These terms and conditions (together with the Annexes) form part of an agreement (“Agreement”) between TWO B2B LTD (a Company registered in England and Wales with company number 13078389 whose registered office is at 4 Crown Pl, London, England, EC2A 4BT, trading as “Two”), TWO FINANCE LTD (a Company registered in England and Wales with company number 13622447 and a wholly owned subsidiary of TWO B2B LTD) ("Us" "We", “Our” or “Two”)) and the company or business referenced in Our sign-up and/or application form (“Application”) that incorporates and refers to these terms and conditions ("Merchant"). The Agreement will include, these terms and conditions, the Annexes, and the Application.
The Agreement governs Merchant's access to and use of a solution and a set of services for business-to-business invoicing made available by Us via a software-as-a-service platform ("Solution"). The Agreement also sets out the terms on which, where the relevant option has been selected in the Application, certain receivables will be assigned by and purchased from the Merchant in connection with the use of the Solution.
The Agreement takes effect when We accept the Merchant’s Application to use the Solution or when the Merchant first accesses the Solution, whichever comes first (“Commencement Date”).
Merchant acknowledges and agrees that (i) Merchant's use of the Solution and Documentation shall be in accordance with, and is conditional upon Merchant's compliance with, the Agreement and the relevant Product Terms, and (ii) Merchant shall exclusively use the Solution for electronic invoicing towards business customers, meaning that Merchant will not use any competing solutions for business-to-business invoicing.
1.1 In addition to other expressions that may be defined elsewhere in the Agreement, the following words and expressions shall have the meanings set forth below:
"Administrative User(s)" means the person(s) within Merchant's organisation authorised to manage Merchant's access to the Solution;
“API” means the application program interface made available by Us in connection with the provision of the Solution (as We may modify or update the same from time to time);
“Business Day” means any day other than a Saturday, Sunday or a Bank or public holiday in England and Wales;
"Confidential Information" means all non-public information, whether oral or written, relating to one party’s business, affairs, products and services that has or could have commercial value to the party disclosing such information (the “Disclosing Party”), whether or not identified by the Disclosing Party at the time of disclosure as being confidential to the Disclosing Party;
“Default Event” means:
(i) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(ii) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(iii) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(iv) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership);
(v)an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(vi)the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(vii)a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(viii)a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(ix)any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (i) to (viii) (inclusive) above;
(x)the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(xi) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
"Documentation" means all documentation associated with the Solution, including but not limited to, technical instructions for using the Solution APIs and the integration guidelines available at https://docs.two.inc/;
“Group” in relation to a party means any entity which controls, is controlled by, or is under common control with that party (where, for these purposes “control” shall mean the ability of one entity to direct the business or affairs of another, whether by contract or the holding of shares or voting rights or otherwise).
"Intellectual Property Rights” means any patents, rights to inventions, copyrights and related rights, trademarks, 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 rights, topography rights, moral rights, rights in confidential information (including, but not limited to, know-how and trade secrets) and any other intellectual property right or proprietary right recognized in any country or jurisdiction in the world, whether registered or not, and whether in existence as of the effective date or arising or recognized thereafter and all applications and registrations therefor;
“Malware” means any “back door”, “time bomb”, “trojan horse”, “worm”, “drop dead device”, “malware”, “virus”, malicious code, or other computer software code or routine intended or designed to: (a) disable, damage, erase, disrupt or impair the normal operation of; or (b) provide unauthorised access to or modification of, computer systems or any software or information saved on those computer systems;
"Merchant Data" means all data, including but not limited to all text, sound, video and/or images, that are (and in the form) provided by or on behalf of Merchant through the use of the Solution;
“Portal” means a web-based portal through which information is made available to the Merchant regarding its use of the Solution; and
"Product Terms" means specific terms for certain services in the Solution that are available at Annex 1. For the avoidance of doubt, the Products Terms form part of this Agreement.
