Xiva Terms of Payment Acquiring Services

Last updated: 14.03.2024

Introductory remarks

We’re excited to partner with you and provide the payment processing services you need to grow your business. This document is our official agreement, and it outlines how we’ll work together, what you can expect from us, and what we’ll need from you.

What’s This Agreement About?

Simply put, this Agreement explains the Payment Acquiring solution we’ll provide, the fees you’ll pay, and the rules we both need to follow. We’ve tried to keep things straightforward and avoid legal expressions where possible, so it’s clear and easy to understand.

Who Are the Parties?

When we say “we,” “us,” or “our,” we’re referring to FMPay or Xiva acting on its behalf - that’s us, the folks providing you with the Payment Acquiring and accompanying services. When we mention “you” or “your,” we’re talking about you, the Merchant, who’s using our Services to process Payment Transactions.

Let’s Talk

Communication is key. If you have questions, concerns, or just want to speak about how things are going, we’re here. This Agreement outlines how we can resolve any disputes and work together effectively.

It’s Official

By confirming that you accept the terms of this Agreement or by using our Services, you’re agreeing to the terms laid out in this document. We recommend reading through this Agreement carefully to ensure you understand everything. If there’s anything you’re unsure about, please reach out - we’re happy to clarify.

Important Information

This information forms the Agreement for your Payment Acquiring services including any associated payment services that we may provide to you. By confirming that you accept the terms of this Agreement, or by using our services, you accept this Agreement. When we hold funds for you, our holding the funds is not the same as a bank holding money insofar as: (i) we cannot and will not use the funds to invest or lend to other persons or entities, (ii) your funds will not accrue interest; (iii) your funds are not covered by the Financial Services Compensation Scheme. Xiva is a PSD Agent of FMPay, which is an Authorised Payment Institution that does not take deposits, and, therefore, is not obliged to be part of the FSCS. Instead, FMPay protects the customer’s funds in accordance with Regulation 23 of the Payment Services Regulations 2017, by keeping the customer’s funds on safeguarding accounts with duly authorised credit institutions.

1 Definitions

In this Agreement, we use certain terms that have specific meanings. Here’s a quick guide to help you understand these terms:

“Account” refers to the registered profile you create and maintain on the Platform to access and use the Services provided. This Account encompasses your business information, user credentials, payment settings, and preferences for operating your Website. It serves as your digital identity on the Platform, enabling you to manage product and service listings, schedule appointments, accept online bookings, process payment transactions, track orders, communicate with customers, and access Services.

“Account Limits” refer to the limits you can have related to the Account, such as trading limit, limits on Payment Transactions and alike.

“Agreement” means this document, setting out the terms under which we provide Services to you, including any schedules, appendices, and future amendments.

“Business Day” means a day on which banks are open for general business in the UK, but excludes Saturday, Sunday and any other day which is a public holiday.

“Confidential Information” involves any non-public information shared between us related to the Services, including customer data, transaction details, and sensitive business information.

“Fees” represent the charges incurred by you for using the Services, detailed in the Fee Schedule, including processing fees, monthly service fees, and other applicable charges, as the case may be.

“FMPay” means FM Finance Ltd, a private limited liability company incorporated under the laws of England and Wales with company number 11415496, with its registered address located at Suite 15-16 Pure Offices Hatherley Lane, Cheltenham Office Park, Cheltenham, England, GL51 6SH, authorised by the Financial Conduct Authority of the United Kingdom as a payment institution with firm reference number 815137.

“Force Majeure” refers to any event or condition, not existing as of the date of signing this Agreement, not reasonably foreseeable as of such date, and not reasonably within the control of either party, that prevents, in whole or in part, the performance by one of the parties of its obligations under this Agreement. This includes, but is not limited to, acts of God, natural disasters, war, terrorism, riots, fires, floods, strikes, or legislation changes beyond our control.

“Merchant” refers to you, our client, who engages with us to utilise the Services.

“Payment Acquiring” refers to the service provided by us that enables you to accept and process electronic payments from your customers. This service encompasses the facilitation of transactions using various payment methods, including credit cards, debit cards, and other electronic payment methods and facilitating Payment Transactions.

“Payment Transaction” signifies a financial exchange where you accept payment from your customers through the Services we provide, including various payment methods available on the Platform.

“Platform” is the digital application provided by Xiva, accessible on Android and iOS devices, through which you access and use the Services.

“Services” encompasses the full range of services we provide under this Agreement, including Payment Acquiring.

Website “ refers to your website accessible and manageable through the Platform, designed to support both your e-commerce activities and the booking of in-person appointments.

