Payment Gateway Services
December 1, 2024
Applicable Terms – Online Terms and Conditions
These Online Terms and Conditions form an integral part of the Payment Gateway Services Agreement or the Reseller Agreement, as applicable, entered into between you, whether you are a Merchant or a Reseller and us (each a “Party” and collectively the “Parties”) for the provision of the Services. Capitalized terms not defined herein shall have the meaning ascribed to them in the relevant agreement.
1. Definitions
The following capitalised terms shall bear the meaning ascribed thereto:
“3D Secure” or “3DS” means any of the following: 3D Secure 1.0 Service and/or 3D Secure 2.0 Service and/or any later version of 3D Secure service (including any related software) developed by the Provider that could include any third party’s technologies, as per our sole discretion, following Card Scheme regulations and other regulations that mandate Card Holder authentication.
“3DS SDK” means the technological tool developed by us for mobile applications.
“Abandoned Account” means any inactive account through which no transactions have been processed for a minimum of three (3) months and/or for which the contact information (address, phone numbers, fax numbers, email address) and billing information (ABA routing number and bank account number and/or card number) is no longer valid.
“Accepted Merchant” shall mean the Merchant of the Reseller which is receiving the Services and any other related services, by us;
“Additional Service/s” means the service and or product that is/are offered by us, as listed in the Agreement or which may be offered by us in the future, as will be notified to the Client from time to time, in addition to any other services chosen by you on the Effective day.
“Affiliates” means any entity that controls, is controlled by, or is under common control with a party, including its parents and subsidiaries.
“Agreement” means: (i) the Payment Gateway Services Agreement; OR the Reseller Agreement, as may be applicable (ii) these Online Terms and Conditions (“OTC”), (iii) the online Data Processing Addendum (“DPA”), and (iv) any other guidelines, amendments, or notifications provided by us as they may be amended from time to time. In the event of a conflict between the documents comprising the Agreement, the following order of priority will apply: (i) the body of and schedules to the Agreement; (ii) these Online Terms and Conditions and the Data Processing Addendum; and (iii) any other guidelines or information issued by the Provider from time to time; All Addendums to this Agreement are an integral part of this Agreement. Any prior discussions, if not expressly covered by this Agreement are invalid.
“Business day” means any calendar day not including public holidays or weekends in Malta;
“Card” means any valid payment card issued under any Card Scheme, where Card Scheme/s means Visa and/or Mastercard.
“Card Schemes” means Visa and/or MasterCard or any other similar schemes;
“Card Scheme Rules” or “Association Rules” means all rules, by-laws, guidance, regulations, directions and other requirements (whether contractual or otherwise) imposed or adopted by any Card Scheme from time to time;
“Your Payment Services Partner” means any Party with whom you may have to conclude your own direct agreement in order to be able to receive the Services, as supported by us.
“Client Portal” means platform provided by us to you for observation of our Services and/or any additional communications with us and/or opting for Additional Services.
“Confidential Information” means 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, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, our Services Documentation (in whatever form or media provided), inventions, processes, plans, financial information, Transaction Data, revenue, Transaction volume, forecasts, projections, and the financial terms of the Agreement. The obligations in this clause shall not apply to the Disclosing Party’s Confidential Information, which: (i) entered the public domain through no breach of the Agreement or other wrongful act of the receiving party; (ii) was already known to the receiving party prior to the Effective Date of the Agreement, as established by documentary evidence; (iii) was 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 such information; (iv) is being or was developed independently from such Confidential Information, as is shown by competent evidence; or (v) we are required to disclose to third parties in order to provide the Services.
“Shift4” or “Shift4 Group” Shift4 Technology Limited, Shift4 Limited, Shift4 UK Limited, and any other Affiliates thereof.
“Data Protection Requirements” means the Data Privacy Compliance clause and any additional data protection requirements and provisions set out in the Reseller Agreement or any other applicable data protection regulations, such as (but not limited to) EU 2016/679;
“Effective Date” means the date that you sign the Agreement.
“End User/s” means any person that purchases any of your goods or services, whose information you will process via our API, during the course of your use of our Services. End User could mean a Data Subject as defined in the DPA.
“Force Majeure” means any and all circumstances beyond the reasonable control of the Party concerned, including, without limitation, acts of God, earthquake, flood, storm, lightning, fire, explosion, war, terrorism, riot, civil disturbance, sabotage, strike, lockout, slowdown, labour disturbances, accident, epidemic, difficulties to obtain labour, lack of or failing transportation, emergency repair or maintenance, breakdown of public utilities, changes of law acts of third parties for which the Party concerned shall not be liable under the Agreement, or an inability to obtain or retain necessary authorizations, permits, easements or rights of ways.
“Gateway Services” means a technical connectivity platform offered to you or to Reseller’s Accepted Merchants.
“Intellectual Property” means any software and/or hardware developed by us, any patents, trademarks, service marks, design rights (whether registerable or otherwise), applications for any of the foregoing, copyrights (whether in database or otherwise), database rights, know-how, trade or business names, goodwill associated with the foregoing, Internet domain names and web site addresses and other similar rights or obligations, whether registrable or not, in any country (including but not limited to the countries where the Parties are incorporated), and all derivatives of the foregoing.
“Issuer” means a member of the Card Schemes that enters into a contractual relationship with a cardholder for the issuance of one or more Cards;
“Log-in Details” means the usernames, passwords, keys and other codes used by you, in order to access and use the Service.
“Merchant” means you as defined in the Agreement, or a merchant of the Reseller as defined in the Reseller Agreement.
“Primary Account Number” or “PAN” means the 14 -19 digit identifying number either embossed or printed found on a Card.
