TP API Terms & Conditions

TERMS AND CONDITIONS

This Agreement is made by:

(1) Fractal Labs Limited operating under the brand name tomato pay (“tomato pay”), and
(2) The entity identified in the Order Form as the “Client”,

each a “Party” and, together, the “Parties”.

Background:

(A) tomato pay is an account information service provider and payment initiation service provider, registered with the FCA, with permission to provide account information services and payment initiation services.
(B) tomato pay has developed financial analysis technology which connects with an underlying account servicing payment service provider (e.g. a bank) to:

(1) automatically retrieve feeds of an account holder’s transaction information and provide to the account holder and its authorised agents this information in such consolidated format as the tool is configured to provide; and/or
(2) enable Customers (as defined below) to make payments from a payment account held by a Customer at another payment service provider.

(1) provide Regulated Open Banking Services (as defined below) where tomato pay is acting as the Regulated Entity (as defined below); and/or
(2) provide services as a Technical Service Provider (as defined below) to a Client where such Client is the Regulated Entity providing Regulated Open Banking Services,

(D) as indicated in the Order Form.

It is agreed as follows:

1. DEFINITIONS AND INTERPRETATIONS

Defined terms and rules of interpretation used in this Agreement are set out in Schedule 3.

2. REGULATED ENTITY

2.1 Where tomato pay is the Regulated Entity providing Regulated Open Banking Services:

(a) the additional terms set out in Schedule 1 (tomato pay as a Regulated Entity) shall apply; and
(b) the Client acknowledges that tomato pay is subject to regulatory requirements governing its conduct of business and, in particular, is bound to comply with the PSRs.

2.2 Where tomato pay is providing services as a Technical Services Provider to the Client where the Client is the Regulated Entity providing Regulated Open Banking Services, the additional terms set out in Schedule 2 (Technical Service Provider Terms) shall apply.

3. TOMATO PAY'S ROLE AND RESPONSIBILITIES

tomato pay APIs

3.1 Client shall be provided with access to an administrator account to enable it to grant access rights to its Customers pursuant to the licence detailed in clause 3.2 below.

3.2 tomato pay grants to the Client a non-exclusive, revocable, limited, non-transferable licence to use the tomato pay APIs (with the right to grant a sublicense to its Customers) for the purpose of using the tomato pay APIs to:

(a) supply Data Services to its Customers; and
(b) facilitate the provision of Regulated Open Banking Services to Customers,

provided that any such use is solely in accordance with the tomato pay API Documentation.

3.3 tomato pay may update the tomato pay APIs from time to time but shall give the Client reasonable prior notice of any such updates. tomato pay shall continue to support the prior version of the tomato pay API for a minimum of 45 days following the release of any updated tomato pay API. On the expiry of such 45 day period tomato pay shall cease to make available any prior version of the tomato pay API and the Client shall be required to migrate to the latest version of the applicable tomato pay API.

Services

3.4 Subject to: (i) each relevant Customer providing its explicit consent; and (ii) payment by the Client to tomato pay of the applicable Fees, tomato pay shall:

(a) carry out the Services in accordance with: (i) the terms of this Agreement; and (ii) where tomato pay is the Regulated Entity, the Open Banking Regulations;
(b) provide the Data to the Client, to support the Use Case(s); and
(c) co-operate with the Client in respect of the resolution of complaints and issues surrounding the Services.

3.5 Other than where expressed in this Agreement, to the maximum extent permitted by law, tomato pay excludes all conditions, warranties and representations to the Client: (i) in relation to the Services it provides to the Client under this Agreement including, without limitation, in relation to the accuracy of the data retrieved from the account servicing payment service provider or other third party data sources; and (ii) other than as set out in clauses 3.4(a) to 3.4(c), that the Services will operate without defect or be uninterrupted or error-free.

Customer Data and Information Security

3.6 If tomato pay becomes aware of, or has reason to suspect or, any security breach related to the Customer Data or any unauthorised access to or use of or disclosure of any Customer Data, it shall immediately notify Client, take all reasonable measures to rectify and prevent any further breaches and inform Client of the measures taken.

3.7 Subject only to Open Banking Regulations or Data Protection Legislation which require otherwise, if the Customer requests deletion of any of its Customer Data, then upon the Client’s instruction, tomato pay will promptly destroy the Customer Data (provided that tomato pay shall have no liability in respect of any inability to provide the Services as a result of such deletion). Until such deletion is requested by the Customer, tomato pay shall be permitted to use the Customer Data in accordance with the terms of the Agreement.

3.8 tomato pay shall be permitted to use the Customer Data to train the algorithms within the tomato pay APIs.

General

3.9 tomato pay represents and warrants that:

(a) the Services to the extent applicable will be provided in a professional, prompt and diligent manner by personnel with suitable training, education, experience and skill; and
(b) it will exercise in the performance of its obligations under this Agreement that standard of care and skill exercised under the same or similar circumstances by a skilled and experienced supplier of services the same as or similar to the Services.

Subcontractors

3.10 Subject to paragraph 8 of the Data Processing Agreement, tomato pay shall be permitted to subcontract or otherwise delegate any of its obligations set out in this Agreement without the Client’s prior consent.

3.11 tomato pay will remain responsible to Client for the performance, acts and omissions of any of its subcontractors and will ensure that every subcontractor having access to Customer Data will be subject to confidentiality, data and personal information protection obligations at least as stringent as those to which tomato pay is subject thereunder and under applicable laws and regulations (irrespective of the location of such subcontractors).

