- you have contracted with us directly to open an account as a guest or a registered user, in which circumstances you shall be a “Direct User”; or
- you have entered into a contract with a service provider which has made our services available to you (a “Distributor”), in which circumstances you shall be a “Referred User”.
At all times when you are using our Services, the contract for use of our Services is between you and us, whether you are a Direct User or a Referred User.
Please read this agreement carefully before you start to use our Services. By using our Services, you indicate that you accept this agreement and that you agree to abide by its terms. If you are using our Services on behalf of your organisation, by using our Services you are also indicating that you accept this agreement and agree to abide by its terms on behalf of your organisation (and references to "you" will be deemed to include your organisation). To use our Services you must be at least 18 years old. By using this app you confirm you are not and will not operate in any of the prohibited industries as set out here. If you do not agree to this agreement, please refrain from using our Services.
1. Information about us
We are Fractal Labs Limited (“we”, “our”, “us”), trading as tomato pay. We are registered in England and Wales under company number 8972946 and have our registered office at 2 Underwood Row, London, N1 7LQ, United Kingdom. Our VAT number is 204122276. We are regulated by the Financial Conduct Authority as an Authorised Payment Institution (reference number 813019).
2. Our services
We provide “account information services” which means, in respect of:
- the account information service performed by us in respect of UK bank accounts, has the meaning given in the PSRs;
- the account information service performed by us in respect of EU bank accounts (other than UK bank accounts), shall have the meaning given in PSD2; and
- services enabling our access to non-UK and non-EU bank accounts shall mean such service performed by or on behalf of us in order to obtain Transaction Data from such bank accounts.
Our account information services allow us to collect consolidated transaction data relating to your payment account(s) from your payment service provider(s) (such as a bank) (the “Transaction Data”), such Transaction Data is imported and analysed by us to provide Direct Users with a facility for analysing, sharing and commenting on the Transaction Data and providing an aggregated view of your balances and transactions (the “Services”). If you are a Direct User, this definition of Services shall also include our app. If you are a Referred User you may request consolidated information from the relevant Distributor and/or from us. If you are a Referred User the services and functionalities outlined in these Terms will only be available to you, if they are expressly provided for as part of your Distributor Services.
If you are a Referred User, you will also receive the “Distributor Services” which means the collection by us of certain data related to you or your business and providing the same to the Distributor to enable that Distributor to provide its services to you. The terms of the relevant Distributor Service shall be governed by a written agreement between the Referred User and the relevant Distributor (“Distributor Agreement”).
Our Services are provided free of charge however, we reserve the right to change the cost of our Services, or to charge for other services, at any time. However, we will always notify you directly before any such change becomes effective, and offer you the opportunity to cancel your subscription. If you are a Referred User separate fees may apply to your use as set out in your Distributor Agreement. We will not charge any additional fees for your use of the Services. We may charge the Distributor in respect of the provision of the account information services to you as a Referred User.
When you are using our Services, you can choose to give us your explicit consent if you are a Direct User through our app or, if you are a Referred User, the relevant Distributor acting on behalf may give us consent to: (i) contact your payment service provider(s), on your behalf; and (ii) retrieve Transaction Data held by your payment service provider(s) from your selected payment accounts(s) and share this with you. If you do not choose to activate this functionality, you may not be able to receive the benefit of the Services.
We also allow users to share their Transaction Data, on a permission basis, with trusted third parties where it is lawful to do so in accordance with the Payment Services Regulations 2017 and other applicable law and regulation. We will never share any user data without explicit permission.
You may not be able to access all of your payment accounts through our Services - details of those that can be accessed are available here.
All information, content and material displayed through our Services are provided for information only. It is not financial or professional advice. You should not rely on information, content or materials through our Services as the sole basis for making a financial decision. You should use your own judgment and seek professional advice if appropriate. Accordingly, you agree that we are not responsible or liable to you for:
- any action (or inaction) resulting from use of or reliance on information, content and materials displayed through our Services (or any loss or damage you suffer as a result);
- third party sites or services linked to or accessed through our Services (or your use of, or reliance on, those sites or services); or
- any dealings you have with third parties not under our control (including your payment service providers) through our Services.