1.2 Reference in the Agreement to:
(a) The singular includes the plural and vice versa;
(b) Any one gender includes all other genders;
(c) A “person” includes any natural person, company, corporation, partnership, or other entity (whether or not having separate legal personality); and
(d) Any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction
2.1 Subject to Merchant's compliance with this Agreement, Merchant may access and use the Solution for Merchant's business purposes in accordance with the Documentation. Except as expressly permitted by mandatory law, Merchant must not attempt, permit or enable others to:
(a) Sell, lease, rent, copy, and/or provide access to the Solution or the Documentation to any third party;
(b) allow Administrative User(s) to share passwords and/or user ID with unauthorized users;
(c) violate any applicable laws or regulations while using the Solution or Documentation;
(d) upload, make available and/or share any information which (i) violates the rights of third parties, including but not limited to, any Intellectual Property Rights or the privacy rights of third parties, or (ii) contains any false, fraudulent, illegal, harmful and/or defamatory material;
(e) misrepresent or mask Merchant's identity when using and interacting with the Solution API;
(f) scan and/or test the vulnerability of the Solution or breach, disable, circumvent, remove or damage any authentication or security measures or any other technical or license restrictions on the Solution;
(g) use the Solution API to circumvent restrictions in the Solution or gain unauthorized access to data and operations in the Solution; or
(h) reverse engineer or otherwise use the Solution or Documentation in any way to develop, test, enhance or calibrate any models, system, or services that are similar to any features of the Solution and/or attempt to do any of the foregoing or cause or permit a third party to do or attempt to do so.
2.2 Merchant has access to Solution APIs and Solution API keys and shall restrict disclosure of such Solution API keys to employees and consultants that are (i) necessary for Merchant's integration with the Solution and (ii) subject to confidentiality obligations materially similar to those set out in this Agreement. Merchant shall immediately notify Us if Merchant becomes aware of any loss of or unauthorized use of Solution API keys.
2.3 Merchant acknowledges and agrees that We reserve the right to (i) impose restrictions on the number and frequency of calls made to the Solution APIs for a given client_id if deemed to cause an unreasonable load on the Solution's infrastructure, and (ii) perform quality audits to verify that the Solution APIs are used in accordance with the Documentation. Merchant is solely responsible for Merchant's own and its third parties' use of the Solution API.
2.4 Merchant shall:
(a) provide all cooperation necessary for Our delivery of the Solution;
(b) comply with the instructions set out in the Documentation and ensure that Merchant has the rights, hardware, software and network connectivity necessary to use the Solution;
(c) ensure that all Administrative Users(s) comply with the terms and conditions of this Agreement and immediately notify Us of any loss and/or theft of any passwords or user names related to the Solution or any unauthorized use of the Solution;
(d) comply with all applicable laws and regulations; and
(e) with regard to anti-money laundering ("AML"), immediately notify Us of (i) any circumstances concerning Merchant or Merchant's owners that may be of significant importance for the assessment of Merchant's financial status; (ii) any changes relating to Merchant's address, its management, its board or other AML relevant changes to Merchant's ownership structure; (iii) any material changes with regard to the type of products or services offered by Merchant or if the name under which Merchant conducts its business is changed; and (iv) any other material changes relating to Merchant or its activities.
2.5 If We become aware of any breach of this Agreement or dishonest acts from Merchant in connection with Merchant's use of the Solution, We reserve the right to (i) suspend Merchant's access to the Solution, (ii) delete any infringing Merchant Data, (iii) take any action We consider appropriate to remedy and avoid such events, and/or (iv) pursue any legal rights available to Us under applicable law. In the event of suspension of access or deletion of Merchant Data, We will notify Merchant as soon as reasonably possible, however such notice may also be provided after suspension or deletion. If the breach of this Agreement is a payment default, Merchant's access to the Solution may be suspended without notice if the overdue payment, with the addition of late payment interest, has not been paid within thirty (30) calendar days of the due date.
3.1 Merchant acknowledges and agrees that all Intellectual Property Rights related to, and/or vesting in, the Solution (including, without limitation, all hardware, software, systems, data and databases relating to or comprised in the Solution), the Solution APIs, the Portal, and Documentation (including, without limitation, all changes thereto) belong to and shall be under the sole and exclusive ownership of Us or Our licensors, and that this Agreement does not transfer or grant any rights in or to any Intellectual Property Rights related to the Solution, Portal, or Documentation, other than the limited rights granted herein.