3.11 The Client acknowledges that:

(a) tomato pay is not responsible for any delays in the transfer of data over communication networks and facilities which are not within its control, including the internet and that access to the tomato pay APIs and use of the Data Services may be subject to delays and limitations inherent in the use of such communication facilities; and
(b) tomato pay is dependent on account servicing payment service providers providing tomato pay with access to Customer’s payment accounts to enable tomato pay to provide or perform the Data Services (“Account Access”) and tomato pay shall not be liable for any failure to perform or perform the Services (whether in whole or in part) caused by any account servicing payment service provider failing to provide such access in accordance with its regulatory obligations.

4. CLIENT ROLE AND RESPONSIBILITIES

General

4.1 Client shall promptly perform all of its obligations as set out in this Agreement and shall provide at no charge to tomato pay for the specifications, documents, data and other information and services reasonably required by tomato pay to enable tomato pay to perform its obligations under the Agreement including taking decisions and making information available as requested by tomato pay either within the timescales set out in the applicable Order Form, or in the absence of a required timescale, as soon as reasonably practicable following the request being made.

4.2 tomato pay shall not be liable for any loss, damage or delay or failure to provide the Services caused by or arising from a failure or delay of Client or its agents or subcontractors in complying with Client’s obligations under this Agreement. The time for performance of tomato pay’s obligations under this Agreement shall be extended by tomato pay as a result of any such default.

4.3 To the extent that any failure by the Client causes tomato pay to fail or be delayed in its performance of any the Services: (i) tomato pay shall not be liable for any resulting failure or delay in providing the Services; and (ii) tomato pay shall be entitled to charge the Client for any additional work that tomato pay has to carry out in order to remedy the effects of the Client’s failure.

5. FEES

5.1 In consideration of tomato pay providing the Services and granting the licences for the tomato pay APIs, the Client must pay tomato pay the Fees as set out in the Order Form.

5.2 The Client shall pay all invoices within 14 days of the date of invoice, save where the Parties have agreed in writing that tomato pay may take payment via direct debit.

5.3 If the Client fails to pay any amount due under this Agreement, the other Party shall be entitled (but not obliged) to charge interest on the overdue amount from the due date up to (but excluding) the date of actual payment, after as well as before judgment, at the rate of 2% per annum above the base rate from time to time of Barclays Bank plc. Such interest shall accrue on daily basis, be compounded quarterly and be payable on demand. This clause 5.3 shall not apply to payments which are contested in good faith.

5.4 Any Fees or sums payable under this Agreement are exclusive of any applicable value added tax or similar duty, which must, in all cases be borne and paid by the Client.

5.5 Where the Order Form indicates that an Initial Term applies, the Fees referred to in this clause 5 shall be fixed for the Initial Term and thereafter if the Agreement continues, the Fees shall be subject to annual review by tomato pay and tomato pay may impose new Fees for such period. tomato pay shall give the Client no less than three (3) months’ notice in writing of any increase in Fees.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 All Intellectual Property Rights belonging to any Party prior to or developed independently of this Agreement (“Background IP”), shall remain at all times the property of that Party or its licensors and no Party shall acquire any right, title and/or interest in or have any right to use the other Party’s Intellectual Property Rights as a result of this Agreement except for the purpose of carrying out its obligations under this Agreement.

6.2 All Intellectual Property Rights created in, or in relation to:

(a) the tomato pay APIs; and
(b) the Services other than: (i) the Output Data; and (ii) the Customer Data,

(but excluding Client’s Background IP) shall in each case belong to and remain with tomato pay or its third party licensors.

6.3 All Intellectual Property Rights created in relation to:

(a) the Client Service during the course of this Agreement; and
(b) subject to any Intellectual Property Rights vesting in the relevant Customer and/or the relevant account servicing payment service provider or third party licensor, data created by or on behalf of the Client derived from any part of the Data Services providing that such data cannot be reverse-engineered to recreate such part of the Data Service,

(together, the “Client Data”) shall belong to and remain with the Client or its third party licensors.

6.4 Client grants to tomato pay (or shall procure that tomato pay is granted) a royalty-free, non-transferable, non-sublicensable (except to the Approved Subcontractors), worldwide licence during the Term (and, if applicable, any Wind-down Period) to use the Client Data, Client’s Background IP, the Customer Data (to the extent that this is not comprised in the Client Data or Client’s Background IP) and other relevant Intellectual Property Rights, in each case to the extent reasonably required to enable tomato pay to: (i) provide the Services; and/or (ii) improve the software algorithms within tomato pay’s proprietary technology. Where such Intellectual Property Rights include Client’s trade marks or other branding, any such usage by tomato pay shall be subject to prior written approval by Client, and for such purpose tomato pay shall comply with such branding guidelines as Client has set out in the relevant Order Form. For the avoidance of doubt, all Intellectual Property Rights in any “Client” trade mark remain vested solely in Client.

7. CONFIDENTIAL INFORMATION

7.1 All Confidential Information relating to either Party is passed to and shall be received and kept by the other Party and any Representative in the strictest confidence and shall be used only for purposes connected with the subject of the Agreement and for compliance with the Open Banking Regulations.

7.2 tomato pay shall use Confidential Information solely for the purpose of the performance by tomato pay of its obligations under this Agreement.

7.3 tomato pay shall provide the Confidential Information to its employees, agents and contractors solely on a need-to-know basis for the purpose of fulfilling tomato pay’s obligations under the Agreement, provided that: (i) tomato pay will take appropriate steps to ensure that all parties to whom access to such Confidential Information is given are aware of its confidentiality and are bound by restrictions of confidentiality at least as onerous as those contained in this Agreement; and (ii) tomato pay shall ensure that all parties to whom access to such Confidential Information is given comply with such restrictions of confidentiality.

