Terms & Conditions

1. Overview of this Agreement

1.1 This Agreement provides a general description of the Services that FONDY may provide to you, including those that allow you to accept payments from purchasers of your goods or services (your “Customers”).

1.2 Before using the Services, you must register with FONDY and create an account (a “FONDY Account”). To register your FONDY Account, you may do so by accessing the FONDY website through this link.

2. Your FONDY Account

2.1 Registration and Permitted Activities: Only businesses (including sole proprietors) located in Portugal are eligible to apply for a FONDY Account to use the Services described in this Agreement. FONDY and its affiliates may provide Services to you or your affiliates in other countries or regions under separate agreements.

2.1.1 To register for a FONDY Account, you or the person or people registering (your “Representative”) must provide us with your business or trade name, physical address, email, phone number, business identification number, URL, the nature of your business or activities, and certain other information about you that we are required by law to ascertain. We may also collect personal information (including name, birth date, and government-issued identification number) about your beneficial owners, principals, and your FONDY Account administrator. Until you have submitted, and we have reviewed and approved, all required information, your FONDY Account will be available to you on a preliminary basis only, and we may terminate it at any time and for any reason we deem necessary.

2.1.2 You may only use Payment Gateway Services to facilitate Transactions (as defined below) with your Customers. You may not use Payment Gateway Services to conduct any personal transactions, or for peer-to-peer money transmission, or for any other purposes prohibited by this Agreement, or the rules and regulations of a Payment Method Provider (as defined below).

2.2 Business Representative: You and your Representative individually affirm to FONDY that your Representative is authorised to provide the information on your behalf and to bind you to this Agreement. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of FONDY, neither you nor your Representative may register or attempt to register for a FONDY Account on behalf of a user FONDY previously terminated from use of our Services.

2.2.1 If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to Customers, including payment of any amounts owed under this Agreement.

2.3 Validation and Underwriting: At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, to validate the information you provided, to verify you or your Representative’s identity, and to assess your financial condition and the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to your business, its beneficial owners, or principals. If you use Payment Gateway Services, we may also request that you provide copies of financial statements, reporting and validating documentation that allows us to calculate outstanding credit exposure/risk of loss, or other records pertaining to your compliance with this Agreement. Your failure to provide requested information or material may result in suspension or termination of your FONDY Account.

2.3.1 You authorise us to retrieve information about you from our service providers and other third parties, including credit reporting agencies and information bureaus, and you authorise and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, addresses, credit history, and other data about you, or your Representative. You acknowledge that we may use your information to verify any other information you provide to us and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of your FONDY Account. FONDY may periodically update this information as part of our underwriting criteria and risk analysis procedures.

2.4 Changes to Your Business; Keeping your FONDY Account current: You agree to keep the information in your FONDY Account current. You must promptly update your FONDY Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information. We may suspend your FONDY Account or terminate this Agreement if you fail to keep this information current.

2.4.1 You also agree to promptly notify us in writing immediately and in any event no more than three days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; your transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; there is a change in the regulatory status of your business or your business has been notified that it is the subject of an investigation or enforcement action by a regulator or law enforcement; or you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.

3. Your Relationship with Your Customers

3.1 You may only use the Services for legitimate Transactions with your Customers. You know your Customers better than we do, and you are responsible for your relationship with them. FONDY is not responsible for the products or services you publicize or sell, or that your Customers purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and any other ancillary services you provide to your Customers.

3.2 FONDY provides Services to you but we have no way of knowing if any particular purchase, sale, order, or other transaction (each a “Transaction”) is accurate or complete, or typical for your business. You are responsible for knowing whether a Transaction initiated by your Customer is erroneous or suspicious. If you are unsure if a Transaction is erroneous or suspicious, you agree to research the Transaction and, if necessary, contact your Customer before fulfilling or completing the Transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Services.

4. Fees and Fines

4.1 FONDY will provide the Services to you at the rates and for the fees (“Fees”) described on the page linked here and incorporated into this Agreement. The Fees include charges for Transactions (such as processing a payment), currency conversion, and other events connected with your FONDY Account (such as handling a disputed charge). We may revise the Fees at any time. However, we will provide you with at least 30 days’ advance notice before revisions become applicable to you (or a longer period of notice if this is required by applicable Law). You are also responsible for any fees imposed in relation to your FONDY Account on you or FONDY by any Payment Method Provider.

4.2 In addition to the Fees, you are also responsible for any penalties or fines imposed in relation to your FONDY Account on you or FONDY, by FONDY, or any Payment Method Provider, or Payment Method Acquirer (each as defined below) resulting from your use of Payment Gateway Services in a manner not permitted by this Agreement or a Payment Method Provider’s rules and regulations.

4.3 You are also obligated to pay all taxes, fees, and other charges imposed by any governmental authority, including any value-added tax, goods, and services tax, sales tax, and applicable indirect and transactional taxes (“Taxes”) on the Services provided under this Agreement.