“Processing/Transaction Fee” means a fee that is charged for every gateway operation request including basic operations, referral operations and token operations ,and any other operations as described in our API link: epower.credorax.com, which may be amended from time to time.
“Our Payment Services Partner” means any and each payment service provider with whom we have our own direct agreements and technical integrations in place, enabling us to support the provision of certain services via such providers, including but not limited to application service provider and financing agency.
“Services” means Gateway Services and/or each of the services listed herein, and in the Payment Gateway Services Agreement, or in Schedule 1 of the Reseller Agreement, as may be amended from time to time by us. To avoid any doubt, our Service is a technical service that supports the provision of payment services, without entering at any time into possession of the funds to be transferred, under Article 3(J) of the Payment Services Directive.
“Services Fee” means the fees that we charge you for our Services, as specified in Schedule 1 of the Agreement or in Schedule 1 of the Reseller Agreement, as may be amended from time to time, upon a written notification to you, or as agreed between the Parties.
“Reseller” means a party with whom we enter into a Reseller Agreement for the provision of our Services to Reseller’s merchants. Unless specified otherwise, reference to “you, “your” means reference to Reseller.
“Requirements of Law” means any applicable local laws, regulations, rules, codes, directives or other binding instruments issued or promulgated by any government;
“Seamless Token” means the unique digital identifier that replaces the PAN and is being stored electronically.
“Settlement” means the successful transfer of funds from a Card holder’s account to the Merchant’s account following a Transaction
“Smart 3DS” means the technological engine developed by us to facilitate 3DS services provided to you.
“TPP” means third party services provider.
“Transaction” means the acceptance of a Card or information on the Card, for payment of goods sold and/or leased and/or services provided to Cardholders by the Merchant, and receipt of payment from Member, whether the Transaction is approved, declined, or processed as a forced sale. The term ‘Transaction’ also includes credits, errors, returns, refunds and adjustments.
2. The Provider Services
2.1. Subject to the terms of the Agreement, including due payment by you of the Fees, we shall provide you with our Services through integration with our API and online Client Portal, as detailed in the documentation provided by the Provider to the Client or made available through the Client Portal (the “Documentation”) at: epower.credorax.com
2.2. We will provide you the details required for you to integrate with the API and Client Portal and to start using our Services. You must implement the integration in accordance with our directions Documentation, in order to use the Services. It is your sole responsibility to purchase and operate the infrastructure necessary to use the Services, such as computers and access to the internet.
2.3 We offer the following Services, which may be subject to additional terms as detailed.
2.4 Adding or removing Services. If after the Effective Date, you are interested in adding or removing Services, you may do so by contacting your account manager and executing a contract amendment or addendum.
I. ALTERNATIVE PAYMENT METHODS (“APM”)
a. We offer you connectivity to a variety of APMs which is updated from time to time.
b. To enable smooth provision of APMs, we may adjust the content and interfaces of our Services to keep them up to date with market requirements and may use third parties’ technology and platform to process APMs. If such adjustments require you to make necessary changes in your software, interfaces or operating procedures, we will inform you as soon as reasonably practicable prior to the execution of such adjustments. You shall be responsible for your own costs with respect to such changes to its software, interfaces or operating procedures.
c. You acknowledge that for providing APM services you may be required to contract with TPPs, as may be required by TPPs.
d. It is in the best interests of both parties that we maintain a secure and stable environment; to that end, we may change the method of access to our Services at any time.
II. SMART ROUTING
a. A service that optimizes payment processing minimizes declined Transactions
b. You agree that we will have full reasonable discretion to route Transactions to any third party, that may include any available Payment Services Partner of yours.
c. We will be held free of any claims and/or charges relating to reasonable application of the Smart Routing technology, in accordance with the stipulated above.
III. PAYMENTPAGE SERVICE
Subject to additional conditions as specified at:
IV. SMART GUARD AND SMART GUARD PLUS
Subject to additional conditions as specified at:
www.shift4.com/s4i-source-smartguard-services-addendum
V. 3D SECURE SERVICES
a. You shall comply with the Card Schemes’ enrolment process and/or any other Card Scheme requirements relating to 3DS usage and/or with our Documentation, as may be amended from time to time by the Card Schemes and/or by us, and shall provide any required documentation, as may be requested by us.
b. We shall not be held liable in any form, in case that the Card Schemes decline your registration to the 3DS and/or your misuse of 3DS service.
c. Providing 3DS service is subject to timely payment of Fees, stipulated in the Agreement. In cases of any delay in payment of Fees and/or if the 3DS Service was suspended or terminated by us, for any other reason, you acknowledge and understand that you may be found liable for breach of Card Schemes mandates or any other regulatory obligations and we shall be released from any claims or liabilities.
d. Without derogating from any other conditions of this Agreement and to avoid any doubt, you acknowledge that 3DS Service is a proprietary software and technology developed by us and it shall not be copied or otherwise published or distributed or modified by you without a prior written permission and consent.
e. Without derogating from any other conditions of this Agreement and to avoid any doubt, you acknowledge that you shall comply with the regulatory obligations on Strong Customer Authentication and related Card Scheme mandates, and/or regulations. You shall indemnify us and hold us harmless from and against any and all damages, costs, losses and expenses (including reasonable attorneys’ fees) which are incurred by us as a result of or in connection to exemptions from Strong Customer Authentication requests filed on your behalf of the Client by us.
f. Smart 3DS may be based on a pre-defined algorithms and/or statistic models and/or other methods used to predict recommendations provided to you (“AI”). You agree and confirm usage of AI models and provided recommendations, we make no representation and assume no responsibility for the accuracy of recommendation provided via AI or available through use of Smart 3DS. Smart 3DS is subject to any and all conditions stipulated in this Section V and in the Agreement.
g. 3DS SDK service is subject to any and all conditions stipulated in this Section V and in the Agreement.
