Please, read carefully all the following before using our website and services, because they constitute a binding agreement between you, the individual or legal entity.
I. TERMS AND DEFINITIONS
The Parties agree that for the purposes of this Agreement, the terms included in this section shall have the meaning that they are respectively given below:
1.1. Alternative Payment Method or «APM» means a payment method (other than Card) which we are able and have agreed to process: e-wallets, payments from the phone account, other.
1.2. Authorization – electronic procedure of the International Payment System in order to obtain the Issuer's authorization to conduct a Transaction after proper verification of the Card, Transaction Data, results of identification of the Cardholder and adequacy of funds on the Cardholder account.
1.3. Authorization data - data in the form of a login and password used to access the Personal Account.
1.4. Bank – a credit or other financial institution which is a member of the International Payment Systems (IPS) and which provides services on processing of Transactions, Refunds and Chargebacks.
1.5. Bank Account means a checking (current) account open to a person at a bank.
1.6. Card – Payment card branded as Visa, Visa Electron, MasterCard or Maestro or other that shall be used as the means of Payment when conducting the Transaction.
1.7. Cardholder – private individual who holds and uses the Card to pay for the services and the goods of the Merchant.
1.8. Card Schemes shall mean «MasterCard Worldwide» («MasterCard») or «VISA Inc.» («Visa») International payment system, or other payment systems as applicable.
1.9. Chargeback - unconditionally executed electronic payment request for a refund, which is issued by the issuing Bank to the Payment System/Card Scheme on the basis of a Cardholder's claim.
1.10. Confidential Information shall mean any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to Services, developments, relevant documentation (in whatever form or media provided), inventions, processes, plans, financial information, Customer data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if:
(i) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence;
(ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party;
(iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information;
(iv) it has been approved for release by written authorization of the owner of the Confidential Information; or,
(v) it has been independently developed by a Party without access to or use of the Confidential Information of the other Party.
1.11. Customer - means an individual who buys or has bought goods and / or services of the Merchant.
1.12. Deposit - shall mean an amount of funds, specified in Annex A hereto, deposited by Merchant with PS to enable PS to perform its obligations.
1.13. Goods mean goods, services, results of intellectual activities, and other types of objects of civil law rights.
1.14. Issuer – the credit institution or another legal entity who issued the Card.
1.15. IT Protocol - means a technical integration protocol, establishing the order of information and technical cooperation among the Parties.
1.16. Material Change of Law - shall mean any change in applicable law or regulations or the interpretation thereof by any court or other governing body having jurisdiction after the Effective Date, because of which the performance of any provision of this Agreement becomes unlawful or impossible for PS or materially impeded.
1.17. Merchant – legal entity or self-employed person, selling their Goods through the Internet.
1.18. Merchant account (not a bank account) shall mean an internal record established by PS for the Merchant to account funds received by PS from the Merchant.
1.19. Merchant`s Payout Account – shall mean Merchant`s specified bank account that shall be used for payment to the Merchant in accordance with section 6.2 of the Agreement. The available payout methods are specified in section 3 of Annex A to the Agreement.
1.20. Online store - a software product of the Merchant with a unique Internet address, as well as providing information on goods (works, services) on the Internet and receiving orders from Customers for their purchase (execution, provision).
1.21. Partner - any individual or legal entity with which the PS enters into business relations both on the basis of an agreement and due to actual circumstances (including, but not limited to, under the Accession Agreement on the PS website).
1.22. Party (Parties) - PS and the Merchant, when together referred.
1.23. Payment Methods - the number of ways in which the Merchant can collect Payments from Customer incl.Cardholders.
1.24. Payment Order - shall mean an instruction given by the Merchant to PS to execute a Payment.
1.25. Payment System (hereinafter abbreviated as PS) - 1Payment, processes personal data.
1.26. Personal Account - a section on the PS Website, protected by an access control system, which provides current information on Funds Transfers, remuneration, the technical state of connection to the PS System, the ability to receive statistical data on Funds Transfers in favor of the Merchant and other information necessary for the current use by the Merchant’s PS systems. The personal account is located at the following address: https://1Payment.com.
1.27. Personal Data - means the data collected from the Customer and/or about the Customer by the Party in course of its business activities, including without limitation full name, date of birth, residence address, and copies of the documents confirming that information and other information that is personal data in accordance with the legislation of the countries of the Parties and (or) the Customer.
1.28. PS Website - means the PS Website available at https://1Payment.com is owned and operated by 1Payment.
1.29. Refund – the procedure by which the Merchant requests a return of a Transaction Amount or a part of a Transaction Amount to a Cardholder.
1.30. Reporting Period - shall mean a period of time specified in Annex A hereto.
1.31. Settlement Participants - Client, Card Schemes, Issuer, Bank, PS, when jointly mentioned.
1.32. Transaction - shall mean a payment sent by a Customer to the Merchant using a Customer’s Bank Card via the Merchant’s website and mobile application.
1.33. Transaction Notification - means short information on the processed Transaction generated by the PS electronic system and sent to the Merchant automatically, as may be provided by IT Protocol.
II. GENERAL PROVISIONS
2.1. This Agreement is concluded by joining the Merchant to this Agreement as a whole. Acceptance by the Seller of the PS offer to conclude the Agreement and all its conditions is the fact of registration by the Seller of the Personal Account on the PS website.
2.2. The Parties agree that the PS has the right to unilaterally make changes and additions to the Agreement, its annexes, technical integration protocols without prior notice to the other party. All the above changes come into force and become binding on the Parties from the moment they are posted on the PS Website.
