Resale Terms and Conditions
These terms and conditions are a LEGALLY BINDING AGREEMENT BETWEEN the individual or legal entity named in the G2S or Gate2Shop registration and/or application form(s) (“Application”) in relation to the services described herein (“Vendor” or “you”) and Gate2Shop as identified to you in the Application (“Gate2Shop”, “we” or “us“). These Terms and Conditions together with the Application and their respective schedules, attachments and referenced policies and procedures which are all incorporated hereto and form an integral part hereof are jointly referred to as the “Agreement”.
By signing the Application and/or using any of the services described herein you accept the Agreement.
Please make sure you fully understand the contents of this Agreement. If you have any doubts about any of your rights and obligations resulting from entering into this Agreement, please consult legal counsel. If you do not agree with any of the terms of this Agreement, you must notify us immediately and you may not use the services offered by us nor continue with the process of Application and registration.
PLEASE TAKE SPECIAL NOTE OF OUR PRIVACY AND CONTENT POLICIES AS WELL AS WITH OUR RIGHT TO SHARE SOME OR ALL OF THE INFORMATION AND DOCUMENTS YOU PROVIDE US WITH THE RESPECTIVE PAYMENT METHODS FOR US TO BE ABLE TO PROVIDE THE SERVICES AND TO BE IN COMPLIANCE WITH SUCH ENTITIES’ RULES AND REGULATIONS AS WELL AS WITH ANY AND ALL APPLICABLE LAW, REGULATION, DIRECTIVE OR OTHER REQUIREMENT OF ANY GOVERNMENTAL AUTHORITY.
Subject to the provisions of this Agreement and payment of all amounts due to us, the following services may be provided by us (the “Services”):
1.1 Resale Services of goods and services offered for sale on your website(s) as such websites are declared to us and approved by us as part of the Application through which your customers are able to make Transactions (jointly: “Website”) for which we will be acting as an intermediary for the sole purpose of immediate resale by us to purchasing End Users (“Goods and Services”)..
1.2 The payment to you for any Good or Service will be contingent on the payment of the Good or Service’s price by the purchasing End User, and we assume no liability for such payment, as further set forth below.
For the avoidance of doubt and notwithstanding that the Goods and Services’ purchased by us from you and immediate resale by us to the purchasing End Users,: (i) you will deliver the Goods and Services directly to the purchasing End Users and we will not have physical possession of any Good, (ii) you are responsible for the timely and complete delivery of the Goods and Services and you will bear the full risk of damage or loss to Goods until the time of delivery of the Goods from you to the purchasing End User, (iii) you will retain full liability as the seller of the Good or Service, both to us and to the purchasing End User, including without limitation in respect of presenting to End Users all information regarding the Goods and Services (name and description, notices, disclaimers, pricing, charges, tax rates etc.) and including without limitation in respect of any and all non-conformity, defects or product liability (if applicable), and (iv) End Users purchasing Goods and Services shall be considered and referred to in this Agreement, for all purposes, as your customers.
1.3 Payment processing. Services with respect to all Transactions with End Users (as such terms are defined below) that are processed by us, whether such Transactions have originated in our website or in yours, as follows:
(a) real-time online authentication and approval of the respective payment method information as provided by the End User for each Transaction processed by us;
(b) real-time online confirmation and approval that the relevant End User’s number accounts with the payment method have sufficient credit/monies available to cover the amounts of the Transactions;
(c) where settlement is done by us, settlement of the Transactions that have been approved based on positive payment method information, positive credit availability (where relevant) and positive electronic mail verification to the extent that same are used;
(d) weekly electronic confirmations to you regarding the status of the Transactions, including the total deposits and pending and processed, Chargebacks and Refunds (as defined below);
(e) We will make our best efforts to upload all updated Chargebacks and Refunds information to our client reporting system not later than 7 business days after the information was received by us;
(f) crediting back payment methods upon electronic instructions; and
(g) Risk Management Services with respect to Transactions that are processed by us.
The aforementioned services are designed to support your decision making activities in the services’ respective domain(s). This is always subject to the adequacy of the information/documentation provided to us. The services’ recommendation may not be viewed or relied upon as a legal opinion or as a guaranty or warranty to the authenticity or legality of the submitted information/documentation. You are always advised to review the results and apply proper discretion.
1.4 Customer service to your customers to provide information on issues related to payments made by them through our system and customer support services with respect to the Goods and Services, via phone, email and live chat, all during our standard business hours and subject to the provisions of Clause 9.15 (under “Customer Assistance”).
1.5 Access to and the right to use any operating manuals or instructions we may provide from time to time in relation to the Services.
1.6 We may offer additional services from time to time, such services once ordered shall be deemed to be included in this Agreement and unless specifically indicated otherwise by us shall be subject to the provisions of this Agreement and the respective service’s fees and terms and conditions.
1.7 We reserve the right to use third party service providers in the provisions of all or part of the Services. Where any of the aforementioned services are provided by third parties they are also subject to such third party’s terms and conditions. We accept no liability for the provision of services by any third party.
1.8 Services shall be provided by us in our sole discretion with respect to each Acquiring Bank, Alternative Payment Method Provider and Card Scheme (as such terms are defined below) with which and for as long as we have an agreement. The form of Service, contractual structure, method of settlement and remittance as well as the respective terms and conditions may vary between clients and between payment methods as shall be further provided. Accordingly, in certain instances the aggregation of funds and/or remittance to you may be provided by the indicated Acquiring Banks and Alternative Payment Method Provider and not by us.
1.9 We are not a bank and do not offer banking services.
1.10 Suspension, termination or Change of Services. Notwithstanding anything stated or implied to the contrary in this Agreement, we may at any time, without derogating from our other rights under this Agreement, Applicable Law (as defined below) or otherwise, suspend or terminate any or all of the Services, effective immediately upon issuance of a written notice. Such suspension or termination may also apply, as the case may be, to specific jurisdictions, lines of business, Goods and Services and otherwise or to a specific customer or a group of customers.
We may change the terms or specifications of any of the Services, by advance notice of not less than three days, unless such change is the result of any change by the Acquiring Banks, Alternative Payment Method Providers, Card Schemes, regulatory authorities/agencies and/or other relevant payment providers, which comes into effect sooner than that. In such a case, the provisions of Clause 20 (Amendments to Agreement) shall apply. Change in Applicable Law may affect our ability to provide services or your ability to use or receive services.
1.11 Disclaimer: the parties recognize that we provide services on an “as-is” and “as available” basis. Except as expressly provided in this Agreement and to the extent permitted by Applicable Law, we hereby specifically and explicitly disclaims any and all warranties of any type or nature whatsoever whether express, implied, statutory or otherwise, including, without limitation (1) warranties of merchantability, suitability, satisfactory quality, non-infringement, fitness for a particular purpose, or use or accuracy in relation to or arising out of or in connection to any information provided, the Platform, Services or otherwise to our performance herein; (2) as to the availability or content of our website(s), the electronic interface or the Services; or (3) that there are no viruses or other harmful components in the Platform. We make no warranties or representations about the accuracy or completeness of the respective Platform, Services and products or that the respective Platform, Services and products will be uninterrupted, timely, secure, or error free or that defects in the operation or functionality will be corrected. We will not be liable to client for damages, losses, costs or liabilities of any kind whatsoever suffered or incurred in this respect. You acknowledge the electronic nature of the Services to be supplied hereunder and the inherent risk that communications by electronic means may not reach their intended destination or may do so much later than intended for reasons outside of our control. The provision of the Services shall at all times be subject to our respective agreements with the Acquiring Banks, APMPs, Card Schemes any other relevant payment provider or other third party and the performance and availability of such entities. We accept no responsibility for service levels provided by the aforementioned.
2.1 Our Fees. In consideration of the Services and any additional services as the case may be, you will be charged the fees set forth in the Application or as specifically indicated in this Agreement and subsequent understandings (the “Fees”).
2.2 Change in Fees. We may change the Fees and/or introduce new charges in addition to the Fees at our sole discretion upon thirty (30) days written notice to you. Notwithstanding, we may increase the Fees, immediately and without prior notice, in the event of (i) any change in the services or fees of the relevant Acquiring Banks, Alternative Payment Method Providers, Card Schemes, any other relevant payment provider or other third party; (ii) changes in the Services which are made at your request; or (iii) delays and/or other issues due to your failure to fulfill your obligations or due to your request to delay work for any reason. In the event of immediate change of the Fees, the provisions of Clause 20 (Amendments to Agreement) will apply.
2.3 Any Fee payable by you shall be deducted from the Remittance (as defined below) due to you. To the extent that any Fees or other amounts of any kind due to us or to the Acquiring Banks, Alternative Payment Method Providers, Card Schemes, any other relevant payment provider or other third party in connection with this Agreement were not set off from your Remittances due to lack of funds or for any other reason, you will pay us any such amount within three (3) days after our notice to you. We may hold off paying any amount to you until you make such additional payment. All bank transfer and charges of settlements described in this section shall be borne solely by you.