VI. ACCOUNT UPDATER
a. Account Updater means a service that enables updates of stored Card details of Card holders, required for, inter alia, recurring payments based on automatic tool and/or based on the information provided by you to us detailing the Card details that shall be subject to Account Updater services.
b. Account Updater shall be activated by you in accordance and subject to the Card Scheme Rules and requirements and you shall fulfil all technical requirements specified in the Documentation provided by us as may be amended from time to time.
c. You acknowledge that Visa and Mastercard provide their separate solutions related to Account Updater subject to separate terms and conditions and fees as may be amended by Card Schemes from time to time. We shall connect you to any or both Visa and Mastercard related Account Updater solutions, while the enrollment with the Card Scheme shall be handled by Shift4 Limited, or acquirer, based on the information provided by you. You undertake to pay any fees as will be required by us and/or the Card Schemes.
VII. CHARGEBACK PREVENTION SERVICES
Chargeback Prevention is a service that enables you to reduce your level of chargebacks with the Card Schemes. The service is powered by Mastercard and Visa, each for its respective transactions.
a. Applicable General Terms for Chargeback Prevention Service
i. These terms are applicable for both the Mastercard and Visa chargeback transactions.
ii. The Chargeback Prevention Service allows the refund of the transaction to cardholder before it reaches Mastercard or Visa, resulting in reducing your or your merchant’s chargeback levels with the Card Schemes.
iii. You may not sell, re-sell, provide access, license the Chargeback Prevention Service to any third parties that are not you.
iv. You acknowledge that by requesting the Chargeback Prevention Service you assume liability to use or process any information and data received in connection with the chargebacks for the sole purpose of, and only to the extent necessary to receive the Chargeback Prevention Service.
v. You shall not (nor shall allow or enable any third party to: (a) decompile, disassemble, or otherwise reverse engineer the Service or third party code or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the services or third party code by any means whatsoever; (b) distribute, sell, sublicense, rent, lease or use the services, third party code (or any portion thereof) for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in Service, or third party code.
vi. We provide the Chargeback Prevention Service via TPP powered by Mastercard or Visa. We assume no liability whatsoever for the provision and outcome of the Chargeback Prevention Service to you, its quality or proper functionality which may include but is not limited to, ACCEPTED chargebacks not being refunded, possible time-outs, or any other faults that may occur.
vii. You bear the responsibility to pay in full any additional fees which are not part of the Fees Schedule, fees that are charged by Visa or by Mastercard with respect to this service, and shall reimburse us upon request as may be required.
viii. If you are a Reseller, you shall maintain copies of all relevant Merchant data, records, including copies of its Merchant agreements and provide copies of such to us upon our reasonable written request but in no event, more than five (5) days after receipt of request for same. For purposes of this Agreement any such data or records shall include at a minimum: a) BIN, b) CAID c) MID, d) Merchant (by name); e) complete street address; f) customer service phone number; g) customer service email address; h) website URL; i) logo (128×128) pixel that cardholder would recognize); and j) unless prohibited by applicable law, the Fees charged to each Merchant, and any other reasonably necessary documentation to ensure Reseller’s compliance with this Service requirements and any applicable addenda. For avoidance of doubt, a violation of any portion of this clause may be considered a material breach of this Agreement.
b. Chargeback Prevention Service -Additional Terms by Mastercard
i. Chargeback Prevention by Mastercard is a service provided with respect to Mastercard chargeback transactions only.
ii. Under the service the Issuer notifies you or your Merchants of a raised chargeback before the chargeback reaches Mastercard, permitting you to refund the raised chargeback within 24 hours from the notification, avoiding the registration of the chargeback with Mastercard.
iii. This service is provided in accordance with the terms of use that may be found at www.ethoca.com/terms-of-use. By accepting this service, you accept and agree to undertake and act according to these terms of use.
c. Chargeback Prevention – Additional Terms by Visa
A. Rapid Dispute Resolution (“RDR”)
i. RDR by Visa is a service provided with respect to Visa chargeback transactions only. The service enables you, or your Merchants if you are a Reseller, to prevent and reduce the level of chargebacks with Visa by automatically refunding chargeback requests from cardholders and avoiding the registration of the chargebacks with Visa.
ii. To receive the service, you are required to pre-define a set of rules that enable the automatic refund of chargebacks, in accordance with the pre-defined rules.
iii. Chargeback requests that are meeting the pre-defined set of rules, will end as ACCEPT, resulting in automated credit of the cardholder through your acquirer and subsequently avoiding the registration of the chargeback with Visa. Chargebacks requests that do not meet the pre-defined set of rules will end as DECLINED and will be routed to Visa chargeback process.
iv. The service is fully automated and there is no action for you to take in preventing the chargeback dispute to Visa once the rules are not met.
v. Change of pre-defined rule/s is done by a written notification to us. The changes will be implemented within fourteen (14) working days.
vi. No notifications will be sent to you whether a Chargeback request was ACCEPTED or DECLINED. You will receive access to the information via third party portal to review all the initiated chargebacks and their outcome.
vii. You are responsible to update us with current information, including any changes or additions to your descriptors and CAID.
viii. You hereby agree to make any enhancements necessary to your integration in order to continue to receive the Chargeback Prevention Service, within no less than forty-five (45) days from receiving notice. A failure to upgrade or enhance the integration following such notice, may result in errors in providing the Service and possibly the immediate termination of the rights provided.
ix. The fee shall be paid by you per chargeback dispute request, irrelevant to its outcome, whether it is ACCEPTED or DECLINED.