7.4 Notwithstanding the foregoing provisions either Party may disclose Confidential Information if required to do so by a court of law or the Open Banking Regulations or the Party from whom the Confidential Information was obtained has given its prior written consent to such disclosure. The obligations in clauses 7.1 to 7.3 (inclusive) shall not apply to information which is: (i) already in the public domain other than through a breach of the Agreement or a Party’s other confidentiality obligations; or (ii) received from a third party not owing a duty of confidentiality to the disclosing Party.

7.5 Subject only to Open Banking Regulations or Data Protection Legislation which require otherwise, each Party will at the request of the other Party (the “Requesting Party”) at any time after the termination of this Agreement:

(a) immediately destroy, irrevocably erase or return to the Requesting Party any Confidential Information provided by the Requesting Party pursuant to the Agreement; and
(b) within thirty (30) days of being so requested provide the Requesting Party with a written statement clearly stating that this clause has been fulfilled.

8. MUTUAL OBLIGATIONS

8.1 Each Party:

(a) will comply with its respective obligations as set out in the Data Processing Agreement;
(b) will maintain adequate insurance to meet its obligations under this Agreement; and
(c) warrants, represents and undertakes to the other, at all times whilst this Agreement is in force that it has full capacity and authority to enter into and perform its obligations under this Agreement.

9 TERMINATION

9.1 This Agreement shall commence on the Effective Date and, unless terminated earlier pursuant to this clause 9:

(a) where the Order Form specifies an Initial Term, the Agreement shall continue for the Initial Term and thereafter shall automatically continue, providing that either Party may terminate the Agreement by providing the Minimum Notice, such notice not to take effect prior to the end of the Initial Term; or
(b) where the Order Form states that the Initial Term is not applicable, the Agreement shall continue until either Party provides the Minimum Notice to the other Party and shall terminate at the end of such Minimum Notice.

9.2 This Agreement may be terminated with immediate effect by either Party giving the other written notice at any time:

(a) if the other Party is in material breach of any of its obligations under this Agreement and fails to remedy that breach (if capable of remedy) within 14 days after receiving written notice of the breach requiring its remedy; or
(b) if any encumbrancer takes possession of or a receiver, administrative receiver or similar officer is appointed over any of the property or assets of the other Party or if the other Party makes any voluntary arrangement with its creditors or becomes subject to an administration order or has an administrator appointed or goes into liquidation or passes a resolution for its winding-up (except for the purpose of a solvent amalgamation or solvent reconstruction where the resulting entity in each case agrees to be bound by or assumes the obligations imposed on the other Party under this Agreement) or anything analogous to any of these events under the law of any jurisdiction occurs in relation to the other Party or if the other Party ceases or threatens to cease to carry on business.

9.3 The Client will have the right to terminate this Agreement if tomato pay commits a material security breach resulting in a disclosure of Customer Data to an unauthorised third party.

9.4 tomato pay may terminate this Agreement in accordance with paragraph 2.9 of Schedule 1 (tomato pay as a Regulated Entity).

10 CONSEQUENCES OF TERMINATION

10.1 Any termination of this Agreement shall be without prejudice to any antecedent breach or liability or any continuing obligations.

10.2 For the avoidance of doubt, the obligations in clauses 1, 2, 3.7, 3.8, 4, 5, 6, 7, 8.1(a), 9 to 13 (inclusive) and 15, paragraphs 1.2, 2, 4, 5 and 6.3 to 6.5 (inclusive) of Schedule 1 (tomato pay as a Regulated Entity), paragraphs 1.2 and 5.3 of Schedule 2 (Technical Services Provider) and paragraphs 1.1 to 1.5 (inclusive) of Schedule 3 (Definitions) shall continue after and notwithstanding termination of this Agreement.

10.3 Upon termination of this Agreement and the completion of any transition services:

(a) each Party shall forthwith discontinue the use of the other Party’s Intellectual Property Rights;
(b) each Party shall forthwith discontinue the use of the Intellectual Property Rights of the other Party’s licensors, without compensation for such discontinuation, unless such Party obtains a licence from such other Party’s licensors; and
(c) tomato pay shall delete the relevant Customer Data in accordance with either paragraph 1 of Schedule 1 or paragraph 1 of Schedule 2 (as applicable).

11. INDEMNITIES

11.1 The Client shall indemnify, keep indemnified and hold harmless tomato pay from and against any and all Losses arising out of or in connection with:

(a) any breach of any licence granted to the Client under this Agreement;
(b) the Client’s breach of clause 8;
(c) where tomato pay is the Regulated Entity:

1. (i) any breach of this Agreement by the Client which causes tomato pay to breach the Open Banking Regulations;
2. (ii) tomato pay’s loss of Account Access arising out of or in relation to a breach of this Agreement by the Client; and/or
3. (iii) the Client’s use of the Data in a manner not permitted under its Client Terms and Conditions; and/or

(d) where the Client is the Regulated Entity, Client’s breach of the Open Banking Regulations.

11.2 tomato pay shall indemnify, keep indemnified and hold harmless the Client from and against any and all Losses arising out of or in connection with:

(a) any claim from a third party that use of the tomato pay APIs or receipt of the Services in accordance with this Agreement infringes the rights of such third party; and/or
(b) where the Client is the Regulated Entity, any breach of this Agreement by tomato pay which causes the Client to breach the Open Banking Regulations.

11.3 Should any use of the tomato pay APIs or Services be subject to an infringement claim, or if tomato pay reasonably believes that the tomato pay APIs or Services may be subject to an infringement claim, then tomato pay may, at its sole option and expense: (A) procure the right to use the tomato pay APIs and/or Services as provided in this Agreement, (B) replace the infringing element of the tomato pay APIs and/or Services with other non-infringing services with equivalent functionality, or (C) suitably modify the tomato pay APIs and/or Services so that it does not infringe.