“Xiva” means Xiva Ltd, a private limited liability company incorporated under the laws of England and Wales with company number 15331821, with its registered address located at Suites 15-16 Pure Offices Hatherley Lane, Cheltenham Office Park, Cheltenham, England, GL51 6SH, registered as PSD Agent with the Financial Conduct Authority of the United Kingdom with firm reference number 1009615.

These definitions are intended to clarify the terms used throughout our Agreement, ensuring you have a comprehensive understanding of the provisions governing our relationship. Should you require further explanations on any term or aspect of this Agreement, we encourage you to contact us for clarification.

2 Access and Use of the Payment Acquiring

2.1 Services Description

A cornerstone of our Service offering is our integrated Payment Acquiring solution. This allows you to accept and process Payment Transactions from your customers through various payment methods, enhancing your ability to conduct business online and in person. Payment Acquiring is structured to support secure Payment Transactions, ensuring that your business can safely accept payment cards and other forms of payment methods directly through the Website managed on the Platform as well as other payment options that may be made available through the Platform. The list of exact payment methods is provided in the Platform, where you will see which are available to you as well as which are turned on for your customers. The access to the Platform is governed by a separate set of terms and conditions that can be found here: Xiva Terms of Platform Services

2.2 Website

The Website accessible through the Platform enables you to sell products or services online and allows customers to book appointments directly with you.

Notably, while the general maintenance of the Website falls under your purview, the functionality of Payment Acquiring services provided through the Platform is a shared responsibility. We commit to ensuring that the Payment Acquiring functionalities are appropriately integrated and operational within your Website, facilitating smooth and secure transactions for your customers. However, it is your obligation to use these Services in accordance with our guidelines and any applicable laws, ensuring that Payment Transactions are conducted fairly and securely without any undue restrictions and in line with the Account Limits that can be imposed by us.

2.3 Your Registration Obligations

Registration on the Platform is required to access and utilise its full range of services. By registering, you commit to providing accurate, current, and complete information about your business and yourself as required by the Platform’s registration process. In order to have access to the Payment Acquiring services you will need to provide information, including documents, which we will assess in order to decide whether we can offer our Services to you. Please note that this decision is taken in our sole and absolute discretion and we reserve a right to decide on whether we wish to provide Services to you. This information is protected in line with our Privacy Policy. The Platform and the Services are available to use if:

  • You are an individual trader (registered or unregistered) and a resident of UK or,
  • A small business owner (registered or unregistered) residing and operating in the UK.

2.4 Account Security

You bear the responsibility for the confidentiality and security of your account information, including passwords and other credentials. You must promptly inform us of any unauthorised access to or use of your account or any breach of security. Our liability for losses or damages resulting from your failure to secure your account information is expressly disclaimed, unless this is not allowed by laws.

3 Your Obligations

As a user of the Payment Acquiring services, you have specific obligations to ensure the integrity, security, and smooth operation of your Website and the wider Platform. Your adherence to these obligations is critical in maintaining a trustworthy environment for all users and your customers. Below are the key responsibilities you are expected to uphold:

3.1 Compliance with Laws and Regulations

You must conduct your business in full compliance with all applicable laws, regulations, and guidelines. This includes, but is not limited to, adherence to anti-money laundering and anti- financial crime laws, data protection laws, consumer protection laws, card scheme rules, and any regulations governing online commerce and payments. It is your responsibility to stay informed and ensure that your business operations, including the sale of goods and services and the acceptance of Payment Transactions, abide by these legal requirements.

3.2 Accurate Information and Representation

Providing truthful and accurate information is a cornerstone of your responsibilities. Misleading us, your customers, or any other party with false information undermines the trustworthiness of the Platform and is strictly prohibited. Accuracy in all your communications, product and service listings, and transactions is essential for maintaining a transparent and reliable business environment.

Your products and services must be represented accurately on the Platform. Ensure all descriptions, images, and pricing details are truthful, complete, and current. Misrepresentation can lead to customer disputes, harm your reputation, result in legal actions, and potentially cause the suspension and termination of your Website and our Services. .

3.3 Compliance with Verification Processes

When requested, you must comply fully with our verification processes, which may include submitting additional documentation or information to verify your identity or any details you have provided. Refusal or evasion of these requests is not acceptable and can result in restrictions on your use of the Services. In case any information about you changes, you must promptly, but not later than within three Business Days, inform us of any changes to your business, legal form, address, type of goods and/or services offered, changes in the ownership structure or any other material changes.