B. Cardholder Dispute Resolution Network (“CDRN”)
i. CDRN is a service that enables you, or your Merchants if you are a Reseller, to reduce your level of chargebacks with Visa. The CDRN service provides you chargeback notifications in the MyC Visa portal, before a chargeback is being raised to Visa, allowing you to react and avoid a dispute with Visa.
ii. You shall receive a username and a password to access the MyC Visa portal, which is non-transferrable, and you shall keep it secure. It is your sole responsibility to actively monitor and timely react to the notifications in the MyC portal. Any notification received in the portal will be subject to Fees, whether such notification was handled by you or not.
iii. All CDRN cases appearing on the MyC portal must be processed by you within seventy-two (72) hours from the time that they appear in MyC Portal. Cases not processed by you within this time frame will be automatically closed and no longer eligible for processing and shall be registered as a chargeback with Visa. Provided however that cases not processed shall bear the service fees.
iv. In case that you decide on refunding the card holder to avoid a dispute, it shall be your sole responsibility to report such refund in the MyC portal.
v. You shall update us with current information, including any changes or additions to your descriptor that enrolled to the service.
VIII. 'STAND-IN SERVICE' ['ON BEHALF OF']
a. ‘Stand-In’ is a service that enables us to respond and approve transactions for you on behalf of the issuing bank, or the Card Schemes, or any third party gateway (“Approvers”), ahead of the actual approval received from Approvers.
b. The service is designated to take effect in case of a timeout or no-response is received from Approver with respect to a processed transaction. The Service enables the transaction to be settled to you at a later time, upon the actual approval being received by either of the Approvers.
c. Should a transaction end up as rejected or declined by either of the Approvers, you will not receive the funds of the transaction amount, even though we have approved the transaction.
d. To initiate the service, you are requested to define and cap in advance the amount for each processed transaction and the amount of aggregated transactions under the service, that are processed within a 24 hours period, starting at 00:00 and ending at 23:59 (UTC). UPON RECEIVING THIS SERVICE, YOU UNDERSTAND AND AGREE THAT WE SHALL NOT BE HELD LIABLE FOR ANY CLAIM, LOSS, DEMAND, PENALTY OR ANY OTHER EXPENSE THAT MAY BE INCURRED TO YOU IN RELATION TO THE PROVISION OF THIS SERVICE, INCLUDING BUT NOT LIMITED TO INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, LOSS OF PROFITS OR EARNINGS, PUNITIVE OR SPECIAL DAMAGES HOWEVER CAUSED, OR FOR ANY OTHER LOSS TO END CUSTOMERS OR OTHER THIRD PARTIES).
IX. RETRY [RESUBMISSION] OPTIMIZATION
a. The Retry Optimization service enables blocking transactions at the gateway in case a transaction is considered a resubmission of a final declined transaction, in accordance with the Card Schemes rules and logic, subsequently preventing charges by the Card Schemes imposed due to the resubmission.
b. You understand that we assume no liability and make no warranties that resubmitted transactions would be successfully blocked. Non blocked transactions would incur the applicable Card Scheme charges, as per the Card Scheme rules.
X. SEAMLESS TOKEN
a. The Seamless Token service enables processing payment transactions without exposing the account details and information, or Primary Account Number. The Seamless Token service reduces the Card Scheme fees imposed on you for non-tokenized transactions.
b. To receive the services, you must register with the Card Schemes. You authorize us to register you with the Card Schemes and keep it so registered during the period it receives the service. You shall be responsible to pay for the registration fees, as may be applicable, in addition to the fees payable to us for the service.
c. We shall enable the creation of the Seamless Token for Visa and Mastercard Cards via Provider’s API. The finalization of the Seamless Token shall be subject to the Card Scheme and Issuer approvals.
XI. MOBILEPAY ONLINE
a. MobilePay Online service is a pass through wallet owned by MobilePay A/S, that allows you to accept payments from End-users utilizing a debit or credit card and a mobile device.
b. You shall be fully compliant with the specified requirements under this service which specifications can be found here: www.shift4.com/s4i-source-mobilepayonline
c. You shall bear full responsibility for your use of the MobilePay Online Services and shall indemnify us in full and upon request for any threatened or actual damage or loss suffered by us, as a result of your use or connectivity to MobilePay Online Services. We assume no responsibility and no liability for your use of MobilePay Online Services and the services are provided AS-IS at your own risk.
XII. CARD PRESENT Gateway/Point of Sale [POS]
a. The service enables the processing of card present payment transactions by providing:
i. gateway connectivity,
ii. a payment application, and
iii. support services.
b. The gateway allows for connectivity to local schemes, local payment methods. and domestic acquirers, subject to our review of the request and approval.
c. Management activities. Any requested changes or management of gateway terminal configurations shall be executed by us upon your request.
d. Processing activity reports. Processing activity reports that include card present processing related information shall be provided from time to time by us.
e. Upgrades and Support. From time to time, we may make upgrades, patches, enhancements, or fixes for the product (“Upgrades”) and such Upgrades will become part of the applicable product.
f. You understand and acknowledge that this service is provided via third party provider and that third party provider’s Upgrades may cause temporary downtime and we shall not be held liable for such downtime.
g. We provide support to you subject to reasonable availability of third party providers’ resources. We shall use commercially reasonable efforts to pro-actively improve the reliability of the services or resolve incidents that arise from your interaction or malfunction of the services or services components.
