sections 2.8, 3, 4, 5, 7, 10.3 and 11 of these General Terms, and all other terms which by their nature are required to survive termination of this Agreement, will survive termination of the Agreement.
11 Warranties, Liability and Indemnity
11.1 Mutual representations and warranties. Each Party makes the following representations and warranties to the other:
(a) It is duly qualified and licensed to do business in all jurisdictions in which it operates, has full power and authority to enter into and perform its obligations under this Agreement, and, once executed by an authorised representative of that Party, this Agreement constitutes legal, valid, and binding obligations enforceable against such Party;
(b) To the best of its knowledge, the consummation of the Services and the obligations and rights described in this Agreement do not result in the material breach of any contract to which it is currently a party;
(c) It is not insolvent, in bankruptcy proceedings or in receivership; and
(d) In relation to any threatened or current litigation or arbitration or other legal proceedings or investigations of any kind, including regulatory enforcement, you are not engaged in any such activities which would have an adverse effect on your ability to perform your obligations under this Agreement, and any material litigation and public regulatory proceedings against Block Inc. are disclosed in Block’s public filings.
11.2 Your representations and warranties. You make the following representations and warranties to us in relation to each Clearpay Purchase:
(a) neither you, nor your employees, or agents, will engage in any fraudulent or misleading conduct, or conduct in breach of Applicable Laws, in connection with the Clearpay Purchase;
(b) you will Deliver, or arrange for the Delivery of, all Goods involved in the Clearpay Purchase in accordance with the terms of this Agreement;
(c) in relation to Goods that are goods: (i) the Customer will have title to the Goods listed and clear of all encumbrances, liens, and claims; (ii) the Goods, at the time Delivered to the Customer, are of merchantable quality; (iii) the Goods materially match any sample, or demonstration model, shown to the Customer; (iv) the Goods, at the time Delivered to the Customer, are provided pursuant to the implied warranty of fitness for a particular purpose;
(d) in relation to Goods that are services, (i) the Goods have been, or will be, provided with due care and skill; and (ii) you will inform the Customer that the Customer will be charged for the Goods at the time the Customer makes an Purchase and not at the time the Goods are Delivered;
(e) the Clearpay Purchase represents a bona fide sale of the Goods by you in the ordinary course of your business;
(f) you will not, without prior written permission from us, allow the Services to be used to sell, or offer for sale, Restricted Goods using the Services;
(g) you will provide us with complete purchase information with respect to each Clearpay Purchase;
(h) you will not seek, or obtain, any special arrangement or condition from, nor discriminate in any way against, the Customer with respect to the terms of a Clearpay Purchase;
(i) you will not do anything to prevent any amounts owing to us in connection with a Clearpay Purchase from being valid and enforceable against the relevant Customer;
(j) all information you provide to us, including in all Compliance Documentation and Debit Authorisation, is complete, current, and correct (and you will notify us promptly if such information ceases to be complete, current, and correct for any reason); and
(k) the person(s) who completed the Debit Authorisation and signed this Agreement, in each case, on your behalf was duly authorised to do so and to bind you.
11.3 Limitation of Liability and Warranty Disclaimer
(a) Nothing in this Agreement limits or excludes either Party's liability for fraud or fraudulent misrepresentation, death or personal injury caused by its negligence, or any other matter that may not otherwise be limited or excluded by Applicable Law. The restrictions on liability in Sections 11.3(c) and (d) apply to every liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, indemnity or otherwise.
(b) If you grant Clearpay, including any employee or agent of Clearpay, access to your system, Website, platform, code base or other technology, for any purpose related to the Services including integration of computer code, other technology, content, images or marketing materials, you acknowledge and expressly agree that Clearpay will have no liability for any damage, interruption, errors or other loss related to your system, Website platform, code base or other technology that may be caused by the acts or omissions of Clearpay.
(c) To the extent permitted by Applicable Law, in no case will we or our Affiliates, be responsible to you or your Affiliates for any indirect, incidental, consequential, special or exemplary damages, loss of profits, loss of revenue, loss of sales or business, loss of agreements or contracts, loss or damage to goodwill, loss of use or corruption of software, data or information arising from or relating to the Agreement, the use of or inability to use the Services, the Clearpay Gateway or the Merchant Hub, or our or your liabilities to third parties arising from any source. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THIS SECTION MAY NOT APPLY TO YOU.
(d) To the extent permitted by Applicable Law, the total cumulative liability of us and our Affiliates to you and your Affiliates for all claims arising out of or related to the Agreement will not exceed £5,000. These limitations will apply even if the above stated remedy fails of its essential purpose. This does not limit our obligations to pay you any Purchase Amount due to you under this Agreement, your obligations relating to Refunds or Fees under this Agreement, your obligations under Sections 3.4(d) and 3.4(e), your representations and warranties under Sections 11.2(a)-11.2(d), and your obligations under Section 11.4.