You acknowledge that alerts may be delayed or prevented by a variety of factors and we cannot guarantee that they will be delivered on time or based on accurate information.
4. Payment Account providers
We are responsible for retrieving and transmitting your Transaction Data safely and securely but not for the content of your Transaction Data itself, which is the responsibility of your payment service provider. If you have any questions in relation to this, you should speak to your payment service provider.
5. Access and registration
To the fullest extent permitted by law, our Services are provided on an “as is” and “as available” basis, and we make no warranty, representation or guarantee whether express, implied or statutory, with respect to our Services. Access to our Services may be suspended temporarily and without notice in the case of system failure, emergency maintenance emergency upgrades or emergency repairs.
The information you provide when signing up to use our Services (whether directly to us as a Direct User or via the Distributor as a Referred User) ("Registration Data") must be true, accurate, current and complete. You are responsible for maintaining your Registration Data to ensure that it remains accurate and up to date.
You are responsible for making all arrangements necessary for you to have access to our Services. You are also responsible for ensuring that all persons who access our Services through your Internet connection are aware of this agreement, and that they comply with its terms.
6. Our Services change regularly
We aim to update our Services regularly, and may change the content at any time. If the need arises, we may suspend access to our Services, or withdraw them indefinitely. Any of the material provided via our Services may be out of date at any given time, and we are under no obligation to update such material.
7. Reliance on information posted
Commentary and other materials posted on our Services are not intended to amount to advice on which reliance should be placed. Subject to the final sentence of clause 8 below, we therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any person using our Services, or by anyone who may be informed of any of its contents.
8. Our intellectual property and your licence to use our Services
- our app and our Services;
- any necessary software used in connection with our Services (which, where you are a Direct User, include our app) (the “Software”); and
- all content contained within or generated by our Services (which, where you are a Direct User, include our app), including but not limited to text, images, charts, graphs and other materials, and specifically including charts, graphs, spreadsheets and other content generated from your Contributions (as defined below) (together, “Content”).
Your licence to use the Software is restricted to use of the object code of the Software, and it is a condition of such licence that, except to the extent expressly permitted under applicable law, you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. Additionally, you understand that you may have to agree to additional terms and conditions before you use such Software or any Content proprietary to a third party.
Without prejudice to rest of this clause, you agree:
- not to access our Services by any means other than through the interfaces that we provide for use in accessing the Service; or
- except as expressly authorised by us or relevant third parties, not to modify, rent, lease, loan, sell, distribute or create derivative works based on our Services (including, where you are a Direct User, our app), the Software or the Content, in whole or in part.
You may print off one copy, and may download extracts, of any Content from our Services for your personal reference and (if you are a business user) you may draw the attention of others within your organisation to Content posted via our Services.
You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. Our status (and that of any identified contributors) as the authors of material provided via our Services must always be acknowledged.
9. Your uploads and confidential information
You retain (and we claim no ownership of) all intellectual property rights in and to any information, data, commentary or other materials ("Contributions") which you upload to our Services and any Transaction Data.
However, by using our Services, you grant us a worldwide, non-exclusive, royalty-free, perpetual, sublicensable and transferable licence to use, copy, store, transmit, reproduce, process, modify, publish and prepare derivative works of your Contributions and Transaction Data for the purposes of providing you (and your organisation, if applicable) with our Services and for our product development, research and testing purposes.
- was lawfully known by us before receiving it from you;
- is received by us from a third party without knowledge of breach of any obligation owed to you;
- is expressly authorised by you to be shared with, or disclosed to, third parties; or
- was independently developed by us without reference to your information.
You also agree and understand that your Contributions (and our Content based on your Contributions) will be visible by any third party with whom you have shared such information.