XIII. HANDS-FREE AI REPRESENTMENTS
a. Hands-Free AI Representment is a service provided to increase your success rate in the chargeback representment process.
b. You shall be fully compliant with the specified requirements under this service which specifications can be found here: www.shift4.com/s4i-ssm-Representments
3. Our Obligations
3.1 We shall provide to you, if you are current in payment of all fees owed to us and are otherwise not in default under the Agreement, the Services with the care and skill that can be expected of a leading and expert supplier of similar services and in accordance with applicable laws that apply to a technical service provider like us, including, without limitation, the Payment Card Industry Data Security Standard (“PCI DSS“) and the Documentation.
3.2 Any efforts made by us and any work carried out by us with respect to the Services pursuant to a request or an authorised order from a government agency or a relevant Payment Services Partner shall, upon notice by us, be calculated and charged to the amount of actual costs of the efforts.
3.3 The Services and the Portal under the Agreement are provided ‘AS IS’ on an ‘as available’ basis, which you have been able to review prior to, and accepted by, entering into this Agreement. Furthermore, you acknowledge and agree that actions or omissions, including downtime, on the part of the Payment Services Provider, your Payment Services Providers and other third parties may reduce, in whole or in part, the availability or functionality of the Services, and we shall not be held liable for such reductions.
4. Your Obligations
4.1 Notification: You shall give us ninety (90) calendar days advance written notice of any guidelines, instructions or mandates you receive from other legal entity which may have an impact on our Services. The Parties shall collaborate in good faith in order to implement any such requirements, subject to any fees as may be agreed in the Agreement or from time to time between the Parties. Notwithstanding the above, if we, in our discretion, determine that we cannot comply with such requirements using commercially reasonable efforts, we may terminate immediately the provision of the Services.
4.2 In connection with the exercise of your rights and obligations under the Agreement (including, without limitation, any related to data privacy), you will comply, at your own expense, with all laws, policies, guidelines, regulations, ordinances, rules applicable to you, this Agreement, including, without limitation, GDPR, Payments Services Directives, including but not limited to the DIRECTIVE (EU) 2015/2366 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on payment services in the internal market, and Documentation and/or requirements of any kind, including with the Data Processing Addendum as stipulated at the following link: www.shift4.com/s4i-ssm-gdpr
4.3 We reserve the right to amend or modify the Documentation or any of the above-mentioned requirements at any time by a written notification to you. You shall not use our Service in any manner, or in furtherance of any activity that may cause us to be subject to investigation, prosecution, or legal action. If, at any time, we have reason to believe that you are copying, capturing or intercepting payment details, is otherwise in breach of PCI DSS or not or no longer PCI DSS compliant, or cannot provide proof of its PCI DSS compliance, we have the right to suspend any of the Services, or immediately terminate this Agreement.
4.4 Reseller Agreement. To the extent that you are contracting with us under a Reseller Agreement, you undertake to bind all your Merchants receiving the Services to the same contractual terms and obligations indicated in the Reseller Agreement, OTC and DPA, and any other schedules, addendums or documentation attached thereto, as case may be. You assume full responsibility and liability towards us for your Merchants’ use or misuse of the Services, which may cause breach of the Agreement, the OTC, DPA, and any other schedules, addendums or documentation, which results in damages to us and/or our TPPs and shall indemnify us in full for any such damages upon demand.
4.5 Payment Services Agreement. To the extent that you are contracting with us under the Payment Gateway Services Agreement, you are not permitted under any circumstances to sell, resell, license, enable or provide the Services to any third party. The Services under this Agreement are intended for the use of you only, and a breach of this clause may lead to your immediate termination. You shall bear full liability for any damages caused to us as a result and shall indemnify provider in full for any damages upon demand.
4.6 Log-in Details. You will be provided with ID and password to access your payment gateway account and use the Services. You shall restrict access to such ID, password, and account to your employees and agents as may be reasonably necessary consistent with the purposes of the Agreement and shall ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement regarding such use and access. You are solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes that grant access to the Services. We shall be entitled to rely on information we receive from you and may assume that all such information was transmitted by or on behalf of you. You shall comply with all our recommendations and notices regarding the security of your ID, password, and payment gateway account(s). You shall bear full liability for any damages caused to us as a result of a security infringement and shall indemnify provider in full for any damages upon demand
5. Acknowledgements by You
5.1. A Transaction having the status ‘Authorised’ (“Authorised Transaction”) does not imply that the payment is guaranteed or that it is already due by the relevant Payment Services Partner to you.
5.2. 5.2. Authorised Transactions may still appear to be fraudulent, as the card or payment instrument used for making the payment may appear to be expired, the subject of unauthorised use, not sufficiently funded, or as otherwise be detailed in the Card Scheme Rules, which may cause an Authorised Transaction to not result in Settlement (including the possibility of chargeback) by ourPayment Services Partner to you.
5.3. You acknowledge and agree that (i) we do not have, and cannot provide, visibility of Settlement, and (ii) the risk that an Authorised Transaction eventually does not result in Settlement or that a Transaction already settled shall be reimbursed, is a commercial risk which shall be solely borne by you.
5.4. If you are under a Reseller Agreement you acknowledge and agree that we shall bear no risk with respect to the sale of products and/or services by you to your merchants, including, without limitation any risk associated with fraud or chargebacks in relation to a payment method.
5.5. You acknowledge and agree that we shall not be responsible for the operation of web sites, the availability or performance of the Internet, or for any damages or costs suffered or incurred as a result of any instructions given, actions taken or omissions made by you or other third parties, including without any limitation your Payment Services Partners.