5. Taxes and Other Expenses

5.1 Our fees are exclusive of any applicable Taxes, except as expressly stated to the contrary.

5.2 You have sole responsibility and liability for:

• determining what, if any, Taxes apply to the sale of your products and services or payments you receive in connection with your use of the Services; and

• assessing, collecting, reporting, and remitting Taxes for your business to the appropriate tax and revenue authorities. If we are required to withhold any Taxes, or we are unable to validate any tax-related identification information you provide to us, we may deduct such Taxes from amounts otherwise owed and pay them to the appropriate taxing authority. If you are exempt from payment of such Taxes, we may ask you to provide us with an original certificate that satisfies applicable legal requirements attesting to your tax-exempt status. Upon our reasonable request, you must provide us with information regarding your tax affairs.

6. Service Requirements, Limitations and Restrictions

6.1 Compliance with Applicable Laws: You must use the Services in a lawful manner, and must obey all laws, rules, and regulations (“Laws”) applicable to your use of the Services and to Transactions. As applicable, this may include compliance with domestic and international Laws related to the use or provision of financial services, notification and consumer protection, unfair competition, privacy, and false advertising, and any other Laws relevant to the Transactions you carry out through us.

6.2 Restricted Businesses and Activities: You may not use the Services to enable any person (including you) to benefit from any activities FONDY has identified as a restricted business or activity (collectively, “Restricted Businesses”). You can find our list of Restricted Businesses through this link.

6.3 Other Restricted Activities: You may not use the Services to facilitate illegal Transactions. In addition, you may not allow, and may not allow others to:

• access or attempt to access non-public FONDY systems, programs, data, or services;

• copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, Documentation (as defined below), or our website except as expressly permitted by applicable Laws.

7. Suspicion of Unauthorised or Illegal Use

7.1 We may refuse, condition, or suspend any Transactions that we believe:

• may violate this Agreement or other agreements you may have with FONDY;

• are unauthorised, fraudulent, or illegal; or

• expose you, FONDY, or others to risks unacceptable to FONDY. If we suspect or know that you are using or have used the Services for unauthorised, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your FONDY Account, your Customers, and Transactions made through your use of the Services. Further, if Transactions for you have been processed but FONDY later has reasonable grounds to suspect that you have engaged in unauthorised, fraudulent, or illegal activities of any nature unless you are able to prove to FONDY’s reasonable satisfaction that you have not engaged in such activities then FONDY shall not be obligated to settle to you the payment processing proceeds of such Transactions, or release to you any Rolling Reserve (as hereinafter defined) retained from you by FONDY in relation to such Transactions and shall have no liability to you for taking such decisions.

8. Disclosures and Notices; Electronic Signature Consent

8.1 Consent to Electronic Disclosures and Notices: By registering for a FONDY Account, you agree that such registration constitutes your electronic signature, and you consent to the electronic provision of all disclosures and notices from FONDY (“Notices”), including those required by Law. You also agree that your electronic consent will have the same legal effect as a physical signature.

8.2 Methods of Delivery: You agree that FONDY can provide Notices regarding the Services to you through our website or through the Dashboard (as defined below), or by mailing Notices to the email or physical addresses identified in your FONDY Account. Notices may include notifications about your FONDY Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or emailed to you.

8.3 Text Messages: You authorise us to provide Notices to you via text message to allow us to verify your, or your Representative’s control over your FONDY Account (such as through two-step verification), and to provide you with other critical information about your FONDY Account. In the event of a suspected or actual fraud or security threat to your FONDY Account, FONDY will use SMS, email, or another secure procedure to contact you. Standard text or data charges may apply to such Notices.

8.4 Withdrawing Consent: Due to the nature of the Services, you will not be able to begin using the Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your FONDY Account.

1. API and Dashboard

1.1 FONDY has developed and provides access to the API that may be used to access the Services. You may use the API solely as described in the documentation related to the API (the “Documentation”) to use the Services on websites and through the applications identified in your FONDY Account. You may manage your FONDY Account through the FONDY dashboard (“Dashboard”). FONDY will use the Dashboard to provide you with information about your FONDY Account. FONDY will also provide you with access to reports which will include all your FONDY Account activity. The information may be provided in your language, and if not, it will be provided in English.

1.2 You may not use the API for any purpose, function, or feature not described in the Documentation or otherwise communicated to you by us. Due to the nature of the Services, we will update the API and Documentation from time to time and may add or remove functionality. We will provide you Notice in the event of material changes, deprecations, or removal of functionality from the API so that you may continue using the Services with minimal interruption.

1.3 We will make secret API keys for live Transactions available to you through the Dashboard. Secret keys permit any API call to your FONDY Account. You are responsible for securing your secret keys and you must not publish or share them with any unauthorised persons. Failure to secure your secret keys will increase the likelihood of fraud on your FONDY Account and potential losses to you or your Customers. You should contact us immediately if you become aware of any unauthorised use of your secret key or any other breach of security regarding the Services.

1. Payment Gateway Services Overview

1.1 FONDY works with various FONDY affiliates, Payment Method Providers, and Payment Method Acquirers to provide you with access to the Payment Methods and Payment Gateway Services. Where the Payment Gateway Services enable you to submit Charges (as defined below), we may limit or refuse to process Charges for any Restricted Businesses, or for Charges submitted in violation of this Agreement.

