POMELO PAY: MERCHANT TERMS AND CONDITIONS

1. ABOUT US

1.1 Pomelo Pay is a trading name of Pomelo Group Ltd (“Pomelo”, “us”, “we”), a limited liability company registered in England and Wales, number 10583935. Our registered office address is Level 39, One Canada Square, London, E14 5AB. We operate the website https://pomelopay.com.

1.2 Pomelo is authorised and regulated by the Financial Conduct Authority (“FCA”) under Firm Reference Number 928018. We are also registered with the Information Commissioner’s Office under registration number ZA300850.

1.3 We provide services that allow you to offer your Customers an easy to use payment system that, amongst other things, allows them to scan QR Codes placed on invoices, web pages, emails or other media produced by you to enable your customers to quickly and easily make payments to you.

1.4 Your Customers are purchasing the Goods/Services from you, not us. Your Customers can refer to you for details of any terms or conditions applying to this purchase, including their statutory right to cancellation and a refund.

1.5 In order to receive Services from us, you must agree to be bound by these Merchant Terms and Conditions, which shall apply to and govern your relations with Pomelo.

1.6 Your attention is particularly drawn to the following:

(a) We have a limit on our liability to you (see Paragraph 16).

(b) You indemnify us for any breach of these terms and conditions (see Paragraphs 13.3 and 13.4).

1.7 To contact us, you can message our support team via our live chat which is on our website or via the app or email support@pomelopay.com. How to give us formal notice of any matter under the Contract is set out in Paragraph 19.

2. THE MERCHANT TERMS AND CONDITIONS

2.1 The Merchant Terms and Conditions comprise:

(a) these terms and conditions;

(b) the Service Fees Schedule; and

2.2 By agreeing to the Merchant Terms and Conditions, you are bound by them in their entirety. If you do not agree to them, you must not sign-up to receive Services from us. If you refuse to accept the Merchant Terms and Conditions, Pomelo will not provide its services to you or to your Customers. Please read the Merchant Terms and Conditions carefully and print a copy for your future reference.

2.3 References in these terms and conditions to “you” and “your” are to you in your capacity as a Merchant. Capitalised terms are defined in Paragraph 23. The Merchant Terms and Conditions are made only in the English language.

2.4 The Merchant Terms and Conditions were last updated on 2 August 2022.

2.5 You may request at any time during the contractual relationship between you and us the terms to these Merchant Terms and Conditions. Please message us via the in-app customer support, email to support@pomelopay.com or visit our website.

3. AMENDMENTS TO THE MERCHANT TERMS AND CONDITIONS

3.1 We expect to need to update or amend the Merchant Terms and Conditions from time to time to:

(a) comply with law or regulations;

(b) meet our changing business requirements;

(d) introduce fees payable by you to us; and/or

(e) change the structure, features or other terms of the services we provide to you.

3.2 We may make such changes without your specific agreement. Subject to Paragraph 3.3, we will give you two months' notice of such updates or amendments. Where you are not happy with any proposed changes to our terms, you can terminate the Merchant Terms and Conditions at any time before the changes take effect. You will be deemed to have accepted the changes unless you notify us by that date.

3.3 We may from time to time offer additional services to you (“Add-on Services”), in which case you will be asked to accept the terms and conditions of the Add-on Services before they are provided to you. If agreed by you, the terms and conditions of the Add-on Services will form part of the Merchant Terms and Conditions.

4. HOW TO RECEIVE SERVICES FROM US

4.1 In order to receive Services from us, your account manager at Pomelo will help setup your account in accordance to your requirements. We will ask on a separate form the details required. You are solely responsible for ensuring that the information provided by you during this process is complete and accurate. Once accepted, you will be bound by the Merchant Terms and Conditions, but we will not be obliged to perform any obligations under the Merchant Terms and Conditions until you have complied with and passed all our and our partners’ identification and anti-money laundering requirements and we have accepted your application.

4.2 You will be entitled to receive Services from us when we confirm in writing that your application has been accepted or (if sooner) when we begin providing the Services to your Customers, at which point a contract will be formed between us (our “Contract”).

5. OUR SERVICES

5.1 We offer the following services set out in Paragraphs 5.2 to 5.5 (the “Services”):

5.2 Merchant Initiated Transaction – Pomelo Charge

(a) Our software allows a Merchant to display a QR code to a Customer when the Merchant enters an amount and selects the payment option.

(b) The Customer can scan the QR code with their preferred payment app, or the native smartphone camera.

(c) The Customer will be prompted to complete the purchase on their preferred app, or via a payment portal, where they can pay with Apple Pay or Google Pay.

5.3 Customer scan a unique QR Code – Pomelo Checkout

(a) Merchants can download a unique QR code from their dashboard and display this code at their discretion

(b) The Customer can scan the QR code with their preferred payment app, or the native smartphone camera.

(c) The Customer will be asked to either enter the amount they wish to pay the Merchant or select on their phones the product or service they wish to purchase from the menu displayed

5.4 Online Payments

(a) The Customer selects one of the payment options while purchasing Goods/Services.

(b) The Customer is directed to the Pomelo payment portal and is presented with options to complete the payment either via desktop or on their mobile device, and they are provided with a QR code to complete such mobile payment.

(c) If mobile payment is selected, the Customer can scan the QR code with the their preferred payment or the native smartphone camera

(d) The Customer will be prompted to complete the purchase on their preferred payment app or via a payment portal, where they can pay with Apple Pay or Google Pay.

5.5 Payment Request

(a) Merchants generates a payment request link from their dashboard or from the app. The payment request link will have a default expiry time but this can be changed.

(b) Merchants share the link with their Customers via email or any preferred communication channels

(c) The Customer will receive the link and be able to complete the purchase on their preferred payment app or via a payment portal.