You acknowledge that, when using our Services, you may receive or have access to material which is expressly marked (or provided with a similar designation) to be considered confidential or could reasonably be expected to be regarded as confidential. You will keep such information strictly confidential for an indefinite period and not disclose such information unless:
- any use or disclosure of such information is expressly authorised in writing by us or required by applicable law; or
- such information is already in, or comes into, the public domain otherwise than through your unauthorised disclosure.
Whenever you make use of a feature that allows you to upload material to our Services, or to make contact with other users of our Services, you must comply with the content standards set out below. You warrant that any such contribution does comply with those standards, and you agree to fully reimburse and compensate us on demand for any breach of that warranty in accordance with clause 14 below.
10. Additional services
Additional terms and conditions may apply to some of our specific Services. Where this is the case, you will always be given the opportunity to review and accept the terms before using the Service in question.
11. Content standards
These content standards apply to any and all Contributions and to any interactive services associated with it.
You must comply with the spirit of the following standards as well as the letter. The standards apply to each part of any Contribution as well as to its whole.
- Be accurate (where they state facts).
- Be genuinely held (where they state opinions).
- Comply with applicable law in the UK and in any country from which they are posted.
Contributions must not:
- Contain any material which is defamatory of any person.
- Contain any material which is obscene, offensive, hateful or inflammatory.
- Promote sexually explicit material.
- Promote violence.
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any Intellectual Property Right of any other person.
- Be likely to deceive any person.
- Be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
- Promote any illegal activity.
- Be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety.
- Be likely to harass, upset, embarrass, alarm or annoy any other person.
- Be used to impersonate any person, or to misrepresent your identity or affiliation with any person.
- Give the impression that they emanate from us, if this is not the case.
- Advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
We will not be responsible, or liable to any third party, for the content or accuracy of your Contributions, and we have the right to remove any Contribution you make on our Services if, in our opinion, such Contribution does not comply with the content standards set out in this clause.
If you wish to make a complaint in relation to any Contributions posted on our Services, or if you believe that any Contribution posted on our Services infringes an Intellectual Property Right that you own or have rights to, please contact us immediately at email@example.com
12. Deleting accounts
13. Our liability
Whilst we take every reasonable precaution and care in relation to our app and our Services, the material displayed on our app and our Services are provided without any guarantees, conditions or warranties as to its accuracy. To the extent permitted by law, we expressly exclude all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity.
We do not limit our liability for:
- death or personal injury arising from our negligence;
- fraud or fraudulent misrepresentation; or
- any other liability which cannot be excluded or limited under applicable law.
Subject to the above:
If you are a consumer:
- If you are a Direct User using our app and our app is defective (for example if the app damages your device or other digital content owned by you) and this is caused by our failure to use reasonable care and skill, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to install the latest software update offered to you free of charge or for damage that was caused by you using the app in a manner that we do not authorise, or for you failing have in place reasonable anti-virus software or the minimum system requirements required to use the app.
If you are a business user:
- We accept no liability under or in connection with this agreement (whether such liability arises in contract, tort (including negligence) or otherwise) for any:
- loss of income or revenue;
- loss of business;
- loss of profits or contracts;
- loss of anticipated savings;
- loss of data;
- waste of management or office time;
- (for each of (i) - (v) above, whether directly or directly occurring); or
- for any indirect or consequential loss or damage of any kind however arising.
- Subject to the above, to the extent permitted by applicable law, our total aggregate liability to you for all and any damages, losses or causes of action arising, by reason of or in connection with your use of (or inability to use) our Services, shall be limited to any fees paid by you to use our Services or our Services in the twelve (12) month period immediately prior to the date on which you made the claim.
You agree to fully reimburse and compensate us on demand and hold us and our subsidiaries and affiliates, and our and their officers, directors, agents, co-branders or other partners, and employees, harmless from any losses, damages, costs, expenses (including reasonable legal fees), sums agreed to in settlement and other liabilities, arising out of any claim, demand, allegation or proceeding brought by any third party due to or arising out of:
- any fraud or fraudulent misrepresentation you commit;
- any breach of applicable law or regulation by you;
- any use of your password by a third party; and
15. Information about you
16. Account access
In order to ensure that we are able to provide high-quality services that are responsive to our users' needs, you agree that our employees may have access to your account, your Contributions and your records as reasonably needed to investigate complaints.
