TERMS AND CONDITIONS
These General Terms and Conditions outline the terms and conditions under which FinXP Ltd. ., a company incorporated under the laws of Malta bearing company number C65783, having its registered office at Ardent Business Centre, Oratory Street, Naxxar NXR2505, Malta (“FINXP“) will provide Services to the MERCAHNT as specified in the Agreement. In case of any conflict or discrepancies between these General Terms and Conditions and the provisions of the Agreement including its Appendices, the provisions of the Agreement shall prevail. FINXP and the MERCHANT shall ensure full compliance with the Association Rules as well as the rules of any other financial institution or payment provider, if applicable. In case of any conflict between these General Terms and Conditions and the Association Rules, the provisions of the Association Rules shall prevail.
For the purpose of the Agreement and its Appendices as well as of these General Terms and Conditions the following definitions apply unless the context requires a different interpretation:
1.1 Agreement: the payment service agreement concluded between FINXP and MERCHANT;
1.2 Alternative Payment Method: any payment method other than Card used by a Customer in order to fulfil a payment obligation or to top up the eWallet such as but not limited to PayPal, PaySafeCard or Sofortüberweisung;
1.3 Applicable Law: any and all applicable laws and regulations, the prevailing rules and regulations of any regulatory authority and the Association Rules to which each Party is subject in respect of the performance of its obligations under the Agreement, including without limitation all state and federal consumer credit and consumer protection statutes and regulations and any data protection laws to the extent applicable to a Party;
1.4 Acquirer or Acquiring Bank: a financial institution that is a member of an Association and thus licensed to acquire MERCHANT’s Transactions and process such transactions for clearing and settlement purposes; Acquirer is identified in Appendix D of the Agreement;
1.5 Association: MasterCard and Visa, together with such other card payment systems as FINXP might make available from time to time and in respect of which FINXP agrees to provide processing and settlement and which, for the purposes of this definition, includes Laser and Switch / Maestro;
1.6 Association Rules: the current and future bylaws, rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Association (as may amended from time to time by such Association), which are applicable to the Services or other payment methods, including the rules and operating instructions applicable to the PCI DSS; Association Rules can be reviewed as follows:
Visa: – https://usa.visa.com/dam/VCOM/download/about-visa/15-April-2015-Visa-Rules-Public.pdf,
MasterCard: – http://www.mastercard.com/us/merchant/pdf/BM-Entire_Manual_public.pdf,
American Express: – https://www209.americanexpress.com/merchant/singlevoice/USEng/FrontServlet?request_type=navigate&page=merchantPolicy
1.7 Best Industry Practice: the standards that would be expected from an experienced and skilled service provider in the relevant industry for the provision of comparable services, having regard to factors such as the nature and size of the parties, the service levels, the term, the pricing structure, the locations in which the Services are being provided, and any other relevant factors;
1.8 Business Day: means a day in the Territory other than
(i) a Saturday or Sunday,
(ii) a holiday observed by FINXP, or
(iii) a day on which FINXP remains closed in accordance with Applicable Law;
1.9 Card: a valid credit card, debit card or similar payment instrument (including a virtual or electronic instrument) that is issued to a Cardholder pursuant to a licence from one of the Associations;
1.10 Cardholder: an individual or an entity for whose use one or more Cards have been issued from time to time;
1.11 Cardholder Information: all information about the Cardholder, including, without limitation, Cardholder’s name, account number, or any information about any Transaction;
1.12 Chargeback: an invalid or disputed Transaction that is rejected by a Cardholder or by an Issuer and is returned under the Association Rules;
1.13 Consents: all licences, permissions, consents, authorisations, registrations and approvals from all relevant authorities, Government Bodies, Associations or other regulatory bodies as are necessary or desirable for a Party to fully and effectively perform its obligations under this Agreement;
1.14 Customer: a natural person, partnership, association or legal entity that is customer of a merchant or has registered with the eWallet;
1.15 eWallet Solution: a software solution that provides electronic money to registered Customers and enables these Customers to transfer money to their own virtual accounts within the software solution and to initiate payments to third parties using the funds on these accounts. The transfer of money will be enabled by a Payment Service;
1.16 Fees: any fees payable by MERCHANT (and deducted from MERCHANT Settlement Proceeds) for the provision of Services as set out in Appendix C (Fee Table – Pricing);
1.17 Force Majeure Event: an event beyond the reasonable control of the affected Party, including war, but not limited to circumstances beyond its control, including but not limited to acts of God, fire, explosion, civil commotion, insurrections, riots, strikes or industrial disputes of any kind (whether of its own or third party employees);
1.18 Gateway Services: the technical processing of Transactions between the Acquiring Bank, FINXP and MERCHANT and the services providing MERCHANT with an interface to be able to accept sales from customers over the internet ;
1.19 Government Body: any foreign, national, international, regional, federal, state or local or other governmental authority or regulatory body including the European Union and any court, agency, authority or similar body;
1.20 Intellectual Property Rights: without limitation any patent, trademark, trade name, business name (including domain names and URLs), copyright and related rights, registered design, database right, unregistered design right (including rights in semiconductors) or other intellectual or industrial property protection and any application for such protection, and all rights in any secret process, know-how and inventions (whether patentable or registrable or not) or other confidential information in each case whether registered or unregistered and including applications for the grant of such rights and all other rights or equivalent forms of protection anywhere in the world;
1.21 Issuer: an entity that is a member of the Association and that issues Cards to Cardholders pursuant to the Association Rules;
1.22 KYC: “know your customer”;
1.23 KYC Process: the process carried out by FINXP in order to fulfil the KYC requirements requested by Associations, other financial institutions, regulator or public authority;
1.24 MasterCard: MasterCard International, Inc. and any Affiliate thereof with responsibility for operations in the Territory, and any of their successors and assigns;