3.4 Data Protection and Privacy

Protecting the privacy and security of your customers’ data is paramount. You must implement and maintain adequate security measures to safeguard customer information collected through your Website or otherwise while you interact with your customers through the Platform. Compliance with data protection regulations, including GDPR for merchants operating within or targeting customers in the United Kingdom, is mandatory.

3.5 Financial Responsibility

You are responsible for managing your financial transactions, refunds, and customer disputes in a timely and fair manner. This includes adhering to the Platform’s policies on payment processing and dispute resolution. It is also your duty to ensure that all financial dealings are conducted in accordance with applicable laws and good business practices. Furthermore, it is your obligation to cover any fees or charges levied by card schemes or intermediary institutions that arise due to activities contrary to the rules of the card schemes or the terms of this Agreement. Such charges may include, but are not limited to, penalties for chargebacks, disputes initiated due to non-compliance, or any fees incurred as a result of engaging in prohibited practices, which are contrary to the rules of the card schemes or the terms of this Agreement.

3.6 Cooperation with Platform Updates and Policies

We may, from time to time, update the Service’s functionalities, policies, and terms of service. You are obliged to cooperate with these updates and ensure that your use of the Services remains in compliance. This may involve making necessary adjustments to your Website or business practices to align with new features or regulations.

3.7 Respectful Conduct

Maintaining a respectful and professional interaction with customers, other merchants, and our staff is expected at all times. Any behaviour deemed abusive, discriminatory, or otherwise inappropriate may result in sanctions against your account, including suspension or termination.

3.8 Service Distribution Prohibition

You are expressly prohibited from sublicensing, subcontracting, or making any part of the Services available to third parties. The Services provided are for your direct use in operating your business through the Platform. Any attempt to distribute or share these services compromises the security and integrity of the Platform and is strictly forbidden.

3.9 Preventing Operational Disruption

Your operation on the Platform should not lead to complaints, disputes, chargebacks, additional fees, or other charges exceed the thresholds communicated to you and that could negatively impact us, intermediary institutions, or third parties. It is your duty to conduct business in a manner that minimises operational disruptions and maintains the Platform’s reputation for quality and reliability.

3.10 Risk Management

You must avoid any actions or omissions that could expose us to credit or fraud risks, legal breaches, reputational damage, or a significant increase in such risks. Proactively managing your business to mitigate these risks is essential for safeguarding the Platform and its users.

3.11 Integrity of Accounts and Services

Tampering with or attempting to alter your Account or the Platform in any way is expressly prohibited. Ensuring the integrity and security of your account and the Services you utilise is critical for the smooth operation of the Platform.

3.12 System Resource Management

Actions that impose an unreasonable or disproportionately large workload on the Platform’s infrastructure or systems are to be avoided. It is important to use the Platform’s resources responsibly to ensure its stability and availability for all users.

3.13 Restrictions on Products, Services and Industries

As a user of Platform, it is imperative that you adhere to specific restrictions concerning the types of products and services you may offer through your Website. Additionally, certain industries are considered off-limits for operation due to regulatory, legal, or ethical concerns. For a comprehensive list of these restricted products, services, and industries, please refer to the detailed guide available by the means of the following link: Prohibited and Restricted Activities & Businesses.

4 Payment Acquiring

4.1 Payment Transactions Confirmation

When we confirm we’ve received Payment Transactions from your customer, this information will automatically show up on the Platform.

4.2 Payouts to You

For the Services we provide that help you get paid through Payment Acquiring, we’ll send you your money (minus any Fees, other charges, and reserve amounts we’ve agreed on) within the timeframe that will be communicated to you after you have been appropriately registered with us. We will only pay out once we actually have the funds and they meet the minimum amount we’ve agreed on for payouts.

4.3 Repayments to Customers

When it comes to giving money back to your customers - whether that’s refunds, reversals, or chargebacks - here’s what you need to know:

  1. Your Responsibility: You’re fully in charge of handling these repayments. If there are any extra fees or penalties because of these repayments, whether they come from us, an intermediary institution, or the card schemes, it is your sole responsibility.
  2. Non-Refundable Fees: If we’ve charged you fees for processing a Payment Transaction and you end up refunding that Payment Transaction to the customer, we won’t be returning those fees back to you.
  3. Communication: If a customer wants their money back for a Payment Transaction, we’ll let you know as soon as we find out.
  4. Your Cooperation: If there’s a request for repayment, you need to work with us. We’ll need you to give us the right information and any necessary documents to understand why the customer is asking for their money back. Please make sure you do this quickly, ideally within 3 Business Days, but not later than 7 days.
  5. Method of Repayment: Any money you give back to a customer needs to go back the same way they paid it. So, for example, if they used a credit card, the refund goes back to that credit card.