6. SERVICE FEES

6.1 The Service Fees will be paid as part of the settlement process described in Paragraph 9.

6.2 The Service Fees are exclusive of amounts in respect of VAT. The Merchant shall, on receipt of a valid VAT invoice from Pomelo, pay to Pomelo such additional amounts in respect of VAT as are chargeable on a supply of the Services. You will be solely responsible for payment of, and agrees to pay, all sales taxes, use taxes or other taxes relating to any other taxes applicable to Merchant Terms and Conditions.

6.3 All payments payable to Pomelo under the Contract shall become due immediately on its termination.

7. RESPONSIBILITIES OF THE MERCHANT

7.1 You agree to introduce your Customers to us in accordance with the Merchant Terms and Conditions.

7.2 You must (and you must ensure that your Agents will) at all times observe and comply with the provisions of any applicable Merchant guide specified by us for that method of purchase (as we may update or amend from time to time) and the terms of any Add-on Services you accept.

7.3 You must (and you must ensure that your Agents will) at all times:

(a) comply with all Applicable Law and not do anything which would cause us or our Agents to be in breach of any Applicable Law, including in connection with your operation and procedures and all documentation, correspondence, notices and advertisements used or issued by you in pursuance of or in connection with your obligations under the Merchant Terms and Conditions; and

(b) hold all Licences and shall supply us with copies of any Licence promptly on our request.

7.4 You must not (and you will ensure that none of your Agents will), without our prior written consent:

(a) make any representations, warranties, guarantees or other commitments with respect to the Services which are inconsistent with those contained in the promotional materials supplied by us from time to time or otherwise incur any liability on behalf of Pomelo howsoever arising; or

(b) do anything that may damage the good name, reputation and/or image of Pomelo.

7.5 You must notify us promptly in writing:

(a) if any Licence is revoked, declined or believed to be in jeopardy;

(b) if you breach any Applicable Law or are investigated for any such breach;

(d) if, at any time, Control in you is or may be acquired by any person or group of connected persons not having control of you on the Effective Date;

(e) if there is any material change in your business, operations or shareholding; or

(f) of any fact or circumstance which you reasonably consider may materially interrupt or cause any material adverse effect on your ability to comply with your obligations under the Merchant Terms and Conditions.

7.6 You are solely responsible for ensuring that you have in place an appropriate Sale Agreement for the Goods/Services with the Customer. You shall comply with the terms of each Sale Agreement, including ensuring that all Goods/Services are supplied and/or delivered to the Customer in accordance with the terms of the Sale Agreement.

7.7 You shall perform your obligations under the Merchant Terms and Conditions in accordance with all reasonable instructions and/or directions given by us from time to time.

7.8 You will from time to time put in place such additional processes, systems and controls which we may require from time to time including in relation to anti-fraud protections and customer complaints handling.

7.9 You acknowledge that we have a right to put in place a Rolling Reserve at any time on written notice to you to secure the performance of your obligations under this Agreement and that such reserve will be based on a percentage of the average amount of funds held in the Merchant Account over a period of days to be determined by us. We may at our discretion hold all funds in the Rolling Reserve in a bank account in our name. The Rolling Reserve may be funded, at Pomelo’s sole discretion by (i) the proceeds of Payments submitted under this Agreement which are withheld by us for payment into the Rolling Reserve and (ii) direct payments from the Merchant as requested by us. We may change the percentage required at any time at our sole discretion. We may deduct from this Rolling Reserve any amount owed to us in accordance with this Agreement and may apply such amount against any actual or contingent liabilities you may have to us. You agree that you have no legal or beneficial interest in any money in the Rolling Reserve. If we establish a Rolling Reserve, we will provide you with notice of the amount and timing of the release of the Rolling Reserve and the conditions upon which the funds in the Rolling Reserve will be released to you.

8. PAYMENTS AND REFUNDS

8.1 When a Customer initiates a Payment, Pomelo will process the Payment and, provided that the Payment is authorised by the relevant payment providers, Pomelo will credit the Merchant Account for the amount of the Payment less any applicable Service Fees (a “Settlement Payment”). Pomelo will usually transfer such funds from the Merchant Account to the Payment Account within one Working Day of receipt of a payment order from you or in accordance with any other time period agreed with you.

8.2 Pomelo may suspend the processing of any Transaction where Pomelo reasonably believes that the Transaction may be fraudulent or involves any criminal activity, until the satisfactory completion of Pomelo's investigation or that of any third party under Applicable Law.

8.3 In circumstances where you agree to refund all or part of a Payment in connection with a purchase made by a Customer (other than by issuing a credit note or directly exchange goods or resupplying services), you must initiate a Refund to that Customer.

8.4 When you wish to make a Refund to a Customer, you must request the Refund either by messaging Pomelo via the in-app customer support or email to support@pomelopay.com, providing details of the Customer and the amount to be refunded. Pomelo will debit the Merchant Account for the amount of the Refund plus the applicable Refund Fee and credit the relevant Customer for the amount of the Refund.

8.5 Pomelo may refuse to execute a Refund if it does not meet the conditions in the Merchant Terms and Conditions or is prohibited by law. If Pomelo does refuse to execute a Refund, within the time for processing the Refund, it will notify you (unless prohibited by law) of the refusal and, if possible, the reasons for it and the procedure for correcting any factual mistakes that led to the refusal. Any Refund that is refused will not be deemed to have been received for purposes of execution times and liability for non-execution or defective execution.

8.6 In order to reclaim an unauthorised or incorrectly executed Refund on the Merchant Account, the Merchant must notify Pomelo without undue delay after becoming aware of the unauthorised or incorrect Refund and in any event no later than sixty (60) days after the debit date of the Refund. You agree that the time period for notifications in regulation 74(1) of the Payment Services Regulations 2017 (“PSRs”) shall not apply and also that regulations 75, 77, 91, 92 and 94 of the PSRs shall not apply. If you prove to us that a Refund was unauthorised, we will correct that Refund as soon as practicable, and in any event no later than the end of the Working Day following the day on which we became aware of the unauthorised transaction.