2.4 Tax. All Fees payable to us under this Agreement are exclusive of value added tax and any additional or other taxes, charges or duties which may be imposed in connection with any and all payments made or due hereunder and shall, if applicable, be borne by you. In case value added tax or any other tax is or become chargeable in accordance with Applicable Law, we will add such amount to the Fees due to us.
You are and shall remain at all times fully and solely responsible for all taxes, fees and other costs arising from or incidental to any sale of the Goods and Services by you or if applicable their resale by us, and from any payments made to you or to us in connection with this Agreement. We will make all payments which are required of us for such tax and other fees and costs, and we will also make any such payments on your behalf if we believe we are required to do so (such as withholding tax). Any such payments made by us, including all other costs, expenses or losses that may be caused to us as a result of any claim or demand made by any governmental or other authority, with regard to tax withholding obligations or similar obligations to which we may be subject to whether in connection with making payments to you, with Transactions effected by the End Users or with the resale of the Goods and Services, will be deducted from your Remittances.
For the avoidance of any doubt, invoicing and charging VAT from End Users is solely your responsibility.
2.5 Payments to Third Parties. Any fees or amounts paid by you, whether directly or by way of a set-off, deduction or otherwise, to Acquiring Banks, Alternative Payment Method Providers, Card Schemes, any other relevant payment provider or other third party, shall not affect nor derogate from your obligation to pay all Fees due to us hereunder.
2.6 Additional charges. We reserve the right to charge you reasonable fees and charges in respect of excessive End Users inquiries, Refunds or Chargebacks and any costs and expenses caused to us in connection with them.
2.7 Failure to pay the Fees on or by the due dates will entitle us to exercise remedies, including without limitation the right to assess interest at the maximum rate permitted by Applicable Law.
The following terms shall have the meaning assigned to them. Other terms when capitalized may be defined throughout the Agreement:
“Applicable Law” means any and all international treaty or cooperative arrangement, foreign, national, local and other laws, statutes, regulations, rules, codes, directives and ordinances, judicial orders and judgments, enacted, adopted, issued or promulgated by the regulators, authorities, courts and government bodies having jurisdiction over the parties and/or the subject matter, including but not limited to anti-money laundering and terrorist financing regulations, anti-bribery laws (FCPA, UK Bribery Act and otherwise) and Data Protection Laws (as defined below), all of the above to the extent applicable to a party, to the performance or business of that party or to the services provided by or on behalf of that party.
“Assessment” means any and all assessments, fees, fines, penalties or charges of any nature which may be directly or indirectly assessed or imposed on you and/or us by Card Schemes, Acquiring Banks, Alternative Payment Method Provider or regulators, authorities, courts and government bodies having jurisdiction over the parties and/or the subject matter as a result of your performance and/or use of the Services including but not limited to your failure to comply with the provisions of this Agreement, the Rules or Applicable Law.
“Acquirer” or “Acquiring Bank” means a third party financial institution which is in any arrangement with us in connection with which it enables us and you to (a) accept payment by Cardholders using Cards; and (b) receive value in respect of Card payments
“Alternative Payment Method“ or “APM” means a payment method (other than Cards) which We are able and have agreed to process (as notified by us to you from time to time);
“Alternative Payment Method Provider” or “APMP” means a third party which regulates or is responsible for processing any APMs and which is in any arrangement with us in connection with which it enables us and you to (a) accept payment by End Users using APMs; and (b) receive value in respect of such payments. Acquirer may also act as APMPs.
“Card(s)” means a credit, debit, pre-paid, charge or purchase or other card issued by a Card issuer and any other cards which we are able and have agreed to process (as notified by us to you from time to time).
“Cardholder” means (i) the person to whom the Card is issued and whose name is embossed or imprinted on the face of the Card, and (ii) is the authorized user of a Card.
“Card Issuer” means a person with the necessary regulatory approvals for and which is responsible for the management and issuance of Cards under the authority of a Card Scheme;
“Card Schemes” means Visa, MasterCard, American Express, JCB, Diners, Discover and/or such other schemes governing the issuance and use of Cards including but not limited to their respective members (at times referred to as Card issuers), as may be approved and notified by us to you in writing from time to time (each is a Card Scheme and jointly and severally the Card Schemes); approval to process certain Card Scheme’s cards is subject to our sole discretion.
“Chargeback“ means any direct or indirect dispute, reversal or debit of a Transaction by an End User, Card Scheme, Acquiring Bank, Alternative Payment Method or Alternative Payment Method Providers, because of such Transaction being invalid, disputed, unauthorized (or there are grounds to believe it was not authorized), suspicious, the goods or services were not delivered at all or as agreed, or otherwise for any reason.
“Deductions” means any and all of the following: (1) fees due to us as per the provisions of this Agreement and any other taxes, charges and fees deducted from settled Transactions by the Acquiring Banks and/or Alternative Payment Method Providers; (2) Chargebacks, refunds, credits, fees (such as discount and transaction fee), chargeback fees, payments imposed hereunder and/or by Acquiring Banks and/or Alternative Payment Method Providers; (3) Assessments including but not limited with respect to your failure to meet any threshold requirements of the Cards Schemes; (4) all taxes, penalties, fines, charges and other items assessed or imposed by regulatory agencies or any other third parties in connection with the Services provided herein, the Remittance made to you or any of your actions or omissions; (5) the Reserve amounts and any amount required to maintain the Reserve at the designated level; and/or (6) any amounts due to us, Acquiring Banks and/or Alternative Payment Method Providers or recoverable by us and/or on behalf of an Acquiring Banks and/or Alternative Payment Method Providers under this Agreement or otherwise.
“End User” means (i) a Cardholder, or (ii) a person that purchases goods or services from you through an Alternative Payment Method.
“Refund” means a refund, return or credit of an amount to an End User’s account by us or by an Acquiring Bank, Alternative Payment Method Provider, Card Scheme, any other relevant payment provider or other third party or the reversal of a payment effected, in each case pursuant to a request or instruction from you to us;
“Remittance” means the amount actually collected by us or the respective Acquirer Banks or APMP (where remittance is made directly from the Acquirer Banks or APMPs) with respect to your Transactions processed, less Deductions.
”Rules” means all current and future by-laws, rules, regulations, policies, procedures and guidelines issued by the respective Acquiring Banks, Alternative Payment Method Providers, Card Schemes and any other relevant payment provider or other third party.
”Sales Draft” means the paper or electronic evidence of a purchase of goods or services from you by an End User through the use of the respective payment method.
“Transaction” means, (i) in relation to a Card, any payment or refund made by the use of the Card or the Card number or otherwise to debit or credit the Cardholder’s account, and any process undertaken by us following a request from you to collect any payment from the Cardholder in connection with the purchase of Goods and Services, and (ii) in relation to any Alternative Payment Method, any payment made by an End User which is not a Cardholder, any refund made to an End User which is not a Cardholder or otherwise to debit or credit the End User’s account and any process undertaken by us following a request from you to collect any payment from such End User on your behalf. There can be several types of Transactions in each payment, namely registration of the payment method, authorisation, settlement, credit, void etc.
4. TRANSACTIONS AND AUTHORIZATIONS
4.1 Submission of Transaction. A submission of a Transaction to us shall be deemed to take place when an End User clicks on a “Buy Now” or “Add to Cart” button, or follows a similar link in your Website. Prior to the submission of a Transaction to us by an End User, you will inform such End User that you will perform your obligations to the End User in connection with the Transaction and receive the End User’s approval to debit their payment method or to otherwise charge the End User. You must present only valid Transactions between you and a bona fide End User.
You will not submit or allow End Users to submit any Transaction to us that is illegal, fraudulent or not authorized by the End User or that you know or should have known to be illegal, fraudulent or not authorized by the End User.
4.2 Prepayment Transaction. You may allow an End User to submit a Transaction that effects a prepayment of Goods and Services or full prepayment of custom-ordered merchandise, manufactured to the End User’s specifications, if you advise the End User of the immediate billing at the time of the Transaction and within time limits established by the Card Schemes, Alternative Payment Method or any other relevant third party.
4.3 Recurring Transactions. For recurring transactions, where allowed, you must receive, in accordance with Applicable Laws, confirmation from the End User for the goods and services to be charged to the End Users account, the frequency of the recurring charge, and the duration of time during which such charges may be made. Recurring transactions must be identified as such.
4.4 Delayed Delivery or Deposit Balance. In a delayed delivery transaction whereby an End User makes a deposit towards the full amount of the sale, the Card Schemes require that you conduct two separate transactions using our system, the first for a deposit and the second for payment of the balance upon delivery of the merchandise or the performance of the services.
