1. Fyorin Service
1.1 The Fyorin Service enables you to open accounts and access the services of the numerous Service Partners which partner with us. You can open accounts, create payment cards and transfer and receive money in multiple currencies all from within the Fyorin Ecosystem.
1.2 The Fyorin Service provides you with a single point of entry to all the financial services a small business is likely to need to meet its global trading requirement which are provided by our Service Partners. Once you have been accepted by us and your chosen Service Partners you will be able to initiate transactions and view data in relation to all your accounts by accessing the Fyorin Ecosystem.
1.3 The Fyorin Service is provided by Porterpays Limited which is registered in Malta with company registration number C93396.
1.4 By using the Fyorin Service, you agree to these General Terms and Conditions and any Specific Service Terms and Conditions which shall apply when you request aSpecific Service from the Fyorin Ecosystem. These Specific Service Terms and Conditions shall be made available to you digitally on the Fyorin Service. These General Terms and Conditions and the Specific Service Terms and Conditions may be revised from time to time. Any updates to these General Terms and Conditions and the Specific Service Terms and Conditions will be notified to you on the Fyorin Service and via an email sent to the owner email as configured in the settings of the Fyorin Service. Failing to accept the updated terms will result in suspension of Fyorin Service. The capitalised terms defined in the attached Annex shall apply in these General Terms and Conditions. In the event of a conflict between the General Terms and Conditions and the Specific Service Terms and Conditions, the Specific Service Terms and Conditions shall supersede.
1.5 We shall use our reasonable endeavours to make the Fyorin Service generally available subject to maintenance.
1.6 The Fyorin Service and related support will be provided in accordance with good industry practice and with reasonable skill and care. We will use our reasonable efforts to ensure that the Fyorin Service is not interrupted and meet any service levels we may publish from time to time but we will not be responsible for any acts or omissions of any Service Partner or other relevant third-party provider.
1.7 We may from time to time make Modifications to the System as and when required including by way of a fix or patch or a temporary by-pass solution.
1.8 You accept that:
i. Restricted Activities are provided by our Service Partners and the Fyorin Service is subject to any constraints or limitations stipulated by our Service Partners and relevant Regulatory Authorities or Regulation;
ii. our ability to provide the Fyorin Service depends on the continued provision of essential components provided by third party suppliers including but not limited to Service Providers that provider of Processing and Issuing services;
iii. we shall not be held liable for failure to provide, or continuing to provide, the Fyorin Service due to circumstances beyond its reasonable control.
1.9 We shall be entitled to amend the Fyorin Service or any component part from time to time in order to ensure compliance with Regulations. Additionally, we shall be entitled to make changes to the Fyorin Service where such changes do not cause you to be in any worse position regarding performance or commercial terms but where such change in our reasonable opinion is of benefit to either us or you or both. Any changes will be notified to you on the Fyorin Service and via an email sent to the owner email as configured in the settings of the Fyorin Service.
2. Service Access
2.1 Subject to you meeting all due diligence and anti-money laundering enquiries reasonably required by us, paying the Charges and complying with the conditions set out in these General Terms and Conditions, we grant you a non-exclusive, non-transferable right to permit the Authorised Users to access and use the Fyorin Service during the Term.
2.2 In relation to the Authorised Users, it is your responsibility to ensure that each Authorised User shall keep secure any password or other security device for his or her use of the Fyorin Service and keep such device confidential.
2.3 You shall not:
2.3.1 access, store, distribute or transmit any Viruses, or any material during the course of its use of the Fyorin Service that:
i. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
ii. facilitates illegal activity;
iii. depicts sexually explicit images;
iv. promotes unlawful violence;
v. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
vi. is in any manner otherwise illegal or causes damage or injury to any person or property; and
2.3.2 shall not use or change your use of the Service in such a way as may (or may reasonably be expected to) overload or otherwise compromise the system or use it in any way which may reasonably be expected to be outside the parameters of normal use (for example by making excessive API calls through the system) and shall indemnify us against any costs we may incur as a result of any such misuse; and
2.3.4 we reserve the right, without liability or prejudice to our other rights, to disable your access to the Fyorin Service should you breach the provisions of this clause.
2.4 You shall not except as may be allowed by any applicable law which is incapable of exclusion by agreement between us and except to the extent expressly permitted under this agreement:
i. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
ii. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
iii. access all or any part of the Fyorin Service in order to build a product or service which competes with the Fyorin Service; or
iv. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Fyorin Service to any third party; or
v. attempt to obtain, or assist third parties in obtaining, access to the Fyorin Service.
2.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Fyorin Service and in the event of any such unauthorised access or use promptly notify us.