8.7 Pomelo may initiate a Refund if (a) a Payment is reversed by a court, regulatory authority or other third party acting in accordance with Applicable Law, (b) Pomelo, in its sole and absolute discretion, accepts or has reason to believe that a Payment was not authorised by the relevant Customer, or (c) a Payment is allegedly fraudulent, unlawful, suspicious, or in breach of this Agreement (and all such Refunds shall not be considered to be unauthorised).

8.8 You must not provide any refund under a Sale Agreement directly to your Customer. All refunds must be processed directly by us.

8.9 Refunds can only be processed from the Merchant Account where such Merchant Account has a positive balance and has sufficient funds within it to cover the value of the Refund.

8.10 Where a Merchant has a negative balance on its Merchant Account or becomes otherwise liable for the repayment of monies to Pomelo, the Merchant shall be obliged to make good such negative balance or make a corresponding payment to Pomelo within seven (7) days of Pomelo’s request or demand for such payment. In respect of overdue payments, Pomelo has the right to charge interest in the amount of 8% per annum plus the Bank of England base rate from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis.

9. COMPLAINTS

9.1 You shall provide us with all reasonable assistance in defending any complaint or claim threatened or made by a Customer against us in connection with the Services ("Complaint"), including:

(a) notifying us in writing as soon as practicable of the Complaint;

(b) allowing us to conduct all negotiations and proceedings;

(c) providing us with such reasonable assistance and information as is required by us from time to time regarding the Complaint;

(d) taking all reasonable steps to preserve all documentary evidence which may be required in any proceedings related to the Complaint; and

(e) not, without our prior written consent, making any admission relating to the Complaint or attempting to settle it.

9.2 For the avoidance of doubt, you are solely responsible for resolving all claims, disputes or complaints relating to the Goods/Services and the Sales Agreement, including disputes relating to the delivery or non-delivery of such Goods/Services (each, a "Dispute") and shall use all reasonable endeavours to resolve (to our reasonable satisfaction) all such Disputes within 10 calendar days of them arising.

9.3 Pomelo will settle payments to your Payment Account, the aggregate of all Payments net of any applicable Service Fees. If the Payment is not sufficient to cover the applicable fees or other amounts due to Pomelo on any given day, you agree that we may debit your Merchant Account for the applicable amounts and/or set-off the applicable amounts against future Payments added to the Merchant Account. The Merchant acknowledges and agrees that a Payment may become subject to a Dispute even after settlement, or otherwise be invalidated. In the event of a Dispute or invalidated payment, you are liable for:

(a) The full amount of the original Payment; and

(b) any Dispute fees according to this Agreement

10. PLATFORM ACCESS

10.1 You are granted a non-exclusive and non-transferable right to access the Platform solely for the purpose of offering the Services to Customers and the use of Add-On Services during the Term.

10.2 We shall use reasonable endeavours to ensure that the Platform will be made available to you and Customers at all times during the Term except in the circumstances where Permitted Down Time is required.

10.3 Permitted Down Time shall be limited to the suspension of the Platform necessary:

(a) to enable us or our Agents to comply with an order or request from the Government, any competent regulatory body or other competent administrative authority; or

(b) to enable us or our Agents to carry out work relating to the upgrade of the Platform.

10.4 We will use reasonable endeavours to ensure that all Permitted Down Time takes place during hours of low usage of the Platform (including a standard internet maintenance window on Saturdays and Sundays between 0500 and 0900).

10.5 You must provide such assistance and co-operation as we or our third party service providers may require in order to ensure that the Platform integrates with your systems, such assistance and co-operation to include participation in any joint testing initiatives.

10.6 You undertake that you shall not:

(a) license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available in any way to any third party the Platform or any data, content, software and other material making up the products and services made available via the Platform;

(b) deploy within the Platform any bot, spider, web crawler or other automated query program at any time for any reason including all scraping, crawling, caching or otherwise accessing any content on the Platform;

(c) introduce any data to the Platform that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(d) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form the Platform or any data, content, software and other material making up the products and services made available via the Platform, except as may be allowed by any Applicable Law; and

(e) attempt to obtain, or assist others in relation to any of the activities at sub-paragraphs (a) to (d) inclusive above.

10.7 You acknowledge and agree that the features, availability, operation and/or look and feel of the Platform may be modified at any time.

10.8 You shall ensure that all user ID and passwords are kept secure and are treated as Confidential Information, and passwords are changed on at least an annual basis.

10.9 You shall procure that each person using the Platform on your behalf (including your Agents) shall comply with the restrictions and obligations placed upon you in this Paragraph 10.

11. MONITORING

11.1 You must keep true, complete and accurate records of all matters connected with the Merchant Terms and Conditions ("Records") for a period of seven (7) years and, if longer, such period of time as may be required by Applicable Law and/or any Regulatory Body and promptly supply the same to us on our written request.

11.2 You shall on demand provide us and our authorised agents with all reasonable co-operation and assistance to undertake an audit of your performance of the Merchant Terms and Conditions including all information requested by us for such purposes (including the Records), access to all premises and systems used by you in the performance of your obligations and access to your Agents.

12. TRADE MARKS AND INTELLECTUAL PROPERTY

12.1 You hereby grant to us a worldwide, non-exclusive, royalty-free right and licence to use display and reproduce your trade marks, logos, name and other Intellectual Property Rights solely to the extent reasonably necessary for us to perform our obligations and/or exercise our rights under the Merchant Terms and Conditions which shall include a right to use such trade marks, logos and name on our website and marketing materials and to sub-license to our contractors for the same purpose.

12.2 All Intellectual Property Rights in our trade marks (registered and unregistered), service marks, logos, get up or brands shall remain vested in and owned by us or our licensors (as applicable).

12.3 The Intellectual Property Rights in all data relating to Payments held on your systems shall be owned by you and the Intellectual Property Rights in all data relating to Payments held on the our systems shall be owned by us.

12.4 You must not use any of our trade marks (registered and unregistered), service marks, logos, get up or brands without our prior written consent and then they must only be used in compliance with our brand guidelines as amended from time to time and the terms of our written consent.