(e) ALL SERVICES PROVIDED BY OR ON BEHALF OF CLEARPAY HEREUNDER AND ALL LICENSES TO CLEARPAY GATEWAY, MERCHANT HUB, CLEARPAY SOFTWARE, AND CLEARPAY INTELLECTUAL PROPERTY ARE PROVIDED OR LICENSED, AS APPLICABLE, ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN. CLEARPAY AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THE AGREEMENT, INCLUDING WITHOUT LIMITATION, THE CONTINUED AVAILABILITY OF THE SERVICES GENERALLY OR TO CUSTOMERS IN ANY PARTICULAR GEOGRAPHICAL AREA, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
(f) To the extent permitted by law, a Party's liability to the other Party under or in connection with this Agreement is reduced to the extent, if any, to which the other Party's acts or omissions (including as a result of negligence, wilful misconduct or a breach of this Agreement) cause or contribute to its own loss or damage.
(g) The Parties must take all reasonable steps to mitigate any loss incurred by them under this Agreement.
11.4 Indemnification. You agree to release, indemnify, and hold harmless us, our Affiliates, and our respective officers, directors, employees, and agents from, and against, any third-party claims, liabilities, damages, losses, and expenses, including reasonable legal fees, to the extent arising out of or in any way related to: (a) any Goods, including any claim by the Customer relating to a warranty or the quality or non-delivery of the Goods; (b) any conduct including false or misleading representation, negligence or fraud, transaction, representation, warranty, or other relationship, actual, asserted, or alleged by you, your officers, directors, employees or agents relating to a Purchase, Goods, or any related matter; (c) your infringement of Intellectual Property rights of a third-party; or (d) breach of Applicable Laws, or any information provided by you to us in connection with Section 4.4 of these General Terms. For the avoidance of doubt, the indemnity given by you extends, without limitation, to any claims, liabilities, damages, losses and expenses suffered or incurred by us arising out of or in connection with sections 56, 75 or 140A-C of the Consumer Credit Act 1974 in respect of a Clearpay Purchase (the "CCA Liabilities”). You further acknowledge and agree that the CCA Liabilities are “amounts owed to us under this Agreement” for the purposes of Section 4.3. Accordingly, and without limiting any other rights or remedies, we may exercise its rights under Section 4.3 to: (i) set off the CCA Liabilities against any amounts we owe you under this Agreement (including, without limitation, any fees payable by us to you and any settlement or payout amounts); and/or (ii) cause us to debit your bank account for the CCA Liabilities.
This Indemnity is a continuing obligation, independent of your other obligations under this Agreement and continues after this Agreement ends. It is not necessary for us to incur expense or to make payment before enforcing a right of indemnity under this Agreement. However, we will not exercise the right of indemnity under Section 11.4 of the General Terms where it relates to a particular Customer's Clearpay Purchase until after we have raised the relevant issue with you for discussion, and you have had a reasonable time to respond to us or remedy the issue with that customer to our reasonable satisfaction.
12 Governing Law, Jurisdiction and Disputes
12.1 This Agreement is governed by the laws of England and Wales. Each Party irrevocably submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in England and Wales.
12.2 If any dispute arises under the Agreement, the Parties agree to seek to resolve the dispute in good faith within thirty (30) days’ written notice of such dispute. No action, claim, suit, arbitration or other proceeding may be commenced before the Parties have attempted to resolve the dispute pursuant to this provision, unless injunctive relief is sought. If the Parties are unable to resolve the dispute (including after conducting good faith negotiations), the Parties may pursue their respective rights under Applicable Law with respect to the dispute. We may request additional documentation from you to assist us in resolving any complaints or disputes (including Customer complaints and disputes), and you must provide all reasonable assistance to us to facilitate us in resolving any complaints or disputes (including Customer complaints and disputes).
12.3 Where any dispute or complaint results in a Customer complaint to the FOS, you shall provide your full cooperation and all information reasonably requested by us to enable a timely response to the FOS and any required remediation.
12.4 If, in relation to a transaction to purchase Goods financed by the Extended Repayment Feature, a Customer has a claim against you in respect of a misrepresentation or breach of contract, the Customer may have a like claim against us under section 75(1) CCA 1974 (a “Section 75 Claim”). Each party shall promptly notify the other of any Customer complaints or circumstances likely to give rise to a Section 75 Claim, and shall, at its own cost, provide all information, evidence and assistance reasonably requested. We may, in our sole discretion, defend, settle or otherwise deal with any Section 75 Claim, provided that we will use reasonable endeavours to consult with you before settling a Section 75 Claim where practicable. You agree to contact the Customer directly, if deemed appropriate by us, in order to resolve any Section 75 Claim. You acknowledge that under section 75(2) CCA 1974 we are entitled to be indemnified by you for loss suffered by us in satisfying liability to a Customer under section 75(1). Without limitation to clause 11.4 (Indemnification), on our written request you shall either:
(a) pay directly to the Customer any amounts properly due to the Customer in respect of the Section 75 Claim; or
(b) reimburse us on demand for all amounts paid or credited by us to the Customer in satisfaction of the Section 75 Claim, together with all reasonable costs and expenses incurred by us in investigating, defending or settling the claim.