2.3. The Merchant, prior to the Registration of the Personal Account, as well as at the request of the PS, provides the PS with up-to-date and reliable information about the Merchant. Information is provided in the form of a questionnaire, if necessary, with supporting documents attached.
3.1. Services scope. PS will provide Transaction and Payment Order processing and settlement services to the Merchant on the terms and conditions of this Agreement (the «Services»).
3.2. PS provides the Merchant with payment services, allowing the Customers to pay for the Merchant's goods and services using bank cards and alternative payment methods through payment service providers («PSP»), and also allows such Merchants to fulfill their financial obligations to the Customers (refunds, other).
3.3. The Merchant shall use the PSP to accept payments made by the Customers in favor of the Merchant and provide payment services to the Customer's Bank Cards in accordance with the payment details (including, but not limited to, the Bank Card number) provided by the PS Merchant.
IV. Rights and obligations of the parties
4.1. PS Obligations. PS shall:
(i) Open a «Merchant account» for the Merchant in the PS system subject to successful completion of the PS Due Diligence process by the Merchant;
(ii) receive the Transactions’ funds from Customers and transfer such funds to the Merchant’s Payout Account according to Section 6.2 herein, provided that PS reserves the right to deduct Fees from the Transaction’s amount;
(iii) deliver to the Merchant the Transaction Notification for each effected Transaction promptly after the processing of the relevant Transaction if such notification is specified by the IT Protocol implemented by the Parties or reflect such Transaction information in the interface of the Merchant’s account open with PS;
(iv) provide the Merchant with Report not later than the day following the Reporting Period;
(v) retain and/or freeze funds of Transactions or Payments if required to do so by the applicable law;
(vi) have a right to suspend or refuse processing of Transactions and Payment Orders in the event of any circumstances preventing their processing, and such suspension or refusal shall not entail any penalties or claims from Merchant under this Agreement;
(vii) provide Merchant with the information required for using PS services under this Agreement, including without limitation IP protocol details;
(viii) withhold the Payment Order amount from the total amounts due to Merchant and transfer the Payment Order funds to the Customer or notify the Merchant about inability to complete the Payment Order due to insufficiency of the Deposit funds.
4.2. Merchant’s Obligations. Merchant shall:
(i) establish an account with PS;
(ii) complete the integration works in accordance with the integration documents provided by PS and follow PS reasonable instructions with regards to the technical integration of 1Payment IT Protocol into Merchant’s websites and software applications;
(iii) acquire, implement and maintain all software required to fulfill its obligations under this Agreement;
(iv) accept Transactions and credit the Customer’s balance with the Merchant on the basis of the relevant Transaction Notification;
(v) inform its customers on the possibility of making Transactions via PS by posting the appropriate information in its end-user interfaces;
(vi) not initiate, perform, or otherwise be involved in any of the activities listed in Annex B hereto;
(vii) provide all reasonable assistance to PS or the regulatory body to assist them with any investigations being carried out in respect of the Merchant’s activities;
(viii) have the right to initiate Payment Order provided that the Deposit amount is sufficient to cover the amount of such Payment Order and relevant Fees;
(ix) not discourage Customers from using PS service by imposing additional charges on Transactions;
(x) provide PS with documents and information required for completion of the business customer Due Diligence by PS;
(xi) provide PS with the Customer’s Personal Data and other information on the Customer’s activities as may be requested by PS;
(xii) maintain sufficient Deposit amount in accordance with Section 3 herein;
(xiii) be responsible for all Chargebacks and fines, penalties, and other charges imposed by the Card Schemes on the Merchant and/or PS due to the Merchant’s business or Transactions;
(xiv) ensure that the following conditions are observed: • the Card has not been cancelled as shown in any notification issued by or on behalf of PS; • the Card has not expired; • the Transaction is not illegal and does not damage the goodwill of PS or the Card Schemes; • the price charged for the Transaction is not higher than the Merchant’s normal price; • the Merchant has not deviated in any other way from the terms of the Agreement or PS's current operating instructions; and
(xv) not submit to PS a Transaction that the Merchant knows or should know to be fraudulent or not authorized by the Customer, or that it knows or should know to be authorized by a Customer colluding with the Merchant for a fraudulent purpose. The Merchant is deemed to be responsible for the conduct of its employees, agents, and representatives.
(xvi) The Merchant must meet and follow all requirements and conditions for accepting the Payments for the Merchant’s goods or services, as set forth by the Agreement, communicated by PS from time to time and/or required by the Bank.
(xvii) The Merchant must comply with applicable laws that govern distant sales contracts.
(xviii) The Merchant shall avoid providing misleading information or otherwise creating impression that the supplier of goods/services is the Bank and/or the PS.
(xix) The Merchant’s website and its content shall be in compliance with the applicable laws, rules and requirements of the Banks and the Agreement. Particularly the Merchant’s website shall include the following, but not only, information as amended from time to time in a clear, easily accessible and understandable manner: - the word/picture marks to indicate which Payment Methods are accepted on the Merchant’s website; - Complete description of products and services offered; - Payment currency; - All charges to be paid when making a purchase/order, including delivery, packaging, taxes and other charges; - Terms and conditions of sale and delivery, and, If applicable, policy for returns and refunds; - Applicable export or legal restrictions, warnings (if any); - A reference to customer service and their contact details; The Merchant’s address and all other details required in the Merchant’s country of establishment and business.