1.25 MERCHANT Account: account enabling MERCHANT to accept payment services.
1.26 MERCHANT Cash Reserve Account: account to be established by FINXP to satisfy MERCHANT’s obligations or potential obligations under the Agreement;
1.27 Merchant Contract: a contract entered into by MERCHANT with a Customer for the provision of eWallet Solution;
1.28 MERCHANT Settlement Proceeds: the proceeds resulting from a Transaction which are payable by FINXP to MERCHANT;
1.29 Payment Service Provider Guidelines: the guidance provided by FINXP to MERCHANT in Appendix B as notified to MERCHANT in writing from time to time, that set forth the “dos and don’ts” to be observed by MERCHANT;
1.30 Payment Processing Services: means the following services to be provided by FINXP:
(i) capturing payment transactions, including cash advances / disbursements, made with a Card, Alternative Payment Method or direct debit transaction from physical point-of-sale terminals (including unattended acceptance terminals), virtual point-of-sale terminals, e-commerce, mail / telephone and / or vouchers; and
(ii) submitting transactions set out in (i) above, to the Issuer of the aforesaid Card or Alternative Payment Provider via the relevant Association for clearing and settlement, direct or indirect via an Acquiring Bank, for which settlement takes place pursuant to the terms of the Agreement;
1.31 PCI DSS: the Payment Card Industry Data Security Standards, which is a set of comprehensive requirements for enhancing payment account data security, as released from time to time by the PCI Security Standards Council;
1.32 Prohibited Merchant: any Merchant whose business falls within an industry category listed in Appendix B of the Payment Service Provider Guidelines;
1.33 Relevant Personal Data: personal data, being data used to identify a natural person
(i) contained in the Transaction Data;
(ii) relating to any merchant or Transaction; and / or
(iii) generated or otherwise processed as a result of the performance of the obligations of either Party under the Agreement;
1.34 Services: any services provided to MERCHANT by FINXP as agreed in the Agreement, in particular Payment Processing Services, Gateway Services or other payment related services;
1.35 SEPA Direct Debit Core Rulebook; as can be found on the European Payments Council site (https://www.europeanpaymentscouncil.eu)
1.36 Territory: European Economic Area and / or any such additional territories notified in writing by FINXP from time to time;
1.37 Transaction: the purchase or lease by a Cardholder of goods and / or services from a MERCHANT (including a credit or refund or Chargeback) by use of a Card;
1.38 Transaction Data: all information required or used by the Associations and / or FINXP in order to process a Transaction;
1.39 Transaction Record: an electronic or paper record of a Transaction generated at the point of sale or website substantiating the purchase of goods or services by a Cardholder or a non-card account holder from MERCHANT using a Card or any Alternative Payment Method;
1.40 Visa: Visa International Association and any Affiliate thereof with responsibility for operations in the Territory, and any of their successors and assigns.
2. Services of FINXP
2.1 The Services to be provided by FINXP to MERCHANT are specified in the Agreement. FINXP will only provide the Services to MERCHANT upon successful completion of its KYC Process and its anti-money-laundering and risk due diligence in accordance with the laws of Malta and European law, including, but not limited to, Directives 95/46/EC and 2005/60/EC and acceptance of MERCHANT by an Acquiring Bank and / or a provider of Alternative Payment Method, if not directly accepted by FINXP in accordance with FINXP’s ability as payment facilitator.
2.2 Changes to the Services shall generally be agreed upon between the Parties in written form. Nevertheless, FINXP may issue new policies with regard to the Services which will be published on www.FinXP.com. FINXP will notify MERCHANT, when possible, by giving thirty (30) Business Days’ notice in advance, this unless the change is required to be effective with immediate effect due to legal or regulatory requirements. If the MERCHANT continues using FINXP’s Services after the date when the changes become effective, it is deemed that MERCHANT has accepted the change. In the event that the MERCHANT raises an objection to the change, FINXP is entitled to terminate the Agreement according to clause 0.
2.3 MERCHANT authorizes and instructs FINXP
(i) to act as its payment facilitator in connection with any Transaction in accordance with the terms and conditions set forth in the Agreement and including these General Terms and Conditions and
(ii) to claim on its behalf, but for the account of MERCHANT, the settled transaction amounts from the Acquiring Bank or the relevant financial institution. FINXP shall be entitled to receive and to hold this amount on behalf of MERCHANT.
