This merchant agreement (the "Merchant Agreement") governs the provision of merchant acquiring services ("Card Acquiring Services") provided by Finance Incorporated Limited to merchants who are sole traders operating their commercial business or exercising their profession in Malta and for whose goods and/or services, customers make payment by way of card payments.
A copy of this Merchant Agreement may be provided to Merchant in a durable medium, during the registration process if requested. A copy of this Agreement as amended from time to time, shall be made available to Merchant via email notification to Merchant's email address.
1. Legal Relationship
This Merchant Agreement is between the merchant ("Merchant", "You", "Your") and Finance Incorporated Limited ("Us", "We", "Our", "Finance Incorporated", "Paymix").
Finance Incorporated Limited, a private limited liability company duly incorporated under the laws of Malta, having its registered office at Capital Business Centre, Entrance A, Floor 2, Triq Taz-Zwejt, San Gwann, SGN 3000, Malta, bearing company registration number C55838 and tax number MT22834215, is duly licensed by the Malta Financial Services Authority to transact the business of a Financial Institution in terms of Section 5 of the Financial Institutions Act 1994, including the provision of card acquiring services;
Finance Incorporated shall have the right, unilaterally, to modify and amend the terms and conditions set out in this Merchant Agreement to comply with its regulatory obligations, requirements of Card Schemes or to minimise risk. These amendments shall be without prejudice to Merchant's right to terminate the Agreement in accordance with the Termination clause of the Agreement.
2. Definitions and Interpretation
2.1 For the purposes of this Merchant Agreement, capitalised terms used, unless the context otherwise requires, shall have the meanings as set out below:
"3D Secure" refers to the transactions acquired are validated by the Cardholder only after entering of a secret code. The transactions are carried in 3D Secure system only if the card issuer is registered for the services;
"Account" means the eWallet Account which is a business account for the holding of electronic money issued by Finance Incorporated and to which Finance Incorporated shall settle the amounts due to Merchant from the Card Acquiring Services;
"Acquirer" means Finance Incorporated, a financial institution licenced as a financial institution to issue electronic money in terms of the Financial Intuitions Act (Chapter 376 of the Laws of Malta). Finance Incorporated is the institution that will provide Merchant with a service to allow Merchant to accept contactless Card payments;
"Agreement" means this merchant agreement between Finance Incorporated and Merchant, including any appendices, as well as any Instructions and any policy documents issued by Finance Incorporated and in force from time to time which are expressly stated as relating to this main document;
"Anticipated means amounts required to cover any sum due under: (i) the indemnity in respect
Liabilities" of potential or expected Refunds, Chargebacks, Chargeback Fee, any liability or expected liability relating to a Transaction; or (ii) any liability or potential liability of Merchant under this Agreement;
"Application Form" means any registration or application form that Finance Incorporated asks Merchant to submit, (including electronically), when applying for the provision of Card Acquiring Services, any attached Pricing Schedule, and any attached appendix as well as any addenda that Merchant may subsequently accept;
"Authorisation" means the process whereby there is approval that Cardholder's account with the issuer of the Card used to pay for the Transaction has not been blocked for any reason, or listed as lost or stolen or as having had its security compromised and has available funds or credit as the case may be which is at least equal to the amount of the Transaction for which the Card is presented for the purchase of Merchant's goods and/or services; and "Authorise" and "Authorised" shall be construed accordingly;
"Card" means a payment card, or another form of payment instrument, correctly issued by an authorised and/or licensed card issuer, bearing a trademark and of a card type which the Parties hereto have agreed shall be covered by the Agreement;
"Cardholder" means (i) a natural person in whose name a Card has been issued and whose name is embossed or imprinted on the front of a Card, and (ii) any authorised user of a Card;
"Card Acquiring means the activities undertaken by Finance Incorporated to authorise, capture,
Services" process and settle Card Present payment Transactions made by Cardholders to Merchant for the purchase of goods and/or services provided by Merchant;
"Card Information" means information embossed or printed on the front or back of the Card, and/or information stored in the Card's magnetic stripe, chip or equivalent technology;
"Card Present" means a Transaction where the Card and the Cardholder are physically present at the point of sale and the Merchant can evidence the presence of the Card tendered by chip read, card swipe, contactless tap. In the case of contactless payments this would mean the presence of the contactless Card or other contactless payment devices;
"Card Scheme" means card scheme(s) with which Finance Incorporated holds a license and which shall be covered by this Merchant Agreement between Finance Incorporated and Merchant;
"Chargeback" means either: (i) any circumstances where a Transaction is invalid or disputed and card issuers, Card Schemes and/or other financial institutions either refuse to settle a Transaction or debit to Finance Incorporated such amount of a Transaction that has been settled in respect of which Settlement may have been made to Merchant. In each case notwithstanding any Authorisation, the amount of the Chargeback shall be passed on in all cases to Merchant and where required, Finance Incorporated has the automatic right to recover and/or be reimbursed for such Chargeback by Merchant.
"Chargeback Fee" means an adminsitration fee that Acquirer shall charge to Merchant for processing a Chargeback.
"Claim" means any action, proceeding, claim, demand or assessment (including assessments), penalty, fine, or similar charge whether arising in contract, tort (including negligence) or otherwise;
"Confidential means any and all information provided by one Party to the other including but not
Information" limited to technical, practical and commercial information save the following:
"Entity" means a body-corporate (irrespective of the state or country under the laws of which such body was incorporated), partnership, sole proprietorship, joint venture, or other form of organisation.
"Financial Exposure" means any loss, cost or potential loss of Finance Incorporated due to acts and omissions of Merchant that could result in fraud, Chargeback, fees, Penalties, fines, or similar.
"Floor Limit" means any monetary limit (of which Finance Incorporated shall notify Merchant from time to time) above which Merchant must obtain Authorisation from Finance Incorporated prior to completing a Transaction;
"Instructions" means instructions and operational descriptions issued by Finance Incorporated in writing or orally from time to time pursuant to the Regulations or otherwise for the purposes of the services provided under this Agreement;
"KYC" means ‘Know Your Customer' the process of identifying and verifying the identity of a customer in accordance with Applicable Law on Anti-Money Laundering (AML) and Counter-Terrorism Financing (CTF);
"Merchant" a natural person operating as a sole trader in Malta whether in respect of his commercial business or in the exercise of his profession and entering into this Merchant Agreement with Finance Incorporated and for who Finance Incorporated, provides card processing and transaction acquiring services;
"Merchant Category refers to a 4-digit number assigned by the International Card Organization used to
Code" classify the goods or services provided by the Merchant;
"MOTO" means Mail Order Telephone Order Transactions, which are Card Not Present Transactions, in which the Customer pays using a Card concluded by telephone or mail order, other than eCommerce Transactions;
"Payment Default" means the event that Merchant does not pay on the due date any amount payable pursuant to a Recourse Claim at the place and in the currency in which it is expressed to be payable;
"Payment Processing means the software system used by Finance Incorporated for collecting Card and
System" from Merchant;
"PCI DSS" means the universal Payment Card Industry Data Security Standard, as amended from time to time;
"PSP" means payment service provider, an Entity that provides technical solutions and services for handling authorizations and/or Transactions and/or Chargebacks, operating as a sub-contractor to or, on-behalf of the Merchant;
"Paymix SoftPOS means the application that is downloaded on to Merchant's device from the Google
Application" Inc Play Store and that enables the device to become a point of sale that offers Tap on Phone contactless payment acceptance using contactless Cards or other contactless payment devices.
"Penalties" means any fines (together with any associated costs) which may be levied on Finance Incorporated by Regulatory Authorities or Card Schemes;
"Prohibited means the sale of goods or supply of services by Merchant which falls within the
Transactions" categories prohibited by Finance Incorporated and notified in writing by Finance Incorporated to Merchant from time to time;
"Recourse Claim" means any claim of recourse which Finance Incorporated may have on Merchant from time to time, corresponding to (a) any refund or Chargeback made by a Cardholder and/or card issuer in relation to the sale of goods or supply of services purchased by that Cardholder, or (b) any fees or other financial sanctions which Finance Incorporated has been obliged to pay to Card Schemes or any other party insofar as such amount is related to this Agreement;
"Refund" means a Transaction where a payment to Merchant is reversed, whether in full or in part, with the intention of crediting the Cardholder's account;
"Regulations" means any licenses, rules, regulations, directives, guidelines, industry codes etc. issued by Regulatory Authorities, PCI SSC or Card Schemes;
"Regulatory Authority/ means the Malta Financial Services Authority or other equivalent governmental
Authorities" agencies or authorities;
"Sales Method" means the sales method(s) used by Merchant in the sale of its goods and/or supply of services;
"SCA" means strong customer authentication; an authentication based on the use of two or more elements categorised as knowledge (something only the user knows), possession (something only the user possesses) and inherence (something the user is) that are independent, in that the breach of one does not compromise the reliability of the others, and is designed in such a way as to protect the confidentiality of the authentication data;
"Secured Obligations" means all present and future moneys, debts and liabilities due, owing or incurred by Merchant outstanding at any time including the Recourse Claims;
"Security" shall mean the forms of security provided by Merchant in accordance with Section 3 and Appendix 1, to secure to Finance Incorporated's satisfaction, the performance of Merchant's obligations (including any contingent or potential obligations) from time to time under this Agreement whether by way of reserve or any other form of security acceptable to Finance Incorporated;
"Services" means the Card Acquiring Services which comprise payment card authorisation, processing and Settlement of Transactions to Merchant;
"Settlement" means, subject to all terms and conditions of this Agreement, the proceeds from Transactions collected via the Services, (including any amounts in excess of any volume caps agreed for Merchant), credited to Merchant's Account less Finance Incorporated's fees, charges, and reported Chargebacks, Refunds, Penalties, Claims, Anticipated Liabilities and any other liabilities and claims that Finance Incorporated may have.
"Smart Device" means a compatible electronic device operated by Merchant, (including Merchant's employees, authorised users, agents, contractors or representatives), whether a smartphone or tablet to which the Paymix SoftPOS Application is downloaded to enable the device to become a point of sale terminal capable of accepting contactless payment methods.
"Tap on Phone" means the functionality enabled by the Paymix SoftPOS Application that allows the Customer to tap their contactless Card (or other contactless payment device) directly on Merchant's compatible electronic device using near-field communication (NFC). Merchant requires an Android Device with NFC capability and operating system Oreo version 8.0 or higher. Tap on Phone only accepts contactless payments from contactless Cards covered by this Agreement.
"Trading Limit" means the maximum aggregate value of one or more Transactions that Merchant may complete in respect of any specified period as notified to Merchant from time to time.
"Transaction" means both (i) purchase transactions in which a Card is used as means of payment, and (ii) refunds/crediting/adjustment/reversal of corresponding purchase transactions processed by Finance Incorporated under this Agreement.
"Transaction Data" documents, data and information of any kind relating to a Transaction and required by Finance Incorporated for the provision of the Card Acquiring Services, and any other information required under the Card Scheme rules including payment details, Refund details and Card data, authorisation, authentication responses sent by Merchant to Finance Incorporated and Cardholder Information;
"Transaction Receipt" Document produced in two copies by the Merchant regarding the goods, services purchased with the Cards or the Transactions made with these Cards which shows the debt of the Cardholder and other relevant information arising from the Transaction, signed by the Cardholder unless the Cardholder's identity is authenticated with a code number, password/PIN or by any method other identity determinant;
"Working Day" means a day other than a Saturday or Sunday or a public holiday in Malta.