(xx) The Merchant understands and agrees that it may be required by the Company or/and Bank to present proof of the sales records (documents and records used to evidence a proper ordering, sale and delivery of products and services through the use of the Payment Methods), including to the respective Bank, upon request. The Merchant shall establish a system to store and maintain copies of sales and proof of delivery, in such a manner so as to forward the said information within 24 hours of request. The Merchant understands that it is essential to provide sales records, which duly evidence a particular Transaction, sale, delivery and associated events and actions, immediately and within a required time frame as communicated to the Merchant in a particular case in order to meet deadlines and other requirements applicable to a particular case solving. The Merchant understands that failure to respond to such a retrieval request constitutes a violation of the Agreement, which may result in Chargeback or other consequences.
4.3. Expenses. Each Party will cover its own costs and expenses in connection with this Agreement, including the costs of Transaction processing and settlement, cost of facilities, equipment, employees, training, communication, computer systems and other business expenses, such as the applicable attorney fees, accounting fees, and other.
4.4. Adjustment of Payment Orders. Once completed, a Payment Order is irrevocable and cannot be changed, adjusted, or terminated. Merchant acknowledges that PS is not responsible for any loss incurred by the Merchant due to an erroneous Payment Order being completed by PS.
4.5. No Additional Charges. The Merchant will not charge any commission on the Transactions, unless such commission is required to be charged by the applicable laws and regulations, in which case the Merchant will notify PS in this respect, and the Parties will use their commercially reasonable endeavors to decrease a potential financial burden for the Customers and Recipients.
4.6. No Fiduciary Duty. The Parties agree that any funds being in the possession of PS pursuant to a Transaction under this Agreement are held in trust and such funds cannot be commingled by PS with the other PS’ funds, however the PS’s financial statements do not have to reflect such funds as restricted cash.
4.7. Refunds. In the event that the Merchant is required to affect a full or partial refund to a Customer in respect of a Transaction, then any such refund should be affected to the Card that was used in the Transaction. In no circumstance may the Merchant affect a refund directly to a Customer via an alternative mechanism such as cash or a credit transfer to an IBAN.
4.8. Card Scheme Rules Compliance. The Merchant acknowledges and understands the importance of compliance with Visa, Mastercard or other payment security requirements, such as those relating to Transaction information, storage, and disclosure. The Merchant will endeavor to protect Transaction information and will maintain and demonstrate compliance with the Payment Card Industry Data Security Standards (PCI-DSS) and all subsequent requirement updates. PCI-DSS resources for merchants may be found at https://www.pcisecuritystandards.org/merchants/. The Merchant undertakes to avoid the storage of the Card number at any time.
4.9. General Compliance.
(i)The Merchant shall ensure that all of its staff using the Service are properly trained in its use and that it has available technical and other data necessary to provide proper instructions in the use of such Service. The Merchant undertakes not to split Transactions into two or more smaller ones. PS reserves the right to request any documentation from the Merchant, at any point in time throughout the whole business relationship between the Merchant and PS, confirming the Merchant’s compliance with the terms and provisions of this Agreement. The Merchant shall cooperate with PS upon receipt of such requests, and shall provide such documentation without delay, within a maximum of five (5) business days unless otherwise specified by PS, and in accordance with the requisites specified by PS in its request.
(ii) The Merchant must provide PS with immediate notice of its intent to change the nature of its business, including selling any products or services not related to its current business or/and change ownership or transfer control of its business or/and change a domain name or/and significant change of a daily/weekly/monthly turnover or/and sell or close the business.
(iii) The Merchant must immediately notify the PS of any bankruptcy, insolvency or similar action initiated in respect of the Merchant or any of its principals.
(iv)The Merchant must immediately notify PS if the Merchant is threatened with or becomes party to any action, suit or proceeding at law that could substantially impair its right to carry on its business or adversely affect its financial condition or operations.
(v)The Merchant hereby represents, warrants and undertakes to ensure during the validity period of the Agreement that: -The Merchant will deliver products and services to its clients without undue delay -The products and services that are made available to the Customers through the Merchant comply with applicable law in any jurisdiction in or to which the Merchant is making the presented goods and services available. -The Merchant is not receiving funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice and that the Merchant is not sending or receiving funds to or from an illegal source -All information contained in any application, questionnaire and any other document submitted by the Merchant is true and binding upon the Merchant and PS may rely on all such information and documents.
(vi) The Merchant undertakes to compensate PS in full, without exercising the right of appeal, any amounts of fines, levies, and penalties exacted from PS by the Card Schemes or/and the Bank, judiciary / law enforcement agencies, and / or other competent authorities because of PS’s having been held liable for non-compliance / a breach of rules of the Card Schemes or/and the Bank, laws as a result of providing services under the Agreement, within 3 (three) working days after the date of receiving the Bank’s written claim sent by PS to the Merchant on the basis of an order / notification / request and/or notification received by the Company from the above-mentioned authorities.
(vii) All fines, Chargebacks, losses, penalties and damages shall pay by the Merchant to PS within 3 calendar days from the receipt of PS’s request for the details of PS specified in this Agreement or the PS has the right to withhold from all amounts from Transactions’ amount.
4.10. Transaction Authorization. The Merchant shall follow the following rules in course of the Transaction authorization:
(i) A Merchant must attempt to obtain the Card expiry date and forward it as part of the authorization request for any Transaction.
(ii) The Merchant agrees that it will not present for payment a Transaction which has failed any one or more of the authentication checks.