3.2 We grant the Merchant a limited, personal, non-exclusive, licence for the term of the Agreement to access and use the Solution and the Portal solely for the purposes of, and in the manner expressly set out in the Agreement and the Documentation.
3.3 All rights of ownership and any Intellectual Property Rights in Merchant Data belongs to Merchant. Merchant acknowledges and agrees that We have, and hereby grants to (and shall procure for) Us, a royalty-free, irrevocable, perpetual and worldwide right to use Merchant Data and all other data or information provided by or on behalf of the Merchant for the purpose of: (i) providing the Solution, (ii) providing services to customers through the Solution; (iii) aggregating the Merchant Data for commercial, statistical, analytical, marketing and/or product improvement purposes; and otherwise (iv) performing Our obligations and exercising Our rights under this Agreement.
3.4 Merchant Data will remain available in the Solution for thirty (30) days after expiration or termination of the Agreement to allow Merchant to extract the Merchant Data. After the thirty (30) day period, Merchant's account will be disabled and We shall be entitled to delete or remove such data.
3.5 We are entitled to keep a copy of the Merchant Data to the extent required by any law or any applicable governmental or regulatory authority.
4. PERSONAL DATA
4.2 The Merchant warrants, represents and undertakes that it shall at all times give and/or obtain all such notices, permissions, consents, and/or licences as may be necessary to ensure that the personal data of its customers may be shared with, and provided to, and used by, Us, any member of Our Group, and/ or anyone acting on Our (or their) behalf, under or in connection with this Agreement.
5.1 Each party shall hold the other’s Confidential Information in confidence and not make such Confidential Information available to any third party, unless agreed in writing by the Disclosing Party or expressly permitted under this Agreement. Neither party shall use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party shall take all reasonable steps to ensure that Confidential Information of the other is not disclosed or distributed by its employees, agents, or independent contractors in breach of the terms of this Agreement. This duty of confidentiality also applies to any information relating to third parties that Merchant obtains when using the Solution.
5.2 The Merchant acknowledges and agrees that We may retain, use and/or disclose the Merchant’s Confidential Information where and to the extent necessary in order to perform Our obligations and exercise Our rights under and/or in connection with the Agreement.
6. THIRD PARTY INFRINGEMENT CLAIMS AND INDEMNITY
6.1 Subject to remainder of this clause 6, We agree: (a) to assume (and We shall be entitled to assume) the defence of any actions brought against Merchant by or on behalf of a third party, for the infringement of any Intellectual Property Rights of that third party and arising solely from Merchant's use of the Solution or Documentation (in accordance with the terms of this Agreement and the Documentation); (b) to assume the reasonable expense of such defence (for the avoidance of doubt, Merchant shall cover all costs and expenses incurred from any counsel Merchant elect to engage); and (c) subject to clause 8, to indemnify Merchant against any monetary damages and litigation costs awarded in such suits; provided (i) that We are given exclusive control of the defence of such suit and all negotiations relative to the settlement thereof, (ii) that Merchant has made all payments then due (if any), (iii) that Merchant promptly informs Us in writing of any claims with respect to which We may assume responsibility hereunder, and (iv) that Merchant has not committed any act or omissions whereby Our Intellectual Property Rights may become prejudiced or void. Merchant shall not agree to any settlement, nor make any admission or take, or fail to take any action, in each case, where such admission, action or failure to act could reasonably be expected to prejudice the defence of such claims without Our express prior written consent.
6.2 Merchant shall indemnify (in full and on demand), and hold harmless, Us and the members of Our Group from and against any and all claims, proceedings, demands, losses, or other liabilities which We or they may suffer or incur and arising (directly or indirectly) out of or in connection with any:
(a) act or omission contrary to, or in breach of, the terms and conditions of this Agreement; and/or
(b) Fraud or fraudulent misrepresentation, by Merchant (or anyone acting on its behalf).