2.2 In this Agreement: (a) reference to a clause or schedule is a reference to a clause or schedule of this Agreement (b) headings are for reference only and shall not affect the interpretation of this Agreement; (c) the singular shall include the plural and vice versa; and (d) a reference to a party (whether an individual person or an Entity) shall include their heirs, successors and assigns.
2.3 The appendix or appendices to this Agreement constitute an integral part of this Agreement.
3. Scope of Agreement and Fees
3.1 Finance Incorporated shall provide the Card Acquiring Services for Card Present payment Transactions, as specified in this Agreement, to Merchant, who agrees. This Agreement governs the provision of Card Acquiring Services by Finance Incorporated to Merchant who has successfully registered and been provided with an iPaymix Sole Trader Account. Eligibility to register for the Services can only be undertaken by such sole trader Merchants through the iPaymix Mobile Application.
3.2 Merchant understands and acknowledges that this Agreement shall be read in conjunction with the Paymix SoftPOS Terms and Conditions and the iPaymix Sole Trader Account Terms and Conditions and the Privacy Policy, which collectively govern the provision of Card Acquiring Services provided by Finance Incorporated.
3.3 Merchant is entering into a contractual relationship with Finance Incorporated for the provision of Card Acquiring Services, only after the successful fulfilment of the below stated conditions precedent (the "Effective Date"): (i) Merchant, having passed through all due diligence measures for identification and verification, has successfully been on-boarded by Finance Incorporated and is the account holder of a business account as a sole trader through iPaymix. By agreeing to participate in the Card Acquiring Services, Merchant undertakes to comply with the terms and conditions of this Agreement and the provision of the Card Acquiring Services by Finance Incorporated.
3.4 The Card Acquiring Services (the "Services") covered by this Agreement are only provided to individual persons who are sole traders operating their commercial business or profession in Malta through a physical establishment and using the Paymix SoftPOS Application to accept Card Present payment Transactions from Customers. To be eligible for the Services, Merchant must be (i) resident of Malta; and (ii) have full legal capacity to enter into a contract; and (iii) not be present on any black list or sanctions list related to AML/FT purposes, or on any register as published by any card scheme association; and (iv) use the Service for Merchant's legal business or professional activity in Malta.
3.5 This Agreement does not regulate the terms of use of the Paymix SoftPOS Application for which separate terms and conditions apply. Merchant shall separately agree to the Paymix SoftPOS Application Terms and Conditions when downloading, installing and registering the Paymix SoftPOS Application on an appropriate electronic device.
3.6 By accepting this Agreement, Merchant agrees to use the Services in accordance with the terms and conditions stated herein and Merchant can accept the Agreement by:
3.7 In case Merchant wishes to stop using the Service, Merchant must follow the instructions for Termination of Agreement as set out in this Merchant Agreement and the termination rules as set out in the Paymix SoftPOS Application Terms and Conditions. The latest version of the Paymix SoftPOS Application Terms and Conditions shall be made available to Merchant on the SoftPOS landing page of Our Website: https://www.financeincorp.com/softPos/
3.8 Protection of customers' privacy is very important to Finance Incorporated and Merchant must read Our Privacy Policy, which shall be made a part of this Agreement, to understand the use and disclosure of customer information by Finance Incorporated.
3.9 Finance Incorporated will provide Merchant with unique customer numbers, a Merchant Identification Number (MID) for each Sales Method which the Parties have agreed shall be covered by this Agreement. Such customer numbers, which must always be used in conjunction with Merchant's submitting of Transactions to Finance Incorporated, may not be used for Sales Methods or goods or services within a stated industry other than as agreed upon between Finance Incorporated and Merchant.
3.10 For regulatory, risk and security reasons, Finance Incorporated may impose or change limits unilaterally and without consent of Merchant, for which Merchant shall be informed unless Finance Incorporated are not permitted to do so by law.
3.11 Finance Incorporated may suspend the Service for operational reasons such as maintenance because of an emergency or reasons related to fraud, risk or compliance. The suspended Service will be restored as soon as reasonably practicable. Merchant shall be responsible for taking backups of its data prior to any suspension or maintenance work. Finance Incorporated shall not be liable for any direct or indirect loss or damage suffered by Merchant or any third party arising from the suspension of the Services.
3.12 Finance Incorporated will use all reasonable endeavours to correct any reported technical faults in the Services as soon as reasonably practicable. However, Finance Incorporated gives no guarantees as to the performance of the Services or any undertakings that the Services will be continuously available or free of faults as authorisation process in some cases includes participation of third parties which are not under Our control.
3.13 Occasionally Finance Incorporated may:
3.14 Merchant shall pay fees to Finance Incorporated for the Services in accordance with the pricing schedule that shall be made available to Merchant. The fees may be changed unilaterally with a prior two (2) month written notice sent to Merchant. However, the fees for the Services may depend on interchange fees and other similar fees of Card Schemes and in such cases, the fee for the Services may be changed by Finance Incorporated with a shorter notice in the case of any such changes. Updates on the fees will be indicated on our websites.
3.15 In addition to the fees, Merchant agrees to pay to Finance Incorporated any extraordinary costs for any tests, registration, reporting, special API developments or similar unprecedented costs incurred by Finance Incorporated and which shall be notified to Merchant. Finance Incorporated may also charge for any information requests that are provided in a form or detail different to the standard services covered by the fees on our websites.
3.16 Merchant acknowledges and agrees that such fees may be set-off from the Settlement and/or debited directly from Merchant's Account or, upon written confirmation from Finance Incorporated, may be paid directly by Merchant.
4. Merchant's Account, Settlement, Set-Off, Refunds, Chargebacks, Fees
4.1 Merchant agrees that the payment of the amounts collected by Finance Incorporated in terms of the Services shall be paid by way of Settlement to Merchant's Account.
4.2 The amounts collected as a result of the Service shall become due to Merchant and shall be paid by Finance Incorporated to Merchant's Account in a frequency as agreed between the parties provided however that Finance Incorporated shall have the right of full recourse for the gross amount collected and/or paid by way of Settlement in terms of the Services, for which Merchant is or has become liable under this Agreement or otherwise.
4.3 Merchant agrees that Finance Incorporated may set-off from: (i) the amounts collected by Finance Incorporated in terms of the Services including any amounts collected which are in excess of any volume caps agreed with Merchant; and/or (ii) the Settlement; and/or (iii) any of the amounts held in Merchant's eMoney Wallets held or controlled by Merchant with any fees, charges, Chargebacks, Chargeback Fees, Penalties (whether from Card Schemes or other Regulatory Authorities), Claims, Anticipated Liabilities or any other amounts that Merchant owes or may owe to Finance Incorporated under this Agreement or other legal agreements from any of the balances in the eMoney Wallets held or controlled by Merchant including the Merchant's Account.
4.4 In respect of payments which are collected in terms of the Services, Finance Incorporated may, in its sole and absolute discretion, undertake the following actions in respect of the amount that has been paid or that would otherwise have been paid to Merchant by way of Settlement (and this notwithstanding any Authorisation or approval of a Transaction that may be given by the issuer of a Card):
4.5 Finance Incorporated may undertake any action set out in Section 4.4 in the following circumstances:
4.5.1 where it is reasonably believed that a Transaction (including activity which would otherwise have constituted a Transaction) may be fraudulent or involves other criminal activity, until the satisfactory completion of investigation by Finance Incorporated and/or Card Scheme and/or Regulatory Authority and/or other financial institution;
4.5.2 without limit in amount or time, if Finance Incorporated becomes aware or reasonably believes that Merchant is in breach of or likely to be in breach of its obligations and/or failed to comply with the terms and conditions set out in this Agreement;
4.5.3 Merchant, its employees, authorised users, contractors, representatives and/or agents have defrauded or attempted to defraud Finance Incorporated;
4.5.4 the aggregate value of the Refunds is more than the aggregate value of the Transactions;
4.5.5 it is reasonably suspected by Finance Incorporated that the number and/or size of the Transaction(s) is significantly greater than expected or, where Merchant has substantially reduced the daily volume of incoming Transactions;
4.5.6 when Merchant's solvency is reasonably deemed by Finance Incorporated to be questionable;
4.5.7 when notice of termination of the Agreement has been given;
4.5.8 the goods and/or services (as applicable) referred to in the Transaction:
4.5.9 the Cardholder claims that the goods or services referred to in the Transaction were not as described, are unsatisfactory or were returned and Merchant failed to provide a refund to Cardholder's Card;
4.5.10 the Transaction is alleged by Cardholder to be illegal, null or invalid;
4.5.11 the Cardholder has disputed the authorisation, authenticity or validity of any Transaction or part of a Transaction;
4.5.12 a Transaction has been altered by Merchant without Cardholder's permission; and/or
4.5.13 any other circumstance which Finance Incorporated, in good faith, deems appropriate.
4.6 Merchant shall irrevocably authorise Finance Incorporated to debit the Merchant's Account, with the following: adjustments for any errors, whether on Merchant's or Finance Incorporated's part; reversals of invalid transactions; adjustments in respect of fraudulent entries/items; any Penalty levied by a Card Scheme for the contravention of its rules and/or operational risk parameters; any Penalty levied by any Regulatory Authority; all Finance Incorporated's fees and other charges prevailing at the time, including VAT, Chargeback Fees, transaction fees and other charges relating to this agreement; the amount of any Transaction (whether within or outside any agreed trading limits); the amount of any Chargeback(s) and any other amount for which Merchant is or shall become liable to Finance Incorporated in terms of this Agreement or any other agreement between Finance Incorporated and Merchant.
4.7 Merchant is aware and agrees that Finance Incorporated are also authorised to debit any other eWallet Account of Merchant's held at Finance Incorporated or any other financial institution with items listed in this Agreement, in the event that debits to Merchant's Account are unsuccessful.
4.8 The amount of any payment referred to in Section 4 of this Agreement and the costs incurred, (where applicable), by Finance Incorporated in collecting and processing any such payment shall constitute a debt that is immediately due and payable by Merchant to Finance Incorporated. Any collateral, reserve or other type of Security held by Finance Incorporated pursuant to this Agreement may be applied by Finance Incorporated in the discharge (by way of set-off or otherwise) of the Merchant's payment obligations to Finance Incorporated pursuant to this Agreement (and this right to make use of the collateral, reserve or other type of Security as well as the right of set-off shall survive the termination of this Agreement).
4.9 Finance Incorporated shall inform Merchant of any decision to undertake any one or more of the actions set out in this Section 4 and the reason for why such action is being undertaken. For the avoidance of doubt, any such notification may be undertaken after such decision has been made and the relevant action taken.
4.10 In the event of a Chargeback, Merchant shall have the right to proceed and pursue any remedies against Cardholder and Finance Incorporated shall not be obliged to resolve any disputes arising between Merchant and Cardholder.
4.11 In the event that a Card Scheme proposes additional circumstance, (in addition to those referred to in this Section) that will further result in a Chargeback, Merchant accepts responsibility for such Chargebacks.