4.5 Non-Discrimination. You will honour, without discrimination, any Card or APM properly submitted for payment by an End User. By signing the Agreement, you warrant and represent that you will not process pursuant to the Agreement any face-to-face transaction with an End User. End Users will be entitled to the same services and return privileges that the you extend to cash customers.
4.6 No Claim against End User. You will not have any claim against or right to receive payment from an End User unless we and the respective Acquirer or APMP refuse to accept the Sales Draft or revoke a prior acceptance of the Sales Draft after receipt of a Chargeback or otherwise. You will not accept any payments from an End User relating to previous charges for merchandise or services included in a Sales Draft.
4.7 Authorization Request. All Transactions are at your risk, whether such Transactions have originated in our website or in yours. You represent and warrant to us that the person whose name is submitted to us as End User made the purchase. You shall not submit any data to us in respect of any Transaction where an End User has withdrawn authorisation for such Transaction. All Transactions must be electronically authorized by us, and you must request an authorization from us for each Transaction submitted to us by an End User, via our software application. Each request for authorization made by you shall include the following information (to the extent applicable): (a) the Card account number, validation date and/or expiration date of the Card, if one appears on the Card; (b) the Visa CVV2 or MasterCard CVC2 number; (c) the name, address and telephone number of the End User, (d) the amount underlying the Transaction, (e) an authorization code, if required, (f) in lieu of the Cardholder’s signature, a notation of, as applicable, (A) mail order (MO), (B) telephone order (TO), (C) e-commerce order (EO), or (D) pre-authorized order (PO) on the signature line, and (g) notification that the order is a pre-authorized order, if applicable, and (h) such additional information as may from time to time be required by us or the Acquiring Banks and/or Alternative Payment Method Providers, including with respect to any non- Card Transactions. You understand, and acknowledge, that your floor limit (unless otherwise notified) shall be zero and that all Transactions must be authorized via us.
4.8 Records. You must present records of valid Transactions no later than three (3) business days after the date of the Transaction, except, the record must not be presented until after the Goods are shipped or the Services are performed unless, at the time of the Transaction: (i) the End User agrees to a properly disclosed delayed delivery of the Goods or Services, if you receive authorisation for a delayed presentment (in which case the words “Delayed Presentation” must be noted on the TID), (ii) when you are obligated by law to retain the sales slip or return it to a buyer upon timely cancellation, in which case, you should present the record within ten (10) business days after the transaction date, and (iii) when you have multiple locations and use a central facility to accumulate and present records to us. You must present the record in accordance with Applicable Laws and regulations and, in any event, within thirty (30) business days of the Transaction date.
4.9 Disclaimer. You acknowledge and understand that authorization of a transaction is not a guarantee of acceptance or payment by the End User or absolute protection against a Chargeback or Refund, and that authorization shall not waive any provision of this Agreement or otherwise validate a fraudulent transaction, a disputed transaction, or a transaction involving the use of an unauthorized or expired card (if applicable) – whether or not you knew or should have known of the transaction being so.
5. CHARGEBACKS, REFUNDS AND ASSESSMENTS
5.1 We shall be liable towards the End User, Acquiring Banks and Alternative Payment Methods Providers for any Chargebacks and Refunds. You shall use all reasonable methods to resolve disputes with the End User.
5.2 Anything to the contrary above notwithstanding, you agree to immediately upon request pay us, in the manner set forth below:
- A Chargeback handling fee to be charged by us for each Chargeback;
- The amount of all Chargebacks and Refunds
- In addition, you will reimburse us all costs and expenses caused to us in connection with any Chargebacks or Refunds, including without limitation legal fees.
5.3 You acknowledge and understand that failure to comply with the Rules and guidelines or if your Chargeback or Refund volumes exceed certain ratios, limits or levels as set by the Acquiring Banks, Alternative Payment Method Providers, Card Schemes, any other relevant payment provider or other third party, which may be changed from time to time, may result in Assessments. You agree to immediately upon request fully indemnify us against such Assessments and pay us the full amount of such Assessments.
5.4 As Chargebacks, Refunds and Assessments may arise a considerable period of time after the date of the relevant Transaction, you acknowledge and agree that, notwithstanding any termination or expiration of this Agreement for any reason, we shall remain entitled to recover Chargebacks, Refunds and Assessments from you.
5.5 Contesting Chargebacks. In certain cases you may purchase from us representation services with the Acquiring Banks and/or Alternative Payment Method Providers for the purpose of appealing certain chargebacks for a fee of € 25 for such chargeback representation. This fee is in addition to chargeback charges/handling fees. You agree to assist us when requested, at your expense, to investigate any of your Transactions. We will request necessary information from you to contest the Chargeback and terms thereof. Your failure to timely assist us in investigating a transaction, including without limitation providing necessary documentation may result in an irreversible Chargeback or Assessments. It shall remain your responsibility to prove to the reasonable satisfaction of the relevant Acquiring Banks or Alternative Payment Method Providers that the charge of an End User’s account was authorized by such End User and that the Chargeback and/or Assessment should not have been imposed (entirely or partially). You acknowledge and agree that following such efforts any decision or determination of the relevant Card Scheme, Acquiring Banks or Alternative Payment Method Providers as to the validity and extent of any Chargeback and/or Assessment shall be final and binding.
5.6 Assessments. You acknowledge and agree that failure to comply with the Applicable Laws and/or Rules may result in Assessments and if this occurs you agree that you will solely be responsible for such Assessment and to immediately pay such Assessments or alternatively (at our sole discretion) reimburse us and the affected parties (Acquiring Banks, Alternative Payment Method Providers and otherwise). You further agree to indemnify and reimburse us for any costs, losses, liability, assessment or fine incurred due to breach of the requirements in this Section.
Proration. In the event a flat amount Assessment, penalty, fine or other charge is assessed or imposed against us as opposed to a per transaction Assessment, penalty, fine or charge, we may in our sole discretion prorate the flat amount among those that we in our sole discretion deem to have been the cause of the Assessment, penalty, fine or charge.
6.1 Amounts Remitted. We will remit to you the amounts of approved and settled Transactions actually received by us from the Acquiring Banks or the Alternative Payment Method Providers, respectively, minus the deductions described below, in the manner and subject to the conditions set forth below. Remittance is always subject to receipt by the party remitting of the respective funds from the respective payment method (Acquirer, APMP, Card Scheme or otherwise, including but not limited to the payer’s payment method). The amounts remitted to you in respect of any Good or Service bought by us from you and resold to the purchasing End User, shall constitute the full, final and complete payment and consideration due to you for such Good or Service from us or from the End User
6.2 Remittance Procedure. Remittances will be made on a weekly basis with a two weeks delay (subject to the following paragraph). Notwithstanding, where shipment of Goods or Services exceeds seven (7) calendar days, the respective Remittance shall be delayed one payment cycle. Payments will be made to the payment account (with bank or Alternative Payment Method) specified in the Application. Unless otherwise indicated in your respective fees schedule, Payments will be made only if the accumulated amount payable to you is at least 250 EUR. If this minimum amount is not reached in a particular week, we will be entitled to withhold payment or instruct payment withheld and carry the amount due to you to the next payment and so on, until the minimum amount is reached.
Unless otherwise agreed by the parties and where applicable with the Acquirer Banks and/or Alternative Payment Method Providers, all payments will be due and payable in the currency in which the applicable Transaction was processed. In circumstances where we apply a currency conversion to Remittance We will apply the respective payment methods’ (Card Scheme, Acquirer, APM and/or otherwise) and our prevailing exchange rate as these will apply to the specific Remittance and related circumstances. Wiring and transfer charges in connection with any payment will be borne by you and deducted from such payment. Remittance intervals may also be changed upon notice and at our sole discretion depending on refund and chargeback ratios and risk considerations. Remittance may be delayed where the amount due is higher than the aggregate of the amounts held in your Reserve and settlement account.
However, due to, inter alia, delays and errors of the electronic networks involved, we do not guarantee the timeliness with which any payment may be credited to your payment account (with bank or Alternative Payment Method).
6.3 Delayed or Withheld Remittances. Remittances may be postponed or delayed due to weekends or banking holidays in the respective jurisdictions (ours, yours, the respective Acquiring Banks, Alternative Payment Method Providers or other payment methods), or due to any technical delays or malfunctions of the relevant systems. In addition, we may delay or hold back any Remittance if we believe, in our sole discretion, that the circumstances of the relevant Transaction(s) or Remittance require such delay or hold back, including without limitation if we thinks that a risk of a Chargeback or refund or any other risk or unlawful activity exists.
6.4 We may also withhold amounts due to you upon termination, as further described in Clause 17.5 (Right to withhold payments on termination).
6.5 Remittance via Third Party. We may use third parties for the purpose of payment of your Remittances, and we will notify you of the identity of such third parties from time to time. In any event, whether or not you are notified of the identity of such third parties, all payments to your account by third parties shall be deemed payment by us, for all intents and purposes. Notwithstanding, where Remittances are made directly by such third parties such transfer of funds shall be subject to the third party’s practices and the third party may deduct wire fee for each Remittance in accordance with its terms. We shall not have any liability to you with respect to such payments by the third party.