12. LIMITATION OF LIABILITY

12.1 Nothing in this Agreement shall operate to exclude or limit either Party’s liability: (i) for death or personal injury caused by the negligence of that Party or its employees or agents while acting in the course of their engagement that Party; or (ii) for fraud or fraudulent misrepresentation; or (iii) to the extent that such exclusion or limitation is not permissible under applicable law.

12.2 Subject to clause 12.1, neither Party shall be liable for any loss of profit, anticipated profits, revenues, anticipated savings or business opportunity, in each case whether direct or indirect, nor for any indirect or consequential loss or damage suffered by the other Party, in relation to this Agreement.

12.3 Subject to clauses 12.1 and 12.2 the aggregate liability of each Party in respect of all other events occurring in any Contract Year shall not exceed the total Fees paid by Client to tomato pay in such Contract Year.

12.4 The limitations and exclusions set out in this clause 12 shall apply to all forms of liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, under indemnity or otherwise.

13. MARKETING

13.1 Except as set out in clause 13.1 neither Party shall issue any promotional materials relating to the Client Services which refers specifically to the tomato pay APIs or (where tomato pay is the Regulated Entity) the Services without the prior written approval of the other Party. If the relevant Party required to approve any request to issue promotional materials under this clause 13.1 does not respond to the request within three (3) Business Days, the request shall be deemed to be approved.

13.2 tomato pay shall be permitted to create and publish a case study outlining the Client’s use of the tomato pay APIs and the Services. The final version of the case study will be shown to the Client for signoff prior to being made public. Signoff shall not be unreasonably withheld.

13.3 Both Parties and their Representatives shall:

(a) retain such records as are reasonably necessary to record such use of the other Party’s name;
(b) allow the other Party to see such records; and
(c) not use the other Party’s name in any way or in connection with anything that brings the name of the other Party into disrepute or is harmful or detrimental to its interests, reputation or goodwill.

13.4 Neither Client nor any of its Representative shall give, make or cause to be given or made any publicity relating to tomato pay whether in relation to the performance and existence of this Agreement or any arrangement between the Parties, without the prior written consent of tomato pay, except where this is required by the Open Banking Regulations and Data Protection Legislation (as relevant). If either the Open Banking Regulations or Data Protection Legislation require publicity, the Client must, so far as practicable, consult tomato pay prior to the publicity and at once provide tomato pay with a copy or record of the publicity.

14. FORCE MAJEURE

No Party shall have any liability under this Agreement for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its reasonable control, provided and to the extent that it has notified the other Party of such cause as soon as reasonably practicable, and taken reasonable steps to mitigate the effects of the same.

15. GENERAL

15.1 Notices: any notices given under or in connection with this Agreement shall be provided to the relevant Party at the address set out in the Order Form, and addressed to the signatory of the Order Form, unless otherwise notified in writing or otherwise set out in the applicable Order Form. Partnership: nothing in this Agreement will create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between tomato pay and Client. tomato pay and Client do not have the power to bind, to contract in the name of or to create a liability for the other in any way or for any purpose. Severability: the invalidity or unenforceability of any provision of this Agreement (or any part of such provision) will not affect or prejudice the validity or enforceability of the remainder of this Agreement. Non-Solicitation: during the term of the Agreement and for six (6) months thereafter, neither Party may solicit, directly or indirectly, any employee of the other Party who was involved in the provision and/or receipt of the Services. Entire Agreement: this Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, proposals, oral and written representations and negotiations relating to its subject matter. Variation: tomato pay shall be entitled to amend the terms of the Agreement by providing 2 months’ prior written notice to the Client. No other variation of the terms of this Agreement shall be valid unless made in writing and agreed between duly authorised representatives of the Parties. Counterparts: this Agreement and each Order Form may be executed in counterparts, and such counterparts shall together constitute one instrument. Waiver: no delay, neglect, or forbearance on the part of either Party in enforcing against the other Party any term or condition of this Agreement shall be or shall be deemed to be a waiver or in any way prejudice any right of that Party under this Agreement. Any waiver by either Party of any of its rights under this Agreement must be in writing and only applies to the transaction or series of transactions expressly referred to in such waiver. Third Party Rights: this Agreement is made for the benefit of the Parties to it and any person who is not a party to this Agreement will have no rights under the Contracts (Rights of Third Parties) Act 1999, or otherwise, to enforce any of its terms. Assignment: tomato pay shall not assign, transfer, delegate, subcontract or otherwise deal with any of her rights or obligations under this Agreement without the express prior written consent of Client. Governing Law and Jurisdiction: this Agreement (and any non-contractual obligations arising out of or in connection with this Agreement) shall be governed by the laws of England. The Parties irrevocably agree to the exclusive jurisdiction of the English Courts in relation to any legal action or proceedings arising out of or in connection with this Agreement.

SCHEDULE 1
TOMATO PAY AS A REGULATED ENTITY

1. TOMATO PAY'S ROLE AND RESPONSIBILITIES AS THE REGULATED ENTITY

1.1 As the Regulated Entity tomato pay shall:

(a) carry out the Data Services in accordance with the tomato pay Terms and Conditions;
(b) provide the Data to the Client, to support the Use Case(s);
(c) co-operate with the Client in respect of the resolution of complaints and issues surrounding the Data Service;
(d) manage the relationship with the Banking Regulator with respect to the Client’s and the Customers’ use of the Data Service; and
(e) act promptly and reasonably in providing any approval as required under this Agreement.

1.2 The terms of tomato pay’s access to certain payment accounts is prescribed by the CMA and is regulated by the FCA. The Client agrees that tomato pay may be required to modify the Regulated Open Banking Services and/or this Agreement to the extent necessary to comply with any binding instructions of the CMA and/or the FCA. tomato pay shall be responsible for the costs of implementing such modifications to its own tomato pay APIs, but shall not be liable for the cost of any changes that the Client may have to make to its platform or APIs as a result of such modifications.