4.12 Merchant acknowledges and agrees that it shall be liable for all Transactions processed under its MID and that it shall be liable for all Chargebacks, Refunds and Penalties as well as any Claims, Anticipated Liabilities and any other claims and liabilities with respect to Transactions processed in terms of this Agreement. This liability is not subject to any limitation of liability that may be expressed elsewhere in the Agreement and survives the termination or expiration of the Agreement.
4.13 Finance Incorporated's rights in terms of this Section 4 shall continue until such time that Finance Incorporated is satisfied that the Transaction(s) is/are legitimate and no longer liable to be the subject of a Chargeback.
4.14 As Chargebacks may arise a considerable period of time after the date of the relevant Transaction, Merchant acknowledges and agrees that, notwithstanding any termination of this Agreement for whatever reason, Finance Incorporated shall remain entitled to recover from Merchant, (and from any person who has provided Finance Incorporated with a guarantee or security relating to Merchant's obligations under this Agreement, if applicable), any and all Chargebacks and Chargeback Fees, Penalties (whether levied by Card Schemes and/or Regulatory Authorities or competent courts), as well as any sums paid or required to be paid by Finance Incorporated in accordance with this Agreement and all related costs incurred by Finance Incorporated that occur in relation to Transactions effected during the term of this Agreement.
4.15 Merchant acknowledges and agrees that it has no legal or beneficial interest in any sums that Finance Incorporated debits from Merchant's Account, sets-off or withholds that Finance Incorporated shall use to discharge Merchant's obligations and liabilities to Finance Incorporated in terms of this Agreement or other legal agreement between the parties.
4.16 Without prejudice to the provisions of this Agreement, Merchant shall be liable for all and any Penalties or other fines, charges, fees, which may be imposed by any Card Scheme in connection with Chargebacks and/or fraud and/or any other reason as the Card Scheme may determine and as may be amended and/or introduced by the Card Scheme from time to time.
4.17 Merchant shall maintain sufficient funds in Merchant's Account to accommodate all Transactions contemplated by this Agreement and to meet any sums due and payable to Finance Incorporated by way of fees, charges, credits, Penalties, Refunds, Claims, Anticipated Liabilities or other payment or amounts due or in connection with this Agreement. Merchant agrees that Merchant cannot make a chargeback after a loading transaction on the ground that services are not delivered (or similar) as the purchased e-money is issued by us on receipt of funds. If at any time the funds held in the Account are not sufficient to cover the amounts due by Merchant under the Agreement, Merchant shall transfer the full amount of funds due as instructed by Finance Incorporated within ten (10) Working Days of receipt of written notice. In the event that Merchant does not transfer such funds to the Account within ten (10) Working Days, Finance Incorporated shall, without prejudice to any further claims for compensation or damages, be entitled to interest on the arrears from Merchant at the rate of 5% per annum above the published European Central Bank 1 month Euribor rate. Such interest shall accrue on a daily basis until actual payment of the overdue amount, whether before or after any related judgment.
4.18 All Settlement of funds and Transactions are subject to monitoring and audit by Finance Incorporated and may be adjusted for inaccuracies and errors or may be rejected or limited for regulatory reasons (AML/FT), risk and security or may be rejected or delayed, for reasons beyond our control. Finance Incorporated does not guarantee the acceptance of any Settlement or Transaction and shall not be liable to Merchant for any loss or damages caused as a result of any rejected or delayed Settlement or Transaction.
4.19 Merchant acknowledges that the validity of a Chargeback, Refund, Claim or any other reversal will have to be determined by the relevant Card Scheme or other third party payment service provider and Finance Incorporated will have no discretion on the matter. Finance Incorporated shall not be to Merchant in respect of any reimbursement to Cardholder (or Card Scheme), their payment service provider or to any other appropriate third party because of a Chargeback, Refund, Claim or any other reversal.
4.20 Where a Cardholder escalates a Chargeback or similar procedure in accordance with Card Scheme rules, Finance Incorporated shall inform Merchant and shall cooperate with Merchant in such procedure as per the Regulations. All costs, or fees incurred by Finance Incorporated in such procedure, including the costs or fees paid by the Cardholder in case of loss shall be on account of Merchant.
4.21 Client acknowledges and accepts that Finance Incorporate may restrict or suspend the use of the Service and/or terminate this Agreement immediately and without advance notice in the event that the level of Chargeback, Refund or Claims or any other reversal connected with the Merchant are in Finance Incorporated's sole opinion, excessive.
4.22 Where Finance Incorporated has reasonable doubts or receives information from the Card Scheme or other Regulatory Authorities of payments with stolen cards, false cards or unauthorised payments with Cards, Finance Incorporated has the right to withhold or block all due amounts to Merchant, including in the Merchant's Account and to start an investigation without prior notice to Merchant. Merchant is obliged and undertakes to cooperate with Finance Incorporated and provide all requested information relating to the alleged fraud or unauthorised payments. Merchant acknowledges and agrees that in some cases of violations, we may be obliged to report Merchant to Card Scheme registers or other regulators and terminate the Services to Merchant, for which Finance Incorporated shall not be liable.
4.23 For the avoidance of doubt, the provisions of this Section 4 shall apply irrespective of whether the Transaction(s) have been Authorised and/or the Transactions have been processed by Finance Incorporated.
4.24 The provisions of this Section 4 shall survive the termination of this Agreement for a minimum period of six (6) months or such longer period after the termination date and shall remain in full force and effect.
5. Rolling Reserve and Security
5.1 Merchant hereby agrees that Finance Incorporated shall have a priority position as to the funds in the Account to collect any such payments due under this Agreement from Merchant. Merchant therefore hereby grants to Finance Incorporated a security interest in the Transactions, Settlements and accounts (including but not limited to the Merchant's Account) and including without limitation all funds held by Merchant with Finance Incorporated or any other institution. This right to a security interest shall survive the termination of this Agreement for a minimum of six (6) months or such longer period after the termination date as is consistent with any related Chargeback obligation or liability that Finance Incorporated may have under the Card Scheme rules.
5.2 Without prejudice to the Security mentioned in this Agreement, Finance Incorporated shall have the right to request Merchant for a rolling reserve (the "Rolling Reserve") to be held/retained by Finance Incorporated, in an amount and for a period of time shall be requested by Finance Incorporated from time to time. In addition, Merchant acknowledges and understands that Finance Incorporated shall have the right to retain the entirety of the funds representing processed Transactions that exceed any monthly volume cap agreed with Merchant. This shall be in addition to any Rolling Reserve.
5.3 Merchant understands that Finance Incorporated will use the Rolling Reserve and the amounts retained from processed Transactions in excess of any monthly volume cap to settle any financial liability or amount enforced by the Card Scheme, or a Regulatory Authority, or a law enforcement authority, or any other claim or liability due to any issue related to Merchant or the Transactions including in relation to any outstanding Chargeback liability or potential, contingent or pending Chargeback liability. For the avoidance of any doubt, Merchant shall be liable for all Chargebacks
5.4 Finance Incorporated shall further have the right to use the Rolling Reserve and the amounts retained from processed Transactions in excess of any monthly volume cap, without prior notice to Merchant, against any outstanding amounts that Merchant owes to Finance Incorporated under this Agreement or any other agreement between Merchant and Finance Incorporated, in order to collect any amounts due including without limitation, rights of set off and recoupment. Finance Incorporated's rights to sums owed to it by Merchant pursuant to this Agreement shall in no way be limited by the balance or existence of the Rolling Reserve.
5.5 Finance Incorporated and Merchant agree that Finance Incorporated shall withhold amounts from the Settlement and/or block such amounts of the Settlement held in Merchant's Account, so as to maintain the Rolling Reserve, provided that if so required, Merchant shall fund the Rolling Reserve upon request by Finance Incorporated.
5.6 Any balance that remains of the funds held as a Rolling Reserve and the amounts retained from processed Transactions in excess of any monthly volume cap will be returned or released to Merchant's Account in accordance with the time frame agreed by Us from time to time, unless such funds are subject to an investigation or from fraudulent transactions.
5.7 Merchant hereby grants a security interest in favour of Finance Incorporated in respect of the Rolling Reserve established pursuant to this Agreement and the amounts retained from processed Transactions in excess of any monthly volume cap.
5.8 Finance Incorporated shall be entitled to withdraw and use such funds held by way of Rolling Reserve and the amounts retained from processed Transactions in excess of any monthly volume cap as represent amounts that are owed to Finance Incorporated without prior notice or demand to Merchant and even after the termination of this Agreement.
5.9 Finance Incorporated may, at any time, require Merchant to provide Security in such amount, in such form and over such assets as Finance Incorporated reasonably requires and which shall be requested by Us from time to time for purposes of discharging Merchant's obligations for payments for which Merchant is liable and including but not limited to, Refunds, Chargebacks, Chargeback Fee, Claims, Anticipated Liabilities, Fees, Penalties or any other amounts or changes due to Finance Incorporated from Merchant under this Agreement or any other agreement, applicable laws and Regulations. Security can comprise a reserve, first demand guarantee and/or such other security as shall be deemed suitable by Finance Incorporated for purposes of securing the Merchant's obligations (including contingent or potential obligations) under this Agreement.
5.10 Where the Security comprises a reserve, We shall be entitled to withhold and keep as such reserve, funds from Merchant's acquired transactions that We have collected but not yet paid by way of Settlement to Merchant's Account, for purposes of securing the performance of Merchant's obligations under this Agreement, applicable laws and the Regulations. The reserve shall be held in an account with Finance Incorporated and any reserve amount(s) can also be transferred by Merchant to Us. We retain the right to determine the amount of Security to be held by way of reserve
5.11 Merchant accepts and understands that in respect of the Security, it shall have no ability to withdraw any amounts from the account where any such reserve is held, or to cancel or amend any other additional Security that may have been provided by Merchant in accordance with this Agreement.
5.12 Where Finance Incorporated have implemented a reserve, We shall determine the reserve amount depending on the level of risk of Merchant, type of business and other factors. If in Our sole discretion, the amount of the reserve exceeds a reasonable mount, We may release the excess amount, cease to keep it as a reserve and credit to Merchant's Account. If in our sole discretion the amount of reserve does not correspond to the risks, Finance Incorporated shall be entitled, unilaterally, to increase the amount of reserve without prior notice and/or prolong the period for which the sums will be kept as a reserve. Finance Incorporated shall also be entitled to request any further Security, in addition to the reserve, as We shall deem appropriate in the circumstances and if Merchant does not provide such additional Security, We shall terminate the Services, without liability or compensation for damages.
5.13 In order to determine the risk associated with Merchant's Account or use of the Services, We may request at any time, and Merchant agrees to promptly provide, any information or documents about Merchant or Merchant's business, use of the Service, use of the account or Card, operations or any other information about Merchant. We shall reserve the right to reassess Merchant's eligibility for any account, product, or Services if Merchant's business is materially different from the information provided by Merchant upon registration for the Services.
5.14 Merchant hereby grants to Finance Incorporated a security interest in the Security, to secure to Finance Incorporated's satisfaction, the performance of the Secured Obligations and any other obligations (including any contingent or potential obligations) from time to time pertaining to Merchant under this Agreement.