(iii) Such authentication checks include but are not limited to CVV2/CVC2 and/or 3D Secure authentication.
(iv) Each request for authorization shall be for the total original Transaction amount, including applicable taxes.
(v) Authorization can only confirm the availability of funds and that the Card has not been reported lost or stolen. Authorization shall not be deemed or construed to be a representation, promise or guarantee that PS will accept the Transaction and that the Merchant will receive payment, nor that the person making the Transaction is the Customer.
(vi) Authorization may not be sought or obtained on behalf of any third party.
(vii) A Merchant may obtain authorization for any merchandise to be shipped on any day up to seven calendar days prior to the Transaction date. The Transaction date is the date on which the merchandise is shipped.
(viii) When carrying out a recurring Transaction, a Merchant must: (a) obtain authorization for each Transaction; (b) provide PS with the correct indicator for each Transaction in the authorization request; (ix) Storage of authenticating data including (but not limited to) Card Verification Value (CVV) / Card Verification Value 2 is prohibited.
(x) The Merchant hereby undertakes to hold PS harmless and fully indemnified against all actions, proceedings, claims, costs, demands and expenses which PS may incur or sustain by acting upon or otherwise complying with any communications or instructions (including any authorization for a Transaction) which PS shall reasonably believe to have been made or given on the Customer’s behalf, and this irrespective of whether or not such communications or instructions are made or transmitted without the Customer’s authority.
5.1. Before sending any Payment Order, Merchant shall deposit a Deposit amount specified in Annex A hereto with PS, as a security that PS will properly fulfill its financial obligations hereunder. PS is authorized to use the Deposit to settle the amount of funds due and payable to PS by the Merchant, including but not limited to, the amounts of Payment Orders and Fees for provision of Services hereunder.
5.2. The Merchant hereby gives its irrevocable consent to PS to use the Deposit funds to provide security and/or any other guarantee as may be required from time to time by the Card Schemes for payment against potential Chargebacks and/or payments of any charges/assessments and/or fines to the said Card Schemes for any breach that is caused by the Merchant’s actions and/or inactions, and/or payments of any commissions/fees charged by third party banks and/or by the Card Schemes for completion of required activities under this Agreement (including without limitation registration/certification of the Merchant with the Card Scheme and others), and/or costs for an audit or other check initiated by the Card Scheme and related to the Merchant’s activity/inactivity
5.3. PS reserves the right to use and enforce the Deposit and/or any other security to pay Chargebacks and/or payments of any charges/assessments/fees and/or fines and/or penalties, even in the instance where the Merchant declares bankruptcy or insolvency and PS reserves the right to retain the Deposit and/or any other security for a period of six (6) months, or any longer period as determined by PS in its notice to terminate, after the termination of this Agreement.
VI. SETTLEMENT PROCEDURE
6.1. Fees. The Merchant will pay fees to PS calculated in accordance with Annex A hereto. Fees shall be due upon completion of a relevant Payment Order or a Transaction and shall be deducted by PS from the Deposit amount or from the Transaction’s amount payable to the Merchant respectively.
6.2. Payments. PS will transfer funds of the Payment Orders to the Merchant’s Payout Account, provided that the Deposit funds are sufficient to cover such transfer and the related fees. The terms of payment will be agreed by the Parties in Annex A to this Agreement.
6.3. Currency. All Transactions and Payment Orders shall be transacted the Agreement Currency. In case a Transaction’s or a Payment Order’s currency differs from the Agreement Currency, then the settlement amounts shall be calculated on the basis of the exchange rate used by PS on the date of such Transaction and/or Payment Order.
6.4. Netting. The Parties agree to set-off their outstanding mutual obligations which may arise in course of their cooperation hereunder. Netting calculations will be done by PS and provided to the Merchant in the Daily Report. This netting agreement is irrevocable, unless the Merchant suspects an incorrect accounting and calculation made by PS, in which case this netting agreement may be cancelled by a written notification delivered by the Merchant to PS. For the avoidance of doubt, in case of insufficiency of the Deposit funds to cover the Payment Orders requested by the Merchant, PS may in its sole discretion deduct the balance from the Transactions’ amount due to the Merchant. PS may withhold payment of any amount payable to the Merchant (in part or in whole) where there are any sums due or owing by the Merchant to PS, and the Merchant agrees that PS may exercise set-off and deduct such amounts due or owing by the Merchant to PS from any amount payable to the Merchant by PS.
6.5. Reconciliation of payments. The Parties will reconcile their financial obligations hereunder on a monthly basis based on the aggregate reconciling file delivered by PS to the Merchant. If any discrepancy(-ies) is detected, the Merchant will request an adjustment of the reconciliation statements. The Parties will use reasonable endeavors to clarify any disputable issue and to make adjustments to their account balances under the Agreement (if applicable). The Merchant may request an adjustment at any time within this Agreement, provided that, if the Merchant doesn’t not object on a reconciliation file within 10 days from date of receipt of the reconciling file from PS, invoices and settlement data for that particular month will be deemed accepted by the Merchant.