1.2 Your use of a Payment Method may be subject to separate terms applicable to the Payment Method.

2. Definitions

2.1 The following terms used in this Agreement relate to your use of Payment Gateway Services:

“Charge” means a credit or debit instruction to capture funds from an account that a Customer maintains with a bank or other financial institution in connection with a Transaction.

“Dispute” means an instruction initiated by a Customer for the return of funds for an existing Charge (including a chargeback or dispute on a Payment Method).

“Fine” means any fines, levies, or other charges imposed by us, a Payment Method Provider, or a Payment Method Acquirer, caused by your violation of Laws or this Agreement, or as permitted by the applicable Payment Method Rules.

“Merchant Initiated Transaction” means a Charge initiated by you in respect of your provision of products or services to your Customer; in accordance with a mandate from your Customer authorising you to initiate the Charge or a series of Charges and without requiring any specific action of the Customer to trigger the initiation of the Charge.

“MOTO Transaction” means a Charge initiated by your Customer through mail order or over the telephone.

“Payment Method Rules” means the guidelines, bylaws, rules, and regulations imposed by the Payment Method Providers and Payment Method Acquirers that operate Payment Methods supported by FONDY.

“Payment Method” means a type of payment method that FONDY accepts as a part of the Payment Gateway Services, such as credit card, debit card, ApplePay, GPay, Online Bank transfers, Local Payment Methods (e.g., iDeal, BLIK), and other Payment Methods provided by FONDY.

“Payment Method Acquirer” means FONDY or any other financial institution that is authorised by a Payment Method Provider to enable the use of a Payment Method by accepting Charges from Customers on behalf of the Payment Method Provider and routing these Charges to the Payment Method Provider.

“Payment Method Provider” means the provider of a Payment Method, such as Visa and Mastercard.

“Payment Gateway Services” are Services that you may use to accept payments from your Customers for Transactions, perform other financial transactions, manage subscriptions, and perform transaction reporting.

“Refund” means an instruction initiated by you to return funds to a Customer for an existing Charge.

“Return” means an instruction initiated by you, a Customer, a Payment Method Provider, or a Payment Method Acquirer to return funds unrelated to an existing Charge.

“Reversal” means an instruction initiated by a Payment Method Provider, a Payment Method Acquirer, or us to return funds for an existing Charge. Reversals may result from:

• invalidation of a Charge by a Payment Method Provider or a Payment Method Acquirer;
• funds settled to you in error or without authorisation; and
• submission of a Charge in violation of the applicable Payment Method Rules, or where submission of the Charge or your use of the Payment Gateway Services violates this Agreement.

3. Registering for Use of Payment Gateway Services

3.1 When you register for a FONDY Account, you may be asked for financial information, or information we use to identify you, your Representatives, principals, beneficial owners, and other individuals associated with your FONDY Account. Throughout the term of this Agreement, we may share information about your FONDY Account with Payment Method Providers and Payment Method Acquirers in order to verify your eligibility to use the Payment Gateway Services, establish any necessary accounts or credit with Payment Method Providers and Payment Method Acquirers, monitor Charges and other activity, and conduct risk management and compliance reviews. We may also share your Data (as that term is defined below) with Payment Method Providers and Payment Method Acquirers for the purpose of facilitating compliance by FONDY, the Payment Method Providers, and the Payment Method Acquirers with applicable Laws and Payment Method Rules. We will review and may conduct further intermittent reviews of your FONDY Account information to determine that you are eligible to use the Payment Gateway Services.

4. Processing Transactions; Disputes, Refunds, Reversals

4.1 You may only submit Charges through the Payment Gateway Services that are authorised by your Customers. We may process Transactions for you through other Payment Method Acquirers. To enable us to process Transactions for you, you authorise FONDY, the Payment Method Providers, and Payment Method Acquirers to receive and settle any payment processing proceeds owed to you through the Payment Gateway Services. You may not grant or assign any interest in payment processing proceeds to any third party until such time as the payment processing proceeds are deposited into your Payout Account (as defined below). You appoint FONDY for the limited purpose of directing, receiving, holding, and settling such proceeds. You agree that FONDY’s receipt of such proceeds satisfies the relevant end-Customer’s obligations to make payments to you. We will promptly update your FONDY Account balance to reflect any such proceeds that FONDY receives on your behalf. Where we process Transactions for you through other Payment Method Acquirers, you acknowledge that FONDY is obligated to settle such Transactions to you only once FONDY has received the related payment processing proceeds from such other Payment Method Acquirers and that FONDY shall have no liability to you in the event that such other Payment Method Acquirers do not transfer such payment processing proceeds to FONDY.

4.2 An authorised Transaction may be subject to a Dispute. FONDY is not responsible for, or liable to you for authorised and completed Charges that are later the subject of a Dispute, Refund, or Reversal, are submitted without authorisation or in error, or violate any Laws.