5.15 Merchant shall promptly, at its own expense, do whatever Finance Incorporated reasonably requires to facilitate the enforcement of the security interest for the realisation of the Security, and any other amounts over which Merchant has granted a security interest to Finance Incorporated, or for the exercise of any rights vested in Finance Incorporated as a result of such security interest including executing any transfer, assignment or assurance to, or as requested by, Finance Incorporated, making any registration and giving any notice, order or direction considered necessary or desirable by Finance Incorporated.
5.16 If it should come to the attention of Finance Incorporated, at any given time, that the Financial Exposure of Finance Incorporated, or its credit risk in relation to Merchant has increased, Finance Incorporated is entitled to (i) change the payment terms for Settlement with immediate effect in order for them to correspond to the higher Financial Exposure or credit risk; and/or (ii) increase the value of and/or time frame over which each addition to the Rolling Reserve is implemented; (iii) request an increase in any existing Security; and/or (iv) request any additional security. Merchant shall agree to any such amendments promptly upon the request of Finance Incorporated. In the event that Merchant does not increase the Security or provide additional security when so requested by Finance Incorporated, Finance Incorporated reserves the right to suspend the Services to Merchant until such time that the increase in Security or the additional Security shall have been provided.
5.17 The funds (or assets) held by way of Rolling Reserve and/or by way of Security generally, will not accrue interest in favour of Merchant.
5.18 Merchant's liability is not limited to the amount of Rolling Reserve, reserve or other Security. We shall be entitled to debit from any Rolling Reserve, reserve, other Security or from the balance of electronic money held in Merchant's Account or other accounts, amounts for which Finance Incorporated has suffered including any Penalties (from Card Schemes, Regulatory Authorities and/or law enforcement authorities), Claims, Anticipated Liabilities, Chargebacks, Chargeback Fees, other fees, costs, expenses and any other liabilities. Finance Incorporated shall inform Merchant about such debit within a reasonable time and without delay, unless it is unlawful to inform Merchant or it is against our legal interests to do so.
5.19 Finance Incorporated's right to hold funds as a Rolling Reserve and to hold the Security and/or any additional security, shall survive the termination of this Agreement for a minimum period of six (6) months or such longer period after the termination date as is consistent with any related Chargeback obligation or liability that Finance Incorporated may have under the Card Scheme rules.
5.20 All the provisions of this Section 5 in their entirety shall survive the termination of this Agreement and shall remain in full force and effect.
6. Merchant Obligations, Representations, Warranties and Undertakings
6.1 Merchant may only use the Services in a bona fide manner and in accordance with the functionalities of the Services as defined in this Agreement, the iPaymix Sole Trader Account Terms and Conditions and the Paymix SoftPOS Application Terms and Conditions. Merchant warrants and undertakes that each purchase Transaction shall represent a bona fide sale of goods or services (as applicable) at Merchant's establishment or place or operation and shall not use the Services in connection with any other underlying illegal Transaction.
6.2 Merchant agrees to use the Service only as permitted by:
6.3 Merchant warrants and undertakes that it will not use the Services in any manner whatsoever that constitutes a violation of any law, regulation or rule, including those issued by Card Schemes and irrespective of whether the violation of such law, regulation or rule may cause Finance Incorporated to be subject to any investigation, prosecution or legal action. It is therefore strictly forbidden for Merchant to use the Services in violation of this Agreement or for any illegal purposes including but not limited to fraud, money laundering, tax evasion, without the consent or against the will of cardholders/customers of Merchant or other illegal activities. Merchant shall under no circumstances use the Services for activities or execution of transactions which without limitation involve or may involve any of the following:
6.4 Merchant represents and warrants that the business / profession carried on by Merchant is legitimate and lawful and undertakes not to sell any goods or provide any services or carry out any business which is prohibited under the laws of Merchant's jurisdiction and of those countries in which Merchant offers its good and/or services, and/or which are prohibited by Finance Incorporated as prohibited industries and/or which are prohibited by the Card Scheme rules.
6.5 Merchant warrants and undertakes that Merchant shall comply with on an ongoing basis and shall stay informed about applicable laws and Regulations in force from time to time.
6.6 Merchant acknowledges, agrees and warrants that it shall:
6.6.1 only accept payments from Cardholders in connection with goods and/or services which Merchant has sold and supplied as principal to those Cardholder so that the Transaction represents a genuine sale of goods or services to the Cardholder. Merchant shall not encourage the use of or to accept knowingly or by negligence, Cards for (i) any fraudulent purpose); (ii) in any other manner which contravenes the permissible use of Cards; or (iii) for any purpose not approved by the Cardholder;
6.6.2 before accepting a Card for a Transaction, evidence the presence of the Card tendered for payment and verify the identity of the Cardholder using the method of verification in accordance with the terms of the Paymix SoftPOS Application and ensure that the Transaction is authorised by the rightful Cardholder for the amount of the Transaction in satisfaction of the Cardholder's obligations to Merchant;
6.6.3 only pay such Refunds to Cardholders using the same Card used by the Customer for the payment of the goods and/or supplies (as applicable) and Merchant shall submit the Transaction to reimburse the Cardholder for a sale transaction that was previously submitted. Merchant must not make a Refund with cash where the original purchase was made using a Card. Finance Incorporated shall not process any Refund if there are insufficient funds in Merchant's Account to cover such Transaction unless Finance Incorporated has given express consent. Finance Incorporated may therefore, at its discretion, request that Merchant ensures a sufficient balance is present in Merchant's Account or other eWallet Accounts before processing a Refund. Merchant shall also prevent its employees, authorised users, contractors, agents, representatives or other persons from submitting Refunds and/or returns that do not reflect valid Refunds or returns corresponding to an original payment Transaction;
6.6.4 only accept payments and/or make Refunds in respect of goods and/or services the sale and supply of which commonly falls within Merchant's business as identified to Finance Incorporated by Merchant in the Merchant Application. Merchant shall promptly notify Finance Incorporated in writing before making any change to the nature of goods and/or services provided by Merchant;
6.6.5 not use the Services for any sale or purchase of goods and/or services which are not acceptable to Finance Incorporated from time to time. Merchant acknowledges that Finance Incorporated has established and maintains a list of restricted and prohibited industries which Finance Incorporated shall inform to Merchant but it shall be within Finance Incorporated's sole and absolute discretion to determine whether activities conduct by Merchant are considered to fall within Finance Incorporated's restricted or prohibited industries list;
6.6.6 be responsible for assuring that only approved Cards are accepted for Transactions;
6.6.7 not engage in an practice that discriminates against or discourages the use of a certain Card in favour of any particular Card Scheme;
6.6.8 not apply a higher price or surcharge fee for payment Transactions made by Cards compared to the price that would be applied for payment made by any other form, unless such higher price or surcharge fee is permitted by applicable laws and Card Schemes Rules;
6.6.9 provide a true and complete copy of the Transaction Receipt to the Cardholder at the time that the purchased goods are delivered or the services are performed.
6.6.10 maintain Finance Incorporated updated on an ongoing basis with regards to Merchant's name, trading name, brand name and all names under which Merchant conducts business, its registered address, trading address, a complete description of the goods sold and services provided and any other information required by any applicable laws and Regulations. Merchant warrants that it shall promptly notify Finance Incorporated, in writing, of any change to these details;
6.6.11 promptly provide Finance Incorporated with immediate notice of its intent to alter in any way, Merchant's approved monthly sales volume, average ticket size and highest ticket value;
6.6.12 ensure that Merchant's identity is prominently and unequivocally informed to Customers at all points of interaction;
6.6.13 not accept a Transaction or present Transaction Data for processing which are not undertaken directly between Merchant and Cardholder;
6.6.14 only submit Transaction Data to Finance Incorporated directly from Merchant's device and staff devices connected to Merchant and Merchant's MID;
6.6.15 ensure that customer service provided to the Cardholder is provided directly by Merchant and offer Customers a documented complaints procedure and customer service contact point accessible by e-mail and/or telephone;
6.6.16 disclose to the Cardholder, at the time of the Transaction, any limitation it has on accepting returned goods and/or services (as applicable);
6.6.17 handle and respond to Cardholders' disputes and manage Chargebacks in accordance with Regulations and in particular the Card Scheme rules for which Merchant shall be full liable and responsible;
6.6.18 perform its obligations towards Cardholders relating to the provision of goods and/or services in accordance with Merchant's agreement with its Customers and applicable laws;
6.6.19 only accept payments and submit Transaction Data to Finance Incorporated in respect of Transactions which a Cardholder has authorised in accordance with this Agreement and the Regulations and any other information or instructions provided or made available by Finance Incorporated to Merchant from time to time. Merchant shall not present for processing any Transaction which has failed one or more authentications checks attempted for the Transaction. If Merchant resubmits the Transaction for Authorisation and relies on any subsequent Authorisation, Merchant acknowledges that such Authorisation shall be undertaken at its own risk. For the avoidance of doubt, Merchant understand that Authorisation of a Transaction is not a guarantee of payment or of Settlement to Merchant's Account and it does not prevent Finance Incorporated from recovering a Chargeback or other amount in respect of the Transaction;
6.6.20 ensure that the Transaction complies with all requirements of the applicable Card Scheme rules, the laws of all relevant jurisdictions, and all other requirements of this Agreement;
6.6.21 ensure that the Transaction is not a duplicate of any other transaction;
6.6.22 ensure that the Transaction is authorized by the rightful Cardholder for the amount of the Transaction in satisfaction of the Cardholder's obligations to Merchant;
6.6.23 ensure that the Transaction is not to collect or the refinancing of an existing obligation/debt;
6.6.24 not make any cash advance to a Cardholder or any other person as part of a Card Transaction;
6.6.25 not accept cash payments with respect to charges for goods and/or services that are included on a Transaction receipt resulting from the use of a Card;
6.6.26 the delivery of the goods or services is provided simultaneously with the payment Transaction (except for delayed delivery, advance deposit, or other partial transactions specifically allowed under the Card Scheme and where this exception has been explicitly authorized by Finance Incorporated in writing);
6.6.27 ensure that the Transaction is valid, collectible, and is not subject to any dispute, setoff, or counterclaim;
6.6.28 not accept or submit transactions for Settlement on behalf of another Merchant or any other party;
6.6.29 not accept a Card for sales made under a trade or business name, business affiliation and/or industry that is different from that which Merchant identified to Finance Incorporated in the Merchant Application;
6.6.30 not accept any Transaction (and must not present to Finance Incorporated for processing any Transaction Data relating to any such Transaction), which was previously charged back to Finance Incorporated;
6.6.31 immediately and without unnecessary delay notify Finance Incorporated in writing of any erroneously executed Transaction;
6.6.32 maintain fraud and chargeback rates below the thresholds established by Card Schemes;
6.6.33 bear all the risks for transactions that were processed without Secure Customer Authentication ("SCA"). MOTO Transactions shall be deemed to have been processed without SCA. Provided however that MOTO Transactions as a Sales Method is subject to prior written approval and agreement by Finance Incorporated as an approved Sales Method;
6.6.34 pay all relevant taxes as required by applicable laws relating to the Transactions submitted to Finance Incorporated for processing;
6.6.35 comply with its obligations under applicable laws based on the Data Protection Legislation (as the same may be amended, restated, supplemented and/or substituted from time to time) and that it shall implement appropriate technical and organisational measures to protect personal data;
6.6.36 not sell, purchase, provide, exchange or in any manner disclose any Card number, Transaction or personal information of or about a Cardholder to anyone other than to Finance Incorporated or in response to a valid demand from a Regulatory Authority;
6.6.37 respect the intellectual property rights of third parties with regards to the goods and/or services provided to its Customers using the Services and Merchant shall not infringe such rights in any way. Upon becoming aware of any infringement of such rights, Merchant shall undertake to immediately terminate the infringement;
6.6.38 remain in compliance with all applicable laws, Regulations and Card Scheme rules, as may be amended from time to time;
6.6.39 ensure that the Transaction complies with all requirements of the applicable Card Scheme rules, the laws of the jurisdiction and all other requirements of this Agreement; and
6.6.40 refrain from doing anything which Finance Incorporated reasonably believe to be disreputable or capable of damaging the reputation or goodwill of Card Schemes and/or Finance Incorporated.