Any amounts payable by you under this clause constitutes CCA Liabilities for the purposes of clause 11.4 (Indemnification), and we may exercise our rights under clause 4.3 (Set off, Debit and Invoice) in respect of them. If the Customer submits a complaint about a Section 75 Claim to the FOS, you undertake to: (A) pay any amounts awarded to the Customer by the FOS; (B) pay any applicable FOS referral fee; and (C) pay any amounts due to us under the indemnity in clause 11.4. If the Customer commences litigation relating to a Section 75 Claim, you agree to be joined as a party to the proceedings or to apply to be substituted as the defendant as we may reasonably require. The parties shall agree points of contact for handling Section 75 Claims and unless otherwise stipulated, will respond to requests or queries from the other party within ten (10) Business Days.
13 General
13.1 Notices
(a) Unless otherwise specified in this Agreement, any notices to any other Party, including any notice of a change of address, must be in writing and will be effective if sent by electronic mail, as set out below. Any notice will be deemed to have been received by you within twenty-four (24) hours of the time the notice was sent by electronic mail:
(i) If to Clearpay: [email protected] (or an email address otherwise notified to you by Clearpay)
(ii) If to you, to the email address you provide through the Merchant Hub.
13.2 Relationship of the parties. We are serving as an independent contractor to you under this Agreement. Nothing in this Agreement will be deemed or construed to create a relationship of partnership, joint venture, agency, or employment between the Parties or any relationship other than independent parties contracting for services. Neither Party has nor will either Party hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of, in the name of, or binding upon the other Party.
13.3 Entire Agreement. This Agreement, including these General Terms, together with the Supplementary Terms, and all Schedules, constitute and contain the entire agreement between you and us with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. You and we acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
13.4 No Waiver. A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
13.5 Construction. The headings of the Sections of this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement. Reference to “including” is not construed in any way to limit the scope of the term that it references but construed to mean “including, but not limited to”.
13.6 Severability. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement will not be affected thereby and will be binding upon the Parties and will be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.
13.7 Transfers or assignments
(a) You may not transfer or assign any rights you may have under this Agreement without our prior written consent, not to be unreasonably withheld.
(b) We may transfer or assign this Agreement, and any right under this Agreement, to a third party or an Clearpay Affiliate, and we will notify you in advance of such a transfer or assignment.
13.8 Counterparts; Electronic Signatures. Each of these General Terms and the Supplementary Terms may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same Agreement. Each Party agrees that the electronic signatures, whether digital or encrypted, of the Parties included in the Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Delivery of a copy of these General Terms, the Supplementary Terms, or any other document contemplated hereby bearing an original or electronic signature by facsimile transmission, by electronic mail in portable document format (.pdf) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document will have the same effect as physical delivery of the paper document bearing an original or electronic signature.
Definitions
Terms in these General Terms which are capitalised but not otherwise defined above or in the Supplementary Terms have the following meanings:
Accepted for Refund means, in respect of any Goods that are Returned to you, acceptance of those Goods for Refund.
Account means your bank account held at your financial institution from which Clearpay is authorised to arrange for funds to be debited as detailed in the Debit Authorisation.
Affiliate means a person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with the respective Party. For the purposes of this agreement, control means ownership (directly or indirectly) of at least 50% either (i) of the voting shares or similar voting instruments or the combined voting power in an entity or association or the power to direct or cause the direction of the general management or policies of an entity or (ii) the total value of all stock, capital interest, or profits interest in such entity or association.
Applicable Law means all applicable laws, regulations, codes, rules or other legislative instruments or any guidelines issued by any governmental or regulatory body or statutory authority (including, without limitation the Data Protection Laws or consumer laws) which apply to the Clearpay Purchase, as amended from time to time.
Applicable Requirements means any written policies, standards or instructions issued by Clearpay and notified to you from time to time.
Approval Confirmation means electronic notice from us to you that an Clearpay Purchase has been approved by us.
Authorisation Amount has the meaning set out in Section 4.2(b)(ii).
Authorisation Validity Period means, in relation to a Purchase using an Clearpay Card, the period between the date of Purchase and the maximum capture period applied by the Card Schemes to such Purchase, unless a longer period has been agreed with our PSP.
Brand Management Materials mean the brand assets (owned or licensed), electronic banners, lightboxes, website integration, point of sale materials, marketing guidance, Marketing Rules and any other marketing, advertising and promotional materials that Clearpay provides to Merchants from time to time and as amended from time to time including those on our website.
Business Day means a day other than a Saturday, Sunday or national public holiday in the United Kingdom.
Card Scheme means the VISA and Mastercard card schemes accepted by us and their published rules for your merchant category code.