6.6. Special Provisions. Where PS has made payment on any Transaction, PS shall nonetheless be entitled to debit any amount credited to the Merchant Account or, if such amount is not available in the Merchant Account, seek reimbursement of any amount paid to the Merchant, or may delay payments to the Merchant for a period of time as determined by PS within its sole discretion and, if applicable, may require additional information from the Merchant from time to time, where:
• the Merchant is in breach of any of the terms of this Agreement in respect of any Transaction;
• the Transaction is proved to have been created or generated improperly or without authority of the relevant Customer;
• PS suspects that the Merchant is in breach of any terms and conditions of the contract giving rise to the Transaction or the Merchant has made misrepresentation whether intentionally or negligently in the course of the Transaction;
• the sale of goods or services to which the Transaction relates involves a violation of law or the rules or regulations of the Card Schemes or any governmental agencies, local or otherwise;
• PS is aware of any penalty and/or fine which may be imposed by the Card Schemes as a result of or in connection with the Agreement, any transaction or the goods or services relative to the transaction, any promotion or marketing of any goods or services sold by the Merchant, improper activity of the Merchant, any misrepresentation by the Merchant to the Customer or any breach of any obligation or duty that the Merchant owes to the Customer, any investigations into transactions which are shown to involve fraudulent or criminal activity on the Merchant’s part, any breach of, or failure by the Merchant or its employees, agents or contractors to comply with the Agreement, any act or omission done wilfully or negligently by the Merchant, its employees, agents or contractors as well as any violation by the Merchant, its employees, agents or contractors of any applicable laws or regulations.
6.7. Chargebacks. If any amount is the subject of a pending Chargeback by Visa, Mastercard or any Affiliate, PS shall withhold payment of that amount pending the final determination of the dispute. In addition, where PS has made payment of any such amount, PS shall nonetheless be entitled to debit such amount credited to the Merchant Account or, if such amount is not available in the Merchant Account, seek reimbursement of such amount paid to the Merchant. PS will charge the Merchant with a Chargeback processing fee specified in Annex A hereto. The Merchant acknowledges that due to currency exchange differences and issuing bank fees, the value of a Transaction and the value of an eventual Chargeback of the same Transaction may not be equal. Without prejudice to its other rights under this Agreement, PS may delay payments to the Merchant for a period of time as determined by PS within its sole discretion and, if applicable, may require additional information from the Merchant from time to time in the following cases:
(i) if there are changes in the business model of the Merchant that may have an impact on the risk to PS; (
ii) if there are unexpected increases in chargeback / refund / fraud transactions processed by the Merchant; and
(iii) if there are sudden drops in processing by the Merchant which may result in a negative balance. Without prejudice to any other provision of this Agreement, as a cover against losses from Chargebacks and/or Fees which cannot be recovered by PS, PS may block and retain a percentage or the full amount of the Transactions processed. The retention rate will be directly related to the Chargeback Rate.
6.8. PS will not be liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties, including but not limited to the respective Banks and/or the Merchant’s bank/Payment (financial) institution where the account is held.
6.9. PS’s liability is limited only to the sending of funds as per the Merchant’s instructions. PS is not obliged to track and control Payments that were sent to the Merchant.
6.10. PS is not responsible for losses and other unfavorable consequences for the Merchant, resulting from the access of third parties to the Personal Account as a result of disclosure or loss of Authorization Data by the Merchant.
VII. INFORMATION REQUIREMENTS
7.1. Transaction and Payment Order Information Requirements. Each Transaction and Payment Order will include (among other) the following information:
(i) Customer’s full name and address (if applicable);
(ii) Customer’s Bank Card’s number (PAN) and expiration date or the Bank Account’s details (if applicable); and (
iii) Amount to be transferred by or to such Customer. Completion of Transactions and/or Payment Orders is subject to provision of certain documents and information about such Transaction and/or Payment Order, including Personal Data, to PS as may be requested by PS in its sole discretion. PS reserves the right to reject or suspend any Transaction and/or Payment Order if such documents and information have not been provided to PS.
7.2. Record keeping. Both Parties shall retain in their power, during the term of this Agreement and/or for five (5) years following the processing of a relevant Transaction or Payment Order, whichever is longer, all documents and information related to them, including without limitation, the Customer information. The Parties agree that such information shall be considered Confidential Information under this Agreement. Such information retained by Merchant shall be made available for audit and inspection to PS upon request. PS shall be entitled to make and retain copies thereof.
8.1. Cooperation with the Authorities. In case of investigations and/or requests initiated by the competent authorities, Merchant agrees to provide PS with all necessary information, documents, and other assistance, unless such assistance is in violation of the law applicable to the Merchant. This provision shall remain in force for the period of this Agreement and for seven (7) years thereafter. Costs and expenses relating to such investigations and requests shall be borne by PS.
8.2. Early Termination on False Declarations. In case PS obtains certificates or reports from the competent authorities that differ in context with the written declarations of the Merchant and/or the shareholders or managers of the Merchant, or in case such reports show that any of them is involved in money laundering, terrorist financing, trade of narcotics or any other illicit activity, or that any of them is in payment suspension, meeting of creditors, bankruptcy or subject to any undisclosed material litigation or sanctions or other similar restrictions, this Agreement may be terminated by PS with an immediate effect.
9.1. Use of Confidential Information. A Party, receiving a Confidential Information from the other Party, will at all times keep such Confidential Information in secret and will not reveal it to third parties, or use (expect as expressly allowed by this Agreement), or profit from the Confidential Information without previous written authorization from the disclosing Party.