2. CLIENT ROLE AND RESPONSIBILITIES

2.1 Unless set out to the contrary in the Order Form or the Client Terms and Conditions, whenever the Client receives Transaction Data from tomato pay in respect of a Customer and the Customer does not otherwise have access to that Transaction Data via the tomato pay APIs, the Client shall promptly thereafter provide a copy of the same to such Customer.

2.2 The Client shall only use the Data in the manner set out in the Client Terms and Conditions from time to time, or as otherwise expressly permitted in writing by the Customer, and shall ensure that the usage permitted under the Client Terms and Conditions is consistent with the uses set out in the relevant Use Case(s).

2.3 The Client acknowledges and agrees that the use by the Client of the Transaction Data is subject to the PSRs, and that tomato pay has a responsibility under the PSRs to ensure that it is not used outside the scope of what is explicitly agreed by the Customer. As such, the Client (if requested by tomato pay) agrees:

(a) to make any changes that tomato pay reasonably requires in order to make such Client Terms and Conditions comply with Open Banking Regulations (provided that tomato pay may only require changes which directly impact on those aspects of the Client Terms and Conditions which are directly relevant to the Data Service, and which are not otherwise dealt with in the tomato pay Terms and Conditions); and
(b) not to distribute such Client Terms and Conditions until tomato pay (acting reasonably and promptly) has expressly approved in writing the limited extracts of the same which are directly linked to the changes necessitated under paragraph 2.3(a).

2.4 The Client shall, if required by tomato pay or any Banking Regulator, co-operate with tomato pay in preparing any documentation to enable it to be registered as an agent of tomato pay. If the Client is required to be registered as an agent of tomato pay, it agrees it shall bear all reasonable expenses of such registration and use best endeavours to obtain such registration in a timely manner.

2.5 The Client acknowledges and agrees that if it is displaying Data to the Customer as part of the provision of AIS the Client will need to be registered as an agent of tomato pay in accordance with the requirements of the PSRs.

2.6 Client acknowledges and agrees that it will not normally need to be registered as an agent of tomato pay where:

(a) Client is not displaying Transaction Data to the Customer; or
(b) Client is only obtaining PIS services from tomato pay (as a Regulated Entity) under the Order Form.

2.7 Notwithstanding paragraphs 2.5 and 2.6, if tomato pay determines (at its sole discretion) that the Client should be registered as an agent of tomato pay, the Client shall become registered as an agent in accordance with the requirements of the PSRs before providing (or before continuing to provide) any Services to Customers.

2.8 If Client is acting as an agent on tomato pay’s behalf, the Client shall:

(a) ensure each Customer is made explicitly aware that tomato pay is providing the Regulated Open Banking Services for which Client is acting as agent; and
(b) maintain its registered status in accordance with the PSRs as an agent of tomato pay at all relevant times.

2.9 The Client shall ensure that the Client Terms and Conditions specify that the provision of services to the Customer which relate to the Services provided under this Agreement (including access to the tomato pay APIs and the Data Services) shall terminate immediately if a Customer Termination Notice is issued by the Client in accordance with paragraph 6.3 of this Schedule 1 or by tomato pay in accordance with paragraph 6.4 of this Schedule 1.

2.10 tomato pay may at any time review the Client Service, its operation and the relevant sections of the Client Terms and Conditions to determine whether it is compliant in all respects with this Agreement. If, whether on undertaking such review or otherwise, tomato pay can demonstrate there is any non-compliance, tomato pay shall inform the Client accordingly, showing such evidence and the Client shall forthwith remedy any non-compliance in respect of the operation of the Client Service and/or in respect of the Client Terms and Conditions. Any failure by the Client to remedy any non-compliance within the timescales stipulated by tomato pay shall constitute a material breach of this Agreement.

2.11 Any complaints will be under the authority of the Financial Ombudsman subject to the Rules of the Financial Ombudsman Service. The Client is responsible for acting in a manner which does not have an impact on the reputation of tomato pay as the AISP and/or PISP.

3. CLIENT SERVICE

3.1 The Client shall administer its Client Service and shall:

(a) manage the relationship with Customers, including the provision of any support required by Customers;
(b) perform the customer service function and subject to paragraph 3.1(c) deal with Customer complaints promptly and effectively;
(c) immediately escalate to tomato pay any complaints from Customers concerning the Data Service (insofar as they do not relate to the Client’s performance of Client Service) and promptly provide tomato pay with all information reasonably required to respond to and resolve such complaints; and
(d) distribute the Transaction Data in accordance with the Client Terms and Conditions.

3.2 The Client Service must:

(a) be and remain fully compliant with Open Banking Regulations and Data Protection Legislation, to the extent they apply to the operation of the Client Service, including the promotion, establishment, operation and management of the Client Service;
(b) incorporate in its Client Terms and Conditions a clear description of the means used by the Client to ensure each Customer has agreed to be bound by the tomato pay Terms and Conditions; and
(c) carry out such integration work, and facilitate such access to systems, Intellectual Property Rights and information, as are reasonably necessary to facilitate (i) the Data Service and the tomato pay Terms and Conditions being prominently displayed at the appropriate point in the customer journey of the Client Service, in a manner as approved by tomato pay in writing, and (ii) the smooth passing of information (including Transaction Data and the Other Data); and (iii) the collection, processing and distribution of the Data in accordance with the terms of this Agreement, the Client Terms and Conditions and the tomato pay Terms and Conditions, and (iii) any other instructions provided by the relevant Customer.