Chargeback means the reversal of a Purchase Amount to a Customer, by the Customer's issuing bank, in relation to an Clearpay Purchase disputed by a Customer because: (i) the Purchase Amount was unauthorised, fraudulent, or illegal; (ii) you failed to Deliver the Goods in accordance with the agreement between the Customer and you, the Card Schemes and/or any Applicable Laws; or (iii) it did not comply with the Card Schemes.
Clearpay Card Services has the meaning given in Section 3.1(b) of these General Terms.
Clearpay Gateway means the Clearpay electronic payment gateway system, which allows participating merchants to offer Customers the Extended Repayment Feature.
Clearpay Intellectual Property means Intellectual Property owned or licensed to Clearpay, including, the domain name www.afterpay.com, https://www.clearpay.co.uk, or other domains owned or controlled by Clearpay, and other similar intellectual property or proprietary rights and materials identified by Clearpay for use in its Services or on the Website but excluding any Intellectual Property owned by you and licensed by you to Clearpay pursuant to this Agreement.
Clearpay Interchange Fee means the Interchange Fees we may receive on Clearpay Purchases processed using an Clearpay Card.
Clearpay Purchase means a purchase by a Customer of any Goods via your Website(s) or in-Store using the Extended Repayment Feature for supply in-Store or Delivery to a location in the United Kingdom for the amount specified in the Approval Confirmation.
Clearpay Software means the software owned by, or licensed to, Clearpay for use in connection with the Services and provided to you pursuant to the Agreement.
Compliance Documentation means the documentation we require from you to verify you in accordance with our internal risk and compliance procedures and/or applicable AML Laws, which will be provided to you or made available on our Website. “AML Laws” means the Money Laundering and Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.
Confidential Information means the terms of this Agreement, trade secrets or proprietary business information, and any information (of whatever form and nature) disclosed by a Party to the other Party, but Confidential Information does not include information which: (i) at the time of the first disclosure to a party, was already in the lawful possession of the party; (ii) is in or comes into the public domain otherwise than by disclosure in breach of this Agreement; (iii) becomes available to a party legitimately from any other third party source that is legally entitled to that information; or (iv) was independently developed by employees or agents of the receiving Party who had no access to any Confidential Information.
Consumer Duty means the regime set out in the FCA Handbook requiring firms to act to deliver good outcomes for retail customers, as set out in Principle 12 (the Consumer Principle) and PRIN 2A, as amended from time to time.
CRA means the Consumer Rights Act 2015 (as amended or re-enacted from time to time) and regulations made under it from time to time.
Cross Border Trade has the meaning set out in Section 3.2 of these General Terms.
Cross Border Transaction means an Clearpay Purchase via Cross Border Trade.
Customer means a person who buys Goods from you via your Website(s) or in-Store using the Extended Repayment Feature.
Customer Payment has the meaning given to it by Section 3.5(e) of these General Terms.
Data Protection Laws means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including: (i) in the UK, the UK GDPR as defined in The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (“UK GDPR”), Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (ii) in the European Economic Area, the General Data Protection Regulation EU 2016/679 (“GDPR”) and any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC) if applicable; in each case as updated, amended or replaced from time to time.
Data Sharing Terms means the data sharing terms set out on our website at www.clearpay.co.uk/attachment/303/download/datasharingterms and incorporated into this Agreement, as updated from time to time by Clearpay.
Debit Authorisation means the direct debit instruction and authorisation you provide us during your onboarding process based on the terms available at https://get.afterpay.com/clearpay-ddm-authorization.pdf which authorises us to arrange for funds to be debited from your bank account held at your financial institution in accordance with this Agreement.
Delivered means in the case of Goods that are goods, provided to or delivered to your Customer; and in the case of Goods that are services, supplied in full, to your Customer (and the terms Delivery and Deliver will be construed accordingly).
Decline Confirmation means electronic notice from us to you that a Clearpay Purchase has been declined by us.
Extended Repayment Feature means the payment financing options provided by Clearpay to your Customers, to facilitate the sale of Goods by you on your Website(s) or in your Store(s).
FCA means the Financial Conduct Authority and any successor regulatory body.
FCA Rules means the rules and guidance contained in the FCA's Handbook of rules and guidance as amended and updated from time to time.
Fee means the fee set out in Part D of the Supplementary Terms.
Force Majeure Event means an event beyond the reasonable control of the affected party which does not relate to its fault or negligence, including acts of God, epidemics or pandemics, government intervention, war, hostilities, terrorist activities, local or national emergencies, floods, natural disasters, earthquakes, fires, explosions and strikes, lock-outs and labour disputes.
Goods means the item(s) or service(s) supplied by you to a Customer who elects to use the Extended Repayment Feature, to purchase those items and/or services.