9.2. Representatives. Any Confidential Information may be used by the receiving Party solely for the purpose of proper performance of such Party’s obligations under this Agreement. The receiving Party may disclose the Confidential Information to its officers, employees, agents, affiliates, advisors, consultants, accountants, auditors, and attorneys (collectively referred to as "Representatives") on as needed basis only. Such Representatives shall be notified by the receiving Party of the confidential and proprietary nature of the provided information and of its obligations under this Agreement and shall be bound under appropriate terms of confidentiality in respect thereof, and the receiving Party shall be fully responsible for any confidentiality breach occurred due to the failure of any of its Representatives. The receiving Party shall use at least the same level of care as it employs with respect to its own Confidential Information in handling and maintaining the Confidential Information of the disclosing Party.
9.3. Authorities’ Requests. Notwithstanding the foregoing, a receiving Party or its Representative may disclose the other Party’s Confidential Information upon an authorized governmental body’s request (by deposition, request for information or documents, subpoena, civil investigative demand, or similar process) in the country of operation of the receiving Party. The receiving Party will provide a disclosing Party with a prompt notice of such request or requirement and will cooperate with the disclosing Party so that the disclosing Party could obtain a protective order or other appropriate remedy for preventing disclosure of its Confidential Information. The disclosing Party will incur all expenses for the cooperative efforts of the receiving Party. If no protective order or other remedy is obtained, the receiving Party or its Representative may disclose the Confidential Information as requested by the authorities, and the disclosing Party shall not initiate any claim against the receiving Party based upon such disclosure.
9.4. Confidential Information Reliability. The Parties acknowledge that there is no warranty whatsoever nor express or implicit obligation with respect to the exactness, truth or precision of the Confidential Information or any part thereof.
X. PERSONAL DATA PROTECTION
10.1. General Requirements. Each Party agrees that, in the performance of its obligations under this Agreement, it will comply with the applicable personal data protection legislation. Each Party warrants and undertakes to the other Party that, to the extent permitted by the applicable laws of the country of its incorporation:
(i) it has in place appropriate technical and organizational (including security) measures to protect Personal Data;
(ii) it has in place procedures so that authorized persons granted access to Personal Data will maintain the confidentiality and act only on the relevant Party’s instructions;
(iii) it will, and its authorized persons will, process Personal Data solely for the purpose of complying with the Party’s obligations hereunder;
(iv) it shall not disclose or transfer, or process Personal Data save in accordance with the data protection laws of the country in which the respective Party is established; and
(v) upon reasonable request of the other Party, the first mentioned Party will submit its Personal Data processing facilities and documentation, for reviewing or auditing by the other Party (or an independent inspection agent or auditor selected by the other Party), to ascertain compliance with this clause.
11.1. For the duration and the purpose of this Agreement, PS grants Merchant a non-exclusive, worldwide, royalty-free, non-transferable license to display its logo and/or company name and/or trade name and marketing material as agreed between the Parties from time to time. Such license shall not be sub-licensed to any third party without prior consent of PS. Merchant shall follow PS’ reasonable instructions with respect to any material licensed to it. Except as expressly stated herein, nothing in this Agreement shall grant or be deemed to grant Merchant any right, title or interest in any logos, trademarks, trade names or other intellectual property rights owned by PS.
11.2. For the duration and the purpose of this Agreement, Merchant grants PS a non-exclusive, worldwide, royalty-free, non-transferable license to display its logo and/or company name and/or trade name and marketing material as agreed between the Parties from time to time. PS shall follow Merchant’s reasonable instructions with respect to any material licensed to it. Except as expressly stated herein, nothing in this Agreement shall grant or be deemed to grant PS any right, title or interest in any logos, trademarks, trade names or other intellectual property rights owned by Merchant.
11.3. Merchant shall indemnify PS for and against any Third Parties claims based on the infringement of intellectual property rights or otherwise for any breach of its obligations under Section 11.1. PS shall indemnify Merchant for and against any Third Parties claims based on the infringement of intellectual property rights or otherwise for any breach of its obligations under Section 11.2.
XII. RESPONSIBILITY AND INDEMNITY
(i) Each of Party shall fully indemnify and keep the other Party indemnified against any claims, losses, penalties and damages arising or resulting from or in connection with any breach by the first mentioned Party of the terms of this clause, the use by the first mentioned Party of any Personal Data other than in accordance with the terms of this Agreement and/or any breach by the first mentioned Party of the applicable laws of the country in which such Party is incorporated and/or doing business.
(ii) Merchant shall indemnify and keep PS harmless from any claims brought by Customers and/or any third parties and all associated costs, expenses, damage, claims and other liabilities incurred by PS, including, without limitation, claims related to the use of the products and services offered by Merchant and other claims of a civil and/or criminal nature, as well as any responsibility or expense (including attorney’s fees and legal costs) related to such claims.
12.2. Taxes. PS will withhold taxes on payments made to the Merchant, if required by the applicable law. The Parties will cooperate to minimize any applicable taxes by way of providing the tax residence certificate, where applicable. Each Party will indemnify the other Party from any claims by any jurisdiction relating to taxes paid by such other Party and for any penalties, fines, additions to tax or interest thereon imposed on such other Party, as a result of the first mentioned Party's failure to timely remit the tax payment to the appropriate taxing jurisdiction.
XIII. WARRANTIES AND REPRESENTATIONS
Each Party hereby represents and warrants to the other Party that:
13.1. Corporate Existence and Power. It is duly constituted and organized, validly existing and in good standing under the laws of its country of incorporation, and has all corporate powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and as proposed to be conducted in accordance with this Agreement.
13.2. Authorization, Binding Agreement. It has the legal right and full power and authority to execute and deliver, and to exercise its rights and perform its obligations under, this Agreement and all the documents which are to be executed by it as envisaged by this Agreement.