2.4 Depending on the Services agreed upon in the Agreement, the MERCHANT may have to enter into additional agreements with the Acquiring Bank or other financial institutions or with FINXP or its affiliates and / or provider of Alternative Payment Methods in order for FINXP to render the Services to the MERCHANT. If such agreement is required, but not concluded for any reason, the effected payment method or the specific service to be covered by the additional agreement shall not be considered as part of the Services and FINXP shall not be responsible in any way whatsoever for the non-availability of the relevant payment method or specific service.
3. MERCHANT Obligations
3.1 The MERCHANT shall notify FINXP immediately –by written notice of any relevant changes, including, but not limited to legal representative(s), bank account (for settlement), website / online shop URL, major ownership (10% or more), key geographical markets, financial standing, type, scope or nature of your business of business, change of business name or entering into a joint venture or joint marketing agreement. Such changes shall be notified to FINXP not later than thirty (30) Business Days in advance prior to the change becoming effective.
3.2 The MERCHANT shall:
(i) provide FINXP with any information necessary to provide the Services and respond promptly, at least within five (5) Business Days, to requests of FINXP to provide direction, information, approvals, authorizations or decisions that FINXP deems necessary to perform the Services;
(ii) assist FINXP with the implementation and performance of the Services, if necessary;
(iii) implement adequate security measures to prevent its programs from damage including data (re-) storage;
(iv) not forward its access data (User ID, password) for the Services to any third parties. The MERCHANT acknowledges that, for security reasons, ghost names and pseudonyms cannot be used;
(v) inform FINXP immediately, if an employee or any other person, who was given access to the Services, resigns. FINXP will close the access of such employees for security reasons; and
(vi) in case of facilitating CARD-related services, put the respective logos of the Associations at MERCHANT’s website on display.
If FINXP is unable to perform the Services for any reasons beyond the control of FINXP which are caused by the MERCHANT, FINXP shall not be held responsible in any way.
3.3 While using the Services, the MERCHANT undertakes
(i) to provide such necessary information to its customers as required pursuant to Applicable Laws;
(ii) not to sell any goods or offer services prohibited pursuant Applicable Laws;
(iii) to comply with the Association Rules;
(iv) to comply with applicable European and / or national data protection laws;
(v) to perform its obligations toward its customers, including the assumption of responsibility for the acceptance of a Customer order and its fulfilment, in the agreed manner;
(vi) not to use the Services for any improper purpose or in any manner, which may constitute a violation of Applicable Laws or which may cause damage to FINXP’s reputation or which may expose FINXP to investigation, prosecution or legal action; and
(vii) to indemnify FINXP and hold FINXP harmless for all costs (including reasonable legal fees) and damages incurred resulting from a claim by a customer of the MERCHANT or any other third party in connection with the business model or an act or omission of the MERCHANT.
3.4 Before the MERCHANT conducts any Transaction, it will obtain an authorization for the full amount of the Transaction from the authorization centre designated by FINXP. Authorization is required for each instalment of instalment transactions. Authorizations only confirm the availability of credit and are not a promise, guarantee or representation by FINXP or the authorization centre that a Transaction is or will be deemed valid and is not nor will be subject to dispute. Authorizations will not in any way affect FINXP’s right to revoke payment or otherwise exercise FINXP’s right to charge the Transaction back to MERCHANT.
3.5 The MERCHANT shall not process or submit Transactions that aggregate more than the “monthly transaction limit” FINXP establishes for the MERCHANT. The MERCHANT agrees to notify FINXP immediately if it has reason to believe it will exceed the pre-set limit. The MERCHANT may apply to FINXP in writing for a greater monthly transaction limit. If the MERCHANT submits Transaction Records to FINXP for processing that exceed the monthly transaction limit, FINXP may hold the excess funds as reserves until the Chargeback period related to the excessive Transactions has elapsed. If FINXP permits the MERCHANT to exceed the limit, FINXP may refuse without reason or prior notice to continue allowing that practice at any other time.
3.6 The MERCHANT will not use the services of any bank, corporation, entity or person other than FINXP for authorization of Transactions involving a Card throughout the term of the Agreement.
4.1 FINXP may charge back Transactions to the MERCHANT under the following circumstances. The MERCHANT agrees to immediately pay FINXP the amount of the Chargebacks without any further demand from FINXP.
(i) The Transaction Record is
(a) illegible or the data contained therein is otherwise indiscernible,
(b) not endorsed,
(c) not delivered to FINXP within the required time limits or
(d) altered or incomplete (e.g., missing the account number, card expiry date, merchant name or location, the Transaction amount or date, Cardholder signature, description of product or services, or authorization code).
(ii) the MERCHANT fails to obtain prior authorization for the Transaction.
(iii) The Transaction Record is a duplicate of an item previously paid or is one of two or more Transaction Records generated in a single Transaction in violation of the Agreement.
(iv) The Cardholder disputes the validity or authorization of the Transaction Record, or the sale, delivery, quality or performance of the goods or services purchased; or alleges that a credit adjustment was requested and refused, or that a credit adjustment was issued by you but not posted to the Cardholder’s account.
(v) FINXP determines that the MERCHANT has violated any term of the Agreement in connection with the Transaction Record or the related Transaction.
(vi) FINXP determines that the Transaction Record is fraudulent or that the related transaction is not a bona fide transaction in the ordinary course of the MERCHANT’s business or is subject to a claim of illegality, cancellation, rescission, avoidance or offset for any reason whatsoever, including without limitation negligence, fraud or dishonesty for which the merchant, its agents or employees are responsible.