Insolvency Event means an event where one Party (i) voluntarily or involuntary (and such involuntary petition or proceeding is not dismissed within sixty (60) days) commences (or is the subject of, as the case may be) any proceeding or files any petition seeking relief under domestic or foreign bankruptcy, insolvency, liquidation, or similar law or proceedings, (ii) applies for or consents to the appointment of a receiver, trustee, custodian, sequestrator, or similar official for such other Party or for a substantial part of its property or assets, (iii) makes a general assignment for the benefit of creditors, (iv) commences the winding up or liquidation of its business or affairs (including ceasing a substantial portion of its business that alters its operations), (v) takes corporate action for the purpose of effecting any of the foregoing, or (vi) suffers a material adverse change in business where the other Party reasonably believes that the first Party will not be able to perform its obligations under the Agreement.
Intellectual Property means all (i) trade marks, service marks, trade names, logos, and other commercial and product designations including other indications of origin, and all goodwill associated therewith and all applications, registrations and renewals associated with the foregoing; (ii) inventions, discoveries and ideas (whether patentable or unpatentable and whether or not reduced to practice), and all patents, patent rights, applications for patents (including, divisions, continuations, continuations-in-part and renewal applications), and any renewals, extensions or reissues thereof; (iii) trade secrets, know-how, Confidential Information, and other proprietary rights and information; (iv) copyrights and works, including works of authorship, whether copyrightable or not and all applications, registrations, renewals and extensions in connection therewith (whether presently available or subsequently available as a result of intervening legislation); (v) designs, industrial designs and design patents and applications and registrations thereof; (vi) domain names; (vii) databases; and (viii) all other intellectual property and other proprietary rights.
Interchange Fees means the fees and other expenses charged by the issuing bank of the Clearpay Card, as reported to us by the issuing bank.
Marketplace Seller means a person or business registered as a seller on your Website(s) who offers Goods to Customers on your Website(s).
Material Adverse Effect means any event or circumstance which: (a) is likely to materially and adversely affect your ability to comply with any of your obligations under this Agreement.; or (b) is likely to materially and adversely affect your business, operations, property, condition (financial or otherwise) or prospects (including any such events or circumstances that will or are likely to result in you being subject to an Insolvency Event).
Merchant Hub means the online interface provided to you by us in relation to the Clearpay Services which is accessible via our Website.
Monthly Default Rate means, at any point in time, the total value of losses we incur for Customer non-payment of Purchases occurring on your Website(s) or in your Store(s) as applicable in a single calendar month for which the Customer’s payments to us are overdue divided by the total value of Purchases occurring on your Website(s) or in your Store(s) as applicable during that calendar month.
Payment Date means, as the context requires:
For Purchase Amounts and Fees, up to Five Business Days immediately following: (i) the date of the Clearpay Purchase for Clearpay Purchases made via Clearpay E-Commerce Services; or (ii) your capture of such funds for Clearpay Purchases made via the Clearpay Card Services.
For Refund Amounts: The Business Day following the day on which the Goods are Accepted for Refund and enter the refund of the Goods to the applicable Clearpay payment type as set out in Section 5.
PCI DSS means the Payment Card Industry Data Security Standard as managed by the PCI Security Standards Organisation
Pressure Selling Practices means any conduct which harasses, coerces or unduly influences a Customer, or is otherwise likely to significantly impair the Customer's freedom of choice or conduct through harassment, coercion or undue influence, including any aggressive commercial practice or a commercial practice listed in Schedule 20 of the Digital Markets, Competition and Consumers Act 2024 (DCMA).
Processing Fees means any amount payable by you to your PSP in connection with the relevant Clearpay Purchase in respect of fees, including card network fees, Interchange Fees, acquiring fees, and other relevant scheme fees related to your receipt of the Purchase Amount via your PSP.
Privacy Policy means our privacy policy available at https://www.clearpay.co.uk/en-GB/merchant-privacy and as amended from time to time.
Product Information Sheet means a document setting out the outcome of the value assessment of the Extended Repayment Feature which is to be undertaken before this Agreement takes effect, and before any significant change or adaptation is made to the Extended Repayment Feature.
PSP means payment service provider.
Purchase Amount means, in respect of each Clearpay Purchase, the relevant Sale Price plus any Shipping Costs.
Records has the meaning given to it in Section 2.10 of the General Terms.
Refund means a partial or whole refund of the Sale Price for any Goods Accepted for Return and/or of any related Shipping Costs.
Refund Amount means, the amount that you agree to Refund to a Customer for Goods Accepted for Return according to your policies, or other amount that you agree to refund to a Customer.
Regulated Materials has the meaning given to it in Section 8.1 of the General Terms.
Relevant Requirements has the meaning given in Section 2.10 of the General Terms.
Regulatory Guidance means Applicable Law, the FCA Rules and any applicable guidance issued by regulators, including the FCA and the FOS, as updated from time to time.
Required Documentation has the meaning given in Section 2.1 of the General Terms.
Restricted Goods means the items and services set out in Schedule 2.
Return means the return of any Goods to you by a Customer in connection with a Clearpay Purchase (and other than a return of goods by the Customer for the purposes of an exchange, the grant of store credit or for repair) initiated by the Customer.