6.7 Merchant shall be deemed to be responsible for the conduct(acts and/or omissions) of its employees, contractors, agents, representatives or any other person considered to be working for and/or on behalf of Merchant in compliance with the terms of this Agreement and in particular this Section 6.
6.8 If Merchant's business under applicable laws requires a regulatory permit for all or some users, Merchant shall without delay provide Finance Incorporated with evidence that such permit has been granted, continues to be valid and that Merchant's offered services as a whole comply with the law. If such permit is withdrawn or has not been obtained for individual countries targeted by the Merchant's business or if Merchant is not aware of the legal situation, Merchant shall notify Finance Incorporated immediately. Merchant shall indemnify Finance Incorporated against all Claims and liabilities arising due to Merchant's failure to notify Finance Incorporated in accordance with this clause. Finance Incorporated shall not be obliged to provide Card Acquiring Services to Merchant to the extent that Merchant does not at any time hold a necessary regulatory permit for its business.
6.9 The Merchant acknowledges and agrees that Recurring Transactions shall not be accepted unless prior written agreement has been obtained from Finance Incorporated that Merchant may accept such Recurring Transactions. Where Finance Incorporated has agreed in writing that Merchant may accept Recurring Transactions, Merchant shall obtain a Recurring Transaction Authority from the Customer for such Recurring Transaction and confirm, within two (2) working days of the date of the Recurring Transaction Authority, to the Customer via the agreed method of communication that a Recurring Transaction Authority has been established; notify the Customer via the agreed method of communication at least seven (7) working days prior to a Recurring Transaction payment being charged to the Customer's Card if: (i) the payment amount has changed; (ii) the payment date has changed; (iii) more than six (6) months have elapsed since the last Recurring Transaction payment; or (iv) a trial period, introductory offer or promotional activity has expired; not effect (or seek to effect) a Transaction under the Recurring Transaction Authority once the Recurring Transaction Authority has expired, or once the Customer has notified Merchant that the Customer wishes to cancel such Recurring Transaction Authority; and retain securely the Recurring Transaction Authority for at least a period of eighteen (18) months after the date of final Transaction effected under it, and produce each Recurring Transaction Authority to us on demand.
6.10 The requirements for the Transaction Data to be submitted by Merchant to Finance Incorporated are set by the Card Schemes. Finance Incorporated undertakes to advise Merchant of such requirements and shall further inform Merchant of any changes to such Transaction Data required and the time frame by when such changes shall be implemented. Merchant undertakes to implement all such changes within the required timescale.
6.11 Merchant must retain all records concerning the Transactions, for a minimum of five (5) years after the Transactions have been completed or such other time as may be stipulated by the Regulations and shall survive the termination of this Agreement.
6.12 Merchant acknowledges and approves Finance Incorporated, where required, to provide a report on Merchant, (including the identity of Merchant) with information as deemed necessary to the Card Schemes.
6.13 Merchant shall cooperate with and provide Finance Incorporated, Finance Incorporated's internal and external auditors and relevant Regulatory Authorities with such information at such intervals as Finance Incorporated may reasonable require allowing Finance Incorporated to assess Merchant's ability to meet Merchant's obligations and liabilities (including but not limited to its financial standing) under this Agreement.
6.14 Finance Incorporated shall at all times have the right to request any documentation of information, which may also be in the form of personal data from the Merchant for purposes of verifying and complying, among others, with Finance Incorporated's KYC and AML requirements which shall include: (i) the identity of Merchant, employees, authorised users, representatives, agents and/or contractors; (ii) Merchant's (proposed) business / professional activities; (iii) Finance Incorporated's willingness to provide the Services; (iv) Merchant's ongoing compliance with the Agreement, Card Scheme rules, Paymix SoftPOS Terms and Conditions and iPaymix Sole Trader Account Terms and Conditions, instructions from any Regulatory Authorities and/or applicable laws; (v) risk profile of Merchant, including but not limited to, Merchant's financial position; (vi) whether any information provided by Merchant to Finance Incorporated or information relating to Merchant obtained by Finance Incorporated is correct and true.
6.15 Merchant acknowledges and understands that Merchant shall bear all risk for Transactions if the transactions were processed without Secure Customer Authentication.
6.16 Merchant acknowledges that the Card Scheme Rules give the Card Schemes certain rights to require termination or modification of the Agreement.
6.17 Finance Incorporated may from time to time notify Merchant of a Trading Limit and/or a Floor Limit and Merchant shall not exceed the Trading Limit or complete a Transaction in excess of the Floor Limit without prior written approval from Finance Incorporated. Merchant understands that such Trading Limit or Floor Limit shall continue to apply unless Merchant is otherwise notified in writing by Finance Incorporated.
6.18 For Card Present Transactions, Merchant shall follow the normal Card acceptance process which is enforced by the Paymix SoftPOS Application.
6.19 Merchant acknowledges and agrees that it shall be responsible for ensuring that any data pertaining to its business is exported from the Paymix SoftPOS Application before this Agreement is terminated.
6.20 Merchant shall not, under any circumstances, ask the Customer to disclose his/her PIN.
6.21 For the duration of this Agreement, Merchant shall observe all applicable laws and Regulations as are in force from time to time including but not limited to the Card Scheme Rules.
6.22 Merchant represents and warrants that it is and will remain PCI compliant for the term of this Agreement.
6.23 Merchant shall promptly notify Finance Incorporated if it becomes aware of or suspect any security breach relating to Transaction Data (whether or not Merchant has complied with the PCI DSS).
6.24 Merchant shall adhere to the Merchant Category Code (MCC) assigned to it by Finance Incorporated with respect to each Transaction. Merchant acknowledges that Finance Incorporated may, acting reasonably, amend the MCC solely to ensure a more accurate match to Merchant's business.
6.25 Merchant shall promptly notify Finance Incorporated in writing of any other agreement that Merchant enters into concerning its acceptance of Card payments.
6.26 Merchant shall not appoint any agent, supplier or any other third party to process Transactions on its behalf without the prior written approval of Finance Incorporated.
6.27 Merchant declares that all information contained in the Transaction Data are true, accurate and complete; and that Merchant has provided goods and/or services to the Cardholder and that Merchant has not broken any obligations it may have to the Cardholder.
6.28 Merchant shall comply promptly with all requests for information that Finance Incorporated make for the purpose of meeting operational and legal requirements to carry out Customer Due Diligence in relation to Merchant (including providing personal information about Merchants directors and beneficial owners where applicable).
6.29 Merchant undertakes and warrants to comply with all laws to which it may be subject and shall comply in all respect with all Sanctions. Merchant further undertakes that it is not, and will procure that none of its directors, officers, agents, employees or persons acting on behalf of the foregoing is, a Restricted Person and do not act directly or indirectly on behalf of a Restricted Person. To the extent permitted by law, Merchant undertakes to promptly supply Finance Incorporated with details of any claim, action, suit, proceedings or investigation against Merchant or any of the persons listed in this sub-paragraph with respect to Sanctions by any Sanctions Authority upon becoming aware of them.
6.30 Merchant undertakes to comply with this Agreement and any directions or Instructions relating to this Agreement from Finance Incorporated or from any party retained by Finance Incorporated, including instructions provided in responses from authorisation systems.
6.31 Merchant accepts that Finance Incorporated shall be entitled to register and market the fact that the Merchant accepts Cards as a means of payment.
6.32 To the extent that Finance Incorporated requires Merchant to comply with the any Regulatory Authorities regulations and general guidelines regarding measures against money laundering and terrorist financing in order to prevent the Transactions from being used for money laundering or terrorist financing, Finance Incorporated shall notify Merchant of what measures need to be taken by Merchant in order to satisfy such regulations.
6.33 Merchant further undertakes to comply with the standard and mandatory screening procedures stipulated by Card Schemes which may be changed from time to time.
6.34 Merchant must retain all records concerning any investigation for a minimum of (i) five (5) years after the investigation has been completed or (ii) five (5) years after the Merchant Agreement has been terminated, whichever is the later point in time.
6.35 Merchant warrants that it is located in Malta, being within Finance Incorporated's licenced area of use. The location of Merchant determines the location of the Transaction. Merchant shall provide without undue delay evidence of compliance with this warranty and undertaking on, including the accounting records relating to the permanent establishment/business registration as the case may be, when so requested by Finance Incorporated.
6.36 Merchant acknowledges and agrees that the sale of goods and/or services are transactions between the Merchant and customer and Finance Incorporated are not liable for the performance of the obligations of Merchant to Customers.
7. PCI-Requirements
7.1 Merchant undertakes to comply with the Payment Card Industry Data Security Standard (PCI DSS) as published from time to time on www.pcisecuritystandards.org.
7.2 The Instructions contain additional information regarding PCI DSS as well as a description of matters to be observed by Merchant in general in conjunction with the processing of Card Information. Finance Incorporated shall strive to inform Merchant of important news and changes to PCI DSS in the manner and with the frequency that Finance Incorporated deems appropriate.
7.3 Merchant undertakes to provide reports in writing regarding the validation of PCI DSS compliance of Merchant to Finance Incorporated, upon request.
7.4 Merchant undertakes not to store any sensitive data regarding Cards or data relating to Transactions. In cases where Merchant's business requires handling and storage of Card Information or data relating to Transactions, such handling and/or storage must be carried out in accordance with all applicable laws and the Regulations.
7.5 Merchant will, and will ensure that any third party service provider utilized by Merchant for the purpose of this Agreement (or for any service provided hereunder) only use technical equipment for the Card Acquiring Services that is compliant in all respects with (and, if required, approved under) the applicable standards published by PCI Security Standards Council, and Merchant assumes liability for the compliance of any equipment used by any such third party service provider with the standards.
7.6 Finance Incorporated shall at all times have the right at its request (following the giving of reasonable notice where possible) to:
7.7 All costs in relation to any request made by Finance Incorporated pursuant to Section 6.6 shall be borne by Merchant.
7.8 Merchant shall promptly notify Finance Incorporated in writing of any breach or suspected breach or non-compliance by it or by any third party of the requirements of Section 6 that Merchant becomes aware of.
7.9 In case Merchant suspects irregularities or fraudulent use of Card Information, Merchant is required to report this suspicion to Finance Incorporated without delay.
8. Security Rules and Monitoring
8.1 Merchant acknowledges that Finance Incorporated shall monitor, analyse and confirm that the Transaction activity of Merchant (sales, Refunds and Chargebacks) is conducted in a legal manner and in full compliance with the Regulations regarding the monitoring requirements.