If we need to refund a customer on your behalf, that will reduce the amount of money we’re going to pay you. If there’s not enough money in your account with us to cover the refund, you’ll need to pay the difference, and we’ll send you a bill or a debit note with a due date for that payment. If you don’t have enough funds with us, or if fulfilling the refund would be too difficult or costly relative to the refund amount, we might refuse to do the refund (except for chargebacks or reversals), and we’ll let you know.

4.4 Transaction Limits

To keep our Services secure and manage the level of transaction risk, we’ll set limits on how many Payment Transactions you can do, it can be both volume and number of Payment Transactions. These Account Limits are tailored to match the risk level of your business activities, and we decide these at our sole discretion. You will be notified of your specific Account Limits after you have appropriately registered with us. If there needs to be a change in your Account Limits, we’ll have to agree to it, so please reach out to us with the request and we will be glad to reconsider the Account Limits that apply to you. We will consider your individual request and make a decision, in our sole discretion, whether to increase your Account Limits.

We set an Account Limit for your business, which you need to stick to. If a Payment Transaction comes in that’s over this limit it will be automatically declined.

4.5 Fraud Risk Controls

Using our Services means enabling controls to help spot and stop fraud. We get to choose which tools and filters to use to decide which Payment Transactions we will accept or decline on your behalf and to flag any Payment Transactions that look suspicious.

While we use these fraud risk controls to help protect your business, we can’t guarantee they’ll catch every fraudulent Payment Transaction. We also can’t be held responsible for any losses you might face because of Payment Transactions that get accepted or rejected based on these controls. You should remain vigilant for transactions that can compromise your business.

5 Fees and Payments

5.1 Overview of Fees

We impose fees for various Services offered on the Platform, which notably include Payment Acquiring services and payouts. The specific fees associated with these and other Services will be detailed in our Fee Schedule, which is available on our website https://xiva.com/. Unless we agree differently, all Fees don’t include VAT or any other taxes that might apply. You’re responsible for handling and paying any taxes that apply.

5.2 Changes to Fees

We retain the flexibility to revise our Fee Schedule to reflect changes in our Services, legal and regulatory requirements, or operational costs. Any alterations to our Fees will be communicated to you with a minimum of two months’ notice, aligning with our commitment to transparency as outlined in Section 11 of this Agreement.

5.3 Payment of Fees

Fees due, as per the Fee Schedule, must be settled in accordance with the specified payment terms. This includes, but is not limited to, monthly subscription fees, transaction fees for payment processing, and fees associated with payout Services. Each fee will detail the payment frequency and manner but as a general rule, all applicable Fees are immediately due and payable subsequent to the provision of Services. We can collect any fees or charges by taking them out of the money we’re going to pay you, taking them from the account, sending you a bill for them, or using legal ways to get the money from you.

5.4 Keeping Track of Fees and Payouts

You can see what fees you owe us, and how much we’ll pay out to you after those fees, in your Account or on your Processing Statements.

5.5 Setting Off Debts

You give us permission to use the money we’re going to pay you, or any other money we hold for you, to cover any debts you owe us under this Agreement, without telling you in advance. When we use the funds held on your behalf to set-off any of your debt, we will send a clear statement showing the transactions and the net results of our actions.

6 Communication and Notices

6.1 Contact Information

When you sign up, you give us your email, phone number, address, and other ways to contact you. By giving us this information, you’re okay with us using these methods to send you all kinds of communications and notices. If your contact details change, you need to tell us fast - within three Business Days, to be exact. If you don’t, and a message we send doesn’t reach you, it’s not our responsibility. We’ll consider the message delivered properly.

You can reach out to our customer support team whenever you need help. Just send us an email at our dedicated support email address, and we’ll be there to assist you. All general questions can be sent to support@xiva.com.

6.2 When You’re Considered to Have Received a Message

You’re thought to have gotten a message from us if:

  1. We hand-deliver it or courier it, and you receive it that same day.
  2. We send it by regular mail, and three Business Days have passed.
  3. We send it by SMS, straight away, unless we’re told the message didn’t get through.
  4. We email it, and the day we send it, unless we find out it didn’t get through.

6.3 Non-Business Days

If we send you something when it is not a Business Day, you’ll be considered to have received it on the next Business Day.