5.6. You agree and acknowledge that we assume no liability in either contract, tort, negligence, statutory duty or otherwise (to the maximum extent permitted by applicable law) arising out of your uses and connection to TPPs and/or third parties’ APM processing and/or relating to any claim, charge, fees, fines or any similar obligations relating to TPP services provided to you. We and/or TPPs may disconnect you from any payment method that ceases to be provided by the relevant TPP or APMs Provider. We will not be liable for any failure of the TPP or APM Provider to effect payment in respect of a transaction including the remittance of any proceeds.
6. Fees and Services
6.1. The applicable fees are detailed in Schedule 1 of the Agreement, and in any subsequent addendum or amendment.
6.2. Amendment to fees. The fees may be amended by us from time to time subject to a written notification of sixty (60) days, or sooner as may be agreed by both Parties in writing.
6.3. In the event that the information provided by you for the purpose of this Agreement ceases to be relevant or changes significantly after three (3) months following the Effective Date, we may immediately adjust the fees and will notify you of any such adjustment in writing.
6.4. You agree to pay for the Services either by bank transfer, subject to an issued monthly invoice by us, payable within thirty (30) days to our bank account or, the fees will be debited from the funds that are available under the acquiring agreement that you have with us. You authorize us to debit the Service fees from the settlement funds of the acquiring agreement.
6.5. Printed invoices or statements can be requested (additional costs may be charged by us). Fees and payments shall be due on the first day of the month.
6.6. Late Payment Fee Interest. If the owed amounts are not paid by you within thirty (30) days after the due date stipulated in our invoice, without prejudice to the other rights we may have under the Agreement, you will be subject to a late payment fee interest for a period beginning on the payment date and ending on the date that the amount due is paid in full. The amount of the interest owed to us shall be computed using an annual rate equal to 5% or as it may be amended from time to time by us. If you have not paid all amounts due before the last day of the month in which they were due, we reserve the right in our sole discretion to suspend the use of our Services.
6.7. Taxes. The fees described above are exclusive of all taxes. You agree to pay all applicable taxes other than tax assessed on our income. You agree that the payment of fees to us shall be made without deduction or withholding for any taxes. If you are required to withhold any taxes, the amount paid by you to us shall be increased to the extent necessary to yield to our (after withholding of such taxes) a net amount equal to the amount we would have received had no such withholding been made. You bear the ultimate responsibility for the proper payment of taxes applicable to your sale of your products or services.
6.8. Disputes of invoices. The Parties shall promptly investigate any disputed Fees under the Agreement. A dispute will not relieve you of your payment obligations herein. If an event of dispute is resolved in your favour, we will credit back to you any applicable overpayments made by you. All disputes must be made in good faith and in writing within thirty (30) days of the invoice date. Fees billed and invoiced shall be deemed accepted where written objections were not received by us within such thirty (30) day period.
7. Intellectual Property
7.1. The parties agree that we own and retain all rights, titles, and interests in and to Provider Intellectual Property, including but not limited to trademarks, patents, Documentation, copyrights, and any related technology utilized under or in connection with the Agreement, including but not limited to all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to you or any other entity or person under the Agreement. You shall not reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or trade secrets for any of the Services or related technology.
7.2. API, MPI, Portal, and Documentation License. Subject to the terms of the Agreement, we grant you a personal, limited, non-exclusive, non-transferable right to our API, MPI, Portal, and accompanying documentation for the following purposes:
7.2.1. install and use our API, MPI and Portal on as many computers as reasonably necessary (which are and shall be maintained in facilities owned, occupied, or leased you) to use the Services, and if you are a Reseller, for the purpose of selling products and/or services to End-Users;
7.2.2. use the accompanying Documentation solely for the purpose of using the our API, MPI, Portal and Services.
7.3 Our Trademarks License. Subject to the terms and conditions contained herein and subject to a prior written approval by one Party to the other, you may get a non-exclusive, fully-paid up right to use, and display our trademarks on your website in connection with your offering of payment options to End Users.
7.4. Your Trademarks License. Subject to the terms and conditions contained herein, you hereby grant us a non-exclusive, royalty-free, fully paid up right to use, reproduce, publish, perform, and display your trademarks in connection with the Services.
7.5. Use of Trademarks. Each Party shall strictly comply with all standards with respect to the other Party’s trademarks contained herein or which may be furnished by such party from time to time. Further, neither Party shall create a combination mark consisting of one or more trademarks of the other Party. All uses of the other Party’s trademarks shall insure to the benefit of the Party owning such trademark. Except as otherwise provided herein, you shall not use, register or attempt to register any (a) of our trademarks or (b) marks or domain names that are confusingly similar to any of our trademarks or our domain(s). You shall not (a) use our trademarks except as expressly authorized in this Agreement; (b) take any actions inconsistent with our ownership of the our trademarks and any associated registrations, or attack the validity of our trademarks, its ownership thereof, or any of the terms of the Agreement; (c) use our trademarks in any manner that would indicate you are using our trademarks other than as a licensee of oursaccording to the Agreement; nor (d) assist any third party do any of the same.
8. Confidentiality
8.1. A receiving party shall not use Confidential Information for purposes other than in direct relation with this Agreement. The receiving party shall hold the disclosing party’s Confidential Information in strict confidence, treat the disclosing party’s Confidential Information with at least the same degree of care as it would use in respect of its own confidential information of similar importance, but in any event a reasonable level of care. In particular, the receiving party shall not without the prior written consent of the disclosing party disclose, publish, disseminate or make accessible the disclosing party’s Confidential Information, in whole or in part, in any way or form, to third parties other than to its employees, subcontractors or agents who have a need-to-know in connection with the performance of the Receiving Party’s obligations under the Agreement.