(vii) The Transaction Record arises from a mail order, telephone order, or e-commerce transaction that the Cardholder disputes entering into or authorizing, or involves an account number that never existed or has expired.
(viii) In any other situation in which a Transaction has been charged back to FINXP in accordance with the Chargeback rules established by the Association.
4.2 FINXP may chargeback a Transaction in accordance with this section 4 even if an authorization was obtained. FINXP may impose a per-item handling fee for each Chargeback that is processed. FINXP may from time to time, at its sole discretion, and without prior notice, change the Chargeback fee. If the Chargeback activities of the MERCHANT exceed a ratio of 1 % (calculated by dividing the number of Chargebacks in any month by the number of sales during that month) or any other amount as set forth by an Association, MERCHANT will pay an additional per-item charge established by FINXP for processing such excessive Chargebacks. Since Association Rules may not allow the reversal of a Chargeback in certain electronic Transactions, the MERCHANT agrees to accept all Chargebacks issued pursuant to the Association Rules. The MERCHANT may also be charged a Chargeback research fee of EUR 50.00 per Chargeback. If after the MERCHANT Account has terminated, and the MERCHANT fails to instruct FINXP to where to transmit funds that FINXP is holding and that are due to the MERCHANT, FINXP may charge and directly deduct an amount of EUR 75.00 monthly as a maintenance fee of such funds.
5. MERCHANT Cash Reserve Account and security interest
5.1 FINXP may establish a MERCHANT Cash Reserve Account, which may be funded by:
(i) demand and receive immediate payment for such amounts;
(ii) debit the account identified in MERCHANT Account;
(iii) withhold the MERCHANT Settlement Proceeds until all amounts are paid; and
(iv) pursue any other remedies pursuable by law or in equity.
5.2 FINXP may use funds in the MERCHANT Cash Reserve Account to cover Chargebacks, credits, fines, costs and other obligations of MERCHANT under the Agreement. FINXP is entitled, at its sole discretion, to change the required reserve amount at any time without notice, and to determine the period that reserves may be held, and the percentage withheld from each transaction based on its assessment of the amount needed to cover current and future liabilities of the MERCHANT under the Agreement.
5.3 If FINXP requires a MERCHANT Cash Reserve Account at the time of the MERCHANT’s approval of its application for the Services, FINXP will notify the MERCHANT of the percentage and period of required reserves in the merchant approval and such MERCHANT Cash Reserve percentage shall be listed in Appendix C (Fee table) with the relevant details. If a reserve is required at a later date, or if a reserve amount is increased, FINXP may establish and/or increase the reserve without advance notice. FINXP shall provide written information of the Cash Reserve Account and such information will be attached to the then current active agreement. The MERCHANT agrees to deposit additional amounts in its MERCHANT Cash Reserve Account upon request of FINXP.
5.4 The MERCHANT will have no right or interest in the funds in the Reserve Account; provided that upon satisfaction of all of the MERCHANT’s obligations under the Agreement, FINXP will pay to the MERCHANT any funds then remaining in the Reserve Account. Any funds in the Reserve Account may be consolidated with other funds, and need not be maintained in a separate account.
5.5 Effective upon establishment of a Reserve Account by FINXP, the MERCHANT irrevocably grants FINXP a security interest in any and all funds, together with the proceeds thereof, that may at any time be in FINXP’s possession and would otherwise be payable to the MERCHANT pursuant to the terms of the Agreement. The MERCHANT agrees to execute and make available to FINXP such instruments and documents that FINXP may reasonably request to perfect and confirm the security interest and right of set-off set forth in the Agreement.
5.6 The Parties’ rights and obligations under this section 5 shall survive the termination of the Agreement, at least for a period of eighteen (18) months, but in any case as long as any of the MERCHANT’s transactions remain subject to Chargebacks, and so long as any Fee, charge, cost or obligation described in the Agreement remains unpaid by the MERCHANT or could be incurred by FINXP as a result of actions or omissions of the MERCHANT.
6.1 The MERCHANT is obliged to promptly – within ten (10) Business Days – pay the Fees and charges FINXP establishes for the Services according to Appendix C (Fee Table) of the Agreement if not deducted already by FINXP from any settlement; payments made by the Acquirer to FINXP with reference to the Agreement will be passed through to the MERCHANT minus applicable Fees and charges for the Services, including (without limitation) the following:
(i) Fines and penalties: The Associations may impose fines or penalties upon FINXP for violations of the Association Rules. The Associations may charge FINXP a Chargeback handling fee or fine, for example, if the MERCHANT exceeds certain thresholds set by the Association. The MERCHANT is obliged to pay or reimburse FINXP within twenty-four (24) hours of FINXP’s request, whether or not the MERCHANT intends to protest the Association’s assessment. The MERCHANT may contact FINXP for information regarding Association Chargeback limitations and fines.
(ii) Legal fees and costs: FINXP will pass through to the MERCHANT, and the MERCHANT agrees to pay, the legal fees and costs FINXP incurs in seeking legal advice in matters not in the ordinary course of the relationship with the MERCHANT, as described in the Agreement. This includes, but is not limited to, contract disputes, legal procedures, bankruptcy or other similar events, whether the fees or costs are incurred during or after the term of the Agreement.