6.4 Our Choice of Communication

We have freedom of choice in how we send you notices or messages, and we’ll pick what we think is most suitable. When you agree to this Agreement, you’re promising to regularly check the contact methods you’ve told us about. If you have a preferred method of being contacted, please let us know. If you miss something because you didn’t check, that’s your responsibility.

6.5 Privacy and Internet Risks

We’ll keep your information safe, just like we say in our Privacy Notice. But, remember, when you’re sending info over the internet, like emails, there are risks because it goes through systems we can’t control. When using the internet, it’s tough to keep the fact that we’re communicating, what we’re doing, and our relationship totally private.

7 Non-compliance with the Obligations Consequences

If you don’t follow the obligations set out in this Agreement, apart from the legal remedies available, we must take necessary steps to protect the Service’s integrity, security, and smooth running. We apply these corrective measures thoughtfully, aiming to keep a safe and rule-abiding space for everyone. The actions we might take, depending on how serious or what kind of rule-breaking occurs, can include:

  1. Payment Acquiring Suspension: If we suspect fraudulent activities, you are not following payment processing rules, or if there are too many disputes and chargebacks, we may stop you from being able to process payments on the Platform.
  2. Payout Suspension: We may also temporarily stop any money from being paid into your bank account if we suspect fraudulent financial transactions, money laundering, or other financial issues that need a closer look. This includes, but is not limited, to instances when we receive fraud reports, you are subject to chargebacks, or receive complaints from your customers.

These actions aren’t the only steps we might take, and we’ll decide on the most appropriate response based on the specific situation and its impact on the Services.

8 Dispute Resolution and Complaints

In the event of a disagreement or dispute arising from your use of the Services or related to this Agreement, we encourage an approach aimed at resolving such issues amicably and efficiently. The following steps outline the process for dispute resolution:

8.1 Initial Resolution Effort

If you encounter a problem or disagreement, we ask that you first contact our customer support team. We will make a concerted effort to address and resolve your concerns promptly. Our goal is to reach a satisfactory resolution through direct communication and understanding of the issue at hand.

8.2 Formal Complaint

8.2.1 Submitting a Complaint

If you have any complaints regarding the Services provided by us, you are encouraged to submit them through email at: complaints@xiva.com

The complaint must include:

  1. Your name;
  2. The email address you registered with us;
  3. Your telephone number;
  4. A clear description of the complaint.

This ensures that your complaint is promptly directed to our customer services team with all information that is required to appropriately handle your complaint.

8.2.2 Handling of Complaints

Upon receiving your complaint, it will be processed according to our comprehensive complaints procedure. Our goal is to resolve any issues related to the Services we provide within fifteen Business Days. In exceptional cases, this period may extend to thirty-five Business Days. A copy of our complaints procedure is available upon request and will be automatically provided to you when you file a complaint.

8.2.3 Payment Services-Specific Complaints

If you are an eligible complainant and your payment service complaint has not been resolved within fifteen Business Days, or if you feel the resolution was inadequate, including instances where the complaint was not recognised as such, you may escalate your complaint to FMPay. Eligible complainants typically include individuals, small businesses, charities, and trusts that have a complaint about how payment services have been provided.

This step is relevant if you believe the provision of our payment services is improper or violates customers’ rights or legitimate interests. Complaints can be submitted directly in person, via email at complaints@fmpay.me, regular or registered mail to FMPay’s registered office at Suites 15-16 Pure Offices Hatherley Lane, Cheltenham Office Park, Cheltenham, England, GL51 6SH, or through digital channels provided by the FMPay’s online and mobile platforms, free of charge.

If you are an eligible complainant and dissatisfied with how we have resolved your complaint related to payment services, or if you believe the complaint was not handled properly, you have the right to escalate the matter to the Financial Ombudsman Service (FOS). The FOS can be contacted at Exchange Tower, London E14 9SR, with the phone number 0800 023 4567. Further information about the FOS can be found on their website at www.financial-ombudsman.org.uk.

9 Dispute Resolution Process

In the unlikely event that a dispute arises from or in connection with the Services provided by us, and cannot be resolved through our complaints procedure as outlined in Section 8, the following dispute resolution process shall apply. This process is designed to ensure a structured approach to resolving disputes under the governing law of England and Wales and within its jurisdiction.

9.1 Notice of Dispute

Before taking any formal legal action, the party initiating the dispute (the “Initiating Party”) must first provide the other party (the “Responding Party”) with a written Notice of Dispute. This notice should clearly describe the nature of the dispute, the requested resolution, and any steps already taken to attempt resolution. The Responding Party is expected to respond within a reasonable timeframe, typically no more than 30 days.