6.3 In the event that We, in Our reasonable opinion, determine that any claims brought against Merchant (for which We would be liable to defend and indemnify under clause 6.1 above), may be likely to be successful, We will use reasonable efforts to procure, supply or modify the affected parts of the Solution or Documentation so that Merchant may use a non-infringing version. Notwithstanding the above, in the event that We, in Our reasonable opinion, consider the above not to be practicable, We may terminate this Agreement by written notice.
6.4 This clause 6 states (subject to clause 8.5) Our only liability, and the sole and exclusive remedy for Merchant (and any person or entity claiming through them) in relation to any claim or allegation that the Solution or Documentation infringe Intellectual Property Rights of a third party.
7.1 In consideration for Our provision of the Solution, the Merchant will pay Us a fee which shall be calculated, and shall be payable, at the time and in the manner set out in Our current pricing schedule a copy of which will be provided by your commercial point of contact at Two, as may be modified or amended by Us from time to time.
8. DISCLAIMER AND LIMITATION OF LIABILITY
8.1 The Merchant acknowledges and agrees that
(a) The availability of the Solution and the Documentation; and
(b) when and how the Merchant will receive any funds which We are to settle under this Agreement,
will depend on factors outside Our control including: the relevant payment, communication, and banking systems, services, or devices; and, the availability and performance of third-party technology and services including, without limitation, the internet. We will use reasonable efforts to provide the Solution and the Documentation but they are provided on an "as is" and "as available" basis.
8.2 You acknowledge that (except for any which We cannot lawfully exclude) We do not give any warranties, representations, and/or conditions, regarding the Solution or Documentation (or their use) save as are expressly set out in this Agreement
8.3 Subject and without prejudice to clause 8.5, in no event shall We be liable to the Merchant (and whether in or for breach of contract, tort (including, without limitation, negligence, and breach of statutory duty), misrepresentation or otherwise) for any: (i) special, exemplary, indirect, or consequential loss, costs, damages, charges, or expenses; (ii) loss of profits, sales or business; (iii) business interruption; (iv) loss or corruption of data or information; (v) loss of business opportunity, goodwill and/or reputation; and/or (vi) third party claims (except as set out in clause 6).
8.4 Subject and without prejudice to clause 8.5 Our total aggregate liability under and/or in connection with this Agreement and whether such liability arises in contract, tort (including, without limitation, negligence and breach of statutory duty), misrepresentation, and otherwise shall be limited to 100% of the fees paid by the Merchant to Us.
8.5 Nothing in this Agreement shall limit or exclude the liability of either party:
(a) for death or personal injury caused by its negligence;
(b) for fraud or fraudulent misrepresentation by that party; or
(c) which, but only so far as, such liability may not be lawfully limited or excluded.
9.1 This Agreement will come into force with effect on and from the Commencement Date and shall continue in force until terminated by either party in accordance with its terms.
9.2 Either party may terminate this Agreement upon ninety (90) days prior written notice to the other party.
9.3 We may terminate the Agreement (in whole or in part) immediately on notice to the Merchant in the event that:
(a) The Merchant is in material breach (being a single breach or a series of persistent breaches) of this Agreement which, if capable of remedy, has not been remedied within thirty (30) days of notice from Us to the Merchant identifying the breach; or
(b) The Merchant suffers, or We reasonably consider that the Merchant is likely to suffer, a Default Event.
9.4 Upon termination of this Agreement, for whatever reason:
(a) Merchant's access to the Solution will be discontinued;
(b) without limiting Our rights in clause 3.3 and / or 5.2, each party shall, at the other party’s request, either return or destroy any Confidential Information of the other party in its possession and at its expense (for these purposes, Our Confidential Information shall include, without limitation, the Documentation and any other information relating to the Solution);
(c) all outstanding invoices due to Us shall become immediately payable (if any);
(d) We may suspend making all or any payments to the Merchant until all amounts due to Us (by the Merchant and End Customers) have been paid in full; and
(e) Merchant shall cease to use any of Our Intellectual Property Rights.
9.5 Any provision of this Agreement which expressly or by implication is intended to survive, shall survive the termination or expiry of this Agreement.