4.3 You are responsible for ensuring that you only submit Charges through the Payment Gateway Services as MOTO Transactions or Merchant Initiated Transactions that are eligible to be treated as such in accordance with the terms of this Agreement and, in respect of a Merchant Initiated Transaction, that you have an appropriate mandate in place with your Customer enabling you to initiate the Charge. You must keep a record of the basis on which you determined any submitted Charge was eligible to be treated as a MOTO Transaction or Merchant Initiated Transaction and make such records available to us, our regulators, and/or our auditors immediately on request.

4.4 You are immediately responsible to us for all Disputes, Refunds, Reversals, Returns, or Fines regardless of the reason or timing. We may decline to act upon a Refund instruction, or delay execution of the instruction, if:

• it would cause your FONDY Account balance to become negative;
• you are the subject of Bankruptcy Proceedings; or
• where we otherwise believe that there is a risk that you will not meet your liabilities under this Agreement (including with respect to the Charge that is the subject of the Refund instruction).

4.5 In many but not all cases, you may have the ability to challenge a Dispute by submitting evidence to us through email. We may request additional information to provide to Payment Method Providers and Payment Method Acquirers to assist you in contesting the Dispute, but we cannot guarantee that your challenge will be successful. Payment Method Providers and Payment Method Acquirers may deny your challenge for any reason they deem appropriate. Where a challenge is entirely or partially successful, your FONDY Account will, subject to the exercise of our rights under Section C.8 below, be credited with the funds associated with the Charge that is the subject of the Dispute (or a portion thereof). You may not submit a new Charge which duplicates a Transaction that is subject to a Dispute.

4.6 FONDY does not, and will not insure you against losses caused by fraud under any circumstances. You will be responsible for any resulting costs, including Disputes, even if you do not recover the fraudulently purchased product. FONDY is not liable to you or responsible for your financial losses or any other consequences of such fraud.

4.7 A Reversal for a Charge may be issued if the Charge is made without the account owner’s authorisation, or in connection with a Restricted Business, or violates the applicable Payment Method Rules, or for other applicable reasons. If a Reversal is issued, we will provide you Notice and a description of the cause of the Reversal.

5. Responsibilities and Disclosures to Your Customers

5.1 It is very important to us that your Customers understand the purpose, amount, and conditions of the Charges you submit to us. When using the Payment Gateway Services, you agree to:

• accurately communicate, and not misrepresent, the nature of the Transaction, and the amount of the Charge in the appropriate currency prior to submitting it to the API;
• provide a receipt that accurately describes each Transaction to your Customers;
• provide your Customers with a meaningful way to contact you in the event that the product or service is not provided as described; and
• not use Services to sell products or services in a manner that is unfair or deceptive, exposes your Customers to unreasonable risks, or does not disclose material terms of purchase in advance. You also agree to maintain and make available to your Customers a reasonable return, refund, cancellation, or adjustment policy, and clearly explain the process by which your Customers can receive a Refund.

5.2 The Payment Gateway Services may include functionality that enables you to receive recurring or subscription payments from your Customers. If you use the Payment Gateway Services to submit recurring or subscription Charges, you agree to comply with applicable Laws and Payment Method Rules, including clearly informing your Customers in advance of submitting the initial Charge that they will be charged on an ongoing basis and explaining the method for unsubscribing or canceling their recurring billing or subscription.

5.3 If you engage in Transactions with Customers who are individuals, you specifically agree to provide consumers disclosures required by Law, and not to engage in unfair, deceptive, or abusive acts or practices.

6. Specific Payment Methods

6.1 Payment Cards: When accepting payment card payments, you must comply with all applicable Network Rules, including the Network Rules specified by the Visa Rules and Regulations specified by Visa International (“Visa”) and the Mastercard Rules specified by MasterCard International Incorporated (“Mastercard”).

6.2 The Network Rules state that you may only accept payments using payment cards for bona fide legal commercial transactions between you and your Customers for goods or services that are free of liens, claims, and encumbrances. You may only use payment network trademarks or service marks consistent with the Network Rules, and the Network Rules also limit your ability to discriminate by card type or charge surcharges for acceptance of payment cards.

6.3 The Networks may amend the Network Rules at any time without notice to you, and FONDY reserves the right to change the Payment Gateway Services at any time to comply with the Network Rules. We may share with the Networks (and the Payment Method Acquirer) information that you provide to us, that we use to identify the nature of your products or services, including the assignment of your business activities to a particular payment network merchant category code (MCC).

6.4 Customers typically raise payment card network Disputes (also known as “chargebacks”) when a merchant fails to provide the product or service to the Customer, or where the payment card account holder did not authorise the Charge. High Dispute rates may result in your inability to use the Payment Gateway Services. Failure to timely and effectively manage Disputes with your Customers may ultimately result in your inability to accept payment cards for your business.