3.3 The Client must:

(a) maintain or procure the maintenance and keeping of records of its collection and distribution of Transaction Data which it obtains under this Agreement and, if tomato pay so requires, provide such records to tomato pay within two (2) Business Days of a request for the same by tomato pay;
(b) promptly notify tomato pay if it reasonably believes that the Client Service is non-compliant with the requirements of this Agreement; and
(c) notify tomato pay as soon as reasonably practicable upon the occurrence of any event or on becoming aware of any information in relation to its provision of the Client Services that in the Client’s reasonable opinion is reasonably likely to have an adverse effect tomato pay’s business or its reputation.

4. REPORTING AND MANAGEMENT INFORMATION

4.1 The Client agrees to supply tomato pay with such information as and at such frequency as is reasonably requested by tomato pay, including:

(a) information necessary to enable tomato pay to monitor or review the operation of Client Service for the purposes of assessment of compliance with this Agreement;
(b) records of the Client’s relationship with Customers including records of agreement and/or consent to the Client Terms and Conditions, and records of the making of and resolution of complaints from Customers (insofar as they relate to the Data Service and the use of the Transaction Data and the Other Data); and
(c) to pay to tomato pay any reasonable costs incurred by tomato pay through the Client’s failure to provide such information in a timely and complete manner.

4.2 The Client undertakes to keep full records showing compliance (or non-compliance) with its obligations under this Agreement.

4.3 The Client undertakes to notify tomato pay immediately upon it becoming aware of any known or suspected non-compliance with the terms of this Agreement.

4.4 The Client shall, and shall procure that its Representatives shall:

(a) respond promptly, accurately and fully to any request for information from the FCA, any other Banking Regulator; and
(b) provide a suitably skilled and knowledgeable individual or individuals to attend FCA interview(s) or respond to FCA questions if so required.

4.5 Upon request by tomato pay, at the end of each Contract Year, the Client shall provide to tomato pay a compliance statement, signed by a partner of Client, which details:

(a) having undertaken reasonable investigation and verification, whether or not Client has acted in compliance with the terms of this Agreement during such Contract Year;
(b) to the extent of any breach of the terms of this Agreement, details of the relevant breach(es) occurring during such Contract Year, and Client’s plan to remedy the same; and
(c) Client shall provide an interim compliance statement of the type outlined in paragraph 4.2, on reasonable request from tomato pay in response to tomato pay raising reasonable and demonstrable suspicion of one or more breaches of this Agreement by Client.

5. LICENCE TO USE TRANSACTION DATA AND OTHER DATA

tomato pay grants to the Client a worldwide licence to use the Transaction Data and the Other Data in the Client Service, to the extent and for the purposes explicitly consented to by the applicable Customers via the Client Terms and Conditions.

6. TERMINATION

6.1 tomato pay shall have the right at any time by giving notice in writing to the Client to terminate this Agreement, immediately if:

(a) the Client does not meet tomato pay’s client onboarding requirements;
(b) the Client is required to act as tomato pay’s agent and fails to become registered as an agent or maintain its registration as an agent in accordance with the PSRs;
(c) the Client (where it acts as tomato pay’s agent) breaches any of the provisions of paragraphs 2.4 to 2.8 of this Schedule 1; or
(d) any licence, approval or consent required by Open Banking Regulations to conduct AIS or PIS is withdrawn, suspended or stopped (including the cancellation of tomato pay’s registration as an AISP or PISP by the FCA).

6.2 tomato pay may, if reasonably required to do so in order to comply with Open Banking Regulations, suspend the Data Service or revoke the licence granted under an Order Form in respect of any Use Case(s). Where it is lawful to do so, and where reasonably practical to do so, tomato pay shall provide notice of such suspension either in advance of, or promptly following, such suspension. The Client shall be entitled to bring a claim for damages in relation to any suspension under this paragraph 6.1 to the extent that the circumstances giving rise to the termination were created by the acts or omissions of tomato pay.

6.3 Within five (5) days of either Party giving notice to terminate the Agreement (“Agreement Termination Notice”) the Parties (acting reasonably) will work together to agree a procedure for the Client to issue a notice to terminate the provision of the services to Customers which relate to the Services provided under this Agreement (including access to the tomato pay APIs and the Data Services) (“Customer Termination Notice”) with the aim of ensuring such Customer Termination Notices are issued no later 30 days from the date of the Agreement Termination Notice. Upon tomato pay’s written request, the Client shall provide tomato pay with written evidence as reasonably required by tomato pay to verify that the Customer Termination Notices have been issued within such 30-day period.

6.4 If the Client does not issue the Customer Termination Notices within 30 days of the date of the Agreement Termination Notice, tomato pay may issue the Customer Termination Notices itself.

6.5 On termination of an Order Form the Client may retain the Transaction Data and/or the Other Data providing that such retention, together with its processing and dissemination of the same, is at all times in strict compliance with Open Banking Regulations and Data Protection Legislation, the explicit consent of the relevant Customer and any third party licensing terms. Should either Open Banking Regulations or Data Protection Legislation require it, or the relevant Customer revoke its consent, or should the relevant third party licensor require it, the Client shall promptly erase the affected Transaction Data and/or the Other Data (as the case may be).

TECHNICAL SERVICE PROVIDER TERMS

1. CLIENT RESPONSIBILITIES

1.1 To the extent required to enable tomato pay to perform the Services, Client shall:

(a) ensure that its employees and any sub-contractors co-operate fully and promptly with tomato pay in relation to the implementation, operation and maintenance of the Services and that such employees and any such sub-contractors will be qualified to carry out any tasks which they may be assigned;
(b) promptly furnish tomato pay with such information and documents and access to its premises, systems and infrastructure as tomato pay may reasonably request for the proper performance of its obligations hereunder and ensuring that such information is true, accurate, complete and not misleading in any material respect; and
(c) procure for tomato pay reasonable access to the staff, systems and information of the Client and/or any third party service providers to the Client to the extent reasonably required by tomato pay to provide the Services in accordance with the Agreement (to the extent that such access is not expressly specified in the applicable Order Form),

in each case as reasonably required and agreed by Client and the relevant project manager of tomato pay.