(i) The execution and delivery of this Agreement and the performance of its obligations hereunder do not require any consent, approval, order or authorization of, or registration, declaration or filing with, or other action by, any governmental agency or authority, except for such consents, approvals, orders, authorizations, registrations, declarations or filings which, have not already been obtained as of the commencement of this Agreement.
(ii) Neither the execution and delivery of this Agreement, nor the performance of its obligations hereunder will result in any violation of or default under or permit the acceleration of any obligation under any provision of (1) its articles of incorporation or by-laws or other constituent documents or (2) any contract, agreement or document to which it is a party or by which it is bound, other than where such conflict, violation or default would not, individually or in the aggregate, materially adversely affect its ability to perform its obligations hereunder.
13.4. Additional Representations.
(i) The Merchant guarantees and declares that the online store, the mobile application belongs to the Merchant, is stable, does not contain incorrect links and that the Merchant does not receive payments for third parties, as well as a reward for the delivery of any goods, works or services specified in Appendix B to this Agreement.
(ii) The Merchant acknowledges that any dispute regarding any product or service purchased or procured by any funds received by the Merchant or the Customer, or any transaction involving the Services is between the sender and receiver of the funds and/or the third-party goods or service provider.
(iii) PS shall not be a party to any dispute between any of Merchant, Customers or any third party. This refers in particular to performance and to liability in respect of claims relating to the use of the products or services offered by the Merchant.
13.5. Validity. The representations and warranties set out in this Section 13 are deemed to be repeated by each Party each time they request or perform a Payment Order or a Transaction.
XIV. REGULATORY COMPLIANCE
14.1. Each Party shall be responsible for its own and its agents’ or employees’ compliance with laws and regulations that apply to such Party, including without limitation all license, reporting, record-keeping, and other legal or regulatory requirements in the jurisdictions of such Party’s operation and business, and/or any other applicable jurisdictions.
14.2. Each Party shall provide the other Party with such information and assistance as may be reasonably necessary for the requesting Party's legal or regulatory compliance, subject to the confidentiality provisions of Section 9 herein and applicable law. The Parties agree to provide each other with any information that might facilitate their efforts to prevent money laundering and terrorist financing.
XV. TERM AND TERMINATION
15.1. Term. This Agreement will enter into force on the Effective Date and will remain in effect for the period of one (1) year, which term will be automatically renewed upon its expiration for successive one-year periods until terminated in accordance with this Section 15.
15.2. Voluntary Termination. A Party may terminate this Agreement at any time upon a 30- days prior written notice given to the other Party.
15.3. Termination for cause. PS may terminate this Agreement with an immediate effect by serving a written notice to the Merchant, if:
(i) PS suspects that the Merchant is involved in the activities listed in Annex B hereto; or
(ii) Merchant files for bankruptcy or meeting of creditors; or
(iii) Merchant does not cooperate regarding provision of the information requested by the regulatory authorities; or
(iv) PS cannot continue providing the Services because of the Material Change of Law, duly justified by writing to the Merchant; or
(v) and if as a result of the implementation of internal control rules in order to prevent legalization (laundering) of criminal incomes and terrorist financing PS suspect that the operation is performed in order to legalization (laundering) of incomes from crime and financing of terrorism; or
(vi) despite a request by PS, the Merchant did not implement the technical, security or other requirements that need to be met for duly provision of the services under the Agreement and compliance with the applicable laws, rules and requirements of the Banks or the Merchant did not do so in due time; or
(vii) the business declared by the Merchant differs from the actual business conducted by the Merchant; or
(viii) the business conducted by the Merchant could endanger the safety and/or soundness of PS and/or Bank; or
(ix) termination is required by the Bank.
15.4. Effect of Termination. Upon termination or expiration of this Agreement or any extension hereof, each Party shall cooperate, for the ninety day period (the «Winding Up Period») immediately following the date of such termination or expiration, in the prompt, orderly and efficient conclusion of the Service, including completing any in-process Payment Orders, transmitting any applicable funds relating thereto, performing a final accounting and reconciliation and, returning or destroying all Confidential Information found in the possession of the receiving Parties of the same in accordance with this Agreement. All amounts of funds owed by the Parties to each other shall become due and payable immediately upon termination of this Agreement (except for the amounts payable under Sections 4, 6, 12 herein which have not been agreed by the Parties).
16.1. The Parties’ contact persons, addresses, telephone numbers, and e-mail accounts to receive all sorts of communications and notices (both legal and ordinary) under this Agreement are provided in Annex A hereto and may be amended from time to time by either Party by a written notification sent to the other Party.
16.2. The Parties have agreed that facsimile documents and / or Documents in electronic (scanned) form, including those sent to the Merchant 's e-mail address, received by the PS from the Settlement Participants, including claims for payment of fines received by the PS from the Acquirer, Settlement Systems are a sufficient basis for the PS's claim for compensation by the Merchant for losses incurred by the PS.
XVII. GENERAL PROVISIONS
17.1. Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other Party. Neither Party shall make any representation that suggests otherwise.
17.2. Amendment; Modifications. No amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either Party will in any event be effective unless the same will be in writing and signed by the other Party, and then such consent will be effective only in the specific instance and for the specific purpose for which given.
17.3. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Each Party must promptly execute and deliver all such documents, and do all such things, as the other Party may from time to time reasonably require for giving full force and effect to the provisions of this Agreement.