6.5 When you accept payment card Transactions, Network Rules specifically prohibit you from:

• providing cash refunds for a Charge on a credit card unless required by Laws,
• initiating a Refund more than five calendar days after issuing a credit to your Customer,
• accepting cash, its equivalent, or any other item of value for a Refund,
• acting as a payment facilitator, intermediary, or aggregator, or otherwise reselling Payment Gateway Services on behalf of others,
• submitting what you believe or know to be a fraudulent Charge or a Charge that has not been authorised by the cardholder,
• splitting Transactions into multiple Charges unless certain criteria are met, or
• using Payment Gateway Services in a manner that is an abuse of the payment card networks or a violation of the Network Rules.

7. Settlement and Payout Schedule

7.1 Your Payout Account: FONDY will, with its banking partners, arrange to settle funds to the bank or other financial institution account that you designate (your “Payout Account”). You affirm that you are authorized to initiate settlements to and debits from the Payout Account and that the Payout Account is owned by you, and administered and managed by a financial institution located in Portugal or the EU. If you update your Payout Account (including via the Dashboard) then you must ensure that you continue to comply with the requirements of this section. We may require you to provide us with documentary proof demonstrating your compliance with this section, and your failure to provide such proof will constitute a breach of this Agreement.

7.2 Settlement to Your Payout Account: A positive balance in your FONDY Account will, subject to the terms of this Agreement, result in settlement to your Payout Account and a negative balance in your FONDY Account will result in a deduction, set-off, and/or debit of the amounts owed in accordance with Section C.9 below. We may reduce the amount settled to your Payout Account by the amount of Fees, Fines, and amounts owed to us for any reason.

7.3 Settlement to third party recipients: We may offer you the ability to have funds settled to another person (a “third party recipient”) as instructed by you to FONDY (including by transferring all or part of the positive balance in your FONDY Account to the FONDY Account of such third party recipient), instead of settling funds to your Payout Account. If FONDY settles funds to a third party recipient (or transfers all or part of the balance in your FONDY Account to the FONDY Account of a third party recipient) as instructed by you, you agree that this satisfies FONDY’s obligations (and the obligations of any applicable Payment Method Provider and/or any Payment Method Acquirer) to settle funds to you, and we will promptly update your FONDY Account balance to reflect such settlement or transfer.

7.4 Multi-currency Processing: We may offer you the ability to have funds settled to your Payout Account in a currency different from the one in which you accepted payment from a Customer (“Multi-Currency Processing”). To use this service, you must provide us with a valid Payout Account for each currency for which you request settlement, based on our list of available settlement currencies. We may add or remove currencies from our list of available settlement currencies at any time. If you Refund a Charge, the conversion rate that will apply will be the rate in effect at the time of the Refund, not the Charge. By submitting a Charge or Refund you will be deemed to have accepted the applicable conversion rate. You may choose not to use the Multi-Currency Processing service at any time. You may also change the Payout Account information or other settings associated with your use of Multi-Currency Processing, but any such changes will only affect subsequent Charges and only after we have conducted additional checks on your account.

7.5 Payout Schedule: The term “Payout Schedule” refers to the time it takes for us to initiate settlement to your Payout Account. Your Payout Schedule is specified in the Dashboard. FONDY may require a holding period before making an initial settlement to the Payout Account. After the initial settlement of funds, we will settle funds to the Payout Account according to the Payout Schedule and the terms of this Agreement. We expect the normal execution time to execute a settlement to your Payout Account will be the next business day after we have initiated it; however, please be aware that a Payment Method Provider, a Payment Method Acquirer, or the financial institution holding your Payout Account, may delay settlement for any reason. We are not responsible for any action taken by the institution holding your Payout Account to not credit the Payout Account or to otherwise not make funds available to you as you expected.

7.6 We reserve the right to change the Payout Schedule or to suspend settlement to you. Examples of situations where we may do so are:

• where there are pending, anticipated, or excessive Disputes, Refunds, or Reversals;
• in the event that we suspect or become aware of suspicious activity; or
• where we are required by Law or court order. We have the right to withhold settlement to your Payout Account upon termination of this Agreement if we reasonably determine that we may incur losses resulting from credit, fraud, or other legal risks associated with your FONDY Account. If we exercise our right to withhold a Payout for any reason, we will communicate the general reason for withholding the Payout.

7.7 Incorrect Settlement: The information required for settlement will depend on the bank or financial institution holding your Payout Account. Please make sure that any information about the Payout Accounts that you provide to us is accurate and complete. If you provide us with incorrect information:

• you understand that funds may be settled to the wrong account and that we may not be able to recover the funds from such incorrect transactions, and
• you agree that you are solely responsible for any losses you or third parties incur due to erroneous settlement transactions, you will not make any claims against us related to such erroneous settlement transactions, and you will fully reimburse us for any losses we incur.

8. Safeguarding of Funds and Rolling Reserves

8.1 All funds resulting from Charges are held in pooled safeguarding accounts (the “Safeguarding Accounts”) with our banking partners. The funds do not fall under the protection of the Financial Services Compensation Scheme. However, as per applicable regulations, the funds cannot be mixed with any of FONDY’s own funds. FONDY will settle funds from the Safeguarding Accounts in the manner described in this Agreement; however, you are not entitled to draw funds from the Safeguarding Accounts, and you will not receive interest from funds maintained in the Safeguarding Accounts.