Sale Price means the purchase price of the Goods supplied by you (including VAT).
Services (or Clearpay Services) means our provision of the Extended Repayment Feature to you for the use of your Customers in the United Kingdom as contemplated by this Agreement, including access to the Clearpay Gateway and the Merchant Hub and marketing and promotional services as contemplated under this Agreement.
Shipping Costs means any fees, costs or expenses charged by you to a Customer for the Delivery of Goods purchased through the Services to the address specified by the Customer when making the Clearpay Purchase.
Store means any physical location in the United Kingdom at or from which you supply the Goods, or conduct transactions for the supply of the Goods.
Store Personnel means your employees that are employed in your Store(s) and are likely to communicate with Customers regarding the Services.
Target Market means the group of Customers, sharing features, whose characteristics, needs and objectives the Extended Repayment Feature is designed to meet which has been identified for the relevant Product in a Product Information Sheet.
Tax or Taxes means any taxes, including sales, use, value added, consumption, goods and services, VAT, consumption or other similar taxes, withholding taxes (including backup withholding), income, gross receipts, ad valorem, property, unclaimed property, escheat, franchise, transfer, stamp, or any other duties, levies, fees, excises or tariffs imposed by any federal, state, foreign, provincial or local governmental taxing authority, whether disputed or not, and including any penalties, interest, fine, surcharge or additions to tax.
Tax Authority means any taxing, revenue or other authority (in any jurisdiction) competent or responsible for imposing, administering or collecting any Tax.
Term has the meaning given to it under Part B of the Supplementary Terms.
Unauthorised Capture Amounts has the meaning set out in Section 4.2(b)(iii) of this Agreement.
Website(s) means: (i) for you, any electronic retail sales facility, including any website, mobile, or tablet sites or applications, owned and operated by you, including the website(s) listed under Part C of the Supplementary Terms; and (ii) for us and our Affiliates, any website, mobile, or tablet sites or applications, owned and operated by us.
VAT means value added tax charged pursuant to the Value Added Tax Act 1994 as the same may be amended from time to time.
Schedule 1 - Clearpay Cross Border Trade Terms
The following additional terms apply to any Cross Border Transactions processed by you under the Agreement. In this Schedule 1, “we” includes an Clearpay Affiliate and “Customer” means a customer of an Clearpay Affiliate who uses such Clearpay Affiliate’s services where it is offered outside of the United Kingdom, where applicable.
(a) All references in this Agreement to “Clearpay Purchase” will also include Cross Border Transactions and apply as they would in relation to any Clearpay Purchase;
(b) The limitations on the purchase of Goods from, and the delivery of Goods to, locations outside the United Kingdom do not apply in respect of Cross Border Transactions but will only apply to locations outside the United Kingdom authorised by Clearpay;
(c) Subject to Section 3.5(b) of the General Terms, and in accordance with Section 3.5(a) of the General Terms, you must ensure that all Goods are Delivered to the Customer promptly, and within the expected Delivery period as represented to the Customer at the point of sale, and in the case of Goods that are goods, up to a maximum of twenty-one (21) days (where shipping must occur within ten (10) days), or in the case of Goods that are services, up to a maximum of ninety (90) days, if it is a Cross Border Transaction;
(d) You are responsible for arranging Delivery in respect of all Cross Border Transactions and for any and all additional costs and charges (including without limitation any applicable Taxes, duties, levies import and export fees, excise taxes delivery charges and other applicable amounts) associated with any Cross Border Transaction;
(e) You must ensure that any and all additional costs and charges associated with a Cross Border Transaction (including without limitation any applicable Taxes, duties, levies, import and export fees, excise taxes, delivery charges and other applicable amounts) charged by you to the Customer in respect of a Cross Border Transaction are included in the Sale Price and Shipping Costs (as applicable) or are otherwise clearly represented to the Customer prior to the point of purchase;
(f) To allow for foreign exchange settlement, the Payment Date for Purchase Amounts and Fees and for Refund Amounts for a Cross Border Transaction may be extended in each case by three (3) additional Business Days (to the Business Day time frames included in this Agreement);
(g) In accordance with Section 4 of the General Terms, Clearpay will make all payments to you in respect of a Cross Border Transaction. These payments will be made in the United Kingdom;
(h) In addition to any Fee payable by you for each Clearpay Purchase for each Cross Border Transaction, a “Cross Border Transaction Fee“ will be payable by you to Clearpay for each Clearpay Purchase as set out under Part D of the Supplementary Terms;
(i) To the extent that your Website(s) supports multi-currency presentment so that a Customer is able make a Cross Border Transaction in a currency other than UK GBP (the “Foreign Currency”), we will convert the Foreign Currency to UK GBP on the date of the Cross Border Transaction using the same conversion rate that Clearpay must pay, plus a fee of 1% of the converted amount, to calculate the payments referenced in Section (h) above and the Cross Border Transaction Fee;
(j) The terms of Section 4 of the General Terms apply to the Cross Border Transaction Fee in the same way as they apply to the Fee (including that the Cross Border Transaction Fee is not refundable unless paid incorrectly). For the avoidance of doubt, the Cross Border Transaction Fee will not be refunded or repaid to you in respect of Goods that are returned to you by Customers;
(k) You and we will, when performing obligations in relation to Cross Border Transactions for Customers located outside of the United Kingdom, each comply with the relevant data privacy laws and regulations applicable in the jurisdiction where the Customer resides;
(l) For the avoidance of doubt, Clearpay is not performing any cross-border business and is not acting as agent for any Clearpay Affiliate in relation to the Cross Border Transactions; and
(m) In addition to the other rights of termination under this Agreement, we may terminate the provision of Cross Border Trade to you for any reason immediately by written notice to you (including without limitation where we cease to offer Cross Border Transaction capability in connection with the Services). If we terminate Cross Border Trade, this Schedule 1 will not apply but the remaining provisions of this Agreement will not be affected and the Agreement will remain in full force and effect and will continue to be legally binding on the Parties. For the avoidance of doubt, if either Party terminates this Agreement pursuant to Section 10 of the General Terms, if applicable, this will also terminate your provision of the Extended Repayment Feature to customers located outside the United Kingdom such that the Cross Border Trade offering will also terminate.