(iii) Service Fees: These are Fees listed in Appendix C of the Agreement, or as amended by FINXP from time to time. For Transactions that do not qualify, Association interchange fees provide for a “down-grade,” and FINXP will apply a higher rate for the non-qualifying Transactions than the qualifying rate as set forth in the documentation. FINXP may modify the pricing by giving ten (10) Business Days’ prior written notice. In addition, by giving written notice to the MERCHANT, FINXP may change the Fees, charges and discounts for any reason, including, but not limited to, a result of
(i) Changes in Associations fees (such as interchange, assessments and other charges) or
(ii) changes in pricing by any third party provider of a product or service being utilised by the MERCHANT. Such new prices will be applicable to the MERCHANT as of the effective date established by the Association or third party provider, or as of any date specified in FINXP’s notice to the MERCHANT. In the event the MERCHANT raises an objection to the changes, FINXP is entitled to terminate the Agreement according to clause 12.
(iv) Monthly investigation fee: The MERCHANT may be charged a monthly investigation fee of ten percent (10%) of the EURO (or any currency) amount investigated for any suspicious or unusual transaction activity or any transaction activity which deviates from the Agreement. An additional audit fee of EUR 10.00 for each diversion of the MERCHANTs funds by FINXP pursuant to its Monitoring of the MERCHANT Account will be charged to the MERCHANT.
(v) Set up fees: If the MERCHANT voluntarily terminates the Agreement before an agreement between the MERCHANT and the Acquirer has been concluded, the MERCHANT may be charged a setup fee penalty of EUR 10,000.00 to compensate FINXP for the set up costs such as costs of verifying management, use of partner-databases or costs of due diligence and other. The MERCHANT shall be entitled to furnish proof of lesser damage.
6.2 The MERCHANT Account shall contain and maintain sufficient funds to cover any unbilled processing costs plus our estimated exposure based on reasonable criteria for Chargebacks, fines and returns. Simultaneously, with each transaction processed by the MERCHANT, FINXP has a contingent and non-matured claim against the MERCHANT for any amount FINXP is required to pay as a result of your processing of transactions, including, but not limited to, any Chargebacks, Fees, discounts, customer credits and adjustments, charges, fines, assessments and penalties. All settlements or credits given or payment made by FINXP to the MERCHANT in connection with Transactions are provisional and subject to revocation, Chargeback or refund, according to the terms and conditions of the Agreement and the Association Rules. The MERCHANT’s right to receive any amounts due from FINXP is expressly subject and subordinate to FINXP’s Chargeback, set-off, lien and security interest rights without regard to whether such Chargeback, set-off, lien and security interest rights are applied to claims that are liquidated, unliquidated, fixed, contingent, matured or non-matured. FINXP may, without further notice, electronically debit the MERCHANT Account to cover all sums owing to FINXP pursuant to the Agreement, including, but not limited to, amounts owing for Chargebacks, related fees and fines imposed by associations.
7. Representation and Warranties of the MERCHANT
Without limiting any other warranties in accordance with the Agreement, the MERCHANT represents and warrants that
7.1 the information provided in the application and the KYC Process is true and accurate and provides an accurate picture of the true nature of the MERCHANT’s business;
7.2 each Transaction submitted for processing represents a bona fide sale or lease of the goods, products or services which the MERCHANT has provided in its ordinary course of business and the transaction is not submitted on behalf of a third party;
7.3 the Transaction does not involve any element of credit for any purpose other than payment for a current transaction (including payment of a previously-dishonoured check) and, except in the case of approved instalment or pre-payment plans, the goods have been shipped or services actually rendered to the Cardholder;
7.4 the Transaction is free from any alteration not authorized by the Cardholder;
7.5 the amount charged in the Transaction is not subject to any dispute set-off or counterclaim;
7.6 to the MERCHANT’s best knowledge the Transaction does not indicate any facts or circumstances which would impair the validity or collectability of the Cardholder’s obligation and the transaction is in compliance with all Applicable Laws, ordinances and regulations; and the MERCHANT has originated the Transaction in compliance with the Agreement and the Card Association Rules;
7.7 to the MERCHANT’s best knowledge, the goods described in each Transaction are the MERCHANT’s sole property and it is free to sell them;
7.8 the MERCHANT has made no representations or agreements for the issuance of refunds except as it states in its return / cancellation policy;
7.9 for a Card sale where the Cardholder pays in instalments or on a deferred payment plan, a Transaction Record has been prepared separately for each instalment or deferred payment on the date(s) the Cardholder agreed to be charged. All instalments and deferred payments, whether or not they have been submitted to FINXP for processing, shall be deemed to be a part of the original Card sale.
7.10 The MERCHANT will not hold any funds on behalf of its Customers. It is FINXP’s sole duty in case to hold Customer funds in order to process payment transactions among Customers of the MERCHANT if applicable.