8.2 In certain circumstances, we may (or may require you to) place funds in rolling reserve (“Rolling Reserve”). We may establish a Rolling Reserve for any reason if we determine that the risk of loss to FONDY, Customers, or others associated with your FONDY Account is higher than normal. For example, we may hold or establish a Rolling Reserve if we determine that as a consequence of the nature of your business there is an unacceptable level of risk or prospect of loss to us. We may at our discretion hold all funds in Rolling Reserve in a bank account in our name. All funds held in Rolling Reserve and all rights, title, and interest to such funds, are at all times exclusively for our benefit and vested in us. If we establish a Rolling Reserve, we will provide you Notice of the amount, timing, and conditions upon which the funds in the Rolling Reserve will be released to you. In many cases, the Rolling Reserve amount will be a set percentage of the amount of Charges processed using the Payment Gateway Services. We may change the terms of the Rolling Reserve or impose additional conditions to the Rolling Reserve based on our continuous assessment and understanding of the risks associated with your FONDY Account, including if required to do so by Payment Method Providers or Payment Method Acquirers, or for any other reason. We may fund the Rolling Reserve through the withholding of funds processed through your use of Payment Gateway Services, by debiting the Payout Account or another bank account associated with your FONDY Account, or by requesting funds directly from you.

8.3 In the event that we process Transactions for you through other Payment Method Acquirers, you acknowledge that such other Payment Method Acquirers may require a Rolling Reserve from FONDY on each processed Transaction for their own protection. In such event, if it would be necessary for FONDY to receive back from such other Payment Method Acquirer part or all of such Rolling Reserve in order to release to you the full amount of Rolling Reserve retained from you by FONDY, then FONDY shall be not be obligated to release to you the corresponding amount of Rolling Reserve until FONDY has received back the Rolling Reserve retained from FONDY by such other Payment Method Acquirer and FONDY shall have no liability to you in the event that such other Payment Method Acquirer does not release such Rolling Reserve to FONDY.

8.4 You agree that FONDY may use Rolling Reserve withheld from Charges pursuant to the terms of this Agreement to fund collateral deposits made by FONDY to Payment Method Providers or Payment Method Acquirers and you authorise FONDY to make such deposits; provided that FONDY shall remain responsible to return all amounts of Rolling Reserve withheld from Charges (after giving effect to all appropriate deductions to such Rolling Reserve) to you when such amounts are due to you under the terms of this Agreement.

9. Collection, and Set-Off Rights

9.1 You agree to pay all amounts owed to us and to our affiliates on demand. Your failure to pay amounts owed to us or to our affiliates under this Agreement is a breach and you will be liable for any costs we incur during collection in addition to the amount you owe. Collection costs may include, solicitors’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost. Where possible, we will first attempt to collect or set-off amounts owed to us and to our affiliates from balances in your FONDY Accounts from your use of the Payment Gateway Services or from funds that we hold in Rolling Reserve. However, we may collect any amounts you owe us under this Agreement by deducting or setting-off amounts that you owe from the FONDY Account balance or debiting the Payout Account for such FONDY Account, or any FONDY account that we determine, acting reasonably, is associated with your FONDY Account. Similarly, we may deduct or set-off amounts from your FONDY Account balance (or debit your Payout Accounts) in order to collect amounts owed to us in relation to such associated FONDY accounts.

1. Data Usage Overview

1.1 Definitions

The following terms used in this section relate to data provided to FONDY by you or your Customers, or received or accessed by you through your use of the Services:

“Payment Account Details” means the Payment Method account details for a Customer, and includes, with respect to credit and debit cards, the cardholder’s account number, card expiration date, and CVV2.

“Payment Data” means Payment Account Details, information communicated to or by Payment Method Providers or Payment Method Acquirers, financial information specifically regulated by Laws and Payment Method Rules, and any other information used with the Payment Gateway Services to complete a Transaction.

“Personal Data” means information that identifies a specific living person (not a company, legal entity, or machine) and is transmitted to or accessible through the Services.

“FONDY Data” means details of the API transactions over FONDY infrastructure, information used in fraud detection and analysis, aggregated or anonymized information generated from Data, and any other information created by or originating from FONDY or the Services.

“User Data” means information that describes your business and its operations, your products or services, and orders placed by Customers.

The term “Data” used without a modifier means all Personal Data, User Data, Payment Data, and FONDY Data.

1.2 FONDY processes, analyses, and manages Data to:

• provide Services to you, other FONDY users, and Customers;
• mitigate fraud, financial loss, or other harm to users, Customers and FONDY; and
• analyse, develop, and improve our products, systems, and tools. FONDY provides Data to third-party service providers, including Payment Method Providers, Payment Method Acquirers, and their respective affiliates, as well as to FONDY’s affiliates, to allow us to provide Services to you and other users. We do not provide Personal Data to unaffiliated parties for marketing their products to you. You understand and consent to FONDY’s use of Data for the purposes and in a manner consistent with this Section D.