12.5 Except as expressly stated in the Merchant Terms and Conditions, neither party shall acquire any rights to Intellectual Property Rights belonging to the other or our Agents as a result of the provisions of the Merchant Terms and Conditions.

12.6 All goodwill derived from your use of such trade marks (registered and unregistered), service marks, logos, get up, and brands shall accrue to us and we may at any time call for a confirmatory assignment of any goodwill in which case you shall (at your own cost) promptly execute such confirmatory assignment in a form prescribed by us.

12.7 You must not do anything or cause anything to be done at any time which would prejudice our right, title and interest in any of the Intellectual Property Rights vested in us and you shall indemnify us in respect of any claim in connection with or arising from breach of the same.

13. WARRANTIES, INDEMNITIES AND REMEDIES

13.1 Each Party warrants, represents and undertakes to the other Party that:

(a) it has full authority to enter into and perform the Merchant Terms and Conditions; and

(b) it will perform its obligations under the Merchant Terms and Conditions with reasonable care and skill.

13.2 You warrant, represent and undertake to us and each PSP at all times during the Term that:

(a) you have obtained all Licences and third party permissions with respect to the Goods/Services as are necessary to supply the same to a Customer in accordance with the relevant Sales Agreement and to enable us to exercise our rights and perform our obligations under the Merchant Terms and Conditions;

(b) our or any subcontractor’s use of your trade marks and other Intellectual Property Rights does not and will not infringe the Intellectual Property Rights or any other similar rights of any third party;

(c) you have obtained all third-party permissions with respect to the Goods/Services as necessary to enable us and our Agents to exercise rights and to perform obligations under the Merchant Terms and Conditions and that you are, if required, the owner of or you have the right to enter into the Merchant Terms and Conditions on behalf of the owner of all Intellectual Property Rights in and to any or all of the Goods/Services; and

(d) you will not at any point associate us with, or use our Services to pay for, any Prohibited Item.

13.3 You shall indemnify and keep us, our Agents and each PSP indemnified in full and hold us and them harmless on demand from and against any Loss suffered or incurred by us, our Agents and each such PSP arising out of or in connection with:

(a) any breach of its obligations under or arising from the Merchant Terms and Conditions; or

(b) you issuing a credit note or making a refund to any Customers in respect of the Goods/Services; or

(d) any claim or action relating to the Goods/Services (including, where relevant, a claim relating to delivery or non-delivery, a claim of infringement of a third party's Intellectual Property Rights or any product liability claim), or any claim or action brought against us, a PSP or our Agents by a Customer as a result of your breach of the Merchant Terms and Conditions, the Sale Agreement or otherwise by your default.

13.4 Without prejudice to our other rights and remedies, we may (at our sole discretion) at any time and without prior notice to you: (i) debit from your Payment Account; or (ii) set off against any liability of ours or a PSP to you (including any future Settlement Funds owed to you); or (iii) require payment on demand (and you shall pay), in each case an amount equal to:

(a) any Settlement Funds that have been paid to you in error; or

(b) any Settlement Funds that have been paid to you where there is any Dispute; or

(c) any Settlement Funds that have been paid to you where the relevant Customer(s) are entitled to a refund under their Sale Agreement and/or Applicable Law and/or for any other reason and such refund has not been paid by you to us in accordance with the Contract; or

(d) any Losses suffered or incurred by us or a PSP in connection with any complaint made by a Customer that has been caused or materially contributed to by your Default.

13.5 Except as set out in the Merchant Terms and Conditions, all other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into the Merchant Terms and Conditions or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purposes or the use of reasonable skill and care.

14. DATA PROTECTION

14.1 Each Party undertakes that it will comply, and will cause its employees, agents and sub-contractors to comply, with Data Protection Laws in connection with the performance of its obligations under the Merchant Terms and Conditions.

14.2 Each party agrees that both parties are independent controllers of the Payment Personal Data processed in the provision of the Services [and where detailed Add-on Services]. Each party shall comply with their respective obligations under the Data Protection Laws in this regard.

14.3 Where you have purchased Add-on Services, we may, dependant on the Add-on Service(s) you have purchased, act as a Processor of the Add-on Data on your behalf and you authorize us to Process the Add-on Data during the term of this Agreement as a Processor for the purpose set out in Annex 1.

14.4 You warrants to us that:

(a) you have all necessary rights to authorise us to Process Add-on Services Data in accordance with this Agreement and the Data Protection Laws; and

(b) your instructions to us relating to Processing of Add-on Services Data will not put the us in breach of Data Protection Laws, including with regard to Restricted Transfers.

14.5 If we reasonably consider that any instructions from you relating to Processing of Add-on Data may put us in breach of Data Protection Laws, we will be entitled not to carry out that Processing and will not be in breach of this Agreement or otherwise liable to you as a result of its failure to carry out that Processing.

14.6 You authorise us to engage any Sub-Processor for the Processing of Add-on Data. We will inform you of any intended changes concerning the addition or replacement of Sub-Processors, thereby giving you the opportunity to object to such changes. If you object to such a change you will be entitled to terminate this Agreement by giving not less than 60 days’ written notice to that effect to us.

14.7 If we appoint a Sub-Processor, we will put a written contract in place between us and the Sub-Processor that specifies the Sub-Processor’s Processing activities and imposes on the Sub-Processor the same (in substance) terms to those imposed on us in this clause 15. We will remain liable to you for performance of the Sub-Processor’s obligations.

14.8 Where acting as a Processor, we shall:

(a) Process the Add-on Data only on documented instructions from you, unless we or the relevant Sub-Processor is required to Process Add-on Data to comply with:

(i) European Union law or European Union member state law, to which we are subject; or

(ii) if the United Kingdom leaves the European Union, United Kingdom law to which we are subject,

in which case we will notify you of such legal requirement prior to such Processing unless such law prohibits notice to you on public interest grounds. For the purpose of this clause 14.8, the obligations on us to perform the Add-on Services are documented instructions. Nothing in this clause 14.8 will permit you to vary the our obligations under this Agreement.