8.2 To this end, Finance Incorporated shall review and monitor Merchant's business activities to confirm and to reconfirm regularly that any activity related to or using Card Scheme's trademark is conducted in a legal manner and in full compliance with the Regulations.
8.3 Finance Incorporated may, from time to time, provide Merchant with procedures, forms, rules, instructions and manuals with which Merchant shall comply and implement and which shall become an integral part to this Agreement.
8.4 Finance Incorporated shall also monitor the Sales Methods utilised by Merchant and analyse the Transaction activity of Merchant (sales, Refunds and Chargebacks) and shall reserve the right to require Merchant to change or stop any Sales Method that Finance Incorporated reasonably considers to be resulting in an unacceptable level of fraudulent or potentially fraudulent Transactions. Should Merchant refuse to cease any such Sales Method, Finance Incorporated reserves the right to stop the Services and terminate this Agreement in accordance with the Termination clause of the Agreement.
8.5 Merchant agrees to work for a constantly low rate (both by count and volume) of disputed and fraudulent Transactions. In the event of reaching the threshold for disputed Transactions, as determined and communicated by Finance Incorporated, Merchant is obligated to establish a plan to reduce the number of complaints. Merchant will follow any instructions issued by Finance Incorporated and shall grant Finance Incorporated all reasonable access to Merchant's physical establishment as may be required for the purposes of this Agreement.
8.6 In the event Finance Incorporated and/or Card Schemes believes that Merchant has reached a level of complaints based on fraud, unauthorized purchases or complaints from Cardholders which is unacceptably high in relation to the total number of Merchant's purchase transactions, or if any Card Scheme has imposed penalties or additional fees or measures upon Finance Incorporated, then Finance Incorporated shall be entitled to terminate this Agreement with immediate effect.
8.7 In its sole discretion, Finance Incorporated may decline to continue with the provision of the Services to Merchant. If Finance Incorporated ceases to accept Transactions for Merchant, Finance Incorporated must notify Merchant of the date and reason for such action within one (1) week of the decision. Termination will be undertaken in accordance with Section 16 of this Agreement.
9. Trademarks
9.1 Merchant acknowledges that the Card Schemes are the sole owners of their respective trademarks (the "Trademarks") and agrees not to contest the ownership of the Trademarks and agrees that usage of any Trademarks may be limited or prohibited for any reason.
9.2 Merchant must not use any Trademark on its own behalf, whether in connection with this Agreement or otherwise. Merchant may not create an impression that Merchant is a representative of Card Schemes and/or create an impression that Card Schemes in any way endorses Merchant or the performances under this Agreement.
9.3 Merchant may use one or more of the Trademarks in connection with the performance under this Agreement, provided that the Trademarks are used in accordance with the Regulations, including all current reproduction, usage and artwork Regulations; the Trademarks are used according to the express written instructions of Finance Incorporated; and the Trademarks are used solely in connection with the provision of the services under this Agreement.
9.4 Subject to the other terms of this Agreement, Finance Incorporated hereby grants to Merchant a limited, revocable, non-exclusive, non-transferable, royalty-free license, during the term of this Agreement, to use Finance Incorporated's trademarks and brands if and only to extent necessary for Merchant to perform its obligations pursuant to this Agreement.
10. Merchant's Liability
10.1 Merchant is liable towards Finance Incorporated for all acts or omissions of Merchant's under this Agreement. Merchant is also liable towards Finance Incorporated for all received Transactions and will be responsible for the handling of all disputed Transactions, credits and customer service-related expenses.
10.2 Merchant shall be liable to the Cardholder for all defects/deviations in the quality, condition and performance of sold goods and/or services (as applicable). Such defects/deviations, as well as the non-delivery or deficient delivery of goods/services to a Cardholder or any other party designated by the Cardholder, shall at all times be deemed to constitute such a breach of the Merchant's obligations.
10.3 Merchant's liability pursuant to Section 10.2 above shall apply in relation to Finance Incorporated pursuant to this Agreement, notwithstanding any agreement which may have been reached with the Cardholder, the purchaser or any other party. The aforesaid shall also apply where Merchant 1) conducts operations as an agent/middleman and thereby sells/brokers a third party's/subcontractor's goods and/or services or 2) sells/brokers goods/services carried out by a third party, and thereby a party other than Merchant may be required to make performance (e.g. delivery of goods/services or the carrying out of an event, trip, etc.) to which the Transaction relates.
10.4 Merchant agrees that it bears the risk for the Transactions and shall be obligated, upon request by Finance Incorporated, to reimburse Finance Incorporated for all amounts, plus interest and costs, which Finance Incorporated has paid/refunded to a Regulatory Authority, card issuer, Cardholder or any other party, e.g. Card Schemes, or any other cost incurred for Finance Incorporated or fee that Finance Incorporated may charge Merchant at any time (including after either Party's termination and the expiry of this Agreement), as a consequence of:
10.5 Irrespective of whether negligence or breach of agreement may be imputed to Merchant, Merchant shall also be obliged, upon request by Finance Incorporated, to reimburse any amounts (e.g. integrity fees, penalties and other financial sanctions) which Finance Incorporated owes any Card Schemes.
10.6 In the event Finance Incorporated, prior to any obligation to pay an amount pursuant to Section 10.4 and Section 10.5 above, receives any warning, order or similar request (e.g. from Card Schemes), Finance Incorporated shall notify Merchant and Merchant should promptly take appropriate measures and follow any instructions issued by Finance Incorporated.
10.7 Finance Incorporated shall inform Merchant, without undue delay, about the reason for Merchant's liability to compensate as set out in Section 10.4 and Section 10.5. In the event Merchant considers that it is not liable to compensate, Merchant shall immediately notify Finance Incorporated thereof in writing and specify the reasons therefor. This Section 10.7 shall remain in force during the entire claim period, regardless if the Agreement has been terminated or expires during the claim period.
10.8 Reimbursement pursuant to Section 10.4 and Section 10.5 may take place through a deduction from the amount to be paid by Finance Incorporated in conjunction with the payment terms applicable between the Parties. In instances where Merchant does not have sufficient funds to cover amounts due, Finance Incorporated will offset such amount against funds due to be paid by way of Settlement, any funds held by way of Rolling Reserve or held by way of any Security whether as reserve and/or financial guarantee, or any other form of Security. In the absence of sufficient funds, Finance Incorporated will issue an invoice detailing amount due for payment.
11. Finance Incorporated's Obligations and Liabilities
11.1 Finance Incorporated shall be responsible to Merchant for providing the Card Acquiring Services comprising the Authorisation, capture and Settlement with reasonable care and skill, and in compliance with Applicable Law, the Regulations and subject to the terms and conditions of this Agreement. Provided however that Finance Incorporated shall accept no liability to Merchant for any losses, damages, costs or expense arising out of any failure to pay a remittance to the Merchant on the relevant due date by way of Settlement.
11.2 Subject to any other provisions of this Agreement, Finance Incorporated undertakes to make payment to Merchant's Account for Settlement of the purchase Transactions made using Cards, provided that (i) the purchase Transaction is received by Finance Incorporated within the period of time agreed in writing between the Parties; (ii) that the purchase Transaction fulfils the requirements prescribed in this Agreement; (iii) Finance Incorporated having received the corresponding funds from the Card Schemes unless otherwise agreed; and (iv) that Merchant has otherwise fulfilled its obligations pursuant to this Agreement.
11.3 Finance Incorporated's liability pursuant to this Agreement extends only to Transactions which are actually received by Finance Incorporated. Accordingly, in the event Merchant engages a third party for delivery of Transactions to Finance Incorporated, Finance Incorporated shall bear no liability for aspects relating to the co-operation between Merchant and the third party. Nor shall Finance Incorporated bear any liability for mistakes etc. in Transactions which reach Finance Incorporated insofar as the error is due to circumstances attributable to the third party.
11.4 Finance Incorporated shall provide Merchant with information regarding executed Transactions. The information shall be provided with the frequency and in the manner separately agreed between the Parties.
11.5 Finance Incorporated will not accept liability for incorrect Transaction details submitted by Merchant.
11.6 Finance Incorporated does not guarantee uninterrupted availability of the Cards Acquiring Service.
11.7 Finance Incorporated shall not be liable for any telecommunications failure that may result in failed Transactions.
11.8 Save for circumstances mentioned in Sections 11.1 and 11.3, Finance Incorporated shall only be liable to Merchant for any loss it has directly suffered. However, Finance Incorporated shall not be liable under any circumstances for indirect loss, consequential loss, loss of profit or for loss attributable to a Card issuer not consenting to the execution or implementation of a Transaction.
11.9 Finance Incorporated's aggregate liability under this Agreement shall under all circumstances be limited to an amount corresponding to the fees for the service withdrawn by Finance Incorporated, or otherwise paid to Finance Incorporated by Merchant, in the six (6) month period preceding the last event giving rise to the claim hereunder, whichever is the lower.
11.10 Any claim for compensation under this Agreement by Merchant towards Finance Incorporated must be presented in writing by Merchant to Finance Incorporated immediately but no later than within forty-five (45) calendar days from when Merchant became aware of, or should have become aware of, the circumstance giving raise to the claim, unless otherwise stated herein. Any claim towards Finance Incorporated will expire if it is not brought before the court within in one (1) year from when Merchant became aware of, or should have become aware of, the circumstance giving raise to the claim.
11.11 Any and all disputes between Merchant and a Cardholder relating to the receipt, quality, price or satisfaction of goods or services furnished by Merchant or any act or omission of Merchant arising out of a Transaction, must be handled directly by Merchant without any liability to Finance Incorporated.
11.12 Finance Incorporated shall in no way be responsible for any claims, suits, damages, losses, costs and expenses incurred directly or indirectly by Merchant resulting from any or all of the following:
11.12.1 breakdown of or interruption of services in telecommunication lines;
11.12.2 Transactions submitted to Finance Incorporated;
11.12.3 any failure or delay in the performance of any services; and/or
11.12.4 unauthorised or fraudulent use of or errors in the use of other equipment or services and any resulting unauthorised, fraudulent or erroneous Transactions.
11.13 Merchant shall indemnify and hold Finance Incorporated harmless from and against any and all actions, proceedings, costs, claims, demands, charges, expenses (including legal expenses), liabilities, fines, penalties, levies, losses and damages, which Finance Incorporated may suffer or incur to the extent arising out of or in consequence of or in connection with:
11.13.1 all claims of any kind by any Cardholder or third party arising out of any Transaction, Refund, Chargeback and/or Chargeback Fee;
11.13.2 the enforcement or attempted enforcement of this Agreement (which includes the recovery or attempted recovery of any sum owing to Finance Incorporated under this Agreement);
11.13.3 unauthorised or fraudulent use or negligence or errors in the use of any equipment or the Card Acquiring Services and any resulting unauthorised fraudulent or erroneous Transactions;
11.13.4 Merchant's failure to comply with any of Merchant's obligations as set out in this Agreement including any rules and requirements of any Card Scheme, Regulatory Authority, Sanctions and applicable laws and any reasonable steps taken in the protection of Finance Incorporated's interests in connection with such breaches;
11.13.5 any claim instituted by anyone in connection with Merchant's act(s) or omission(s) in terms of the Agreement;
11.13.6 Merchant's breach of any of Merchant's representations, warranties, obligations or covenants as set out in this Agreement; and/or
11.13.7 any other arrangements between the Merchant and a Customer, except, in each case, if and to the extent caused by or contributed to by Finance Incorporated's gross negligence or wilful misconduct.