2.6 You shall not attempt any restricted Activity otherwise than through the agency of a relevant Service Partner.
2.6 The rights provided under this clause are granted to you only and shall not be considered granted to any subsidiary or holding company.
3. Our obligations
3.1 We shall provide the Fyorin Service with reasonable skill and care provided you do not use them in any way which is contrary to our instructions.
3.2 We do not warrant that their use will be uninterrupted or error-free; or that they will meet your requirements.
3.3 We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Fyorin Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.4 We confirm that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations in providing the Fyorin Service and shall, to the extent necessary in relation to our provision of the Fyorin Service, comply at all times with all Regulations.
4. Your obligations
4.1 You shall at all times use the Fyorin Service in accordance with our instructions and all applicable laws and Regulations and shall use your best endeavours to ensure that your Authorised Users do the same.
4.2 You confirm that where we or our Service Partners provide Restricted Services this is because we or they hold the necessary licence or authorisation to do this and you shall not attempt to replicate these services or represent that they are supplied by you.
4.3 You shall provide all necessary co-operation in relation to your access to the System and the Fyorin Service and all necessary access to such information as may be reasonably required by us in order to provide the Fyorin Service, including but not limited to Personal Data, security access information, configuration services, and information and documentation (whether copies, original documents, certified translated or otherwise) that we reasonably require to meet obligations regarding anti-money laundering and other relevant Regulations.
4.5 You agree to:
i. carry out all your responsibilities set out in these Terms and Conditions in a timely and efficient manner;
ii. ensure that the Authorised Users use the Fyorin Service in accordance with these Terms and Conditions and be responsible for any Authorised User’s breach;
iii. obtain and maintain any necessary licences, consents, and permissions you need to hold for us to perform our obligations under this agreement;
iv. ensure that your network and systems comply with the any relevant specifications provided by us from time to time;
v. be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres; and
vi. enter into and comply with any terms and conditions required by any of our Service Partners and use your best endeavours to ensure that where relevant Authorised Users do the same.
4.6 You accept that we may contact you or your Authorised Users at any time to verify that the Fyorin Service are being used in accordance with the terms of this Agreement.
5. Personal Data
5.1 Each Party shall comply with the applicable Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or GDPR); and all other applicable existing or new European or EU Member State laws relating to the processing of personal data.
5.2. Both Parties agree that they are separate data controllers for the Personal Data that are processed in order to carry out their respective obligations under these Terms and Conditions. Any personal data that you provide to us in order to carry out our services we shall process in our capacity as a data controller within the meaning of the GDPR.
5.3 We shall follow our archiving procedures for Personal Data. In the event of any loss or damage to Personal Data we shall use reasonable commercial endeavours to restore the lost or damaged Personal Data from the latest back-up maintained. We shall not be responsible for any loss, destruction, alteration or disclosure of Personal Data caused by any third party (except those third parties sub-contracted by us to perform services related to Personal Data maintenance and back-up).
5.3 We shall, in providing the Fyorin Service, comply with our then current privacy and security policies relating to the privacy and security of Personal Data as may be notified to you from time to time.
5.4 You understand and agree that where we, our sub-contractors or any of our Service Partner’s collects and processes any Personal Data relating to you, your business and/or any of your staff, agents or consultants for the purposes of meeting required anti-money laundering procedures or for provision of Fyorin services, you are responsible for ensuring that you have an appropriate legal basis under the GDPR to share that Personal Data with Fyorin or our Service Partners. For more information on our use of personal data we refer you to our privacy statement on our website.
5.5 We shall each take appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data or its accidental loss, destruction or damage including but not limited complying with any requirements of PCI DSS that apply to it.
6. Intellectual Property Rights
6.1 You acknowledge that we and/or our licensors own all Intellectual Property Rights in the System and Fyorin Service. Your use of the Fyorin Service does not grant you any rights to, or in, patents, copyrights, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the System or Fyorin Service.
6.2 We confirm that we have all the rights in relation to the System and Fyorin Service that are necessary to allow you access in accordance with these Terms.
7. Confidentiality
7.1 We each may be given access to Confidential Information of the other in order to perform our obligations under this agreement.
7.2 We each agree that our Confidential Information shall not be deemed to include information that:
i. is or becomes publicly known other than through any act or omission of the receiving party;
ii. was in the other party’s lawful possession before the disclosure;
iii. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
iv. is independently developed by the receiving party, which independent development can be shown by written evidence; or
v. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
7.3 We each agree that each of us shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the provision and use of the System and Fyorin Service in accordance with these Terms.
7.4 We shall each take all reasonable steps to ensure that the other’s Confidential Information to which we have access is not disclosed or distributed by its employees or subcontractors or agents or the like in violation of the terms of this agreement.