(b) without prejudice to clauses 14.4(b) and 14.1, immediately inform the you if, in our reasonable opinion, any instruction received from you infringes any data protection provisions in:

(i) European Union law or European Union member state law; or

(ii) if the United Kingdom leaves the European Union, United Kingdom law.

(i) is subject to confidentiality obligations or is under an appropriate statutory obligation of confidentiality; and

(ii) complies with clause 14; and

(d) at your option, delete or return to the Add-on Data after the end of the provision of the Add-on Services relating to Processing, and delete any remaining copies. We will be entitled to retain any Add-on Data which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting, taxation or record keeping purposes. This clause 14 will continue to apply to retained Agreement Personal Data.

14.9 We will only make a Restricted Transfer if:

(a) a competent authority or body of the United Kingdom or the European Commission (as applicable) makes a binding decision that the country or territory to which the Restricted Transfer is to be made ensures an adequate level of protection for Processing of Personal Data;

(b) we or relevant Sub-Processor provides adequate safeguards for that Restricted Transfer in accordance with Data Protection Laws, in which case you will execute any documents (including data transfer agreements) relating to that Restricted Transfer which we or the relevant Sub-Processor requires it to execute from time to time; or

(i) European Union law or European Union member state law, to which we are subject; or

(ii) if the United Kingdom leaves the European Union, United Kingdom law to which we are subject,

(d) in which case we will notify you of such legal requirement prior to such Restricted Transfer unless such law prohibits notice to you on public interest grounds.

14.10 We will:

(a) implement the technical and organisational measures;

(b) notify you without undue delay after becoming aware of a Data Security Incident;

(i) complying with its obligations under the Data Protection Laws relating to the security of Processing Add-on Data;

(ii) responding to requests for exercising Data Subjects’ rights under the Data Protection Laws, including by appropriate technical and organisational measures, insofar as this is possible;

(iii) documenting any Data Security Incidents and reporting any Data Security Incidents to any Supervisory Authority and/or Data Subjects; and

(iv) conducting privacy impact assessments of any Processing operations and consulting with Supervisory Authorities, Data Subjects and their representatives accordingly.

14.11 We will:

(a) make available to you all information necessary to demonstrate compliance with the obligations set out in this clause 15; and

(b) allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you, provided that you gives us at least 60 days’ prior written notice of each such audit and that each audit is carried out at the your cost, during business hours, so as to cause the minimum disruption to our business and without you or its auditor having any access to any data belonging to a person other than you. Any materials disclosed during such audits and the results of and/or outputs from such audits will be kept confidential by you.

14.12 Nothing in this Agreement shall prevent us from being permitted to anonymise or pseudonymise Add-on Data and to retain the output of such Processing, provided that such steps are taken in accordance with the Data Protection Laws.

14.13 You agree to indemnify and keep indemnified and defend at your own expense us against all costs, claims, damages or expenses incurred by us or for which we may become liable due to any failure by you or your Agents to comply with any of its obligations under this Paragraph 15.

15. TERM AND TERMINATION

15.1 The Merchant Terms and Conditions shall come into force on the Effective Date and continue unless and until terminated in accordance with Paragraph 15.2 ("Term").

15.2 Either Party may suspend or terminate the Merchant Terms and Conditions with immediate effect on giving written notice in to the other Party if:

(a) the other Party commits a material breach of the Merchant Terms and Conditions which is incapable of remedy; or

(b) the other Party commits a material breach of the Merchant Terms and Conditions which is capable of remedy and fails to remedy that breach within a period of five (5) Working Days of being notified of the breach or

(d) our Agents validly exercise a right of termination or suspension under the Merchant Terms and Conditions.

15.3 The Merchant Terms and Conditions may be terminated for convenience at any time during the Term by us upon giving 2 months’ prior written notice to you.

15.4 The Merchant Terms and Conditions may be terminated for convenience at any time during the Term by you upon giving 1 month’s prior written notice to us.

15.5 We may suspend or terminate the Merchant Terms and Conditions with immediate effect by giving written notice to you if:

(a) you repeatedly commit breaches of the Merchant Terms and Conditions such as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Merchant Terms and Conditions; or

(b) you cease to hold any Licence or is otherwise in breach of any Applicable Laws or proceedings are brought against you which will materially adversely affect your ability to carry out its obligations under the Merchant Terms and Conditions; or

(c) any change in Applicable Laws materially impacts on the arrangements contemplated by this Agreement or a Regulatory Body notifies us that the provision of any aspect of the Merchant Terms and Conditions is not acceptable to that Regulatory Body; or

(d) you are subject to a change of Control; or

(e) in our reasonable opinion, you bring into substantial disrepute the good name, goodwill, reputation and/or image of Pomelo; or

(f) you do not use the Service for a period of 180 calendar days or more and you subsequently do not respond to a notice from us (notifying you of such inactivity) within 10 days of the date of such notice.

15.6 Immediately upon expiry or termination for any reason of the Merchant Terms and Conditions for any reason you shall cease to have access to the Platform or to offer or promote the Services and you shall not hold yourself as offering the Services.

15.7 The provisions of Paragraphs 7.3, 7.4, 9, 11, 13.3, 13.4, 14, 15.6, 16, 17, 21.7, 22 and (to the extent that those definitions apply to the surviving Paragraphs) 23, this Paragraph and any other provision of the Merchant Terms and Conditions which expressly or by implication is intended to come into or continue in force on or after the expiry or termination of the Merchant Terms and Conditions, shall remain in full force and effect.

16. LIMITATIONS ON LIABILITY AND INSURANCE

16.1 Nothing in the Merchant Terms and Conditions shall limit or exclude the liability or remedy of either Party:

(a) for death or personal injury caused by its negligence, or that of its Agents;

(b) for fraud or fraudulent misrepresentation;

(d) for any act, omission or matter, liability for which may not be excluded or limited under Applicable Law.

16.2 Subject to Paragraph 16.1, we will not be liable to you for:

(a) any indirect, special or consequential loss or damage; or

(b) any loss of profits, business opportunities or revenue, loss or corruption of data or damage to goodwill (in each case whether direct or indirect).