8.2. In the event that Confidential Information is required to be disclosed by the receiving party by a court order or statutory duty, the receiving Party shall be allowed to do so, provided that it shall, without delay, inform the disclosing party in writing of receipt of such order or duty so that the disclosing party may seek protection against such order or duty.
8.3. Upon the first request of a disclosing party, the receiving party shall without delay (a) return all copies, samples and extracts of, and all other physical media containing, the disclosing party’s Confidential Information, and (b) delete or destroy and have deleted or destroyed all automated data containing the disclosing party’s Confidential Information.
8.4. You shall not, and shall not permit any third party to, directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of any aspect of the Services; (ii) modify or create derivative works based on an aspect of the Services; (iii) copy, distribute, assign, or otherwise transfer rights to any aspect of the Services; (iv) remove or otherwise alter any proprietary notices or labels from any aspect of the Services; (v) use any aspect of the Services to build an application, product, or service that is competitive with any product or service referred to in this Agreement; (vi) interfere or attempt to interfere with the proper working of aspect of the Services or any activities referred to in this Agreement; or (vii) bypass any measures we or any third party we may use to prevent or restrict access to any aspect of the Services (or other accounts, computer systems, or networks connected to any aspect of the Services).
8.5 You are responsible for your activity in connection with the Services, including but not limited to transferring any personal data, or other protected information or data. You shall:
a. use all aspects of the Services in compliance with all applicable laws, treaties and regulations (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and
b. shall not use any aspect of the Services in a manner that violates any third party’s intellectual property, contractual or other proprietary rights.
9. Representations and Warranties
9.1 Each Party undertakes that:
a. it is an entity validly existing and in good standing under the laws of the country it is formed and it is and shall remain in compliance throughout the Agreement with (i) all applicable laws in the jurisdictions in which it does business, including but not limited to privacy laws; and (ii) to the extent applicable, with PCI-DSS requirements.
b. it has all the requisite powers to execute and deliver this Agreement and to perform its obligations specified under this Agreement,
c. its performance of this Agreement will not violate any applicable law or regulation or any agreement to which it is bound as of the date hereof, including, without limitation and where applicable, any merchant processor agreement;
d. it has not and will not in connection with the activities contemplated by this Agreement and/or any other business transactions involving this Addendum, make any payment or transfer of value which has the purpose of effect of (A) public or commercial bribery or other unlawful or improper means of obtaining business; or (B) acceptance of or acquiescence in extortion, kickbacks, and (C) that it has in place appropriate internal controls to ensure compliance with this paragraph. You shall not undertake any action that may cause Parties to be in violation of any applicable anti-corruption law or regulation
9.2. You undertake that you shall not use, any details or credentials provided by us for any purpose other than what it is intended for under the terms of this Agreement and acknowledge that use of such information for other purposes can and will result in penalties.
10. Liability
10.1 You undertake to use our Services according to the terms of the Agreement and relevant Documentation. You shall bear full liability for the breach of any clause of the Agreement or misuse of the Services as stipulated herein and shall indemnify us in full and on demand for any damage caused to us or the TPPs in connection with the Services.
10.2. We undertake to provide our services with due care and skill. In the event that you discover that any of our services are not being provided in conformity with our obligations as set forth in the Agreement, you shall report such non-conformity to us. We will, where the non-conformity can still be remedied, use our reasonable efforts to correct the non-conformity at no additional charge to you.
10.3. Our total liability for direct damages due to an attributable breach of our obligations under the Agreement or for an otherwise unlawful act, shall be limited per damage event to an amount equal to the total amount of our Service Fees paid by you during a 12 months period immediately preceding the date on which the event which caused the liability took place. Direct damage shall include only: (i) the reasonable costs) a Party would face to obtain the result of the other Party’s proper performance under the Agreement, either from the other Party or from a third party, (ii) as demonstrated by a Party in assessing the cause of the damage and the amount of the damage and (iii) as demonstrated by a Party to mitigate the damage. In no event we shall be liable due to an attributable breach of our obligations or on the account of an unlawful act or otherwise for incidental, indirect, special, consequential or punitive damages, including any damages based on loss of profits or lost revenues, business interruption or loss of information, production failure, impairment of other goods or otherwise. We will only be liable for the costs referred to herein if the Agreement was not terminated by us for your breach of obligations under the Agreement.
10.4. None of the limitations and exclusions of liability set out in the Agreement are intended to limit or exclude: (i) the liability of a Party for gross negligence or willful misconduct; or (ii) your liability under the indemnities given by you in this Agreement.
11. Indemnities
11.1 You shall indemnify us and hold us harmless from and against all damages, costs, losses and expenses (including reasonable attorneys’ fees) which are brought against us by any third party as a result of or in connection with an alleged breach by you of any of your obligations under the direct agreement between (i) you and your Merchants or your End User; (ii) or you and your Payment Service Partner; (iii) or any other alleged fault, act or omission which is attributable to you; or (iv) any breach or misuse under this Agreement.
11.2. We shall indemnify and hold you harmless from and against direct damages, costs, losses and expenses (including reasonable attorneys’ fees) which are brought against the you due to: (i) an attributable breach of our obligations under the Agreement or otherwise for an unlawful act; or (ii) third party claims regarding our software and/or systems. This indemnification is subject to you immediately advising us upon a raise of a claim by any third party, which we shall be at liberty to address at our own discretion.
12. Term and Termination
12.1. The term of the Agreement is for a period of two (2) years and shall be automatically renewed for additional periods of twelve (12) months. The Agreement may be terminated by any Party upon providing prior written notice of at least two (2) months.