11.14 Should there be need to take court action in respect of recovery of any sums due under this Agreement, Merchant shall indemnify Finance Incorporated for all reasonable costs which are incurred by Finance Incorporated as a direct result of such action
12. Paymix SoftPOS Application and Use
12.1 The use of the Paymix SoftPOS Application through which Merchant shall accept contactless Card payments shall be governed by the Paymix SoftPOS Application Terms and Conditions and by this Agreement. In the case of any discrepancies between the Paymix SoftPOS Application Terms and Conditions and this Agreement, the Paymix SoftPOS Application Terms and Conditions shall prevail to the extent of the discrepancy.
12.2 Merchant understands and agrees that for Finance Incorporated to provide the Services, Merchant shall be required to accept the Paymix SoftPOS Application Terms and Conditions prior to commencement of the Services.
12.3 The Paymix SoftPOS Application Terms and Conditions shall be made available to Merchant to click ‘I Accept' when registering the Paymix SoftPOS Application on Merchant's compatible device.
12.4 Merchant undertakes and agrees, at Merchant's own cost, to provide a compatible Android device with Near Field Communication capability and operating system of Oreo version 8.0 or higher in order to be able to download, install and register the Paymix SoftPOS Application for the device to become a point of sale terminal capable of accepting contactless Card payments.
12.5 To enable the Paymix SoftPOS Application, Merchant shall firstly have applied and been successfully on-boarded as a Merchant and provided with an iPaymix Sole Trader Account. Downloading of the Paymix SoftPOS Application does not automatically guarantee the provision of Card Acquiring Services.
12.6Merchant shall be responsible for the setup of SoftPOS Application and connectivity to Merchant's device to enable the Paymix SoftPOS Application to accept contactless payments. Finance Incorporated shall provide support to Merchant for assistance during the Paymix SoftPOS Application setup process and/or during Transaction processing.
12.7 Merchant acknowledges that the device onto which the Paymix SoftPOS Application is downloaded must always be kept fully charged and shall only be used in the manner and for the purpose for which it is designed and intended, in line with Merchant's business as specified by in the Merchant Application.
12.8 Merchant undertakes to ensure that the Paymix SoftPOS Application is always operated in line with applicable law and the Regulations.
12.9 If Finance Incorporated should suffer any damage due to Merchant's direct or indirect abuse of the Paymix SoftPOS Application, the cost of the damage will be debited to Merchant's Account together with any other associated costs.
12.10 Merchant acknowledges and is aware that if Merchant does not make use of the Paymix SoftPOS Application for an extended period of time, the Merchant's Account may become inactive and dormant due to non-use; Merchant therefore must ensure that the Account is active and activated by trying to perform a transaction before making use of the Paymix SoftPOS Application in terms of the Card Acquiring Services.
12.11 Merchant understands that all risk relating to the Paymix SoftPOS Application, its use and the device to which the Paymix SoftPOS Application has been downloaded, including, but not limited to, loss, damage theft, destruction and unauthorised use of the Paymix SoftPOS Application, arising from any cause whatsoever (including acts of God), will be Merchant's responsibility.
12.12 Finance Incorporated does not warrant that the SoftPOS Application will be compatible with nor that it will operate with every type of device.
12.13 Merchant understands that should the Paymix SoftPOS Application become non-compliant with industry standards, Merchant will be obliged to download any updated application which is compliant with industry standards, upon Finance Incorporated's direction. Should Merchant not download any new application as may be required in accordance with the terms of this Agreement, Finance Incorporated reserves the right to terminate this Agreement.
12.14 Merchant acknowledges that the display, layout and look of the content of the Paymix SoftPOS Application may differ depending on the device being used.
12.15 Merchant acknowledges that, for the Paymix SoftPOS Application to load and/or to function, Merchant shall be fully responsible for:
12.15.1 ascertaining whether the Merchant's device is appropriate and compatible for operation of the Paymix SoftPOS Application in accordance with any instructions from Finance Incorporated;
12.15.2 the continued functionality of the device on which the Paymix SoftPOS Application has been installed and downloaded, including for ensuring that the device is (i) in good working order; (ii) at all times updated to run on the latest version of Merchant's operating system; and (iii) operating in accordance with the relevant device manufacturer's specifications.;
12.15.3 the device used to access the Paymix SoftPOS Application and the Card Acquiring Services shall be the sole responsibility of Merchant and Finance Incorporated shall not be responsible for and disclaims any liability for losses that may arise due to any defect in the device. Merchant agrees that (i) the Mobile Device will not be left unattended or accessible in any manner by any third party while Merchant is still logged onto the Paymix SoftPOS Application; (ii) not save any access details to the device; and (iii) immediately inform Finance Incorporated of any fraudulent or unauthorised use of the Paymix SoftPOS Application by any third party;
12.15.4 immediately informing Finance Incorporated in accordance with the instructions provided by Finance Incorporated to Merchant in the event that Merchant's device is stolen or lost. Notwithstanding the reporting to Finance Incorporated, Merchant will remain responsible for all transactions that may be processed via the Paymix SoftPOS Application and Card Acquiring Services up to the time that Merchant reports the loss or theft to Finance Incorporated.
12.16 Merchant acknowledges that (i) Finance Incorporated shall not be responsible for any mobile operator or service provider's network and/or Wi-Fi (wireless internet access) connectivity preventing or negatively impacting its access to such services; and (ii) Merchant's device network operator or internet service provider may charge you for access and use of the services via a mobile network or Wi-Fi connection, and Merchant will be solely responsible for these charges.
12.17 The use of the Paymix SoftPOS Application is in addition to and not in substitution of other online channels provided by us. Merchant acknowledges that the Paymix SoftPOS Application may be subject to downtime and that Finance Incorporated may, from time to time, fully or partially interrupt access to the Paymix SoftPOS Application, whether for maintenance purposes or otherwise.
12.18 Finance Incorporated owns all right, title and interest in and to Paymix SoftPOS Application and all information, documentation and proprietary products made available via the Paymix SoftPOS Application. No licence or other right or interest in or to the Paymix SoftPOS Application is granted to Merchant except for the licence rights specifically set forth in this Agreement or in the Paymix SoftPOS Application Terms and Conditions.
12.19 The terms and conditions of this Agreement will remain in force and binding on Merchant until the Merchant either terminates the Agreement and/or terminates use of the Paymix SoftPOS Application.
13. Audit
13.1 Finance Incorporated, or any third party appointed by Finance Incorporated, may perform an audit on the companies conducting the business of Merchant allowing Finance Incorporated to assess Merchant's ability to meet Merchant's obligations and liabilities (including but not limited to its financial standing) under this Agreement. Such audit shall not be conducted more often than once during a twelve (12) months' period and shall be conducted during Working Days and normal working hours of Merchant.
13.2 Finance Incorporated shall give the company fourteen (14) days prior written notice of an audit. In advance of an audit, Finance Incorporated shall specify:
13.3 Finance Incorporated will carry all costs related to an audit conducted by, or on behalf of, Finance Incorporated. However, should the audit reveal material defaults attributable to Merchant's compliance with this Agreement, Merchant shall reimburse Finance Incorporated for all costs related to the aforesaid audit.
13.4 Merchant shall also cooperate with, and give access to, any Regulatory Authority requiring performing an audit on Merchant due to this Agreement and the co-operation between the Parties. Merchant shall carry all costs related to an audit conducted by a Regulatory Authority.
14. Non Exclusivity
14.1 Nothing in this Agreement shall be construed as preventing either Party, from obtaining from any other person or entity, or providing to any other person or entity, the same or similar services.
14.2 Notwithstanding Section 14.1, if Merchant shall enter into an equivalent agreement with any other person or entity whose business competes with Finance Incorporated, Merchant shall promptly and without undue delay notify Finance Incorporated and shall obtain prior written confirmation from Finance Incorporated as soon as possible.
14.3 Finance Incorporated shall have the right to provide the Card Acquiring Services for any other Person acting in any capacity, including merchant, seller, wholesaler, retailer, payment service provider, credit institution or financial institution.
15. Term, Termination and Consequences of Termination
15.1 This Agreement shall enter into force on the date of execution by both Parties and shall remain in force indefinitely, unless terminated by either Party giving the other Party written notice of at least sixty (60) calendar days, unless otherwise agreed by the Parties.
15.2 This Agreement automatically and immediately terminates if any Card Scheme de-registers Merchant or if Finance Incorporated fails to have a valid license to use any Trademark necessary for this Agreement.
15.3 Merchant may, at any time and in addition to any other right or remedy it may have, by notice in writing to Finance Incorporated, terminate this Agreement if Finance Incorporated breaches its obligations under this Agreement and the breach (if remediable) is not remedied following thirty (30) calendar days written notice specifying the breach and requiring that it shall be remedied. The termination will in such case be effective after the said remedy period.
15.4 Finance Incorporated shall be entitled to terminate the Agreement with immediate effect or to suspend the Card Acquiring Services in the event Merchant breaches its obligations under this Agreement to make available funds such payments for which Merchant is or becomes liable in terms of this Agreement and is unable to fulfil its obligations to Finance Incorporated to effect such payment whether by way of exercising Finance Incorporated's right in the Security and/or debiting of the Operational Account and/or exercising Finance Incorporated's right of set-off in accordance with this Agreement. Provided however, that if the breach is capable of a remedy, is remedied within fifteen (15) days of service of the notice requiring such remedy. If the breach, (if remediable), is not remedied following fifteen (15) calendar days written notice specifying the breach and requiring that it shall be remedied, the termination will in such case be effective after the said remedy period.