16.3 Subject to Paragraph 16.1 and Paragraph 16.2, we will not have any liability to you under or in respect of the Merchant Terms and Conditions for:

(a) any Losses arising from or in connection with any unavailability of, or errors or bugs in, the Platform;

(b) any Losses arising from or in connection with the non-execution, defective or late execution of payment transactions by us or any third party; and

(c) any other type of liability in respect of the Merchant Terms and Conditions whether arising in contract, tort (including negligence) or restitution or for misrepresentation or otherwise, to the extent it exceeds five thousand pounds Sterling (£5,000).

16.4 For the avoidance of doubt, we are not be liable for, and you must indemnify and hold us harmless on demand from, any Losses arising out of or in connection with:

(a) the Merchant Site or any content contained on it;

(b) any act or omission of persons who gain access to the Merchant Site;

(d) any content or information entered by a Customer in relation to the Services.

16.5 You must carry and maintain in full force and effect at all times during the Term and for a period of six (6) years following its term or expiry insurances appropriate to the performance of your obligations under the Merchant Terms and Conditions with insurers of repute.

17. CONFIDENTIALITY

17.1 Each Party (the "receiving party") undertakes that it shall not at any time disclose to any person any Confidential Information of the other party (and where you are a receiving party, any Confidential Information of our Agents) ("disclosing party") except that the receiving party may disclose the disclosing party's Confidential Information to:

(a) its employees, officers, representatives, or advisors who need to know such information for the purposes of carrying out the obligations or exercising the rights of the receiving party under this Agreement, provided that the receiving party shall procure that its employees, officers, representatives and advisors to whom it discloses the disclosing party's Confidential Information comply with this Paragraph 17; and

(b) as may be required by law, a court of competent jurisdiction or any Regulatory Body.

17.2 The receiving party shall not use the disclosing party's Confidential Information other than as is required for the purposes of carrying out the obligations or exercising the rights of the receiving party under the Merchant Terms and Conditions.

17.3 On expiry or termination for any reason of the Merchant Terms and Conditions, the receiving party shall return to the disclosing party (or, at the disclosing party's option, permanently delete and destroy) all documents and materials (including any copies thereat) containing, reflecting, incorporating or based on the disclosing party's Confidential Information, provided that the receiving party may retain such copies of such documents and materials to the extent required by Applicable Law or a Regulatory Body.

18. FORCE MAJEURE

18.1 Neither Pomelo nor our Agents shall be liable for a breach of this Agreement directly or indirectly caused by circumstances beyond its reasonable control including but not limited to any natural disaster, war, terrorist attack or similar actions, non- performance by suppliers or sub-contractors (including our Agents or suppliers), and interruption or failure of any utility service.

19. COMMUNICATING WITH YOU

19.1 Any communication between you and us in respect of information or notifications under the PSRs or any technical requirements for the use of the Platform or in-app will be in plain English.

19.2 We will contact you by letter or email to let you know if there is an actual or suspected fraud or security threat to your account.

20. NOTICES

20.1 Any written notice may be delivered in person, by email or sent by first-class post:

(a) in the case of you, to your address or email address provided by you during the on-boarding process or such other address as may be notified by you in writing from time to time; and

(b) in the case of Pomelo, to The Directors, Pomelo Pay at Level 39, One Canada Square, London, E14 5AB or via email to support@pomelopay.com.

20.2 Notices by post shall be deemed duly given forty eight (48) hours after posting by first class post or seventy two (72) hours if sent by airmail. Notices by email shall be deemed duly given when delivered.

20.3 You agree that we may act on email notices or instructions that reasonably appear to emanate from you or your Agent.

21. OTHER IMPORTANT TERMS

21.1 Each Party agrees that it shall, and that it shall procure, that persons associated with it (as determined in accordance with section 8 of the Bribery Act 2010) shall:

(a) comply with all Applicable Laws relating to bribery and other corruption including the Bribery Act 2010 ("Anti-Corruption Requirements");

(b) not take or knowingly permit any action to be taken that would or might cause or lead the other Party to be in violation of any Anti-Corruption Requirements including under section 7 of the Bribery Act 2010; and

(c) not bribe or attempt to bribe (which shall include any offer or form of payment, gift or other inducement, reward or advantage (whether of money or anything of value)) the other Party or their Agents, affiliates or persons acting on their behalf.

21.2 The Merchant Terms and Conditions do not constitute, establish or imply any partnership, joint venture, agency, employment or fiduciary relationship between the Parties. Neither Party shall have, nor represent that it has, any authority to make or enter into any commitments on the other's behalf or otherwise bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power).

21.3 The Merchant Terms and Conditions (as varied from time to time in accordance with their terms) constitute the entire agreement and understanding of the Parties and supersede and extinguish all previous drafts, agreements and understandings between them, whether oral or in writing, relating to its subject matter. Each Party acknowledges and agrees that in entering into the Merchant Terms and Conditions it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, warranty or understanding made by or on behalf of a Party (whether made innocently or negligently) which is not expressly set out in the Merchant Terms and Conditions. Neither Party shall have any claim for innocent or negligent misrepresentation based upon any statement, representation, assurance or warranty in the Merchant Terms and Conditions. Nothing in the Merchant Terms and Conditions shall limit or exclude any liability for fraud.

21.4 If any provision, or part of a provision, of the Merchant Terms and Conditions is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable (a "Void Provision"):

(a) such invalidity, illegality or unenforceability shall not affect the other provisions of the Merchant Terms and Conditions, which shall remain in full force and effect;

(b) if a Void Provision would be valid, legal and enforceable if some part of it were deleted, that Void Provision shall apply with such modification as may be necessary to make it valid, legal and enforceable;

(c) if a Void Provision cannot be made valid, legal and enforceable under Paragraph 21.4(a), the Parties shall negotiate in good faith to amend the Void Provision to be valid, legal and enforceable whilst achieving, to the greatest extent possible, the Parties' original commercial intention; and

(d) if a Void Provision cannot be made valid, legal and enforceable under Paragraph 21.4(a) or 21.4(b), the Void Provision shall be deemed to be deleted.