7.5 Neither of us shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
7.6 You acknowledge that details of the System and Fyorin Service and Sensitive Financial Data constitute our Confidential Information.
7.7 We acknowledge that the Personal Data is your Confidential Information.
7.8 You agree that during the Term we may refer to you in our promotional material as being a customer of ours for the use of the Fyorin Service.
7.9 The provisions regarding Confidential Information shall survive termination of this agreement.
8. Indemnity
8.1 You shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Fyorin Service and the our System.
8.2 We shall defend you, your officers, directors and employees against any claim that the Fyorin Service or the System infringes any patent effective as of the date you are granted access to the System, any copyright, trade mark, database right or right of confidentiality or other intellectual property right, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
i. we are given prompt notice of any such claim;
ii. you provide reasonable co-operation to us in the defence and settlement of such claim; and
iii. we are given sole authority to defend or settle the claim.
8.3 In the defence or settlement of any claim, we may procure the right for you to continue using the Fyorin Service, replace or modify the Fyorin Service so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
8.4 In no event shall we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
i. a modification of the Fyorin Service or System by anyone other than us; or
ii. your use of the Fyorin Service or System in a manner contrary to the instructions given to you by us; or
iii. your use of the Fyorin Service or System after notice of the alleged or actual infringement from us or any appropriate authority.
9. Limitation of Liability
9.1 This clause sets out our entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you:
i. arising under or in connection with this agreement;
ii. in respect of any use made by you of the Fyorin Service or System or any part of them; and
iii. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
9.2 Except as expressly and specifically provided in this agreement:
i. you assume sole responsibility for results obtained from your use of the Fyorin Service. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you, or any actions taken by us at your direction;
ii. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
iii. the Fyorin Service are provided on an “as is” basis.
9.3 Nothing in this agreement excludes either your or our liability for:
i. death or personal injury caused by Our’ negligence; or
ii. fraud or fraudulent misrepresentation.
9.4 Subject to clause 9.2 and clause 9.3:
i. we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement;
ii. we shall not be liable for any failure of any Service Partner in relation to any service it provides to you; and
iii. our total aggregate liability in contract (including in respect of the indemnity at clause 8.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Charges paid during the 12 months immediately preceding the date on which the claim arose.
10. Set off
We may retain any money held by us, or any sums we owe to you, and apply it in or towards repayment of any sums due from you under this agreement. This is sometimes known as a right of set off.
11. Term and Termination
11.1 This agreement shall commence on the date you are granted access to the System and shall continue until terminated by either of us notifying the other party of termination by giving at least 60 days’ written notice (“the Term”).
11.2 Without prejudice to any other rights or remedies to which either of us may be entitled, either of us may terminate this agreement immediately and without liability to the other if:
(i). the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(ii). Any event occurs which, in the reasonable opinion of the terminating party, causes the other party to be unwilling or unable to comply with the terms of the agreement.
11.3 We may terminate this Agreement (or terminate or suspend the provision of all or part of any services under this Agreement) with immediate effect and without liability to you if:
(i) we are required to do so by any Card Scheme or Regulatory Authority or under the Card Scheme Rules or Applicable Law; or
(ii) a Card Scheme, Payment Service provider, Service Partner or any other third party provider ceases to provide us with any service necessary for us to provide a Service to you; or
(iii) you use the Fyorin Service for any unauthorised purpose; or
(iv) we reasonably consider that any act or omission of yours puts our operation of the Fyorin Service at risk or there are persistent or serious complaints regarding your operating your business from your customers.
11.4 We may suspend or terminate the Service if a Card Scheme, Payment Service provider or other third party provider ceases to provide a material component of the Fyorin Service or alters their terms in such a way as to make the Fyorin Service unviable. In such circumstances we shall give you as much notice as possible.
11.5 On termination of this agreement for any reason:
i. all licences granted under this agreement shall immediately terminate;
ii. each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party; and
iii. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
12. Force Majeure
Neither party shall have any liability to the other under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, provided that the other is notified of such an event and its expected duration.
13. Waiver
13.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
13.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
14. Severance
14.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
14.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15. Entire Agreement
15.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
15.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
16. Assignment
Neither of us shall without the prior written consent of the other (which consent shall not be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17. No Partnership or Agency
Nothing in this agreement is intended to or shall operate to create a partnership between us, or authorise either of us to act as agent for the other, and neither of us shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18. Third Party Rights
This agreement does not confer any rights on any person or party, other than the parties to this agreement and, where applicable, their successors and permitted assigns, pursuant to the Laws of Malta.