10.2 We will use reasonable efforts to notify Merchant of any material changes to the Solution, Documentation and/or the Agreement. Merchant acknowledges and agrees that such notice may be by adding a new version to Our website. Changes in Solution APIs will be notified at least (10) Business Days' in advance, unless such changes are due to a critical software failure or a request from a relevant financial regulator or other competent authorities. If Merchant does not agree with the changes made, Merchant must discontinue its use of the Solution and terminate this Agreement.
10.3 We reserve the right to amend the terms of this Agreement on thirty (30) days' notice in writing. If the Merchant does not accept those changes, the Merchant may terminate this Agreement with the same notice period.
10.4 Each Party shall immediately notify the other party if they become aware of new regulatory requirements and legal changes that may result in changes in the rights and obligations of the parties arising under or pursuant to this Agreement.
11. GENERAL PROVISIONS
11.1 We may transfer or assign (in whole or in part) any of Our rights and/or obligations under this Agreement to another person at any time. The Merchant will do or procure the doing of such acts or things (including, without limitation, the execution of such deeds or documents) as may be necessary or required to give effect to any such transfer or assignment. Merchant may only transfer, assign, or sub-contract Merchant's rights and/or obligations under this Agreement to another person if We expressly agree to the same in writing and in advance.
11.2 We may use subcontractors to provide the Solution and / or to perform any of Our other obligations under or in connection with this Agreement. The Merchant acknowledges and agrees that We may share information with such subcontractors to the extent necessary to fulfil Our obligations under this Agreement.
11.3 Merchant hereby agrees to be identified as Our customer and that We may refer to Merchant by name and/or trade name and that We may briefly describe Merchant's business in Our marketing materials, on Our website and in public documents. Merchant hereby grants Us a licence to use Merchant's name and any of Merchant's trade names, brands, trademarks, and / or logos for the purpose set out herein.
11.4 No failure or delay by Us to exercise any right or remedy We have under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of Our right or any other right or remedy.
11.5 Each of the conditions of this Agreement operates separately. If any court or competent authority decides that any conditions of this Agreement are unlawful or unenforceable, such condition shall be deemed deleted but that shall not affect the validity and enforceability of the rest of this Agreement.
11.6 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. The parties agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising under or in connection with this Agreement or its subject matter or formation). .
11.7 Any notices under this Agreement shall be made in writing, in English and:
(a) If sent to Us shall be sent by email to the address supplied to the Merchant during the relevant onboarding process; and
(b) if sent to Merchant shall be sent by email to the email address provided by the Merchant for that purpose set out on the Application.
Either party may change the email address for notices on prior notice to the other party, served in accordance with this clause. Notices sent by email shall be deemed to be received at the time of transmission.
11.8 The Merchant is free to submit ideas, feedback and suggestions ("Suggestions") that might help Us improve the Solution. By sending Us Suggestions, Merchant grants Us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to use, modify, copy, distribute and, in any other way, utilize Merchant's Suggestions.
11.9 Each party shall:
(a) comply with all applicable laws relating to anti-bribery and anti-corruption including the Bribery Act 2010, the Modern Slavery Act 2015, and the Criminal Finances Act 2017 (“Conduct Laws”); and
(b) have in place and follow adequate procedures and an anti-facilitation of tax evasion policy, anti-modern slavery policy, and an anti-bribery and corruption policy.
11.10 The Merchant shall:
(a) promptly report to Us any request or demand received by the Merchant for any undue financial or other advantage of any kind, or to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017 in connection with the performance of this Agreement;
(b) not, when acting in the capacity of a person associated with Us or Our Group, engage in any act or omission which would constitute a UK tax evasion facilitation offence or a foreign tax evasion facilitation offence as those terms are defined in Part 3 of the Criminal Finances Act 2017;
(c) not cause, facilitate, or contribute to the breach by Us or any of Our Group of any Conduct Laws, or the commission by Us or any of Our Group of a criminal offence (including any offence of failing to prevent the facilitation of tax evasion under section 45 or 46 of the Criminal Finances Act 2017 or any other legal and regulatory anti-facilitation of tax evasion obligations); and
(d) provide such co-operation and/or information as may be required by Us to comply with any Conduct Laws or any request, direction, or recommendation of a regulatory body or authority (including providing certification and evidence of compliance with this clause).