17. Viruses, hacking and other offences
You must not:
- misuse our Services by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful;
- attempt to gain unauthorised access to our Services, the server on which our Services is stored or any server, computer or database connected to our Services; or
- attack our Services via a denial-of-service attack or a distributed denial-of service attack,
We may report any such Misuse to the relevant law enforcement authorities and, where we do so, we will co-operate with those authorities and may disclose your identity to them. In the event of any such Misuse, we reserve the right to suspend or terminate your use of our Services with immediate effect.
18. Linking to our app
You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
You must not establish a link from any website or app that is not owned by you.
Our app must not be framed on any other website or app, nor may you create a link to any part of our app other than the home page. We reserve the right to withdraw linking permission without notice. The website or app from which you are linking must comply in all respects with the content standards set out below.
If you wish to make any use of material on our Services other than your Contributions or the Transaction Data, please address your request to firstname.lastname@example.org
19.Links and third parties
Where our Services contains links to other apps, websites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those apps, websites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.
20. Prohibited uses
You may use our Services only for lawful purposes. You may not use our Services:
- In any way that breaches any applicable local, national or international law or regulation.
- In any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.
- To send, knowingly receive, upload, download, use or re-use any material which does not comply with our content standards set out in clause 11 above.
- To transmit, or procure the transmission of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
- To knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
You also agree:
- Not to access without authority, interfere with, damage or disrupt:
- any part of our app, our Services, the Software or the Content;
- any equipment or network on which our app, our Services, the Software or the Content is stored; or
- any equipment or network or software owned or used by any third party.
In countries where we are not permitted under applicable law to make the Services available to you, we may disable your use of some or all of the Services in those countries.
21. Interactive services
We may from time to time provide interactive services on our app, including, without limitation to allow users to share comments and company metrics with each other (“interactive services”).
Where we do provide any interactive service, we will provide clear information to you about the kind of service offered.
Please note that we do not monitor or moderate interactive services we provide on our Services, and, except as required by applicable law, we expressly exclude our liability for any loss or damage arising from the use of any interactive service by a user in contravention of our content standards, whether the service is moderated or not.
22. Termination and suspension
The duration of this agreement will remain in effect until terminated under this clause 22. Any notice of termination of this agreement by either party is subject to the notice periods in this clause 22.
Termination for convenience: You may terminate this agreement for any reason by providing us or if you a Referred User, the Distributor on your behalf providing at least one months’ advance notice. We may terminate this agreement for any reason by providing you at least two months’ advance notice.
Termination / suspension for cause: If you breach these terms we may:
- temporarily or permanently withdraw your right to use our app, our Services, our Software and the Content, either with immediate effect or on notice (as determined by us acting reasonably);
- temporarily or permanently remove any of your Contributions, either with immediate effect or on notice (as determined by us acting reasonably);
- issue a notice to you requiring you to take certain actions and/or cease certain actions;
- issue legal proceedings against you, including but not limited to for reimbursement of all costs on demand (including, but not limited to, reasonable administrative and legal costs) resulting from the breach; and
- disclose such information to law enforcement authorities as we reasonably feel is necessary.
We exclude liability for actions taken in response to breaches of this agreement. The responses described above are not limited, and we may take any other action we reasonably deem appropriate.
23. Communications under the Payment Services Regulations 2017
To the extent we are required to make communications under the PSRs we shall either:
- communicate general messages to you via the notifications on the website, https://www.tomatopay.co.uk, or through our Services; and
- communicate messages specific to you to the email address provided by you during the registration process.
In the event of suspected fraud, we shall contact you using the contact telephone number and/or email address provided by you during the registration process.