8. Indemnification, Liability and limitation of liability
8.1 The MERCHANT shall indemnify and keep FINXP and any member of its affiliates (together with its officers, servants and agents) indemnified from any and all liability, losses, damages, costs, penalties and fines incurred or suffered (including reasonable professional legal fees) or other assessments imposed on FINXP, arising out of any dispute or proceedings brought by a third party, including any Government Agency, against FINXP or any member of its Affiliate arising out of
(i) any breach of any of its obligations under the Agreement, including, without limitation, any breach or alleged breach of any of the warranties and representations of the Agreement or
(ii) any act within the MERCHANT’s reasonable sphere of control or
(iii) any violation of any Applicable Law or Association Rule
(iv) any violation security guidelines or failure (whether negligent or otherwise) to maintain the security or confidentiality of Cardholder Information, or your misuse of any such information.
8.2 FINXP shall not liable to the MERCHANT
(i) for damages resulting from the provision of the Services and ancillary services relating to KYC and account Information in accordance with the Agreement and the Applicable Laws, unless directly caused by its gross negligence or wilful misconduct;
(ii) for any failure or delay in performing its obligations under the Agreement if such failure or delay is caused by acts or omissions of third parties or circumstances beyond FINXP’s control. For the avoidance of doubt, any act regarding the provision of the Services, especially the non-execution or incorrect execution of a payment by FINXP or any failure arising out of a malfunctioning of the Card shall be considered as within FINXP’s reasonable sphere of control; and
(iii) for any consequential, indirect, incidental, reliance or exemplary damages arising out of or relating to the Agreement and its Appendices as well as these General Terms and Conditions.
8.3 In any case, FINXP’s aggregated total liability to the MERCHANT or any third party arising out of or related to the Agreement shall not exceed the lesser of EUR 25,000.00 or the amount of fees received by FINXP for Services performed in the immediate preceding six (6) months.
8.4 Except in respect of payment liabilities, neither Party shall be liable for any failure to perform or delay in performing its obligations under the Agreement if such failure or delay is caused by a Force Majeure Event, however to the Party so delaying immediately notifying the other Party in writing of the reasons for the delay and the likely duration of such delay; and such Party shall be granted an extension of time for performance equal to the period of delay, provided always that if the conditions of Force Majeure Event apply for a period of more than three (3) months either Party may terminate the Agreement immediately upon providing notice of termination in writing to the other Party.
8.5 Notwithstanding the foregoing, nothing in the Agreement shall exclude or limit the liability of a Party for death or personal injury resulting from the negligence of that Party; or damage or loss incurred by the other Party as a result of the fraud of that Party.
9. Monitoring of the MERCHANT activity
9.1 FINXP is entitled to monitor the MERCHANT’s daily credit card Transaction activity. The MERCHANT acknowledges that FINXP periodically reviews the MERCHANT and its business relating to the KYC Process during the term of the Agreement, including inter alia, monitoring of fraud reports and Chargeback rates, screening against sanctions and PEP lists, Website content checks and periodic credit ranking and monitoring of settlement reports.
9.2 The MERCHANT authorizes FINXP to obtain, from time to time, credit, financial, and other information regarding the MERCHANT from third parties, such as credit reporting agencies. The MERCHANT authorizes FINXP to respond to requests from others about FINXP’s experience with the MERCHANT. The MERCHANT agrees to provide FINXP, at its request, with:
(i) an updated financial statement;
(ii) information regarding the ownership, character and nature of your business; and
(iii) the estimated amount and volume of the MERCHANT’s future Transactions.
The MERCHANT agrees to permit FINXP and the Associations to review the Cardholder Transaction Records of the MERCHANT and inspect the MERCHANT’s business locations during regular business hours.
9.3 The MERCHANT authorizes FINXP and any Association to inspect the MERCHANT’s premises and computers, and the premises and computers of any company the MERCHANT has contracted with, for the purposes of verifying that Cardholder Information is securely stored and processed, and is not used for any purpose other than processing the Transactions to which it relates.
10. Confidentiality and data protection
10.1 “Confidential Information” means any information belonging to or in the possession or control of a Party that is of a confidential, proprietary or trade secret nature and that is furnished disclosed or imparted by one Party (the “Disclosing Party“) to the other (the “Receiving Party“), including, but not limited to, any technical or non-technical information (whether in verbal, written or other form), Relevant Personal Data, ideas, confidential or proprietary concepts, know-how, development, reports, designs, flow charts, data, specifications, computer programs, databases, inventions and any commercial, financial and business information (in any form), industry knowledge and expertise, business plans and strategies, marketing plans and techniques, which relates directly or indirectly to the Agreement including the relationship between the Parties arising out of the Agreement as well as all information for which a Party owes a duty of confidentiality to any third Party. Confidential Information will remain sole property of the Disclosing Party. Confidential Information shall not include information which
(i) was demonstrably already in the possession of the Receiving Party before receipt under the Agreement or is independently developed by the Receiving Party without access to or use or knowledge of the Confidential Information;
(ii) was demonstrably lawfully received by the Receiving Party or its employees from a third party free of any obligations of confidence to such third party; or
(iii) demonstrably is in or subsequently comes into the public domain other than by breach of the Agreement.
10.2 The Receiving Party shall only use the Confidential Information as strictly necessary for the performance of its obligations under the Agreement and maintain confidential all confidential information and not disclose it to any third party except in confidence and on a need to know basis to its employees, officers, advisers, agents or sub-contractors who are subject to confidentiality obligations in respect thereof under their contracts of employment or engagement. Confidential Information may be disclosed in accordance with judicial or governmental order or if required by Applicable Law or court order.