17.4. Governing Law; Consent to Jurisdiction. English law governs this Agreement and its interpretation. The Parties irrevocably agree that the English courts have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute or claim relating to any non-contractual obligation). Each Party agrees to waive any objection to the English courts, whether on the grounds of venue or that the forum is not appropriate.
17.5. Waiver. The failure of any Party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either Party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.
17.6. Limitation of Liability. Neither Party shall be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any indirect or consequential loss or damage of any kind including punitive or exemplary damages or for any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third-party loss whether foreseeable or otherwise. Nothing in this Agreement shall operate to exclude or restrict a Party’s liability for fraud or fraudulent misrepresentation; for death or personal injury due to negligence; for willful or malicious conduct; for breaches of clauses 5 or 6; and to the extent that such exclusion or restriction is prohibited under applicable law.
17.7. Force Majeure. Neither Party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Services (each a “Force Majeure Event”), provided that the Party delayed will provide the other Party with a notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event.
17.8. Entire Agreement. This Agreement together with all Annexes referenced herein sets forth the entire understanding and agreement of the Parties and supersedes all prior or contemporaneous oral or written agreements or understandings between the Parties, as to the subject matter of this Agreement.
17.9. Survival. The provisions of this Agreement relating to any fees or other amounts owed, payment of interest on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, and this Section shall survive termination of this Agreement.
17.10. Remedies. The rights and remedies of the Parties in connection with this Agreement are cumulative and, except as expressly stated in this Agreement, are not exclusive of any other rights or remedies whether provided by this Agreement, law, equity or otherwise. Except as expressly stated in this Agreement (or in law or in equity in the case of rights and remedies provided by them), any right or remedy may be exercised wholly or partially from time to time.
XVIII. PS’ LIMITATION OF LIABILITY
18.1. MERCHANT EXPRESSLY AGREES THAT THE MERCHANT IS USING THE SERVICES AT ITS SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN «AS IS» BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, PS DOES NOT WARRANT THAT THE PROCESS OF USING THE SERVICES AND/OR THE MERCHANT’S ACCOUNT WILL BE UNINTERRUPTED OR ERROR-FREE.
18.2. MERCHANT ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED IN SECTION 18.1 APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY KIND IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT PS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES. THE MERCHANT FURTHER SPECIFICALLY ACKNOWLEDGES THAT PS IS NOT LIABLE FOR THE CONDUCT OF THIRD PARTIES, AND THAT THE RISK OF USING THE SERVICES RESTS ENTIRELY WITH THE MERCHANT. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL PS BE LIABLE TO THE MERCHANT FOR MORE THAN THE AMOUNT THAT THE MERCHANT HAS PAID TO PS FOR A PARTICULAR TRANSACTION OR PAYMENT ORDER. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL AFFECT THE MERCHANT’S STATUTORY RIGHTS OR EXCLUDE INJURY ARISING FROM ANY WILFUL MISCONDUCT OR FRAUD OF PS.
XIX. THIRD PARTIES RIGHTS
19.1. This Agreement is not intended to confer any benefit on any third party.
19.2. The Merchant permits the PS to transfer information about the Merchant contained in the Agreement, annexes thereto, questionnaires to the Bank, Settlement Systems and Issuers.
19.3. The Merchant is not entitled to transfer his rights and obligations under this Agreement to third parties without the written consent of the PS.
20.1. Annex A. Terms of service and tariffs (commissions)
20.2. Annex B. PROHIBITED GOODS AND SERVICES
XXI. CONTACT DETAILS
For all questions regarding this Agreement, please, contact using the email address: firstname.lastname@example.org
ANNEX A Terms of service and tariffs (commissions)
Section 1. Service Conditions
1.1. Fee Schedule Payment Method Merchant Portal Fee, per transaction Card Payment (International flow)
1.2. Chargeback fee: 25EUR or 30 USD per chargeback, depending on the currency of the transaction For each excessive Chargeback above the following maximum monthly chargeback rate: • 0,3% of Transactions processed in one calendar month, or • 30 Chargebacks per calendar month.
1.3. Refund fee 0,5 EUR or 0,60 USD for each refund depending on the currency of the transaction
1.4. Reporting Period Transaction report shall be made every ___________ except holidays.
1.5. Deposit Upon receipt of the Payments PS shall deduct the Deposit for 180 days in the amount ________ (%).
Section 2. Conversion rates
2.1. The exchange rate to another currency for funds: USD→EUR - ECB+2%
2.2. PS may on it’s sole discretion apply internal exchange rate due to the FX costs.
Section 3. Payments
3.1. According to the Section 6.2., payments are credited to the Merchant`s Payout Account every day on the next business day, taking into account the required amounts for a deposit, fees and other deductions in accordance with this Agreement. 3.2. The payment is considered executed from the moment are debited from the bank account.
ANNEX B PROHIBITED GOODS AND SERVICES
Adult Entertainment Child Pornography Child exploitation Drug Paraphernalia Drug Sales Internet Gun Sales Sexual Encounter Firms Unlicensed Money Transmitters Ammunition Sales Escort Services Firearms Government Grants Provision of services, goods and content without a licence where such licence is required Pay Day Loans Pornography Tobacco Sales Shell banks 18+ goods/services/content without mandatory acceptance of 18+ statement by the account holder before providing access to such 18+ goods/services/content Sale of goods, digital downloads or other services in violation of intellectual property rights Promotion of violence, terrorism, ethnic strife, extremisms Products of deceptive marketing practices Other goods and services restricted/prohibited by the legislation of the countries of the Participants of settlements