6.6 Without derogating from any other remedy to which we are entitled under any Applicable Law and/or the Agreement, it is clarified and agreed that in the event we learn or reasonably suspect that (i) funds received due to your Transactions do not result from legitimate sales, (ii) such sales were not made in compliance with all Rules, Applicable Laws and provisions of the Agreement, (iii) the applicable Transactions vary materially in character or volume from original ticket size or monthly volume disclosed by you in the Agreement, (iv) you breached the Agreement, (v) the risk level involved in processing the your Transactions or in your business has increased, (vi) Chargebacks, Refunds or Assessments are reasonably expected; or (vii) you exceeded the chargeback ratios or limits, then we will be entitled, or entitled to instruct any third party making Remittances to you, as the case may be, to withhold any Remittances until such matters are resolved to our complete satisfaction.
6.7 The amounts remitted to you shall constitute the full, final and complete payment and consideration due to you.
6.8 You shall not be entitled to any interest or any other compensation whatsoever in respect of any sums held in accordance with the provisions of this Agreement (as Reserve or otherwise) prior to Remittance being made to you for any period for which payment may be.
6.9 Provisional Credit. All Sales Drafts and deposits are subject to audit and final checking by us and those Sales Drafts and deposits may be adjusted for inaccuracies. You acknowledge that all credits provided to you are provisional and subject at any time to Chargebacks and reversals: (a) in accordance with the Rules; (b) for any of your obligations to us.
7. Deductions and Set-Offs.
7.1 For each relevant period, we will have the absolute right to deduct and set-off the Deductions, or instruct the Acquiring Banks or Alternative Payment Method Providers to do so, from and against any amounts due to you under this Agreement (including but not limited to your approved and settled Transactions) or alternatively debit against the Reserve or debit you directly.
7.2 You acknowledge and agree that not applying a Deduction or set-off for any period of time does not constitute a waiver of our right to impose the application of such Deduction or set-off retroactively or for that period of time. You further acknowledge that Chargebacks, refunds and Assessments may arise a considerable period of time after the date of the relevant Transaction, and agrees that, notwithstanding any termination or expiration of this Agreement for any reason, we shall remain entitled to recover Chargebacks, refunds and Assessments from you.
7.3 It is hereby agreed and clarified that in any event that the amount of Deductions exceeds the amount collected by us in respect of Transactions processed or where we opted to debit you directly; you hereby undertake to pay us the excess immediately upon our request. You not meeting these provisions shall be considered a material breach of the Agreement.
8. Security Reserve
8.1 We will maintain at all times or will instruct the Acquiring Banks or Alternative Payment Method Providers to maintain at all times a non interest bearing security reserve to guarantee payment of any and all debt or liability from you to us or to the Acquiring Banks and/or Alternative Payment Method Providers in connection with this Agreement, such as, without limitation, in connection with Fees, Chargebacks, Refunds, customer disputes, Assessments or any other actual or potential debt or liability (the “Reserve”). We will fund the Reserve, replenish and maintain it at the designated level or will instruct the Acquiring Banks or Alternative Payment Method Providers to do so by deducting the required amounts from the Remittances and/or other funds due to you.
8.2 We may at our sole discretion at any time and without prior notice draw and receive amounts from the Reserve, or instruct the Acquiring Banks or Alternative Payment Method Providers to do so, as required to cover any amounts owed to us or to the Acquiring Banks and/or Alternative Payment Method Providers in connection with this Agreement, which cannot be deducted from your Remittances because of lack of funds or otherwise. We may subsequently replenish the Reserve, or instruct the Acquiring Banks or Alternative Payment Method Providers to do so, from Remittance and funds due to you under this Agreement or require that you make a payment to us for the amount required to replenish the Reserve in which case the provisions of Clause 2.3 shall apply.
8.3 Unless otherwise advised by us, the amount of the Reserve shall be ten percent (10%) of the total of all approved and settled Transactions within a specific calendar month and will be held and maintained for a minimum of six (6) months from the end of such calendar month, on a rolling basis. We may also choose to set the Reserve as a fixed sum (as opposed to being calculated and applied on a rolling basis).
8.4 If after the six (6) month period there is still a risk of more Chargebacks, Refunds, customer disputes, Assessments or any other actual or potential debt or liability, then we will have the right to withhold, or instruct the Acquiring Banks or Alternative Payment Method Providers to withhold, such money until such risk is eliminated. Upon expiration of this six (6) month period (or longer, as the case may be), any balance remaining as Reserve will be transferred to you. We will inform you of any charges debited to the Reserve during this period.
8.5 You expressly acknowledge and agree to any charge or debit made by us or the Acquiring Banks or Alternative Payment Method Providers, respectively, against the Reserve hereunder, including, without limitation, as a result of the exercise of chargeback rights.
9. YOUR OBLIGATIONS AND RESPONSIBILITIES
9.1 You will comply with the terms and conditions of this Agreement.
9.2 You will observe, maintain and comply (and to make sure that your Website and the Goods and Services comply) with all Applicable Laws, including without limitation, in relation taxation, foreign exchange, currency and customs requirements and all advertising, consumer protection, product liability, data protection and privacy legislation, and applicable financial services legislation (including know-your-customer, anti-money laundering and terrorist financing regulations).
9.3 You will observe, maintain and comply (and to make sure that your Website and the Goods and Services comply) with all Rules, including without limitation, Payment Card Industry Data Security Standards as released from time to time by the Security Standards Council (“PCI-DSS”). You acknowledge receipt of MasterCard rules for merchants, also to be found at:http://www.mastercard.com/us/merchant/how_works/merchant_rules.html and Visa rules for merchants, also to be found at: http://usa.visa.com/download/business/accepting_visa/ops_risk_management/rules_for_visa_merchants.pdf or at their respective websites. Links are applicable at the date of creation of these Terms and Conditions. If there is any conflict between this Agreement and the Rules, the Rules will prevail.
9.4 You will protect the data relating to your customers and end users, which is collected and stored by you against unauthorized access and you will use said data solely as permitted. You shall immediately notify us if you reasonably believe that there has been any security breach including but not limited to instances of unauthorized access or attempt to access Transaction data or sensitive End-User data, where there is a suspected or confirmed damage, loss or theft of Transaction data or sensitive End-User data or where you become subject to Assessments. You shall co-operate with and assist us, at your expense, in identifying and resolving compliance issues with regard to all Applicable Laws and Rules.
9.5 On our reasonable request you shall be obliged to make appropriate modifications to your Website and/or the Transactions to fulfill the requirements of this Agreement.
9.6 You will comply at all times with any and all policies, guidelines and reasonable instructions we may issue to you from time to time, including, without limitation, with respect to privacy, security issues, content, chargebacks and refunds, URL monitoring, fraud screening, etc.
9.7 Requests for information. When requested to do so by us, you must provide us with all information available to you regarding Transactions, End Users and other relevant parties to Transactions, if any, as needed by us for the prevention or deterrence of crime, and to meet our legal obligations and risk management objectives in relation to money laundering, terrorist financing, fraud or any other undisclosed unlawful activities in connection with the Services. You should keep confidential any such requests and any further action taken by us in respect of those requests. We may, where we consider appropriate, pass on any information received from you to the relevant law enforcement agency.
9.8 Audit. You shall disclose such information and/or allow access and fully cooperate – at your own expense – with any financial, security and/or procedural inspection, investigation and/or audit that may be conducted by or for us, Acquiring Banks, Alternative Payment Method Providers, Card Schemes, regulatory authorities/agencies and/or other relevant payment providers. The aforementioned inspection, investigation and/or audit may include inspection of your business premises and may include security audits (e.g. a PCI-DSS audit) in order to enable such parties to ensure compliance with the Rules, Applicable Law and provisions of this Agreement as well as the requirements of such organizations and agencies are being complied with. In doing so, checks may particularly be made as to whether, and the extent to which, your organizational measures are appropriate according to the standards customary in the trade to exclude the possibility of any unauthorized use and/or other manipulation of any kind of your systems. You must ensure that all inspections, investigations and/or audits can be carried out directly in relation to and at the business premises of the technical service providers and other subcontractors commissioned by you. You shall reimburse us for the costs and expenses of any such investigation and/or audit which is imposed, required and/or performed by or for the Acquiring Banks, Alternative Payment Method Providers, Card Schemes, regulatory authorities/agencies and/or other relevant payment providers.
9.9 Data Connection. If you require the installation of a dedicated data connection for electronic transmissions to us, you should make arrangements for such installation and maintenance, and we will coordinate the installation and maintenance of the dedicated data connection. You will pay us for all costs related to the installation and maintenance of the dedicated data connection.