11.11 For the purposes of clause 11.10(b), the question of whether a person is associated with another person, shall be determined in accordance with section 44 of the Criminal Finances Act 2017 (and any guidance issued under section 47 of that Act) and a person associated with the Merchant includes but is not limited to any sub-contractor.
11.12 For the purpose of the anti-bribery requirements above, the meaning of adequate procedures and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), section 6(5) and 6(6) of that Act and section 8 of that Act respectively.
11.13 The Merchant agrees that:
(a) in order for Us or Our Group to meet Our (or their) regulatory and compliance obligations for anti-money laundering and counterterrorism financing, it may exercise control and monitoring;
(b) transactions may be delayed, blocked, frozen or refused where We have reasonable grounds to believe that they breach relevant law or sanctions; and
(c) where transactions are delayed, blocked, frozen or refused, We are not liable for any loss the Merchant suffers (including consequential loss) whatsoever caused in connection with those transactions.
11.14 If there is an inconsistency between any of the provisions in the main body of this Agreement and the Annexes, the provisions in the main body of this Agreement shall prevail.
11.15 This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
11.16 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party
11.17 Neither party shall be in breach of this Agreement, nor liable, for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. However, if the period of delay or non-performance continues for thirty (30) days, the party not affected may terminate this Agreement by giving fourteen (14) days written notice to the affected party.
11.18 Each party agrees that, subject to clause 8.5, it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
11.19 We may set-off, deduct, and or withhold any amount due from the Merchant to Us (or any of Our Group) whether under this Agreement or otherwise, from any amount due to the Merchant under or in connection with this Agreement.
11.20 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Annex 1 Product Terms
The following specific terms and descriptions shall apply to the products and services which We make available and which the Merchant may access via the Solution. Further detail may be provided in the Documentation and/or on Our website from time to time:
1 INVOICES AS PAYMENT METHOD WITHOUT A RECEIVABLE SALE
1.1.1 A payment method that Merchant can offer as a payment option at check-out, enabling Merchant to invoice its customers.
1.2.1 Merchant decides whether an invoice will be generated or not and the relevant payment terms and is solely responsible for ensuring that the customer pays the invoice. If a customer files a complaint to Us and provides reasonable evidence that Merchant has not fulfilled its obligation towards the customer, We reserve the right to either suspend Merchant's access to the Solution and/or terminate the Agreement.
2 INVOICE AS A PAYMENT METHOD WITH A RECEIVABLE SALE
2.1.1 Where the option has been selected or included on the Application, We may decide to purchase certain of the receivables due to the Merchant which are invoiced through the Solution. This will be carried out in accordance with the terms in Annex 2. The period in which We will pay the Merchant for the receivables We may purchase, and the relevant credit terms available to end customers under the relevant invoices will be set out on the Application.
2.2 Purchase In Our Discretion
2.2.1 We will decide in Our absolute discretion whether a receivable will be purchased or not. We make no warranties or representations that a receivable will be purchased.
3 TWO AUTHENTICATION WORKFLOW
3.1.1 The Solution provides capabilities that facilitate Merchant’s and Our authentication workflows for (i) the verification of a person placing orders on behalf of a legal entity, and (ii) matching such person with the legal entity they claim to represent, and (iii) the status and credit-worthiness of that legal entity.
3.2.1 Merchant and We will decide the level of customer and transaction authentication required as part of the check-out experience. We make no warranties or representations that the authentication workflows provided by the Solution will provide 100% error free verification of persons, status or credit-worthiness at all times.
4 TWO’S MERCHANT CENTRE
4.1.1 Merchant will be able to access a portal ("Merchant Centre") within the Solution to view and/or edit critical elements of its account profile and its transactions conducted through the Solution, including but not limited to, transaction history, transaction statements, sales performance dashboards, product features and the authentication workflow described in paragraph 3 above.
4.2.1 If Merchant uploads, changes, or shares content through the Merchant Centre, Merchant is fully liable for the content uploaded or shared.