21.5 No term of the Merchant Terms and Conditions shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party to the Merchant Terms and Conditions save that any PSP and our Agents shall be entitled to enforce those Paragraphs of the Merchant Terms and Conditions which confer a right or benefit on such PSP or our Agents (as applicable), provided always that such PSP or our Agents (as applicable) shall only be able to rely on this Paragraph 21.5 where it has suffered a loss of as a result of any breach of any such Paragraphs by you. Notwithstanding the foregoing, the consent of such PSP or our Agents (as applicable) shall not be required for any rescission, variation (including any release or compromise in whole or in part of any liability) or termination of the Merchant Terms and Conditions or of any part of them.

21.6 A failure to exercise, or delay in exercising, a right, power or remedy provided by the Merchant Terms and Conditions or by law does not constitute a waiver of that, or any other, right, power or remedy and shall not, and nor shall any single or partial exercise of any such right, power or remedy, preclude the further exercise of that, or any other, right, power or remedy. Any waiver of any right under the Merchant Terms and Conditions is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.

21.7 Without prejudice to Paragraph 13.4, we and any PSP shall be entitled to set off:

(a) all or any amounts owed by us or such PSP to you under the Merchant Terms and Conditions against any sum due from you whether such sum is due under the Merchant Terms and Conditions or otherwise; and

(b) any amount which a Customer claims is due from us or a PSP as a result of a breach of contract, breach of any Applicable Law or misrepresentation by you (whether such claim is made under the provisions of sections 56 or 75 of the Act or otherwise).

21.8 You shall not assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights and/or obligations under the Merchant Terms and Conditions without our prior written consent (such consent not to be unreasonably withheld or delayed).

21.9 We, and any PSP, may at any time assign, transfer, mortgage, charge, sub-contract or deal in any other manner with any or all of its rights and/or obligations under the Merchant Terms and Conditions without your consent.

21.10 For the avoidance of doubt, nothing in the Merchant Terms and Conditions shall prevent us from providing similar services to those set out in the Merchant Terms and Conditions to any other person.

21.11 Neither party will make any Announcement, or permit any Announcement to be made, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except that each party will be entitled to make Announcements if and to the extent required by law or by any governmental or regulatory authority and we will also be entitled to issue Announcements if they are substantially in the form set out in the Announcement Form Schedule below.

22. GOVERNING LAW AND JURISDICTION

22.1 The Contract, the Merchant Terms and Conditions and any dispute or claim arising out of or in connection with any of them or their subject matter or formation (including non-contractual disputes and claims) shall be governed by and construed in accordance with the law of England and each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.

23. DEFINITIONS & INTERPRETATION

23.1 In the Merchant Terms and Conditions the following words and expressions shall have the following meanings:

“Affiliate” means as regards a Party, its ultimate holding company and each of its ultimate holding company's other subsidiaries for the time being;

“Agents” mean a party’s employees, officers, representatives, agents, contractors or subcontractors;

“Announcement” means any public announcement or other communication about or containing information about the terms, subject matter or existence of this Agreement or any matter arising out of or ancillary to this Agreement;

“Applicable Law” means all laws, rules, regulations, policies, guidance or industry codes, rules of court or directives or requirements or notice of any Regulatory Body, delegated or subordinate legislation which are relevant and applicable to (i) the performance of a Party's obligations under the Merchant Terms and Conditions, including the Act and (ii) in case of the Merchant, the Sale Agreements, the supply or provision of Goods/Services and the operation of the Merchant's Site;

“Confidential Information” means any information of a confidential, secret or business nature, including that which concerns a Party’s business, affairs, customers, contractors (including in the case of Pomelo) or suppliers and the terms of the Merchant Terms and Conditions;

“Control” has the meaning ascribed to it in section 11.24 of the Corporation Tax Act 2010;

“Customer” means a person introduced by you who has made, or who wishes to make, a Payment for Goods/Services via the Platform;

"Data Protection Laws" means any applicable law relating to the processing, privacy, and use of Personal Data including (i) the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426, and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive) or Directive 2002/58/EC (ePrivacy Directive); (ii) the General Data Protection Regulation (EU) 2016/679 (GDPR), and/or any corresponding or equivalent national laws or regulations; and (iii) any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant supervisory authority or regulator having jurisdiction over the Customer and references to “Data Subjects”, “Personal Data”, “Process”, “Processed”, “Processing” and “Processor” have the meanings set out in, and will be interpreted in accordance with, such laws;

“Data Security Incident” a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Add-on Data transmitted, stored or otherwise Processed;

“Default” means any breach of the obligations of the relevant Party (including a fundamental breach or breach of a fundamental term) or any other default, act, omission, negligence or statement of the relevant Party, or its Agents in connection with or in relation to the subject-matter of the Merchant Terms and Conditions or any Sale Agreement;

“Dispute” has the meaning given to in Paragraph 9.2;

“Effective Date” means the date that the Merchant Terms and Conditions are entered into by the Parties;

“Goods/Services” means the products and/or services to be supplied by you to your Customers under the applicable Sale Agreement.