9.10 Goods and Services. You will only offer for sale or resale, accept payments and/or process the payment of refunds in respect of Goods and Services which you own or provide and which commonly fall within your business models or sales channels as identified by you to us and approved by us as part of the Application, only accept payments from and/or process the payment of refunds from End Users in connection with Goods and/or Services which originated directly between you and an End User and you supplied to the relevant End Users and never on behalf of a third party, and only accept payments and/or process refunds in respect of Goods or Services that the End Users would reasonably expect to receive and only supply the relevant Goods or Services in accordance with Applicable Laws. You will not engage in any wholesale activity. If you intend to sell Goods or Services other than those stated on your Application, you must obtain our prior approval, which may be given in our discretion. In any event, you must not sell or provide us or in the Website, any Goods or Services included in ourContent Policy.
You will not offer for sale or resale goods or services by means of a Mail Order or Telephone Order (Moto) transaction without our prior approval. In any event, Moto transactions may not be more, in the aggregate, than 25% of the total amount of Transactions each month.
Certain Warranties Not Permitted. You will not provide, offer, or advertise a “lifetime warranty”, “lifetime guarantee”, or any other guarantee for a period of more than one-hundred eighty (180) days without our express written consent.
Adequate Inventory. You will maintain sufficient inventory to fulfill purchases in a timely manner. You will not rely on the existence of a particular Transaction to obtain funds or credit to enable you to obtain the Good or Service necessary to complete the Transaction.
You must notify the End User of delivery time frames, special handling or of a cancellation policy. Merchandise shipping dates must be within seven (7) days of the date authorization was obtained. If, after the order has been taken, additional delays will be incurred (e.g., out of stock), you must notify the End User and have the transaction reauthorized.
9.11 Adjustments and Returns. You will maintain a fair exchange, return and cancellation policy, disclose it to your End Users prior to sale and as part of the sales confirmation process and make adjustments with respect to Goods and Services. If Goods or Services are returned, or services are terminated or canceled, or any price is adjusted, you will prepare and transmit a credit or return Transaction, either electronically or by paper, for the amount of the adjustment as a deduction will be deducted from the total amount of Transactions transmitted that day (and accordingly the Remittances made to you in accordance with Clause 6). If the amount of credit or return Transactions exceeds the amount of sales Transactions, you will promptly pay us the excess, and the provisions of Clause 2.3 relating to late payment interest shall apply. The amount of adjustment cannot exceed the original sale amount plus postage where applicable.
You may not include any statement that waives or seeks to waive an End User’s right to dispute the transaction with the APMP or Card Scheme.
9.12 Credit. You will issue a credit back to the original Card or APM used for payment, instead of making a cash advance, a disbursement or any other form of refund on any Transaction. You will not submit a credit relating to any Sales Draft not originally submitted to us nor will you submit a credit that exceeds the amount of the original Sales Draft.
9.13 Distant selling laws and regulations. You specifically acknowledge that certain countries have distant selling laws and regulations with which it is your sole responsibility to become familiar and fully compliant.
9.14 Website and Policy Requirements. In addition to the above, you acknowledge and agree that you are required by the Card Schemes, Applicable Law (including EU regulation) and this Agreement to comply with the additional requirements set forth in Schedule 2, and to have your Website contain the information specified there.
9.15 Customer Assistance. You will, at all times, respond promptly to inquiries from us on behalf of End Users or from End Users directly, and will endeavor to resolve disputes with said End User. In the event that an End User contacts you directly, you will immediately notify us and provide us with information requested by us regarding such direct End User contact. You will be responsible, at your expense, to monitor and resolve issues related to your Goods and Services. Failure to do so shall be deemed to be a breach of your obligations under this Agreement. We may charge you reasonable fees and recover our expenses related to End Users’ inquiries, Returns, or Refunds. In the event that we participate in an attempt to resolve an issue with an End User, we will notify you of the details and nature of the issue and use commercially reasonable efforts in an attempt to find a solution that is acceptable to all parties to a Transaction. In any direct contact with End Users, you will, at all times, act in a professional and courteous manner. At no time will you conduct an inappropriate communication with the End User. Inappropriate communications include, without limitation, threats of any nature, harassment or attempts at extortion. Such inappropriate communication shall be deemed to be a material breach of this Agreement. In addition to the other remedies we have for the breach of your obligations, including without limitation the suspension of an account or termination of this Agreement, we may assess a charge of $100.00 as partial reimbursement for costs incurred by us in resolving an issue with an End User resulting from inappropriate communication by you. You will indemnify and hold us harmless from any costs, expenses or damages claimed by an End User as a result of your inappropriate communications.
9.16 At our request, you will include in your Website, on our behalf, a prominently displayed disclaimer of warranties, including without limitation disclaimers of any implied warranties of merchantability and fitness for a particular purpose, and of non-infringement.
9.17 Disputes with End User. All disputes between you and any End User relating to any Transaction will be settled between you and the End User. Neither we nor the Acquirer bears any responsibility for such transactions.
10. RESTRICTIONS REGARDING TRANSACTIONS
Without derogating from your other obligations in this Agreement, you agree not to do any of the following with respect to any Transaction: (1) obtain multiple Authorizations for amounts less than the total sale amount; (2) obtain Authorization for purposes of setting aside End User’s credit line for use in future sales; (3) Surcharge. You will not require a minimum or maximum amount for card transactions nor add any amount to the agreed price of Goods or Services offered as a condition of paying with a Card or an APM. This paragraph does not prohibit you from offering a discount from the standard price to induce a person to pay by cash, cheque or similar means rather than by using a Card or APM; (4) Reprocessing. Notwithstanding any authorisation or request from an End User, you will not re-enter or reprocess any sales slip or Transaction including but not limited to a sales slip or Transaction which have been charged back; (5) extend credit for or defer the time of payment of the total cash price in any Transaction; (6) honor a Card except in a Transaction where a total cash price is due and payable; (7) make any special charge to or extract any special agreement or security from any End User in connection with any Transaction; (8) save or keep any credit card data; (9) use your own Card or account, as applicable, or one to which you have access, to process a Transaction for the purpose of obtaining credit for your own benefit; (10) initiate a Refund without a sufficient positive balance in your favor held by us; (11) use any software or any data received from us for any other purpose other than for determining whether or not you should accept Cards or otherwise approve a payment order by an End User in connection with a current sale or lease of goods or services; (12) use any software or any data received from us for credit inquiry purposes or any other purpose not authorized by this Agreement; (13) draw or convey any inference concerning a person’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living when any Card or other payment order is processed as non-accepted; (14) accept any payment from an End User in any other form with respect to a charge for goods or services resulting from the use of a Card or APM; (15) present for processing or credit, directly or indirectly, any Transaction that represents the refinancing or transfer of an existing End User obligation that is deemed to be uncollectible, or that arises from the dishonour of an End User’s personal cheque; or (16) add any tax to Transactions unless Applicable Law expressly allows you to do so (in which case any tax, if allowed, must be included in the Transaction amount and not collected separately).
You further undertake not to use our system and Services for Transactions relating to: (1) sales made under a different trade name and/or business affiliation than indicated in the Agreement or otherwise previously approved by us in writing; (2) sales by third parties; (3) fines, assessments or penalties of any kind, losses, damages or any other costs that are beyond the total sale price for the Goods and Services; (4) any transaction, content, goods or deliverable that violate any Rule or Applicable Law, including but not limited to anti-money laundering and terrorist financing regulations, anti-bribery laws (FCPA, UK Bribery Act and otherwise) and Data Protection Laws; (5) Goods and Services which you know will be resold by a customer whom you should reasonably know is not ordinarily in the business of selling such goods; (6) any amounts for which a customer has not specifically authorized payment through us; (7) cash, traveler’s checks, cash equivalents, or other negotiable instruments; (8)Cash Advances. you will not deposit any transaction for the purpose of obtaining or providing a cash advance; and/or (9)Illegal or Brand Damaging Transactions: you will not submit any illegal transactions or those which could damage the goodwill or reflect negatively on Card Scheme brands or on us, Acquirers or APMPs including but not limited to gaming or gambling transactions and transactions arising from tobacco, child pornography, guns, rape, hate, violence, bestiality and the non-face-to-face sale of prescription drugs.
You specifically acknowledge that should you breach the guidelines set forth in this Agreement in relation to Transactions you will be subject not only to a Chargeback and Assessments that may be applied and that we shall be entitled to immediately terminate the Agreement.
11. ELIGIBILITY TO SERVICES, YOUR INFORMATION AND REPORTING
11.1 Eligibility to Services.
11.1.1 You shall be entitled to use the Services once you have satisfied certain verification and due diligence requirements (which may vary between services and between Acquiring Banks or Alternative Payment Method Providers), as such requirements may be changed by us, at our discretion, from time to time.