10.3 Each Parties shall exercise at least the same degree of care as it uses with its own data, but in no event less than reasonable care, to protect the Confidential Information from misuse and unauthorized access or disclosure, including
(i) maintaining adequate physical controls and password protections for any server or system on which any data may reside;
(ii) encrypting any data that is in transmission; and
(iii) encrypting any data located on any storage media.
10.4 Relevant Personal Data shall only be processed in accordance with applicable data protection law. The Parties shall only collect, save and process Personal Data that are necessary, adequate, relevant and not excessive in relation to the purpose for which they are collected or further processed.
10.5 The MERCHANT shall exercise the utmost care to prevent the disclosure of any Card or Cardholder Information, other than to the applicable Association, or as specifically required or permitted by Applicable Law and the Association Rules. The MERCHANT agrees not to use any account information or other Cardholder Information other than for the sole purpose of completing the Transaction authorized by the customer for which the information was provided to the MERCHANT, or as specifically allowed by Association Rules or required by Applicable Law. The MERCHANT shall limit access to Cardholder Information to a secure area that is only accessible to selected personnel. The MERCHANT’s disposal procedures must ensure the security of all Cardholder Information and all Cardholder Information that has been discarded must be rendered unreadable. The MERCHANT may not retain or store magnetic stripe data and / or Card Verification Value 2 (CVV2) magnetic stripe data after a transaction has been authorized. If the MERCHANT stores any electronically captured signature of a Cardholder, the MERCHANT may not reproduce such signature except upon our specific request. The MERCHANT acknowledges that it will not obtain ownership rights in any information derived from Transactions.
If at any time either Party determines that card account number information has been compromised, such Party will notify the other Party immediately and assist in providing notification to the proper parties as FINXP deems necessary. The MERCHANT’s information may be shared by FINXP with its affiliates in terms of provisions of the Agreement and Association Rules.
11. Intellectual Property Rights
Each Party acknowledges the Intellectual Property Rights of the other Party whether registered or not. The MERCHANT shall pay full compensation to FINXP for any violation of FINXP’s copyrights or other Intellectual Property Rights. FINXP will pursue any violation of its Intellectual Property Rights with claims for injunctive relief and damages. FINXP is entitled to refer to the MERCHANT as reference customer and to use its name, brand and logo for all kinds of marketing activities and campaigns free of charge, including, but not limited to, the use in marketing folders. The MERCHANT herewith agrees that FINXP’s logo is displayed to the MERCHANT’s Customers, whenever the MERCHANT uses the standard payment selection page and / or standard payment details page.
12. Termination for Good Cause
12.1 Either Party may terminate the Agreement at any time with immediate effect by giving prior written notice to the other Party if:
(i) the other Party commits a material breach of any provision of the Agreement which, in the case of a breach capable of being resolved, has not been resolved to the satisfaction of the Party claiming the breach within thirty (30) Business Days’ of notice in writing specifying the breach and requiring the same to be solved having been given; or
(ii) the other Party becomes insolvent or being unable to pay its debts as they fall due or any corporate action, legal proceedings or other procedure or step is taken or threatened in relation to
(i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation,
(ii) a composition, assignment or arrangement with any creditor or
(iii) the appointment of a liquidator, receiver, trustee in bankruptcy, judicial custodian, compulsory manager, administrative receiver, administrator or similar office
(iii) the other Party commits (or its representatives or Affiliates commit) fraud; or
(iv) if it is required to do so due to an amendment of Applicable Law or due to a decision by a court or a Government Body.
12.2 FINXP may at any time terminate the Agreement or parts of the Agreement with immediate effect if:
(i) The MERCHANT fails to notify FINXP of any material change company structure, shareholder, administrator or in the nature of its business, goods and / or services or of any additional business the MERCHANT commences or any material business the MERCHANT closes down within five (5) Business Days of such change;
(ii) an event occurs that may affect or a matter is brought to the attention of FINXP which it considers may affect the MERCHANT’s ability or willingness to comply with any or all of its contractual obligations or liabilities hereunder or if any other change in the MERCHANT’s circumstances or the circumstances of the MERCHANT’s business occurs (including a deterioration in or a change of the MERCHANT’s financial position or ownership) which FINXP, acting in good faith, considers material to the continuance of the Services;
(iii) FINXP, acting in good faith, reasonably considers any activity or omission of the MERCHANT to increase the risk of a claim against or loss or liability of FINXP or a financial institution in its financial network;
(iv) any security granted to FINXP by the MERCHANT ceases to be enforceable, is withdrawn or loses considerable value;
(v) the Association Rules require FINXP to terminate the agreement or if an Association gives notice to FINXP that it considers the provision of the Services to the MERCHANT to constitute a breach of the Association Rules;
(vi) the MERCHANT violates any duty to collaborate under the Agreement;
(vii) the Services are used by any third party or any third party benefits from the Services without FINXP giving its prior written consent;
(viii) FINXP, acting in good faith, reasonably believes that the MERCHANT is involved in any activities or omissions that would qualify as a criminal offence pursuant to Applicable Laws;
(ix) The MERCHANT disrupts FINXP’s regular business activities by means of, for example, spoofing, parameter tampering, exploitation of bugs, brute force or denial of service attacks and any other malicious activities;
(x) The MERCHANT exceeds any threshold set out in Association Rules;
(xi) FINXP is required by any Associations, Acquiring Banks or an order from any Government Body to cease providing Services to the MERCHANT;
(xii) The MERCHANT fails to successfully pass any anti-money-laundering or risk due diligence or KYC Process executed by FINXP or fails to provide to FINXP the relevant PCI certificate or PCI Self-Assessment Questionnaire upon request;
(xiii) The MERCHANT does not accept a variation of the risk and security arrangements (i.e. processing limit, reserve requirements) following any assessment or evaluation of the MERCHANT.