5 TARGETED MARKETING AND PROMOTIONS MODULE
5.1.1 The Solution allows Merchant to offer special promotions, payment terms or loyalty programs to customers, both on an individual customer basis and across more of Merchant´s customers.
5.2.1 We have no responsibility on the uptake of targeted marketing services, loyalty programs and/ or discounts. We promote through the Solution, and solely act as a distribution channel and management tool for such offers.
Annex 2 Receivables Purchase Terms
Merchant operates an online commerce business via one or more URLs approved by Us (“URLs”) in connection with this Agreement ("Online Store"). The Merchant's business in the Online Store is the sale of goods and/or services to end customers who are registered or domiciled in the UK and purchase those goods and/or services for, and in the course of a trade business or profession which those customers carry on (“End Customers”).
Where Our requirements under this Annex 2 are met, and where the Merchant has selected the option on the Application, the Merchant will be able to offer eligible End Customers via the Online Store the ability to purchase relevant goods and/or services on credit terms with the receivables arising being purchased by Us.
Where such credit sales are made, the relevant End Customer will receive a sales invoice from the Merchant for the respective purchase(s) which will set out the period over which the End Customer shall be permitted to pay the price for the goods it has purchased on the Online Store.
Where Our requirements under this Annex 2 are met, upon the terms of this Agreement, We may agree to purchase from the Merchant the invoiced amount due from an End Customer in relation to such sale on credit terms (a "Receivable").
We will decide whether to purchase any Receivables or not in Our absolute discretion. If an End Customer selects the credit terms option at the Online Store checkout, Our authentication workflows will commence. It will be Our responsibility to verify the identity of the End Customer and the authority of the person claiming to represent that End Customer. We do not intend to purchase Receivables with any of the following characteristics:
When the relevant End Customer selects the payment upon credit terms option at the Online Store checkout, the Merchant will be deemed to warrant and represent to Us that: -
(i) the Receivable that will arise will not have any of the characteristics mentioned above in this paragraph 2; and
(ii) the Receivable will be a legal, valid and binding payment obligation of the relevant End Customer for the full invoiced amount; and
(iii) immediately before the sale of that Receivable to Us the Merchant will be the legal and beneficial owner of that Receivable free of all third-party rights and no such third party rights will arise whilst that Receivable remains outstanding; and
(iv) there will be no impediment, however arising, to the transfer to Us of that Receivable.
If We decide to purchase a Receivable: -
(i) all the Merchant’s rights, title and interests in and to the relevant Receivable will be transferred to Us by way of purchase at the moment the relevant invoice to the End Customer is raised in relation to that Receivable; and
(ii) We shall pay the purchase price for that Receivable in accordance with clause 3 below; and
(iii) We shall bear the risk that the End Customer cannot pay that receivable in full due solely to its financial resources; and
(iv) such invoice will include details of Our account to which payment should be made and the following notice to the End Customer: -
The debt represented by this invoice has been purchased by and assigned to TWO FINANCE LTD (registered in England and Wales with the number 13622447), to whom payment must be made.
We may also require the Merchant to, and the Merchant shall, accept without payment a reassignment (subject to any existing third party subrogation or other rights) of a Receivable that is not paid by the End Customer due to that End Customer’s insolvency or prolonged non-payment without any valid reason and make the required accounting entries, for the purpose of claiming VAT bad debt relief in respect of the VAT component of the Receivable and account to us for an amount equal to any VAT bad debt relief obtained.
Issuance of an invoice
Where an End Customer has requested credit terms via the Online Store, the Merchant undertakes that the shipment of the relevant goods or the performance of the relevant services by the Merchant shall take place as close to the date of the order as possible, within the timeframe envisaged by the End Customer when ordering, and in any event no later than twenty-one (21) days after the order has been placed. Upon shipment of the relevant goods or performance of the relevant services, We will issue an invoice to the End Customer in the name of the Merchant via the Solution. Where We have decided to purchase the relevant receivable, We will be deemed to have purchased and had assigned to Us all the Merchant’s right, title and interest in and to that Receivable when such invoice is issued.