11.1.2 You hereby undertake to assist us in the verification and due diligence process as shall be required, including by providing any required documentation and other information, executing any required agreements, instruments and other certifications.
11.1.3 You undertake to provide complete, accurate, truthful and timely documentation (where required by us duly signed and/or certified) and information as required from time to time by us.
11.2 Changes in your information
11.2.1 You undertake to notify us promptly of any changes which may occur from time to time regarding any documents and information provided to us as well as with respect to your financial standing and ability to meet its obligations herein.
11.2.2 Without derogating from the generality of the aforementioned obligation, you shall provide us with advance notice of your intent to: (a) transfer or sell any substantial part of your total assets, or liquidate; (b) change in the type of goods and services offered and/or delivered by you; (c) change in your trading names, primary contact information, physical address(es), web address(es), URLs or domain names or address of each of your offices/locations; (d) expand your operations into any jurisdiction other than those notified to us as at the date of the Application; (e) make technical alterations to your Website(s) which may affect integration with the payment procedures utilized by us; or (f) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assume any interest in your business.
11.2.3 Changes to payment account details. Any changes regarding your payment account (with a bank or Alternative Payment Method) details for the purpose of Remittances, must receive our prior written approval, which shall not be unreasonably withheld.
11.2.4 You shall further provide us with immediate notice of the actual change as it happens.
11.2.5 Notifications and notices shall include all relevant details regarding such change and/or transfer, including but not limited to, a complete update of all documentation and information provided to us under this Agreement.
11.2.6 You acknowledge and agree that we shall have the right to examine the aforementioned changes and information provided and determine whether such changes affect our decision to provide Services or the manner in which Services are provided to you and to notify you accordingly.
11.3 On Going Due Diligence. We may from time to time request additional or updated information from you regarding your business and operations in order to enable us to satisfy that we should continue to accept you as a user of the Services and for the purposes of satisfying our ongoing legal and contractual obligations. The frequency of such requests will depend upon your risk and transaction profile. Failure to supply requested information in a timely manner entitles us to suspend your access to part or all of the Services with an immediate effect until we are satisfied, in our discretion, with the due diligence information provided.
11.4 End User claim or defense. You will maintain the following information in writing with respect to each claim or defense asserted by an End User for which you have received notice: the End User’s name, the Card account number, the date and time the End User asserted the claim or defense, the nature of the claim or defense, and the action that you took in an attempt to resolve the dispute. At our request, you will furnish us with this information in writing.
12. OWNERSHIP AND INTELLECTUAL PROPERTY; USE OF TRADEMARKS
Ownership. You acknowledge and agree that all right, title, and interest to, any and all intellectual property rights of all types or nature whatsoever, including, without limitation, patent, copyright, trademark, data base rights as well as moral rights, know-how and trade secrets (and any licenses in connection with any of the same), whether or not registered or capable of registration, and whether subsisting in any specific country or countries or any other part of the world, in the Services, the platform used to provide the Services (technology, hardware, software etc.), any code or software (payment page, SDK, API etc.) which may be provided to you or for your use under this agreement and any work products created and/or delivered herein and related documentation (jointly: “Platform”) are and will remain solely and exclusively our property and/or the property of our licensors (or affiliates).
You are granted no title or ownership rights in the Platform. You further acknowledge that we consider the Platform to contain trade secrets. Your right to use the Platform and any part thereof is strictly limited to the provisions of this section and we reserve all rights not expressly granted herein.
Use and Restrictions on Use. Subject to the terms and conditions of this Agreement, and contingent upon payment of the fees set forth herein, we hereby grant you a limited, non-exclusive, non-transferable right during the term of this Agreement (subject to suspension provisions) to access and use the Platform in connection with the purposes set forth herein and as specifically permitted by us as per the your on-boarding documentation, for your internal purposes and solely as necessary for your use of the Service in accordance with this Agreement.
Without our prior written approval which at our sole discretion may be withheld or subjected to payment of additional fees, you may not and shall not allow others to (i) distribute, sell, license, sublicense, assign, reproduce, transfer, pledge, or share the Platform and any part thereof, and/or any of its rights under this Agreement; (ii) modify, disassemble, translate, decompile, reverse engineer, revise or enhance Platform and any part thereof or attempt to do any of the preceding, unless expressly permitted or required by Applicable Law; (iii) remove, obscure, or alter any copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Platform; or (iv) make the Platform or any part thereof available to others in a service bureau or outsourcing arrangement or for any other commercial time-sharing, data processing or other third party use.
Should you breach any and all of the aforementioned provisions, we may – in addition to the remedies available to us under law and contract – charge you the additional fees as these would have be charged had you approached us for a written approval prior to performing the act (or lack thereof) which gave rise to such breach.
We reserve the right to audit your use to ensure compliance with the terms and conditions of this Agreement.
Trademarks. G2S and Gate2Shop are trademarks, trade dress and/or service marks of Gate2Shop and/or our affiliates and subsidiaries. Other marks, graphics, icons, names and logos used or displayed on or through the Services and Platform are trademarks, trade dress and/or service marks of us and our affiliates and subsidiaries or otherwise are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us and may be subject to such third parties’ terms and conditions. You may not use any metatags or any other “hidden text” utilizing any of the aforementioned trademarks, trade dress and/or service marks without our and respective owner’s prior written permission
Your use of Marks. Without derogating from the generality of the aforementioned provisions, you agree to display prominently on your Website brands, names, logos, trademarks, trade names, trade dress or service marks which are our property or the property of our affiliates or licensors and/or of Acquiring Banks, Alternative Payment Methods, Alternative Payment Method Providers, Card Schemes any other relevant payment provider or other third party) (“Marks”) and other promotional material and literature that may be provided by us from time to time in such form and at such places as instructed by us from time to time. You agree to use Marks in your own advertisement and promotional materials only with our prior written consent which may be given in our discretion.
Your right to use the Marks is strictly limited to the manner of use as instructed and approved by us, such right may be revoked or changed at any time at our (or the respective owners’ or licensors’) sole discretion. You will accordingly change or remove such display of materials immediately upon request by us or the respective Mark owners or licensors.
You acknowledge and agree that you shall not contest the ownership of the Marks for any reason.
Your use or display of Marks will terminate effective with the termination of this Agreement, suspension of the Services or upon notification by us or the respective owner or licensor (including but not limited to Card Schemes) to discontinue such use or display.
Among others, unless we request otherwise, you will display on your Website (in such form as instructed by us) that we are an authorized reseller of your goods and services.
Card Scheme Marks – where the use is permitted by us, your authorization to use the Visa and MasterCard logos or marks shall at all times comply with the Rules and will be limited to your promotional materials and Website to indicate that Visa and MasterCard cards are accepted as payment for the business Goods and Services.
No Implied Endorsement. You will not use Marks in any way which either directly or indirectly suggests or implies that the Mark owner or licensor endorse any goods or services other than their own and you may not refer to any Mark owner in stating eligibility for your products or services.
Our use of your trademarks. You represent and warrant to us that you are the sole and exclusive owner of the brands, names, logos, trademarks, trade names and service marks as used by you on the Website and otherwise and all intellectual property rights in the aforementioned as well as in the materials and information you provide us and/or can be found on your websites. You hereby grant us a worldwide, non-exclusive, un-limited and royalty-free license to use the aforementioned materials including but not limited to your brand, name, trademarks, trade names and service marks.
13. YOUR REPRESENTATIONS AND WARRANTIES
Without derogating from, and in addition to, any of your other representations, warranties, covenants and obligations contained in this Agreement, you hereby represent, covenant and warrant to us the following:
13.1 this Agreement is duly authorized and you have and will maintain the full right, power and authority to enter into this Agreement, to execute, deliver and perform this Agreement and to grant the rights granted hereunder;
13.2 This Agreement constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms;
13.3 You will perform all obligations hereunder with reasonable skill and care;
13.4 Any and all information and documentation provided by you is true, accurate, complete and up to date and no information, document or statement provided , made available or made are untrue, false, incorrect, incomplete or misleading;
13.5 You are not involved and will not be involved in any act or traffic that constitutes or can be reasonably expected to constitute fraud or other illegal activity, including but not limited to money laundering, under any Applicable Law, rule or regulation.