1.2 Client shall manage all relationships with Customer, perform the customer service function in respect of the Regulated Open Banking Services and respond to Customer in respect of any complaints in respect of the Services and/or the Regulated Open Banking Services.

2. WARRANTIES AND REPRESENTATIONS

2.1 Client warrants and represents on an ongoing basis during the Term that:

(a) Client has obtained, any and all rights and permissions necessary for tomato pay, its employees, agents and Approved Subcontractors to provide any and all Services in accordance with the Agreement; and
(b) Client at all times during the Term shall comply with all Open Banking Regulations; and
(c) at all times during the Term:

1. (i) if the Client is a credit institution, Client shall maintain its status under applicable laws and regulations as a credit institution and have notified the relevant regulatory body that it is providing AIS and/or PIS; or
2. (ii) if the Client is not a credit institution, Client shall maintain its status with the relevant regulatory body as a registered account information service provider or an authorised payment initiation service provider.

3. IPR/LICENCE

tomato pay grants to the Client a royalty-free, non-transferable, non-sublicensable, worldwide licence during the Term (and, if applicable, any Wind-down Period) to use the tomato pay APIs for the purpose of providing the Regulated Open Banking Service, to the extent and for the purposes explicitly consented to by each applicable Customer under such Customer’s agreement with the Client for the provision of AIS and/or PIS.

4. REGULATORY CHANGES

Where Client notifies tomato pay that the Services and/or either Party’s obligations under the Agreement need to be modified to the extent necessary to enable the Client to comply with the Open Banking Regulations and/or any binding instructions of any applicable regulatory body (“Regulatory Changes”), the implementation of such Regulatory Changes and the Parties’ responsibility for the costs of such implementation shall be subject to agreement by the Parties in accordance with clause 15 (General) of the Terms and Conditions.

5. TERMINATION

5.1 Either Party shall have the right at any time by giving notice in writing to the other Party to terminate this Agreement immediately if any licence, approval or consent required by Open Banking Regulations for the Client to conduct AIS and/or PIS is withdrawn, suspended or stopped (including where applicable the cancellation of the Client’s registration as an account information service provider and/or payment initiation service provider by the FCA).

5.2 Client may, if reasonably required to do so in order to enable the Client to comply with Applicable Open Banking Regulations, suspend the affected part of the Services or revoke the licence granted under an Order Form in respect of any affected Use Case(s). Where it is lawful to do so, and where reasonably practical to do so, Client shall provide notice of such suspension either in advance of, or promptly following, such suspension.

5.3 On termination of an Agreement tomato pay shall return or delete Personal Data in accordance with the Data Processing Agreement.