19. Communications
19.1 How we’ll contact you
i. We can deliver a notice or communication to you at the contact details which we last had for you; your registered office or electronically where we’ve agreed this. These notices include financial information and notices of changes to the agreement.
ii. If your contact details change (including any of your name, address, telephone number(s) or email address), you must tell us promptly to ensure you receive all communications.
20. Governing Law and Jurisdiction
This agreement is governed by the laws of Malta. All disputes arising out of or relating to these Terms that we cannot settle to each of our satisfaction between us shall be subject to the exclusive jurisdiction of the courts of Malta. We each waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.
21. Complaints
If you have any complaint about us or our service, please email us at [email protected].
If you and we cannot resolve a dispute using our internal complaint handling procedure, we will let you know this. If your complaint relates to a Service provided by the Service Partners, you shall follow the complaints procedure outlined in the applicable Specific Service Terms and Conditions.
If your complaint relates to how we have managed your information, you may also contact the Information and Data Protection Commissioner at idpc.info@idpc.org.mt.
Annex: Definitions
APIs : the application programme interfaces of the System;
Authorised Users : those of your employees, contractors and agents which are authorised to access the Fyorin Service on your behalf;
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK or Malta;
Card Network: A card network can be any of Visa, Mastercard or Discover DCI
Charges: the charges due to us for the Fyorin Service as set out in Fees section on the System.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in accordance with the provisions of clause the Terms;
Personal Data : the personal data input into the System by you, your staff, agents or consultants or any other third party at your request and with your consent;
Data: the data which is input into the System by you for the purpose of using the Fyorin Service which includes but is not limited to Personal Data and Sensitive Financial Data;
Fyorin Service: hosting the System for access by you and Authorised Users,, enabling the opening of accounts with financial service providers and the initiation and receipt of Transactions and providing access to account information;
Integration: providing you with access to the System;
Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now or in the future subsist anywhere in the world, including the right to sue for and recover damages for past infringements;
Modification: an updated version of the System which corrects faults, adds functionality or otherwise amends or upgrades the Software or Service including but not limited to any change in format of any reports provided by us or any details of our API;
Normal Business Hours: 8.00 am to 5.30 pm CET, each Business Day;
PCI DSS or Payment Card Industry Data Security Standards: the data security standards developed by the leading Card Schemes with which those processing Card data must comply;
Payment Services: has the meaning given in the EU’s Payment Services Directive;
Processor: an entity which processes Transaction data, which if relevant complies with the Card Scheme requirements concerning PCI DSS and which has been selected by us to process Transaction data as part of the Fyorin Service (and “Processing” shall be construed accordingly);
Regulations: all laws, statutes, statutory instruments, acts, regulations, orders and directives, and all orders, regulations and rules issued there under, as amended from time to time all codes of practice and guidance issued by government agencies, self-regulatory bodies and trade associations (whether or not having the force of law) including the Financial Conduct Authority (FCA) and the Card Schemes or any other relevant trade or industry body applicable to the conduct of the Fyorin Service or in connection with their rights and obligations under this agreement;
Regulatory Authorities: any Card Scheme and any governmental or other body having jurisdiction over any Party or any party to any Payment Terms and Conditions;
Restricted Activities: activities and component parts of the Fyorin Service which require a licence or approval (whether from a Card Scheme, Regulator or otherwise) which must be provided by Porterpays or one of its Service Partners, such activities including (but not limited to) Payment Services, Cardholder Solicitation and access to Sensitive Financial Data;
Run-Off Period: means the period following Termination during which there is continued provision of certain of the Fyorin Service by us in accordance with the terms of this agreement;
Security and Compliance Perimeter: the area within the Porterpays System within which Transactions are process and where Sensitive Financial Data resides and which complies with the Payment Card Industry Data Security Standards;
Sensitive Financial Data: data relating to a Transaction or other account activity which is designated as sensitive and/or confidential by Regulation or which by its nature it is reasonable to treat as sensitive and/or confidential;
Service Partners: Regulated financial institutions, providers of processing, identity verification and anti-money laundering services and such other third parties as we may partner with from time to time whose services are necessary for our performance of the Fyorin Service;
Software: the software applications which underlie and form the System;
Solicitation: encouraging businesses to use Cards through use of the Fyorin Service;
Specific Service: a service provided by a Service Partner within the Fyorin Service
Specific Service Terms and Conditions: terms and conditions that apply for a specific service that is being offered by a Service Partner within the Fyorin Service.
System: the software system created by us to enable the performance of the Fyorin Service;
Term: has the meaning given in clause 11.1;
Trademarks: the trademarks, trade names, logos, and designs as notified by us to you from time to time;
Transaction: the payment for goods or services or the transfer of value by the initiation of a payment from your online bank or payment or Card account including your identity authentication;
Value Added Tax: value added tax or VAT chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax; and
Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