13.6 You have obtained and shall continue to maintain during the term of this Agreement all necessary regulatory approvals, certificates and licenses to conduct your business, operate your Website, sell any product or provide any Good and Service you intend to offer;
13.7 The execution, delivery and performance by you of this Agreement, the Goods and Services and sales thereof and the consummation by you of the Services will not conflict with or violate any Applicable Law;
13.8 you shall not knowingly do anything or allow anything to be done which is likely to harm our reputation or the reputation of the Acquiring Banks, Alternative Payment Method Providers, Card Schemes, any other relevant payment provider or other third party;
13.9 you shall not use the Services, directly or indirectly, in connection with any non-permitted, illegal or fraudulent business activities;
13.10 There is no action, suit or proceeding at law or in equity now pending or, to the best of your knowledge, threatened by or against or affecting you which would impair your right to carry on your business as now conducted or affect your financial condition or operations or your ability to perform the obligations required under this Agreement;
13.11 You have full knowledge of the PCI-DSS (as defined above) and you hereby undertake to faithfully comply therewith and to prove compliance therewith in an appropriate manner upon our request. Furthermore, you will meet all costs associated with achieving compliance and are solely responsible for any Assessments arising from not being compliant.; without derogating from the generality of the above, you assume full responsibility in the event of total or partial non-compliance with the PCI-DSS program;
You are the sole data controller (as such term is used in relation to Data Protection Laws) of all personal data, you possess and shall continue to possess all required approvals and consents from your customers and end users to the controlling and processing (includes receipt, possession, use, retransmission and any other action) of their personal data (as such terms are defined in the Data Protection Laws) by you, use, the Acquiring Banks, the Alternative Payment Method Providers and the Card Schemes (and between the aforementioned or any of their duly authorized representatives). You further specifically authorise the aforementioned usage and disclosure. We accept no responsibility for your privacy policies and for the processing of personal data by you or any of the payment methods.
You will protect the data relating to the End Users, which is collected and stored by you against access by unauthorized third parties and you will use said data solely as permitted.
You and your personnel will accordingly not disclose End User account information other than to us, or to third parties in response to an Acquirer, Card Scheme, APMP, police or government request.
13.13 You will deliver/perform the Goods and Services to End Users within the committed timelines and without delay;
13.14 Your Websites, services, Goods and Services and included content do not, and will not: (i) infringe upon, violate, wrongfully use or misappropriate any third party rights including but not limited to intellectual property rights; and/or (ii) promote, contain, link or otherwise display or allow the display of any content or materials which are sexually explicit, violent, libelous or defamatory, abusive, offensive, discriminative, infringing or are otherwise illegal.
13.15 You own and operate the Website and have full control and authorization of the Website’s content.
13.16 You are the owner of all sales traffic that originates from the Website.
13.17 All transactions that will be processed in connection with the Services will be originated only from the Websites.
13.18 You do not provide any type of payment services (credit card and otherwise) to any company or any business organization.
13.19 You will use the Service only to transact your own account and not on behalf of any third party.
13.20 You shall fully comply with the provisions of Schedule 1.
13.21 You guarantee that it is not possible for the data input to be manipulated, in particular that any unauthorized use by members of your company or group of companies or unauthorized person is not possible.
14. LIMITATION OF LIABILITY
You assume all liability for your use of our services and for your Goods or Services, and we assume no liability for your failure to perform in accordance with this Agreement or any results caused by acts, omissions or negligence of you, your employees, your contractors or an agent or an employee of any of them, nor shall we have any liability for claims of third parties, including, but not limited to, claims of End Users who purchased Goods or Services (resold by us or otherwise) or other third parties arising out of or resulting from, or in connection with, Goods and Services, programs, promotions, advertising, infringement or any claim for libel or slander or for violation of copyright, trademark or other intellectual property rights.
Our sole and exclusive liability under this Agreement, and your sole remedy under this Agreement, are set out in this Section and shall be limited to direct damages caused to you as a direct result of a breach of this agreement by us, and will not exceed, in any event, aggregately for the duration of this Agreement, the fees you paid to us during the three months immediately preceding the date on which the event giving rise to the damages took place.
In addition to any limitation of liability appearing in any other provision hereof, we shall not be liable for any of the following types of loss or damage, regardless of the form of action, whether in contract, tort (including negligence), strict product liability, or otherwise, even if such damages were foreseeable and even if we have been advised of the possibility of such loss or damage (including without limitation the inability to use the services): (i) any indirect, special, incidental, or consequential damages of any kind; (ii) loss or interruption of use, business, profits, sales, bargain, contract, opportunity, goodwill or anticipated savings, or (iii) loss or corruption of data or otherwise.
You acknowledge and agree that we shall have no liability, either directly or indirectly, in relation to any decision, action or omission of a Card Scheme, Acquiring Bank or Alternative Payment Method Provider or any agent of any Card Scheme, Acquiring Bank or Alternative Payment Method Provider or regulatory authority including without limitation where the funds held with such entities become unavailable due to government actions, such entities becoming bankrupt or insolvent and otherwise save if and to the extent that such decision, action or omission is made as a direct result of our breach of the agreement.
Maximum effect. The laws of certain countries and jurisdictions may not allow some or all of the above disclaimers, exclusions, or limitations and they may not apply to you in which case only the limitation which are lawful in your country or jurisdiction will apply to you and our and our affiliates’ (and our and their respective employees, directors, agents and representatives) liability is limited to the extent permitted by law.
Limitation of Actions. To the extent permitted by Applicable Law, any claims by you arising out of this Agreement must be brought within twelve (12) months after you learned, or ought to have learned, of the circumstances giving rise to the claim.
Nothing in this Agreement shall limit or exclude the liability in respect of fraud, death or injury to persons or any other liability which cannot by law be limited or excluded.
You will indemnify, defend and hold harmless us and our affiliates and our and our affiliates’ their respective assignees, agents, franchises, licensees, employees, officers and directors (together: “Indemnified”), upon demand, from and against any and all actions, proceedings, Assessments, claims, penalties, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, deficiencies, tax assessment, interest and reasonable legal fees (including but not limited to those imposed by the Acquiring Banks, Alternative Payment Method Providers, Card Schemes or regulatory authorities/agencies) whether arising in tort, contract, for breach of statutory duty or otherwise which may be suffered or incurred by any of the Indemnified, to the extent directly or indirectly arising out of or in consequence of or in connection with: (i) Any breach or failure to comply with the provisions of this Agreement, by you, your affiliates, assignees, agents, employees, officers or directors or anyone on your behalf including without limitation in relation to your obligations, undertakings, representations and warranties; (ii) Use of Services and Platform, including without limitation in relation to Transaction, as well as any act or omission, negligence, default, fraud, fraudulent misrepresentation or willful misconduct, by you, your affiliates, assignees, agents, employees, officers or directors or anyone on your behalf including without limitation in relation to Assessments, Chargebacks and related costs; (iii) any claims by third parties, including but not limited to End Users, Acquiring Banks or Alternative Payment Method Providers, resulting from or in connection with you, including but not limited with respect to the your website, trademarks, products or services, Goods and Services resold by us and where relevant our use of the above and including without limitation in relation to actual or alleged infringement, misappropriation, or violation of any third-party intellectual property rights;(iv) any security breach including without limitation in relation to End Users information and compliance with PCI-DSS (whether or not you complied with PCI-DSS); or(v) Assessments. You shall be solely and fully liable for any Assessments.
17. TERM AND TERMINATION
17.1 Term. This Agreement is effective from the earlier of the moment we commence providing you with Services or the moment we inform you that we have received your Application and all legal documents required in connection therewith, and have approved your business for working through our company. This Agreement shall continue in full force and effect until terminated in accordance with the terms of this Agreement.
17.2 Termination. We have the right to terminate this Agreement at any time for any or for no cause and without liability of any kind, immediately upon written notice to you. You have the right to terminate this Agreement at any time for any or for no cause, upon a 30-day written notice to us. In addition, this Agreement shall terminate automatically and without a need for a notice to you if you become bankrupt or insolvent or similar proceedings are filed.
17.3 Results of Termination. Upon or at any time after termination or expiration of the Agreement for any reason, you shall immediately pay us all amounts owed by you under the Agreement, your rights to use the Services and any other rights granted hereunder shall immediately cease, and you shall destroy any copy of the materials licensed to you hereunder and referenced herein. Immediately following the termination or expiration of this Agreement for any reason, you must remove all Marks used by you in your Website, cease using any the Platform and any part thereof , where relevant – cease using any code or software (payment page, SDK, API etc.) which may be provided by us under this Agreement and follow the provisions of Section 18.6 with respect to Confidential Information.
17.4 Existing rights and obligations. The termination of this Agreement for any reason shall not affect any rights, obligations or liabilities accrued before the date of termination or expiry, and shall not relieve you or us of your or our respective obligations to pay amounts accrued or owing, nor affect any legal rights or obligations which may have arisen under this Agreement prior to or at the date of termination.
17.5 Right to withhold payments on termination. Without derogating from any other right which we are entitled to under this Agreement or under Applicable Law, it is hereby agreed that in the event of the suspension of part or all Services, termination or expiration of this Agreement or the issuance of a notice of termination hereof (each, a “Termination Event”) by either party, we will have the right, at our sole discretion, to freeze and withhold (or, to the extent applicable to instruct the Acquiring Banks and/or Alternative Payment Method Providers to freeze and withhold) any amount due to you, for a period of up to six (6) months from the end of the month of the last approved Transaction for the purpose of securing the payment of all Fees and other payments due from you. If after this six (6) month period, we believe there still exists a risk of more Chargebacks, Refunds, customer disputes, Assessments or any other actual or potential liability, we will have the right to withhold, or cause to be withheld, such amounts until such risk ceases to exist. At the end of the said six (6) months period or an extended period where applicable the amounts withheld and frozen shall be remitted to you minus all Fees and other payments due. We shall notify you of such withholding upon such Termination Event.