9.2 Negotiation

Upon receipt of the Notice of Dispute, both parties agree to enter into negotiation in good faith to attempt to resolve the dispute amicably. This phase allows both parties to discuss the dispute directly and seek a mutual agreement without the need for formal legal proceedings.

9.3 Legal Proceedings

If the dispute cannot be resolved through negotiation within a reasonable period, typically 60 days from the date of the Notice of Dispute, either party may then proceed to initiate formal legal action.

9.4 Continuation of Services

Except where a dispute necessitates the suspension or restriction of Services as per the terms of this Agreement, we aim to continue providing access to the Platform and Services during the dispute resolution process. This commitment ensures that, where possible, your business operations can continue without undue interruption.

This dispute resolution process is established to provide a clear and fair mechanism for resolving disputes, with a strong preference for amicable solutions prior to engaging in formal legal action. Both parties are encouraged to communicate openly and negotiate in good faith to resolve disputes efficiently, respecting the legal framework of England and Wales.

10 Term, Termination and Suspension

This Agreement becomes effective upon your acceptance of its terms, confirming that you accept the terms of this Agreement or start using our Services, and will continue indefinitely unless terminated by either party in accordance with the provisions set out herein.

10.1 Termination by You

You may terminate this Agreement with us and close your Account at any time. To do so, you must notify us in writing through the provided contact channels on the Platform. Upon receipt of your termination request, we will proceed with closing your Account, subject to the completion of any outstanding transactions or obligations.

10.2 Termination by Us

10.2.1 Reasons for Termination or Suspension

We reserve the right to terminate your access to the Platform and Services or to suspend your Account under certain conditions, which include, but are not limited to:

  1. Breach of any terms of this Agreement, including non-compliance with the obligations outlined in Section 3.
  2. Engagement in prohibited conduct.
  3. Legal or regulatory requirements mandating such termination or suspension.
  4. Security reasons or protection against fraud.
  5. Prolonged inactivity of your Account.
  6. Our discretion to discontinue offering Services to you.

10.2.2 Notice of Termination or Suspension

We will provide you with a two-month prior notice of termination or suspension unless doing so:

  1. Would breach legal or regulatory requirements.
  2. Would compromise fraud or other investigations.
  3. Is not possible due to technical limitations.

10.2.3 Suspension with Cause

If the suspension concerns any reasons outlined in sub-clauses 10.2.1 a) to d) above, we may implement it immediately without the need to provide advance notice. In such cases, we will notify you shortly following the restriction or suspension.

10.3 Effects of Termination

Upon termination of this Agreement for any reason:

  1. All rights and licenses granted to you under this Agreement will immediately cease.
  2. You must cease all use of our Services and delete or return any of our property, material, or confidential information in your possession.
  3. Any outstanding payments owed to us become immediately due and payable.

10.4 Account Reinstatement

In cases of suspension, you may be eligible for reinstatement upon resolving the issues that led to the suspension. The process for reinstatement will be communicated to you at the time of suspension and may involve corrective actions or compliance with specific conditions.

11 Amendments to the Agreement

11.1 Right to Amend

We reserve the right to modify or amend the terms of this Agreement at any time. Changes may be necessitated by updates to our Services, legal and regulatory updates, enhancements to security measures, or the introduction of new features to the Platform.

11.2 Notice of Amendments

We will provide you with at least two months’ notice before any changes to the Agreement take effect. This notice will be delivered through email or another communication method listed within your Account details. The notice will outline the proposed changes and the effective date of these changes. Where an amendment to this Agreement is required by law or relates to the addition of a new service, additional functionality for the Account or any other change that neither reduces your rights nor increases your responsibilities, the amendment may be made with ten days prior notice by email.

11.3 Your Acceptance

If you continue to use the Services provided by us after the effective date of the amendments, your use will signify your acceptance of the revised agreement. If you do not agree with the changes, you have the right to terminate the Agreement before the changes take effect, without incurring any penalties.

11.4 Urgent Changes

In exceptional circumstances, where amendments are required to be made without the possibility of giving two months’ or ten days’ notice (for example, for security reasons or due to immediate legal requirements), we will implement the changes immediately. In such cases, we will inform you of the amendments and the reasons behind them as soon as possible.

11.5 Access to Updated Agreement

The latest version of this Agreement will always be accessible on our website https://xiva.com/. We encourage you to review the Agreement periodically to ensure you are informed about the terms governing your use of the Services.