2. Data Protection and Privacy

2.1 Confidentiality: FONDY will only use User Data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed or authorized by you. You will protect all Data you receive through the Services, and you may not disclose or distribute any such Data, and you will only use such Data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us. Neither party may use any Personal Data to market to Customers unless it has received the express consent from a specific Customer to do so. You may not disclose Payment Data to others except in connection with processing Transactions requested by Customers and consistent with applicable Laws and Payment Method Rules.

2.2 Privacy: Our Privacy Policy explains how and for what purposes we collect, use, retain, disclose, and safeguard the Personal Data you provide to us. You agree to the terms of our Privacy Policy, which we may update from time to time.

2.3 You affirm that you are now and will continue to be compliant with all applicable Laws governing the privacy, protection, and your use of Data that you provide to us or access through your use of the Services. You also affirm that you have obtained all necessary rights and consents under applicable Laws to disclose to FONDY or allow FONDY to collect, use, retain, and disclose any Personal Data that you provide to us or authorise us to collect, including Data that we may collect directly from your Customers using cookies or other similar means. As may be required by Law and in connection with this Agreement, you are solely responsible for disclosing to your Customers that FONDY processes Transactions (including payment Transactions) for you and may receive Personal Data from you. Additionally, where required by Law or Payment Method Rules, we may delete or disconnect a Customer’s Personal Data from your FONDY Account when requested to do so by the Customer.

2.4 FONDY will provide some or all of the Services from systems located within the European Union or other countries outside of Portugal. As such, it is your obligation to disclose to your customers that Payment Data may be transferred, processed, and stored outside of Portugal and, as set forth in our Privacy Policy, may be subject to disclosure as required by applicable Laws, and to obtain from your customers all necessary consents under applicable Laws in relation to the foregoing.

2.5 If we become aware of an unauthorised acquisition, disclosure, or loss of Customer Personal Data on our systems, we will notify you and provide you sufficient information regarding the unauthorised acquisition, disclosure, or loss to help you mitigate any negative impact on the Customer.

2.6 PCI Compliance: If you use Payment Gateway Services to accept payment card Transactions and you collect, process, and/or store card data on your side, you must comply with the Payment Card Industry Data Security Standards (“PCI-DSS”) and, if applicable to your business, the Payment Application Data Security Standards (PA-DSS) (collectively, the “PCI Standards”). The PCI Standards include requirements to maintain materials or records that contain payment card or Transaction data in a safe and secure manner with access limited to authorised personnel. FONDY provides tools to simplify your compliance with the PCI Standards, but you must ensure that your business is compliant. The specific steps you will need to take to comply with the PCI Standards will depend on your implementation of the Payment Gateway Services. You can find more information about implementing FONDY in a manner compliant with the PCI Standards in our Documentation through this link. You will promptly provide us, or any applicable Payment Method Provider or Payment Method Acquirer, with documentation demonstrating your compliance with the PCI Standards upon our request. If you are unable to provide documentation sufficient to satisfy us, the Payment Method Providers, or the applicable Payment Method Acquirers, that you are compliant with the PCI Standards, then FONDY has the right to decline cooperation with you or suspend your FONDY Account or terminate this Agreement.

2.7 Data Processing: You are the data controller and we are the data processor in relation to Personal Data processed on your behalf under this Agreement, except that we will be a data controller in relation to Personal Data where we determine the purposes and manner in which the Personal Data is processed (including, for example, in complying with any regulations or laws imposed upon us through Payment Method Rules or by Payment Method Providers or Payment Method Acquirers).

2.8 We will, to the extent that we are a data processor, process Personal Data in accordance with the terms of this Agreement and lawful instructions reasonably given by you to us from time to time, and we will employ appropriate technical and organisational measures to protect such Personal Data. We will not be liable for any claim brought by a data subject arising from any action or omission by us, to the extent that such action or omission resulted from your instructions.

1. Right to Amend

1.1 We have the right to change or add to the terms of this Agreement at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on the use of the Services by posting such changes on our website or any other website we maintain or own. We will provide you with Notice of any changes via email, or through other reasonable means. If you are an existing FONDY user, the changes will come into effect immediately after posting on our website, and your use of the Services, API or Data after a change has taken effect constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time. You can find out when this Agreement was last changed by checking the “Last updated” date at the top of the Agreement.

2. Assignment

2.1 You may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of your FONDY Account to others without our prior written consent. FONDY may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide a reasonable Notice to you.

3. No Agency

3.1 Except as expressly stated in this Agreement, nothing in this Agreement serves to establish a partnership, joint venture, or other agency between you and us, or with any Payment Method Provider. Each party to this Agreement and each Payment Method Provider and Payment Method Acquirer is an independent contractor.

4. Force Majeure

4.1 Neither party will be liable for any delays in processing or other non-performance caused by telecommunications utility failures, or equipment failures; labour strife, riots, war, or terrorist attacks; non-performance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control.

However, nothing in this section will affect or excuse your liabilities or your obligation to pay Fees, Fines, Disputes, Refunds, Reversals, or Returns under this Agreement.