17.6 Survival. Upon any termination or expiration of this Agreement for any reason, all provisions regarding indemnification, warranty, liability and limits thereon, and confidentiality and protection of proprietary rights and trade secrets, and any provisions which expressly or by their nature are required to survive such termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose.
You understand and acknowledge that during the term of the Agreement and after its termination for any reason whatsoever, you shall continue to bear total responsibility for all Chargebacks, Assessments, Refunds, reversed payments, penalties, fees, fines, credits and adjustments resulting in any way from Transactions and all other amounts then due or which thereafter may become due under this Agreement.
18.1 “Confidential Information” means all information disclosed or made available, directly or indirectly, by us or any of our affiliates or representatives in writing, orally, or by inspection or observation of tangible items, and includes without limitation any information of technical, business or other nature including without limitation business information, business partners, banking partners, inventions, know-how, trade-secrets, methods and information, business plans, clients finances, proprietary design, concept, content performance, software, hardware, reports and documentation, structural, scientific, technical, algorithmic, price, historical, marketing information and other business affairs, and other proprietary information, including but not limited to material associated with and forming part of our proprietary systems.
18.2 You agree and undertake: (i) to hold in confidence the Confidential Information as well as the confidential information of the relevant Acquiring Banks, Alternative Payment Method Providers and the Card Scheme(s (which is deemed to be part of the Confidential Information for purposes of this Agreement); (ii) the Confidential Information shall neither be disclosed nor caused to be disclosed, whether directly or indirectly, to any third party or persons without the our prior written consent and shall not be copied, reproduced or duplicated in any way or manner, in whole or in part, unless such copying, reproduction or duplication has been specifically authorised by us in writing; (iii) not to use the Confidential Information for any purpose other than the specific purpose for which it was disclosed as described herein; and (iv) to limit disclosure of the Confidential Information to those of your personnel who have a need to know such Confidential Information, which have been advised of your obligations hereunder and who are bound to you by similar confidentiality obligations.
18.3 Disclosure of the Confidential Information to you shall in no way serve to create, a license to use, or any right in, the Confidential Information or in any other proprietary product, trademark, copyright, patent or other right.
18.4 The confidentiality obligations above shall not apply to such information which: (a) becomes public domain without direct or indirect fault on your part, as can be substantiated by written records; (b) is previously known to you without an obligation to keep it confidential, as can be substantiated by written records; or (c) is required to be disclosed pursuant to law, regulation, judicial or administrative order, or request by a governmental or other entity authorized by law to make such request; provided, however, you first notify us to enable us to seek relief from such requirement, and that you render reasonable assistance requested by us in connection therewith.
18.5 You hereby covenant and warrant that the Confidential Information shall be protected, kept and treated by it in strict confidence and you shall apply a degree of care similar to the degree of care applied by you in relation to you own confidential information and data of a confidential nature provided that such degree of care shall in any way comply with applicable standard of reasonableness.
18.6 Upon the termination and/or expiration of this Agreement for any reason and/or at our request (A) you shall: (i) return to us any document or other material in any form in its possession relating to the Confidential Information; and/or (ii) destroy any document or other material in any form that contains the Confidential Information; and (B) certify to us such return and/or destruction.
18.7 You acknowledge that a breach of these confidentiality provisions may cause us extensive and irreparable harm and damage, and agrees that we shall be entitled to injunctive relief to prevent use or disclosure of the Confidential Information, in addition to any other remedy available to us under Applicable Law.
18.8 With respect to any information you provide us as part of this Agreement (unless it falls under the aforementioned exclusions) we shall keep such information confidential in accordance with Applicable Law.
18.9 Permitted disclosure of information by us. Notwithstanding the aforementioned, you hereby authorize and we shall have a right to transfer any information and documents relating to you or which we receive from you or otherwise obtain in connection with performing the Services, including your and your customers’ identifying, personal or other confidential information, to our partners, service providers, affiliates and subsidiaries, any Acquiring Bank, Alternative Payment Method Provider, Card Scheme, Client’s agent/reseller (where applicable) or other third party as required by us to be able to provide the Services and/or to be in compliance with such entities’ Rules as well as with any and all Applicable Law, regulation, directive or other requirement of any governmental authority, or as ordered by any competent authority. The aforementioned shall include our sharing the information and documents with appropriate third parties and offices to validate the information provided and to check for any other breaches of contract in relation to other payment processing companies.
Independent Provider. You acknowledge that we are an independent sales organization/member service provider operating under applicable Rules and Applicable Law, and we are an independent contractor and not an agent of any acquiring bank or any other third party. You further acknowledge that we are not and shall not be responsible, either directly or indirectly, for any act or failure to act of any Acquiring Banks, Alternative Payment Method Providers, Card Schemes, any other relevant payment provider or other third party or agent thereof in the processing of and providing for the payment of charges created by End Users as set forth herein.
Relationship of parties. The parties’ relationship to each other in all matters relating to the performance of this Agreement is that of independent entities. Nothing contained herein will place the parties in the relationship of partners, participants in a joint venture, contractor-subcontractor, or employer-employee and, except as may be expressly set forth herein, neither party will have any right to obligate or bind the other in any manner whatsoever nor represent to a third party that it has any right to enter in to any binding obligation on the other party’s behalf.
20. AMENDMENTS TO AGREEMENT
We may amend any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by written notice to you. Any changes will take effect immediately unless otherwise in the notice of change. If any amendment is unacceptable to you, your only recourse is to terminate this agreement. Your continued use of the services following our notice of change will constitute a binding acceptance of the amended agreement.
Notices to you. You agree to receive communications from us in an electronic form. Electronic notices will be delivered to your email address, as set forth in the Application or as subsequently changed by you by written notice to us. All communications in electronic format will be considered to be “in writing” and to have been received on the day that we send them. We reserve the right, but assume no obligation, to provide communications in paper format.
Notices to Us. Any notices to us or any questions concerning this Agreement should be in writing in the English language and addressed to the address as set forth in the Application or to [email protected]
22.1 Assignment. This Agreement, any part thereof or any rights or obligations under it may not be novated, assigned, outsourced or transferred by you without our advance written consent. If, at any time we opt at our sole discretion to have your signature on a novation or assignment by us and require you to enter into any novation or assignment of this Agreement by us, you shall do so in a timely fashion in accordance with documents provided by us to effect such novation. Any assignment or transfer in violation of the aforementioned provisions shall be deemed null and void. Subject to the forgoing, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
22.2 Force majeure. We shall not be liable for failing or delaying performance of our obligations resulting from any condition beyond our reasonable control, including but not limited to, use of third parties’ equipment or services, communications failure, governmental action, war, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
22.3 Governing Law; Jurisdiction. This Agreement and all matters arising from it and any dispute arising between the parties in connection with this Agreement shall be governed and construed in accordance with the laws of England and Wales notwithstanding the conflict of law provisions thereof. The competent courts in London, England, shall have exclusive jurisdiction in any legal proceedings resulting or connected with this Agreement, and the parties hereby irrevocably submit to such exclusive jurisdiction. However, this shall not prevent us from bringing any action in the court of any other jurisdiction for injunctive or similar relief.
22.4 Entire Agreement. This Agreement and its Schedules, together with the and any and all documents referred to, constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede and cancel all prior understandings, agreements and discussions between them, oral or written, with respect to such subject matter.
22.5 No Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy; and will not be construed as a waiver of any subsequent breach or default under the same or any other provision of this Agreement.
22.7 Severability. All the provisions of this Agreement are distinct and severable. If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, this shall not impair the operation of this Agreement or affect the other provisions which are valid.
22.8 Non solicitation of personnel. You agree not to hire or otherwise employ any of our and our respective affiliates’ personnel, except by our advance written. The provisions of this section shall survive the expiration or termination of this Agreement for any reason and shall remain in full force and effect for a period of six months thereafter.
22.9 Third party rights. Acquiring Banks and Alternative Payment Method Providers are to be considered a third party beneficiary as to the indemnification and liability provisions of this Agreement. The Card Schemes shall have the right, either in law or in equity, to enforce any provision of the Rules. You agree to refrain from taking any action that would have the effect of interfering with or preventing an exercise of these rights by the Card Schemes. Save as expressly set out otherwise, a person who is not party to the Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement.
22.10 You hereby agree to receive advertisement, by phone, e-mail or any other means by us and our affiliates for their products and services. You may have the right to unsubscribe at any time by email notice to us to the address specified in such notice.
Last update: January 2021