“Insolvency Event” means, in respect of a Party, where a) that Party is, or is deemed to be, insolvent or unable (or admits its inability) to pay its debts as they fall due or stops or suspends payment of any of its debts; or b) that Party is unable to pay its debts, or being capable of being deemed unable to pay its debts, within the meaning of section 123 of the Insolvency Act 1986; or c) any expropriation, attachment, sequestration, distress, execution, enforcement of security or other legal process is levied, enforced or sued out on or against, or affects, any of that Party's assets and is not discharged or stayed within twenty one (21) days; or d) that Party begins negotiations, or enters into any composition or arrangement, with one or more of its creditors in order to reschedule any of its indebtedness because of actual or anticipated financial difficulties; or e) a moratorium is declared over any of that Party's indebtedness; or f) any petition is presented, resolution proposed or other action, proceedings, procedure or step taken for, or which may lead to: (i) the suspension of payments, winding up, dissolution, administration or reorganisation (using a voluntary arrangement, scheme of arrangement or otherwise) of that Party; or (ii) the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of that Party or any of its assets; or g) that Party suffers any event similar to any of those set out at a) to f) (inclusive) of this definition including in any jurisdiction to which it is subject; or h) that Party suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business;

“Intellectual Property Rights” mean any patent, copyright, trade mark, service mark or trade name, utility model, right in software, right in design, right in databases, image right, moral right, right in an invention, right relating to passing off, domain name, right in confidential information (including trade secrets) or right of privacy, and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which will exist in the future in the United Kingdom and all other countries in the world;

“Licence” mean all licences, approvals, authorisations, consents, permissions and/or registrations which are necessary in connection with the exercise of the rights of the Merchant and performance of the obligations of the Merchant under the Merchant Terms and Conditions, including those required by Applicable Law;

“Loss” means all losses, damages, costs, expenses (including reasonable legal fees) and any other liabilities;

"Merchant" means a seller or provider of Goods/Services;

“Merchant Account” means your merchant acquiring account with Pomelo held in your name;

“Merchant Site” means any website(s) or other online means through which you carry on your business and sells the Goods/Services;

“Parties” means Pomelo and you collectively, and each shall be a "Party"

"Payment" means the payment to you by a Customer using the Services in consideration for the purchase of Goods/Services from you.

“Payment Account” means your payment account with a payment services provider which was set up during the on-boarding process;

“Permitted Down Time" means periods during which the Platform shall be unavailable in accordance with Paragraph 5;

“Platform” means the web and/or app based platform run by Pomelo to facilitate the Services;

“Prohibited Items” means any firearms, explosives or weapons (including, without limitation, any air guns, air rifles or similar objects, ammunition and fireworks), any related or ancillary accessories or products, any toxic or hazardous substances (including, without limitation, chemicals and drugs) and any other categories of product notified by Pomelo to you from time to time;

"PSP" means a payment services provider who processes Payments;

"QR Code" means a machine-readable code consisting of an array of black and white squares, typically used for storing URLs or other information for reading by the camera on a smartphone.

"Refund" means the repayment by you to a Customer of all or part of a Payment made by that Customer where such repayment is made using the Services.

"Refund Fee" means the Service Fee levied by Pomelo for processing Refunds requested by you.

“Regulatory Body” means those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in the Merchant Terms and Conditions or any other affairs of the Parties or either of them (including the Financial Conduct Authority);

“Restricted Transfer” a transfer of Add-on Data which is undergoing Processing or which is intended to be Processed after transfer, to a country or territory to which such transfer is prohibited or subject to a requirement to take additional steps to adequately protect the Add-on Data for the transfer to be lawful under the Data Protection Laws;

"Rolling Reserve" means an amount withheld and retained from the Merchant by Pomelo, as a security against any sums due (including Refunds or Disputes) to Pomelo by the Merchant as set forth in this Agreement;

“Sale Agreement” means an agreement entered into by a Customer and you for the supply of the Goods/Services (whether or not in writing);

“Service Fees” means the fees payable by you to Pomelo for the Services as set out in detail in the Service Fees Schedule;

“Service Fees Schedule” means the schedule to these Merchant Terms and Conditions setting out the Service Fees, as may be updated, amended or replaced by Pomelo from time to time;

“Services” means the services provide by Pomelo set out in Paragraph 5;

“Settlement Funds” mean the funds to be paid by Pomelo to you in respect of a completed sale of Goods/Services, being the price of the Goods/Services less and applicable Service Fees;

"Settlement Payment" means the settlement payment made by Pomelo to you in accordance with Paragraph 8.1;

“Sub-processor” means any third party appointed by Pomelo to Process Add-on Data;

“Supervisory Authority” any governmental or regulatory authority responsible for enforcing any Data Protection Laws and any replacement or successor body or person for any such authority from time to time;

“Term” has the meaning given to it in Paragraph 15.1;

“Transaction” means a Payment or a Refund; and

“Working Day” means a day (other than a Saturday, a Sunday or a public holiday in England) on which banks in London are open for business.

23.2 In the Merchant Terms and Conditions:

(a) references to Pomelo include any of its Affiliates;

(b) references to Paragraphs are to Paragraphs of the Merchant Terms and Conditions;

(c) references to a "person" shall be construed to include any individual, firm, company, government, state or agency of the state or any joint venture, association or partnership (whether or not having separate legal personality);

(d) a reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted;

(e) any words following the terms "including", "include", "in particular" or any similar terms shall be construed as illustrative only and shall not limit the sense of the words preceding those terms;

(f) use of the singular includes the plural and vice versa;

(g) any obligation on a Party not to do something includes an obligation not to allow that thing to be done;

(h) any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal terms in that jurisdiction; and

(i) headings to Paragraphs are for convenience only and shall not affect the interpretation of the Merchant Terms and Conditions.

Service Fees Schedule

Fee Schedule for Volume of GBP 0 – 1,000,000

UK Cards, Alipay, WeChat Pay: 1.49%

EEA Cards: 2.2%

Non-UK and Non-EEA Cards: 2.7%

Refunds

For each Refund requested by a Customer, there will be no additional charge to process the Refund, but the fee charged by Pomelo is non-refundable.

Disputes

If there is a Dispute an automatic charge of £25 is payable by you. Disputes can take up to 180 days to resolve.

Merchants that have signed before 1 August 2022:

Fee Schedule for Volume of GBP 0 – 1,000,000

UK and EU Cards, Alipay: 1.49%

Non-UK and Non-EU Cards: 2.7%

Refunds

For each Refund requested by a Customer, there will be no additional charge to process the Refund, but the fee charged by Pomelo is non-refundable.

Disputes

If there is a Dispute an automatic charge of £25 is payable by you. Disputes can take up to 180 days to resolve.