5. Your Liability for Third-party Claims Against Us

5.1 Without limiting, and in addition to, any other obligation that you may owe under this Agreement, you are at all times responsible for the acts and omissions of your employees, contractors, and agents, to the extent such persons are acting within the scope of their relationship with you.

5.2 You agree to defend FONDY, our affiliates, and their respective employees, agents, and service providers (each a “FONDY Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third- party against a FONDY Entity, and you agree to fully reimburse the FONDY Entities for any Claims that result from:

• your breach of any provision of this Agreement;
• any Fees, Fines, Disputes, Refunds, Reversals, Returns, or any other liability we incur that results from your use of the Payment Gateway Services;
• negligent or willful misconduct of your employees, contractors, or agents; or
• contractual or other relationships between you and Customers.

6. Representations and Warranties

6.1 By accepting the terms of this Agreement, you represent and warrant that:

• you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement;
• any information you provide us about your business, products, or services is accurate and complete;
• any Charges represent a Transaction for permitted products or services and any related information accurately describes the Transaction;
• you will fulfill all your obligations to Customers and will resolve all Disputes with them;
• you will comply with all Laws applicable to your business and use of the Services;
• your employees, contractors, and agents will at all times act consistently with the terms of this Agreement; and
• you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.

7. Limitation of Liability

7.1 Under no circumstances will any FONDY Entity be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the Services or for the unavailability of the Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to this Agreement or your use of the Services, even if such damages are foreseeable, and whether or not you or the FONDY Entities have been advised of the possibility of such damages. The FONDY Entities are not liable, and deny responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorised access or use of the Services, your FONDY Account, or Data, or your failure to use or implement anti-fraud measures, Security Controls, or any other data security measure.

7.2 The FONDY Entities further deny responsibility for all liability and damages to you, or others caused by:

• your access or use of the Services inconsistent with the Documentation;
• any unauthorised access of servers, infrastructure, or Data used in connection with the Services;
• interruptions to or cessation of the Services;
• any bugs, viruses, or other harmful code that may be transmitted to or through the Services;
• any errors, inaccuracies, omissions, or losses in or to any Data provided to us;
• third-party content provided by you; or
• the defamatory, offensive, or illegal conduct of others.

7.3 You agree to limit any additional liability not disclaimed or denied by the FONDY Entities under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount of Fees paid by you to FONDY during the three-month period immediately preceding the event that gave rise to your claim for damages.

7.4 These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.

8. Dispute Resolution

8.1 The parties irrevocably agree that subject to clause 8.2 below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation (“the Dispute”).

8.2 FONDY may in its sole discretion (and regardless of whether Fondy is Claimant or Respondent) elect to refer any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach, or termination thereof, including whether the claims asserted are arbitrable, for final determination by arbitration at the London Court of International Arbitration. The tribunal will consist of a sole arbitrator. The place of the arbitration will be London, United Kingdom. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction.

8.2.1 FONDY may commence the arbitration by providing to the London Court of International Arbitration and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.

8.2.2 Subject to the limitations of liability identified in this Agreement, the appointed arbitrator may award monetary damages and any other remedies allowed by Law. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by any court having jurisdiction over either party or its assets. The decision of the arbitrator will be final and binding on the parties and will not be subject to appeal or review.

8.2.3 Each party will advance one-half of the fees and expenses of the arbitrator, the costs of the attendance of the court reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to this Agreement, the arbitrator will award to the prevailing party, if any, the costs, and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defences on which it prevails, and any opposing awards of costs and attorneys’ fees awards will be offset.

8.2.4 The parties will maintain the confidential nature of the arbitration proceeding, the hearing, and the Award, except:

• as may be necessary to prepare for or conduct the arbitration hearing on the merits,
• in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement,
• our disclosure of the Award in confidential settlement negotiations, or
• as otherwise required by applicable Laws. The parties, witnesses, and an arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by Law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.

8.3 If you have already commenced court proceedings in relation to a Dispute before FONDY has commenced arbitration proceedings it is agreed that, on the written demand of FONDY, those court proceedings shall be discontinued by you within 14 days of the service of the demand for discontinuance and FONDY must commence the arbitration proceedings within 14 days of the demand for discontinuance.

9. Entire Agreement

9.1 This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and FONDY for the provision and use of the Services. Except where expressly stated otherwise in writing executed between you and FONDY, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision or portion of this Agreement is held to be invalid or unenforceable under Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.

10. Cumulative Rights, Construction, Waiver

10.1 The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement, along with all other rights and remedies available to it in Law, in equity, or under the Payment Method Rules. No provision of this Agreement will be construed against any party on the basis of that party being the drafter. Unless expressly stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the term. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.

11. Survival

11.1 All provisions of this Agreement that gives rise to a party’s ongoing obligation will survive termination of this Agreement.

12. Language

12.1 The parties hereby acknowledge that they have required this Agreement and all related documents to be in the English language.

13. Complaints

13.1 If you have a complaint with the Services we provide, please contact compliance@fondy.eu. If your complaint is unresolved, you may be entitled to refer to the Financial Ombudsman Service (FOS).