12 Confidentiality

12.1 Commitment to Confidentiality

Both you and us agree to keep all information related to this Agreement and the Services used strictly confidential. This includes customer data, transaction details, business strategies, and any sensitive information shared or discovered through using the Platform or in connection with this Agreement. We both agree not to share this information with anyone else without getting written permission from each other unless it is explicitly allowed by this Agreement. There are a few instances when one of us can share confidential information without getting the other’s permission first:

  1. If the law requires it, or if a court, authority, or government body asks for it.
  2. If we need to share details about payments, refunds, or chargebacks with the banks or companies that help process these Payment Transactions.
  3. When talking to our lawyers, accountants, or other professional advisors who need to know this information to do their job for us and have promised to keep it secret.

12.2 When Information Isn’t Confidential

Information won’t be seen as confidential if it:

  1. Was already known to either of us before being shared under this Agreement without any promise to keep it a secret;
  2. Becomes public knowledge through no fault of either of us;
  3. Is developed independently by either of us without using the confidential information shared.

12.3 Purpose of Using Confidential Information

The confidential information exchanged under this Agreement should only be used for fulfilling our respective obligations and exercising our rights under this Agreement. Any other use is off-limits without clear, written consent from the party that owns the information.

13 Privacy and Data Protection

13.1 Using Your Information

When you share your contact details and other personal information with us, you’re letting us use this data to:

  1. Provide you with our Services.
  2. Analyse how our Services are used, for market research, and to improve what we offer.
  3. Help prevent illegal activities like money laundering and fraud.
  4. Enhance and develop new Services for you.

13.2 Sharing Your Information

You agree that we might share your information with our team, related companies, agents, those monitoring for fraud, banks, card schemes, and anyone else who’s part of making our Services work. This helps us process payments and keep things running smoothly.

13.3 Your Rights

You have the right to see and amend any personal information we have about you. Just let us know if you think something’s wrong or needs updating.

13.4 Keeping Your Data

We’ll hold onto your information for at least five years after we’ve finished the end of our business relationship, to make sure we meet our legal requirements.

13.5 More Details

Our Privacy Notice gives you the full picture of your rights and our duties. By agreeing to work with us, you’re saying you understand and accept what’s in the Privacy Notice which is available at Privacy Policy.

13.6 Your Responsibilities

When processing the data of your customers you may act as the data controller and it’s your job to make sure:

  1. You follow data protection laws, only giving us information you’re allowed to share.
  2. You’ve got a legal reason for all the personal data handling you do, including getting consent from people if needed.
  3. You tell people what you’re doing with their data, especially if it’s being shared outside the UK or European Economic Area (EEA).
  4. You keep the data accurate and only for as long as needed.
  5. You protect the data, maybe even appoint a data protection officer, and show you’re processing data legally and safely.
  6. You respect people’s rights over their data, like letting them see it, fix it, or ask for it to be deleted.
  7. You work with us to meet data protection rules.
  8. If you’re making decisions with data automatically, you have safeguards in place, like letting people have a say or challenge decisions.

13.7 Sending Data Abroad

You give us permission (and confirm you’ve got the right permissions from others) to move personal data outside the UK or EEA as part of our Services, making sure it’s done legally and safely.

14 Intellectual Property Rights

14.1 Ownership of Intellectual Property

All intellectual property rights, such as trademarks, trade names, patents, copyrights, and any software needed to deliver the services outlined in this agreement, will always belong exclusively to us and to any third parties who have granted us the proper licenses. This includes all branding, design elements, software features, and any other materials we’ve shared with you via the Platform or as part of the services we provide.

14.2 Grant of License

We grant you a limited, non-exclusive, non-transferable license to use our intellectual property solely in connection with the use of the Services and in accordance with the terms of this Agreement. This license is granted for the purpose of enabling you to utilise the Services effectively and within the scope of your business operations.

14.3 Restrictions on Use

You are not permitted to:

  1. Alter, modify, or create derivative works based on the intellectual property provided without our prior written consent.
  2. Use the intellectual property for any purpose not expressly allowed under this Agreement or beyond the scope of the Services provided by us.
  3. Sub-license, sell, rent, lend, or distribute any of the intellectual property or otherwise make it available to third parties outside the context of the Services received.

14.4 Protection of Intellectual Property

You agree to take all reasonable steps to protect our intellectual property rights and to prevent any unauthorised use, reproduction, or distribution of the Platform’s materials. Should you become aware of any infringement or unauthorised use of our intellectual property, you are obliged to notify us immediately.

14.5 Intellectual Property Infringements

In the case of a claim that the use of the Platform or any Services provided infringes the intellectual property rights of third parties, we will take responsibility for the investigation, defence, settlement, and discharge of such a claim. You agree to provide reasonable assistance in these matters.