24. Additional terms for Direct Users required by app stores
- you acknowledge that the Device Manufacturer has no obligation whatsoever to furnish any maintenance and support services with respect to the app;
- in the event of any failure of the app to conform to any applicable warranty, you may notify the Device Manufacturer, and the Device Manufacturer will refund the purchase price (if any) for the app to you and, to the maximum extent permitted by applicable law, the Device Manufacturer will have no other warranty obligation whatsoever with respect to the app;
- you acknowledge that us, not the Device Manufacturer, are responsible for addressing any claims of yours or any third party relating to the app;
- you acknowledge that, in the event of any third party claim that the app or your use of the app infringes that third party’s intellectual property rights, the Device Manufacturer will not be responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim;
- you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and you are not listed on any U.S. Government list of prohibited or restricted parties; and
25. Jurisdiction and applicable law
This agreement and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
The English courts will have exclusive jurisdiction over any claim arising from, or related to, this agreement and our Services.
27. Non-UK Accounts
To the extent that we obtain Transaction Data from bank accounts based outside the UK, you acknowledge and agree that:
- you authorise us to obtain such Transaction Data from your relevant bank account(s) and to process such Transaction Data for the purpose of creating consolidated information and providing the Services;
- to the extent that we obtain such Transaction Data from a bank account based in an EU member state, the account information service provided by us to obtain such Transaction Data shall be subject to the PSD2 and, where applicable, subject to the relevant member state’s local law implementation of the PSD2 and all references to the “PSRs” in these Terms shall be deemed a reference to the PSD2 and, where applicable, the relevant member state’s local law implementation of the PSD2;
- to the extent that we obtain such Transaction Data from a bank account based outside the EU, the service provided by us to obtain such Transaction Data may subject to the relevant local law and regulation and all references to the “PSRs” in these Terms shall be deemed a reference to the equivalent local law and regulation; and
- we may make any changes to the app, Services, and/or to these Terms, to the extent necessary to comply with applicable law and regulation to enable us to lawfully and properly provide the app and perform the Services. Where reasonably practicable, we shall notify you of such changes. Should we make any such changes which deprive you of a material benefit under these Terms, you may terminate these Terms by providing written notice to us within one week of notification of the proposed changes; after such period, you shall be deemed to have accepted such changes.
28. Referred Users
Each Referred User acknowledges and agrees that:
- the Services are provided by us and the Distributor Service is provided by the Distributor. The Services shall include the provision by us of the Transaction Data to the Distributor, so that they can use that Transaction Data as part of their Distributor Service;
- we shall release the Transaction Data to the relevant Distributor and the Referred User hereby consents to us doing the same;
- we are not responsible for any Distributor Services, including: (i) the failure or unavailability of such services; (ii) the use of Transaction Data by the relevant Distributor; and (iii) any losses which may be incurred by the Referred User in the course of receiving or relying on Distributor Services;
- if you have any concerns over the use or distribution of the Transaction Data by the relevant Distributor, you agree to direct your concerns to the relevant Distributor;
- any claim you may have in respect of the Distributor Services shall be subject to the terms of the relevant Distributor Agreement;
- if you have any concerns over the Distributor Services, you agree to direct your concerns to the relevant Distributor;
- the relevant Distributor is entirely liable for the delivery and performance (or non-delivery and non-performance) of the Distributor Services; and
- we will not be liable for any inaccuracy or incompleteness of any information we provide to you as part of our Services, where such inaccuracy or incompleteness arises as the result of any inaccuracy or incompleteness in any information provided by the relevant Distributor.
Where we provide the account information services, the Referred User acknowledges and agrees that the Distributor shall be responsible for providing a copy of the consolidated information to the Referred User (providing that, if the third party provider fails to do so, the Referred User may request the same from us).
If you are a Referred User and you are unhappy with any product you have obtained from a Distributor or have any complaint regarding any Distributor Service, you should address your complaint directly to that Distributor. If you require their contact details, please tell us using the contact details set out at clause 1 and we will be happy to assist.