12.3 Any termination of the Agreement does not relief the MERCHANT of any obligations to pay any fees or costs accrued prior to termination and any other amounts owed by the MERCHANT to FINXP as provided in the Agreement or in these General Terms and Conditions. The MERCHANT will continue to be responsible for any and all Chargebacks, credits and adjustments and all other amounts then due, or which later become due.
12.4 In case the MERCHANT during the course of contract stops processing or transacting FINXP is entitled to charge a minimum fee as stated in Annex C and to withhold sufficient funds in order to cover payment of such fees by the MERCHANT.
13. Diversion of funds and suspension of Services
13.1 FINXP is entitled to divert the disbursement of funds and / or to suspend its Services in the event of reasonable grounds, if the MERCHANT fails to properly fulfil its obligations under the Agreement. In that case FINXP shall notify the MERCHANT thereof within three (3) Business Days following the suspension. Reasonable grounds shall include, but not be limited to, the following:
(i) suspicious or unusual Transaction activity;
(ii) material variance in the nature of the MERCHANT’s business, type of product and / or service sold or average ticket size, monthly volume or swiped / keyed percentages, from such disclosures made by the MERCHANT in the Agreement;
(iii) the MERCHANT does not authorize Transactions;
(iv) the MERCHANT receives excessive retrieval requests against its prior activity; or
(v) excessive Chargebacks are debited against the MERCHANT’s prior activity.
FINXP shall provide the MERCHANT with notice of such action.
13.2 Diversion of funds or suspension of Services shall be for any reasonable period of time required by FINXP to fully investigate the MERCHANT’s account activity and resolve, to FINXP’s sole satisfaction, the subject questionable, suspect or fraudulent Transactions or activity of the MERCHANT. Any funds diverted shall be maintained by a bank in a non-interest bearing account at bank.
13.3 The right to extraordinary termination as set herein shall remain unaffected by such suspension.
14. Amendment of General Terms and Conditions
FINXP is entitled to amend these General Terms and Conditions from time to time. The MERCHANT shall be notified in writing no later than thirty (30) Business Days before the amendments become effective, unless these amendments are required immediately due to legal or regulatory requirements. Such amendments shall be deemed approved, unless FINXP has received a written objection from the MERCHANT. The notification to the MERCHANT shall point out this consequence and lay out the material content of the amendments. In case the MERCHANT raises an objection, FINXP shall have the right to terminate the Agreement by giving two (2) weeks’ notice within six (6) weeks following the receipt of the objection.
15.1 All notices which either Party may be required or desire to give to the other Party under the Agreement shall be in written form and shall either be delivered by hand, or sent by facsimile transmission or in a pre-paid envelope by registered post to the other Party at its respective address or facsimile number as set out in the Agreement. Any such notice shall be deemed to have been given: if by hand, when delivered to the address in question; or if by facsimile transmission, at noon on the first Business Day after transmission; or if by post, at noon on the second Business Day after posting.
15.2 Neither the Agreement nor any rights, duties or obligations under it may be assigned, delegated, transferred, or otherwise disposed of by the MERCHANT in whole or in part without the prior written consent of FINXP, provided that the rights, duties and obligations of FINXP under the Agreement may be assigned, delegated, transferred or otherwise disposed of, in whole or in part, to an affiliate and third party without the MERCHANT’s prior written consent.
15.3 Neither Party shall publicise the existence of the arrangements between the Parties and/or the terms of the Agreement without the prior written approval of the other Party.
15.4 No failure or delay (in whole or in part) of either Party to the Agreement to enforce at any time any provisions of the Agreement, or to exercise any rights or remedies provided by law or under the Agreement shall be construed to be or operate as a waiver thereof or affect any other right or remedy. No single or partial exercise of any such right, power or remedy shall prevent any further or other exercise of the same or the exercise of any other right, power or remedy.
15.5 If any provision of the Agreement shall be declared invalid, unenforceable or illegal by the courts of any jurisdiction to which it is subject, such invalidity, unenforceability or illegality shall not prejudice or affect the remaining provisions of the Agreement which shall continue in full force and effect and the Parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the invalid, unenforceable or illegal provision which as nearly as possible validly gives effect to their intentions as expressed in the Agreement.
15.6 The Agreement shall be construed in accordance with and governed in all respects by Maltese law and the Parties hereto submit to the non-exclusive jurisdiction of the Malta Courts.