12.2. Immediate Termination. A Party may terminate this Agreement with immediate effect by written notice, if the other Party: (i) materially breaches any of its obligations under the Agreement which remains uncured after thirty (30) day written notice thereof; (ii) is dissolved or liquidated, is declared bankrupt or otherwise the subject of suspension of payment or other insolvency proceedings, or if it must reasonably be expected to be unable to meet its obligations under the Agreement; or (iii) fails to comply with the laws and regulations to which it is subject; or (iv) if the other Party or any of its representatives commits fraud or willful intentional misconduct.
12.3. We may terminate this Agreement with immediate effect due to immediate termination of the acquiring agreement, if applicable.
12.4. Suspension. Without any prejudice to any other legal remedies, we may suspend the provision of , in whole or in part the Services or may terminate the Agreement with immediate effect by written notice, if you: (i) have not submitted any transactions for a period longer than three (3) months; (ii) do not comply with its obligations under your direct agreement with the relevant Payment Services Partner or with the Relevant Payment Services Provider; (iii) instruct us to no longer support you in relation to such Relevant Payment Services Partner; (iv) do not have a contractual relation with the relevant Payment Services Partner nor with any of the other Provider Payment Services Partners; (v) if we receive a written notification obliging us to refrain from providing the Services from any legal authorities, inter alia, referring to your misconduct; or (vi) did not approve in writing an acceptance of Fees Amendments, as defined in the Services Agreement. In any such case, the fees owed to us and any other costs and expenses shall become payable at once.
12.5. Disconnection of our Services. You acknowledge that disconnection of Services may take up to fifteen (15) business days. You are liable for all charges until final disconnection of Services.
12.6. A Party may not assign or in any way transfer its rights or obligations under this Agreement without the prior written approval of the other Party.
12.7. You acknowledge and agree that during the term of this Agreement and after its termination or expiration for any reason whatsoever, you shall continue to bear liability for all transactions and all other amounts due or which may become due under this Agreement. This liability is not subject to any limitation of liability that may be expressed elsewhere in this Agreement.
13. Force Majeure
13.1. In case of Force Majeure, the affected Party shall immediately give the other Party written notice of the Force Majeure event. The notification shall include details of the Force Majeure event together with evidence of its effect on the obligations of the affected Party, and any action the affected Party proposes to take to mitigate its effect.
13.2. As soon as practicable following the affected Party’s notification, the Parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms to mitigate the effects of the Force Majeure event and to facilitate the continued performance of this Agreement.
13.3. The Party prevented to fulfil its obligations shall not be required to remove any cause of Force Majeure or to replace or provide any alternative to the affected source of supply or the affected facility if that would require additional expenses or a departure from its normal practices, and the Agreement would be immediately terminated if it becomes unpractical to continue it.
14. Miscellaneous Provisions
14.1. Independent contractors. The Parties are independent contractors. No Party shall have any power or authority to assume on behalf of or in the name of the other Party any obligations or duties or to bind the other Party to any contract, deed or undertaking vis-à-vis any third party.
14.2. Promotional materials/press releases. Each Party acknowledges and agrees that the other Party may disclose the existence of the business relationship formed by the Agreement, including the name of the Party, for marketing purposes, including through media releases, public announcements, public disclosures, and promotional and marketing materials.
14.3. Severability. If any provision in the Agreement is found to be invalid or unenforceable in any respect in any jurisdiction the validity or enforceability of such provision shall not in any way be affected and the validity and enforceability of the remaining provisions shall not be affected, unless this Agreement reasonably fails in its essential purpose, and the Parties shall substitute such provision by a valid and enforceable provision approximating to the greatest extent possible the essential purpose of the invalid or unenforceable provision.
14.4. Waiver. Any waiver shall only have effect if it is specific and in writing. The failure of a Party to enforce any of the provisions of this Agreement shall in no event be considered a waiver of such provision. No waiver of a provision by a Party shall (a) preclude that Party from later enforcing any other provision of the Agreement; (b) operate as a waiver of any succeeding breach of the same provision of the Agreement.
14.5. Involvement of Third Parties. If you use the services of third parties you shall be responsible for all actions, errors, and/or omissions of the third party as if you had performed these acts or omissions yourself. You may not subcontract or otherwise delegate the performance of any of its obligations hereunder to any third party without our prior written consent.
14.6. Interim Remedies. Each party acknowledges and agrees that due to the unique nature of Intellectual Property, licenses, and Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the breaching party or third parties to unfairly compete with the breached party resulting in irreparable harm to the breached party, and therefore, that upon any such breach or any threat thereof, the breached party shall be entitled to seek injunctive relief.
14.7. Existing obligations. Notwithstanding the expiry or termination of the Agreement, each Party shall procure the due and timely performance of all obligations assumed by it prior to such expiry or termination. Except in the event that the Agreement is terminated for breach of contract, no Party shall be required to make any payment for termination or expiration of the Agreement.
14.8. Continuing provisions. The sections and clauses of this Agreement relating to confidentiality, liability, indemnities, governing law, and other provisions that expressly or by their nature are intended to continue to have effect, shall survive termination or expiration of the Agreement.
14.9. Governing Law. The Agreement shall be governed by and construed in accordance with the Laws of Malta. The courts of Malta shall have exclusive jurisdiction to settle any disputes in connection herewith and accordingly submit to the exclusive jurisdiction of such courts. You waive any objection to the Maltese Courts on grounds of inconvenient forum or otherwise as regards proceedings in connection herewith and agrees that a judgement or order of such a court shall be conclusive and binding on them and may be enforced against them in the courts of any other jurisdiction.