SCHEDULE 3
DEFINITIONS

1.1 In this Agreement the following terms shall have the following meanings:

Term	Definition
Account Access	has the meaning given in clause 3.11(b).
account information service or “AIS”.	means an online service to provide consolidated information on one or more payment accounts held by the Customer with another payment service provider or with more than one payment service provider, and includes such a service whether information is provided (a) in its original form or after processing or (b) only to the Customer or to the Customer and to another person in accordance with the Customer's instructions.
account information service provider or AISP	means a payment service provider which provides account information services.
account servicing payment service provider	means a payment service provider providing and maintaining a payment account for a payer.
Agreed AIS	means the AIS to be carried out by tomato pay in respect of the Customers, involving the extraction of account information from the Customer’s applicable payment account(s) and resulting in the provision to the Customers and the Client of the Transaction Data.
Agreement	has the meaning given in paragraph 1.3 of this Schedule 3.
AIS Applicable Regulations	means all and any laws, regulations, regulatory policy or guidance and industry codes of practice applicable to the provision of the AIS including the Data Protection Legislation.
Banking Regulator	means any person or body concerned with the creation, enforcement or supervision of, making or compliance with the, Open Banking Regulations including without limitation the FCA, the EBA, the CMA.
Open Banking Regulations	means the AIS Applicable Regulations and PIS Applicable Regulations.
Background IP	has the meaning given in clause 6.1.
Business Day	means any day (other than a Saturday or Sunday) on which banks are open in London for normal banking business.
Client Service	means the service provided by the Client to Customers which in some way uses the Data Services, as described as part of the Use Case.
Client Terms and Conditions	means the terms and conditions comprising the agreement between the Client and each Customer for the provision of the Client Service, including any applicable privacy notices and/or privacy policy.
CMA	means the Competition and Markets Authority, or such other replacement or successor organisation performing substantially the same function from time to time.
Commencement Date	the date commencing on the earlier of: (i) the date which is 90 days following the Effective Date; and (ii) the date on which the Client first makes an API call on a production basis (and not for testing purposes) in connection with the provision of the Services.
Confidential Information	means, in relation to any Party, all information which belongs or relates to that Party or its business, including information relating to any of: its customers, financial information, advertising and promotional materials; its products, services, processes, strategies and developments; Intellectual Property Rights, trade secrets and know-how; market share, market research reports and surveys; personnel, agents and third party intermediaries; and future projects, business plans, budgets, commercial relationships and negotiations, existing in any form, whether or not marked “confidential”, and all other information clearly designated as “confidential”.
Contract Year	means each successive twelve-month period during the Term, commencing on the Effective Date or an anniversary thereof.
Customer	means the Client’s customers to whom tomato pay (either directly or via the Client as its agent) or the Client (if tomato pay is a Technical Service Provider) is providing Regulated Open Banking Services.
Customer Data	means: data which relates to the Customer and is extracted by or made available to tomato pay through its provision of the Data Services and which is held by or accessible to tomato pay; (if applicable) data which relates to the Customer and is provided to tomato pay by the Client in connection with the performance of the Services ((a) and (b) together the “Raw Customer Data”); and any data derived from any Raw Customer Data which can be reverse-engineered to recreate Raw Customer Data.
Customer Termination Notice	has the meaning given in paragraph 6.3 of Schedule 1.
Data	means the Transaction Data and/or the Other Data, and/or derivatives thereof (as the case may be).
Data Services	means the Services involving the extraction of account information from the Customer’s applicable payment account(s) and other sources, and resulting in the provision to the Customers and the Client of the Transaction Data and Other Data.
Effective Date	means the date identified as the ‘Effective Date’ in the Order Form.
FCA	means the Financial Conduct Authority or such other replacement or successor organisation performing substantially the same function from time to time.
Fees	means all fees, charges, costs and other amounts payable to tomato pay by the Client under this Agreement, as described in the relevant Order Form.
Initial Term	if applicable, means the period of 12 months or 24 months identified in the Order Form.
Intellectual Property Rights	means any patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Losses	means any claims, actions, proceedings, damages, settlements, fines, judgements, costs, losses and expenses (including, without limitation, legal fees) and other liabilities.
Minimum Notice	means the period identified as such in the Order Form.
Open Banking Regulations	means the AIS Applicable Regulations and PIS Applicable Regulations.
Order Form	means the electric or physical form (including its schedules, annexes and appendices (if any)) ordering the Services entered into by or on behalf of the Client and tomato pay, incorporating these Terms and Conditions (and as varied by the parties by agreement in writing from time to time);
Other Data	means data other than Transaction Data (if any) or PIS Data (if any) to be provided by tomato pay to the Client or Customer as part of the Services.
Output Data	means: (i) the Transaction Data; (ii) the PIS Data; and (iii) any Other Data.
payment accounts	means an account held in the name of one or more Customers which is used for the execution of payment transactions.
payment initiation service or PIS	means an online service to initiate a payment order at the request of the Customer with respect to a payment account held at another payment service provider.
PIS Applicable Regulations	means all and any laws, regulations regulatory policy or guidance and industry codes of practice applicable to the provision of the PIS including the Data Protection Legislation.
PIS Data	means the data gathered by the tomato pay PIS API in relation to the Relevant PISP Service, typically records in relation to the execution of PIS transactions.
PSRs	means the Payment Services Regulations 2017.
Regulated Entity	means the entity (being tomato pay or the Client as applicable) which is authorised by the FCA to provide AIS to Customers and/or registered with the FCA to provide PIS to Customers in accordance with the PSRs.
Regulated Open Banking Services	means (as applicable) AIS and/or PIS.
Representative	means all employees, temporary staff, independent contractors, part-time staff, call centre operatives, marketing and sales personnel, agents, representatives and all other people, in each case retained by or otherwise working under the direction of either Party.
Requesting Party	has the meaning given in clause 7.5.
Services	means the provision of the Data Services, the Support Services, access to the tomato pay APIs and any other services set out in the relevant Order Form.
Support Services	means the support services provided by tomato pay as detailed in the Support Services documentation made available by tomato pay to the Client during the Client onboarding process.
Technical Service Provider	a business that obtains and processes payment account information to support an authorised or registered account information service provider and does not provide the information to the end user itself.
Term	means the period commencing on the Effective Date and ending on termination of the Agreement in accordance with its terms.
Terms and Conditions	means these terms and conditions.
tomato pay AIS API	means the proprietary technology of tomato pay which enables the automatic retrieval and provision to the Customer of feeds of its account information in such consolidated format as is set out in the Order Form (or, where the Order Form permits, in such format as the Customer configures via the tomato pay AIS API) and shall include all and any update, releases, fixes or patches provided pursuant to the Support Services.
tomato pay API	means any tomato pay AIS API, any tomato pay General API and/or any tomato pay PIS API.
tomato pay API Documentation	means the documentation at https://docs.tomatopay.co.uk/ (as amended by tomato pay from time to time).
tomato pay General API	means (if applicable) an application programming interface which is the proprietary technology of tomato pay made available through an Order Form (excluding any tomato pay AIS API and any tomato pay PIS API) and shall include all and any update, releases, fixes or patches provided pursuant to its Support Services.
tomato pay PIS API	means the proprietary technology of tomato pay which facilitates the PIS by the Client (including consent authentication in relation to Customers) as outlined in an Order Form and shall include all and any update, releases, fixes or patches provided pursuant to its Support Services.
tomato pay Terms and Conditions	means the terms and conditions comprising the agreement between tomato pay and the Customers for the use of the tomato pay APIs (including provision of Data Services), including any applicable privacy notices and/or privacy policy.
Transaction Data	means the form and scope of consolidated information resulting from the extraction of account information from the Customer’s applicable payment account(s) (which may include Customer Data) to be provided to the Customers and to the Client in connection with the provision of the Regulated Open Banking Services.
Use Case	means a particular set of uses of the tomato pay APIs and/or the Services, as specified in the relevant Order Form.
Wind-down Period	means the period from the date of termination of the applicable Order Form to the end of the current term of the Client Service, limited to a maximum of three (3) months.

1.2 In this Agreement, unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.3 In this Agreement each Order Form entered into by the Client shall form a separate agreement, incorporating these Terms and Conditions and any other documents identified in the Order Form (together the “Agreement”).

1.4 In the event of any conflict in respect of the provisions of our Agreement and/or the documents referred to in it the following order of priority shall prevail (in descending order of priority):

(a) the Order Form;
(b) these Terms and Conditions;
(c) the Data Processing Agreement;
(d) the Support Documentation; and

1.5 Subject to the order of priority between documents in paragraph 1.4, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.