Schedule 2 - Restricted Goods
Categories of Goods sold:
● Auctions;
● Coupons, Vouchers, Daily Deals;
● Department Stores;
● Donations;
● Dangerous goods, being goods that cause damage, harm or injury, including (without limitation), recreational drugs (chemical or herbal) or derivatives from drugs (chemical or herbal), cannabis or CBD products (prescription or otherwise), psychoactive substances, drug paraphernalia, equipment to facilitate drug use, weapons, weaponised knives, self-defence products, ammunition, explosive materials and fireworks, instructions for making explosives, or other harmful products, tobacco products, e-cigarettes or vaping products, weaponised hunting equipment, militarised products, or armoured goods;
● High risk digital goods and services including software, movies, music, games, and video game credits;
● Products that enable dishonest behavior, including (without limitation) hacking software or instructions, fake documents, and academic cheating products, essay mills;
● Goods or services that infringe third-party Intellectual Property, including (without limitation) counterfeit goods and pirated content;
● Services in the following categories: non-cosmetic tattoo art, pay-to-remove services; no-value-added services; ; “experiences”; financial services; ticketing services; software services; health services; and other personal services, travel services (including airlines, accommodation, car rental, tours, cruises, railway, and timeshare);
● Business to business sales;
● Pre-orders or regular subscriptions;
● Adult goods (including pornographic or explicit materials, experiences, and content), online streaming services, and other content formats deemed offensive or of a sexual nature;
● Food delivery platforms;
● Gang or hate group affiliated products;
● Multi-level marketing, pyramid structure businesses, “get rich quick’ schemes;
● Gift cards, gift card marketplaces, open loop cards or reloadable debit cards, payment cards that can be used at any location that accepts cards authorized by the payment card’s network, cash, or cash equivalents;
● Jamming and/or interference devices;
● Gambling or gambling-related content (including lotteries, games of chance, and raffles);
● Precious metals (e.g. raw, materials, bullions);
● Pre-paid financial cards (including calling cards and debit cards);
● Health and medical services (including dentists, general practitioners, vets etc);
● Pharmaceuticals, medical and pharmaceutical devices/equipment;
● Pseudomedicals, Pseudopharmaceuticals, and Nutraceuticals;
● Selective Androgen Receptor Modulators or Peptides;
● Prescription drugs, regulated products, illegal drugs, and testosterone boosters or sexual enhancement products;
● Beauty or cosmetic treatments that are physically invasive with a high risk of infection not approved by the applicable local regulatory authority;
● Utilities;
● Non-fungible tokens/ NFTs, cryptocurrency;
● Consignment or reselling of used handbags & accessories & clothing & other goods;
● Furniture; and
● Without limiting the above, any goods or services required by law to be sold to Customers over 18 years of age.
High risk attributes:
● Sale of Goods through a marketplace or aggregator;
● Dropshipping;
● ‘Flash sale’ business model;
● Delivery of products > 14 days;
● Delivery of a majority of services > 90 days;
● Imposes a surcharge for Clearpay payments;
● Non-renewable memberships;
● Merchant contracting entity is located in a different country / region to where the Services will be provided;
● Sale of goods through a pawn shop; and
● Any goods, services, or practices (including through marketing and communications) that harass, and/or vilify individuals on grounds including gender, race, ethnicity, religion, age, cultural background, disability, sexual orientation, gender identity, pregnancy, family responsibilities, marital, or relationship status.