14.6 Termination of License

The license granted under this Agreement will automatically terminate upon the expiration or termination of this Agreement. Upon termination, you must cease all use of our intellectual property and destroy or return all materials containing our intellectual property that are in your possession.

14.7 Survival of Intellectual Property Rights

The termination or expiration of this Agreement does not affect our ownership of the intellectual property rights. All rights not expressly granted to you in this Agreement are reserved by us.

15 Limitations of Liability and Warranties

15.1 Implied Terms

Where the law permits, this Agreement doesn’t include any terms or warranties that aren’t explicitly stated herein. We’re providing our Services based on the specific terms we’ve agreed upon, nothing more.

15.2 No Payment Guarantees

We can’t promise that every payment will go through successfully, nor can we guarantee that banks or card schemes will always complete them. You understand there are risks with these Payment Transactions, and you agree to take on these risks. You’ll also protect us from any claims or losses related to these Payment Transactions.

15.3 Our Role

Our involvement is limited to providing the Services detailed in this Agreement. The relationships and agreements you have with your customers or any financial institutions are your responsibility. We have no obligation regarding the products or services you offer or the content on your Website.

15.4 Your Responsibilities

You’re responsible for covering any refunds, fees, penalties, and other charges that come up from using our Services or if you don’t follow this Agreement. You agree to reimburse us for these expenses and pay these costs promptly.

15.5 Third-Party Damages

We are not liable for any harm or losses suffered by third parties, including your customers, due to your failure to meet the obligations of this Agreement.

15.6 Handling Payment Data

The security and accuracy of the payment data you transmit to our servers are your responsibility. We are not liable for any data loss or inaccuracies once the data has been sent to us, particularly if proper backups were not maintained.

15.7 Our Services “As Is” Basis

Our Services are provided “as is” and “as available,” with no express or implied warranties regarding their performance, reliability, or availability. Our obligations are limited to those expressly outlined in this Agreement.

15.8 Our Liability

To the fullest extent permitted by law, we will not be liable for any direct, indirect, incidental, or consequential losses, including but not limited to lost profits, loss of business, or reputational damage, arising from our actions, inactions, or those of individuals or entities associated with us.

These limitations on liability apply to any claims you may have against us, regardless of whether they’re based on contract, tort, negligence, strict liability, or any other legal theory. This protection extends to our directors, officers, employees, agents, and suppliers.

15.9 Instances That Cannot be Excluded by Law

Nothing in this Agreement shall exclude or limit our liability for death or personal injury resulting from our negligence or fraud or what otherwise cannot be excluded by law.

16 Force Majeure

16.1 Notification

If either you or we are prevented from fulfilling our obligations under this Agreement due to a Force Majeure event, the affected party must promptly notify the other, detailing the nature of the event, its expected duration, and any actions being taken to avoid or minimise its effects.

16.2 Suspension of Obligations

Upon the occurrence of a Force Majeure event, the obligations of the affected party under this Agreement will be suspended for the duration of the event. The suspension of obligations will not be considered a breach of this Agreement.

16.3 Effort to Continue Performance

The party affected by the Force Majeure event agrees to make all reasonable efforts to continue to fulfil its obligations as far as possible, including through the use of alternate means or methods of performance.

16.4 Right to Terminate

If the Force Majeure event continues for a period longer than three months, either party may terminate this Agreement upon written notice to the other party. Upon such termination, neither party will have any further obligation to the other under this Agreement, except for those obligations that by their nature are intended to survive termination.

16.5 Mitigation

Both parties agree to cooperate fully with each other to mitigate the effects of the Force Majeure event as much as practicably possible. This includes sharing information, resources, and assistance as may be necessary to overcome the circumstances and resume full performance under this Agreement.

17 General Provisions

17.1 Entire Agreement

This Agreement constitutes the entire agreement between you and us regarding your use of Services. It supersedes all prior agreements, communications, and proposals, whether oral or written.

17.2 Severability

If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will continue in full force and effect. The invalid or unenforceable provision will be replaced with a valid provision that most closely matches the intent of the original provision.

17.3 Waiver

Failure by either party to enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by the party in writing.

17.4 Assignment

You may not assign or transfer your rights or obligations under this Agreement without our prior written consent. We may assign or transfer our rights and obligations under this Agreement to another entity without restriction.

17.5 Governing Law and Jurisdiction

This Agreement, and any dispute arising from the relationship between the parties to this Agreement, will be governed by and construed in accordance with the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any disputes or claims that may arise out of or in relation to this Agreement or its formation.