Issuance of a Credit Note
The Merchant may agree to issue credit notes to End Customers where orders are cancelled by the End Customer, where there is a clear invoicing error or where a dispute arises or goods are returned to the Merchant. In such cases, the Merchant shall notify Us in advance of any full or partial credits agreed to by the Merchant, and We will then issue a credit note to the End Customer in the Merchant’s name
The amount of each credit note issued may be set-off against any amounts due from Us to the Merchant or, where such set-off is not possible, will be paid to Us by the Merchant. Once such set-off has been applied or such payment has been received by Us, as the case may be, We will then refund the End Customer on the Merchant’s behalf.
Purchase price payments
The purchase price of each Receivable that We purchase from the Merchant under this Annex 2 shall be the face value of that invoice (including VAT if applicable) less a discount which We refer to as the “Merchant Fee”. We shall pay that purchase price to the Merchant's account number at the time agreed between Us and the Merchant. The rate of the Merchant Fee shall be provided by Us from time to time in accordance with the Agreement.
We may at any time set-off against any amount We may owe to the Merchant, any amounts owing by the Merchant to Us. All amounts due to Us by the Merchant shall be paid in full without any set-off or deduction
We shall notify the End Customer of the purchase by Us of each Receivable that We purchase from the Merchant in accordance with clause 2 above.
Prior to the purchase of a Receivable, We may contact the End Customer to confirm the amount of that Receivable and/or any other details of the relevant transaction. We may also carry out further verification checks where We deem it appropriate. We will not decide to purchase a Receivable if Our verification processes are not completed satisfactorily. We aim to complete such processes and notify the Merchant of the outcome within one (1) Business Day of the date of the relevant customer’s order on the Merchant’s Online Store.
In the event any payment in respect of a Receivable purchased by Us is made directly to the Merchant by an End Customer, the Merchant shall hold the proceeds of such payment in trust for Us, shall immediately provide details of such payment to Us and shall transfer the proceeds of such payment to such account as We may have notified to the Merchant for such purpose.
If We purchase a Receivable from the Merchant We will, subject to the dispute arrangements below, the terms of this Annex 2, handle all further administration of the End Customer's payment obligation, including but not limited to any debt collection.
Merchant must inform Us as soon as possible of any disputes with or complaints from End Customers relating to Receivables that We have purchased from the Merchant and must keep Us informed of the issues raised and the efforts to resolve the dispute or complaint. If the Merchant and the End Customer agree that a credit is due to the End Customer in relation to its dispute or complaint, We shall issue a credit note under the “Issuance of a Credit Note” section of clause 3 above. If a dispute or complaint is not resolved within seven (7) days by the Merchant (from when the dispute or complaint came to Our attention) and We are satisfied, acting reasonably, that the dispute or complaint is justified, We may require the Merchant to re-purchase the relevant Receivable from Us under clause 6 below.
The Application will allow the Merchant to select whether the Merchant would like Us to accept the credit risk in a Receivable We may purchase and will indicate the appropriate Merchant Fee in such circumstance.
If We do agree to accept such credit risk, We will not have any recourse to You where a Receivable purchased by Us that is due and payable in full is not paid by the End Customer due to that End Customer’s insolvency or prolonged non-payment without any valid reason, as determined by Us in Our discretion, acting reasonably, but without limiting Your obligation set out above to take the steps necessary to obtain VAT bad debt relief
However, if: -
(i) any of the warranties and representations set out in clause 2 above are, in Our reasonably formed opinion based on the facts and circumstances known to Us, not true or are breached; or
(ii) if a dispute or complaint from an End Customer is not resolved within seven (7) days by the Merchant (from when the dispute or complaint came to Our attention) and We are satisfied, acting reasonably, that the dispute or complaint is justified; or
(iii) if the End Customer refuses to acknowledge the transfer of Receivables to Us,
then We may require the Merchant to, and the Merchant shall, re-purchase the relevant Receivable from Us at a repurchase price equal to the original face value of the relevant invoice.
We may, at Our sole discretion, set a credit limit for the Merchant and each End Customer. We reserve the right to change credit limits at any time. We are not a credit reference agency and all limits set by Us must be kept confidential by the Merchant.