For any other goods or services which we consider, in our reasonable discretion, to be dangerous, inappropriate, or high risk, we reserve the right to prohibit the use of the Services to purchase such goods and request removal of such goods from your Website(s) or Store(s).
Schedule 3 - Additional Terms
Notwithstanding Section 3.4(f) of the General Terms, these Additional Terms only apply if you are approved by Clearpay (communicated to you separately in writing or otherwise) in accordance with Section 3.3 of the General Terms to sell Goods in the applicable category as could reasonably be expected to be offered by you in your ordinary course of business.
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Allowed Goods |
Marketplace |
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1. Goods permitted as the following “Allowed Goods”:
Health: a. Herbal ingredients or Goods that contain herbal ingredients provided that the Goods: (i) comply with Applicable Laws; and (ii) are not banned or restricted in accordance with the Medicines & Healthcare products Regulatory Agency banned and restricted herbal ingredients guidance. b. Dentistry goods and services (e.g. teeth whitening, tooth gems, grills etc.) provided that the Goods: (i) comply with Applicable Laws; and (ii) where hydrogen peroxide (H₂O₂) is used either: (a) the H₂O₂ levels are equal to or lower than 0.1%; or (b) the H₂O₂ levels are greater than 0.1% but the Goods are provided and administered by a registered dentist in accordance with General Dental Council guidelines. c. Beauty cosmetic services (e.g. botox, laser treatment etc.) provided that: (i) the services comply with Applicable Law; and (ii) the services are administered (a) by a medical practitioner; or (b) by the Merchant or an employee of the Merchant that has completed relevant training and holds all necessary qualifications, licenses or certifications required to perform the services.
Childrens: d. All goods and services available for children must be performed in a safe environment by licensed professionals holding all required qualifications, licenses, certifications, insurance and policies (i.e. safeguarding policies) required to provide the Goods or perform the services.
2. You acknowledge and agrees that we will periodically review the Allowed Goods and, if such Allowed Goods is determined by us to be causing significant loss in the form of non-payment or fraud by Customers, we reserve the right to remove the availability of the Services from such Allowed Goods on your Website(s) or Store(s).
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1. Goods permitted are goods (other than Restricted Goods) sold by Marketplace Sellers on your Website(s). 2. The Parties agree that: (i) by making a purchase on your Website(s), a Customer enters into a sale agreement with the Marketplace Seller, which must include the Sale Price and Delivery timing at the point of purchase; (ii) if a Marketplace Seller rejects an Clearpay Purchase, you will process the Refund as soon as the rejection is notified in accordance with Section 5 of the General Terms; and (iii) you are responsible for settlement of the Sale Price (and any other applicable delivery or other fees) with the Marketplace Seller, provided that such settlement does not breach this Agreement. 3. You agree to comply with our reasonable directions to provide product information, including SKU-level and cart data and any information we require from a Marketplace Seller (including shipping information) to demonstrate that the Goods were Delivered. 4. If a Customer: (i) disputes that a Marketplace Seller has Delivered the Goods; that the Goods have been Delivered to an acceptable standard, or disputes any policies imposed by you or Marketplace Sellers, and (ii) is unable to reach a resolution directly with the Marketplace Seller, you will use commercially reasonable efforts to mediate a resolution between the Customer and the Marketplace Seller. If the Customer and Marketplace Seller are not able to come to a resolution following any mediation, you will make a final determination as to whether the Customer is entitled to a Refund in accordance with your standard business practices. 5. The Parties will collaborate to reduce risk and fraud. This will include: (i) you providing any agreed risk metrics via the Clearpay Gateway/Merchant Hub including - Marketplace Seller name or identification details, basket details and, if we have approved services for your Website(s), the date of future bookings (including the expected date of Delivery); (ii) where a Party detects fraud on your Website(s), promptly notifying the other Party of the details of the alleged fraud, and the Parties will, as soon as reasonably practicable, collaborate to determine the appropriate steps to reduce the risk of fraud; and (iii) Clearpay monitoring Customer non-payments, fraud and other losses in relation to the Clearpay Purchases (“Loss Rates”). If we, acting reasonably, determine that Loss Rates are too high, we will discuss means to limit the Loss Rates and you agree to assist with any reasonable and commercially practical solution to mitigate the Loss Rates. 6. The terms of your Agreement, including the Fee, do not extend to any of your Affiliates, nor any website owned and operated by any individual Marketplace Seller outside of your Website(s). 7. We may also terminate your Agreement where a Marketplace Seller changes its policies in any way that affects the ability of a Customer to Return any Goods in the manner intended under your Agreement. 8. You warrant that you are authorised to and will ensure compliance with this Agreement by all Marketplace Sellers in relation to Clearpay Purchases. 9. You make the representations and warranties set out in Sections 11.2(c)-11.2(f) of the General Terms on your behalf and on behalf of each Marketplace Seller. 10. You agree that any reference to “you” or “your” in the indemnity in Section 11.4 of the General Terms also includes a reference to Marketplace Sellers and their personnel. |