15.5 Finance Incorporated shall also be entitled to terminate this Agreement with immediate effect or to suspend the Card Acquiring Services, to be notified to Merchant in writing, if:
15.5.1 Merchant commits a material breach of this Agreement other than that set out in Section 16.4. above which: (1) is not, in the reasonable opinion of Finance Incorporated, capable of remedy; or (2) if capable of remedy, is not remedied to Finance Incorporated's reasonable satisfaction within twenty-one (15) days of service of the notice requiring such remedy. If Merchant breaches its obligations under this Agreement and the breach, (if remediable), is not remedied following fifteen (15) calendar days written notice specifying the breach and requiring that it shall be remedied, the termination will in such case be effective after the said remedy period;
15.5.2 Finance Incorporated, in its reasonable opinion, finds that Merchant's insolvency may be anticipated or Merchant is in fact insolvent;
15.5.3 Merchant is the subject of a dissolution and consequential winding up (whether solvent or insolvent) and/or or any other step is taken by any person with a view to the dissolution and consequential winding up of Merchant under the Companies Act (Chapter 386 of the Laws of Malta or equivalent law in Merchant's jurisdiction of establishment) including the passing of any resolution by Merchant's directors or shareholders approving the presentation of any such application or appointment or the giving of any such notice;
15.5.4 Merchant begins negotiations or proceedings, or propose or agree to defer or readjust its debts or proposes or makes a general assignment of any of its debts or an arrangement with or for the benefit of some or all of Merchant's creditors in respect of all or all of a particular type of its debts;
15.5.5 Merchant suffers or is subject to any equivalent event, circumstance or procedure to those set out above in this clause in any other jurisdiction;
15.5.6 There is a change in the business, character or ownership of Merchant and Finance Incorporated considers that this has or may have a negative effect on the business of, or risk to, Finance Incorporated;
15.5.7 Merchant breaches any applicable Trading Limit or Floor Limit;
15.5.8 Merchant fails to comply with PCI-DSS and Data Protection obligations;
15.5.9 Merchant fails to perform any of its obligations against the Cardholders;
15.5.10 Merchant or a person connected to Merchant is, or becomes, entered in a register or circumstances occur which constitute grounds for such registration;
15.5.11 Merchant does not accept all Cards in accordance with Regulations;
15.5.12 Finance Incorporated, in its reasonable opinion, finds that the Transaction amounts and/or the number or nature of Transactions in respect of which complaints have been made deviate from what Finance Incorporated deems normal, based on Regulations;
15.5.13 Finance Incorporated, in its reasonable opinion, finds that Merchant's payment ability in respect of any payments that are due from Merchant under this Agreement, can be called into question;
15.5.14 It comes to the attention of Finance Incorporated that Merchant has acted or through its behaviour or manner of conducting its business (including trading practices or any individual's activity), Finance Incorporated, in its reasonable discretion, considers: (1) such conduct to be disreputable or capable of damaging the reputation of Finance Incorporated or that of any Card Scheme; or (2) to be detrimental to Finance Incorporated's systems, business or that of any Card Scheme; or (3) may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity; or (4) may or does give rise to increased risk of loss or liability; (5) may affect Merchant's ability or willingness to comply with all or any of its obligations or liabilities under this Agreement; or (6) to be or to be for a purpose contrary to applicable law, the Regulations and/or any policy of Finance Incorporated in relation to applicable laws and/or the Regulations;
15.5.15 Merchant fails to perform any of its obligations in respect of Security under Section 5;
15.5.16 Merchant has includes anything in the Application Form which is untrue, inaccurate or misleading or has provided incorrect, incomplete or misleading information to Finance Incorporated;
15.5.17 Finance Incorporated becomes entitled to enforce any guarantee or Security from or in relation to Merchant;
15.5.18 Finance Incorporated (i) becomes required to terminate this Agreement or suspend the Card Acquiring Services by any Card Scheme or Regulatory Authority or under applicable laws; and/or (ii) reasonably believes that a Transaction or outward payment or this Agreement or the performance of it may be contrary to applicable laws, the Regulations or Sanctions (and Merchant acknowledges that Finance Incorporated cannot be obliged to provide any Card Acquiring Service if it reasonably believes such provision would result in a failure to comply with any applicable laws, the Regulations or);
15.5.19 Merchant makes use of the Paymix SoftPOS Application at a place other than the premises which Merchant had previously informed Finance Incorporated that such application shall be used;
15.5.20 Finance Incorporation reasonably considers that any act or omission of Merchant falls within a reason code used by any Card Scheme to classify a specific activity, act or omission of a Merchant for purposes of being included on a register;
15.5.21 The ratio of Chargebacks to Transactions exceeds one per cent (1%) by number or value, or Finance Incorporated otherwise considers in its sole and absolute discretion, that the total volume or value of Refunds, Chargebacks and/or declined Authorisation requests is excessive;
15.5.22 Any Regulatory Authority or court of competent jurisdiction has taken action or made statements, orders, requests, directives or demands regarding Merchant's activities or another merchant operating in the same industry and Finance Incorporated determines in its sole and absolute discretion that such action or communication of the Regulatory Authority or court of competent jurisdiction may harm or otherwise adversely affect, directly or indirectly, the reputation or goodwill of Finance Incorporated or any Card Scheme if Finance Incorporated were to continue processing Transactions under this Agreement; and/or
15.5.23 Any changes to or of applicable laws, the Regulations or Sanctions, (i) prohibits Finance Incorporated from exercising any of its rights and/or performing any of its obligations under this Agreement; and/or (ii) subjects either party to potential penalties or enforcement actions by any Regulatory Authority or Sanctions Authority under applicable laws of the Regulations.
15.6 Merchant hereby waives, and fully releases and discharges Finance Incorporated from, any action Merchant may otherwise have arising from Finance Incorporated exercising its right of termination of Agreement or suspension of Card Acquiring Services, including any challenge in relation to the exercise of Finance Incorporated's discretion, and Merchant agrees that it shall not apply for any provisional measures, that could constrain or prevent Finance Incorporated from exercising any of its rights of termination or suspension.
15.7 Finance Incorporated shall regularly verify how the information which Merchant has provided to Finance Incorporated, e.g. regarding the time which elapses between the date of payment by Card at Merchant and the date for delivery/performance of the product/service to which the payment relates, accords with the circumstances actually prevailing from time to time. Merchant shall be obliged to assist, to a reasonable extent, in order to facilitate such verification.
15.8 The verification referred to in Section 15.7 above shall take place primarily to ensure that the payment terms and conditions, and any security provided to secure Finance Incorporated's right to payment, from time to time (i) correspond to the actual circumstances; and (ii) are otherwise also in accordance with Finance Incorporated's guidelines and policies.
15.9 If information provided by Merchant differs from the actual circumstances, Finance Incorporated shall be entitled to take measures which, in Finance Incorporated's opinion, are necessary to compensate for the difference. Such measures may, for example (but without limitation), comprise Finance Incorporated demanding (i) that Merchant provides new or changed security in order to secure Finance Incorporated's right to payment; or (ii) that the payment terms and conditions are amended.
15.10 In the event Merchant does not accept the measures demanded by Finance Incorporated pursuant to Section 15.9 above, Finance Incorporated shall be entitled to terminate the Agreement with immediate effect in accordance with the provisions of this Section 15.
15.11 Finance Incorporated shall be entitled to amend and issue new Instructions without the prior consent of Merchant. Such amendments or new Instructions shall enter into force not earlier than thirty (30) calendar days after written notice to Merchant. In the event Merchant refuses to accept such amendments or new Instructions, Merchant shall give written notice thereof to Finance Incorporated immediately, together with written notice of termination of the Agreement.
15.12 Notice of termination of the Agreement must be in writing. Notice of termination sent by email shall be deemed to have been given in writing.
15.13 In the event this Agreement is terminated, irrespective of the reason, the provision of Card Acquiring Services by Finance Incorporated shall also terminate at the same time and Finance Incorporated shall no longer be entitled or obligated to accept to process Transactions from Merchant. The Parties shall remain liable for any and all Transactions effected under this Agreement prior to termination, regardless if the Agreement is terminated or has expired.
16. Consequences of Termination
16.1 Upon termination of this Agreement any accrued rights or obligations to which each of the Parties may be respectively entitled or be subject to before the date of termination shall remain in full force and effect.
16.2 The termination of the Agreement shall not affect or prejudice any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination or any right to damages or other remedy which either party may have in respect of any breach of the Agreement which existed at or prior to the date of termination.
16.3 All rights and obligations of any Party shall cease to have effect immediately, save that the Sections of this Agreement which expressly or by implication have effect after termination will continue to be enforceable notwithstanding such termination (including, for the avoidance of doubt, Sections 3, 4, 5, 6, 7, 11, 12, 16, 18, 19, 20, 21, 22)
16.4 Termination shall not affect accrued rights and obligations of any Party under this Agreement as at the date of termination.
16.5 On termination of this Agreement, Merchant undertakes to immediately pay all amounts owed by Merchant to Finance Incorporated under this Agreement and subject to Section 4 and Section 5, Finance Incorporated shall immediately pay all amounts owed to Merchant under this Agreement.
17. Force Majeure
17.1 Neither Party shall be liable for the failure to perform any obligation pursuant to this Agreement where such failure is due to a Force Majeure Event where such circumstances are beyond each Party's control which prevents or renders materially more difficult timely performance of its obligations.
17.2 Force Majeure Events shall include, inter alia, war, acts of war, terrorist actions, import or export prohibitions, natural disasters restrictions on general public transport, deficiencies or delays in energy supplies or telephone connections, the actions or omissions of public authorities, new or amended legislation, orders or actions of public authorities, labour conflicts, blockades, fire, flooding, extensive losses or destruction of property or major accidents, as well as defects or delays in products or services from subcontractors as a consequence of circumstances stated above (each a "Force Majeure Event").
17.3 In the event that a Party wishes to be released from its obligations under this Agreement by relying on this Section 17, the Party shall, where possible, notify the other Party thereof without undue delay.
17.4 In the event the performance of this Agreement is materially impeded for a period in excess of fifteen (15) Working Days due to a Force Majeure Event, either Party shall be entitled to terminate this Agreement by giving thirty (30) calendar days written notice to the other Party.
18. Data Protection
18.1 Within the scope of this Agreement, Finance Incorporated may process personal data. Such personal data may either relate (i) to Merchant and be collected for KYC purposes when boarded by Finance Incorporated, (ii) to the Cardholder as Card Information, when handling a payment transaction. Irrespective of the type of personal data, Finance Incorporated will process such personal data as data controller and will therefore be responsible and liable for the lawfulness of such personal data processing.
18.2 To the extent Merchant conducts any personal data processing for its own purposes, Merchant shall be considered data controller and be solely responsible and liable for the lawfulness of its personal data processing, including any disclosure to Finance Incorporated.
18.3 Each Party undertakes to comply with its obligations under applicable data protection laws, including but not limited to the General Data Protection Regulation (Regulation (EU) 2016/679) when processing personal data. Both Parties hereby also confirm that all personal data will be handled with care and in a confidential manner. Neither Party shall assume any responsibility for the other Party for any breach of such Party's obligations under applicable data protection laws.
19. Confidentiality and Registration
19.1 The terms and conditions of this Agreement are confidential, and the Parties shall not be entitled to disclose to any third-party information regarding the contents of this Agreement. Nor may either Party disclose to any third-party information regarding the other Party's business which may be considered a business or trade secret. This Section 19.1 shall be without prejudice to either Party's rights to disclose confidential information about the other Party's business to if the a Party becomes legally compelled (by deposition, interrogatory, request for documents or admission, subpoena, order of arbitration, court order, request by governmental agency, regulatory authority, any applicable laws or regulations, or similar process) to disclose any of the confidential information, the Party shall promptly provide the other Party written notice of such requirement, if permitted by law, prior to such disclosure
19.2 Merchant consents to Finance Incorporated, in accordance with applicable bank secrecy rules, transferring such information as referred to in Section 19.1 as well as anonymised data relating to Transactions, to (1) Entities within the same group as Finance Incorporated; (2) Card Schemes; (3) service providers with which Finance Incorporated co-operates in order to offer additional services or to improve Finance Incorporated's services or to ensure the performance of this Agreement in respect of, e.g. PCI DSS and other security issues; and (4) Entities with which Finance Incorporated co-operates, e.g. referral partners and PSPs'.
19.3 Merchant consents to Finance Incorporated disclosing such type of information about Merchant and Merchant's Transactions, that Finance Incorporated deems necessary, including fraud data, dispute related data, issuer data, to the parties listed in Section 19.2. Merchant also consents to Finance Incorporated disclosing information which is necessary in order to connect the requested service, such as the company name, registration number, contact details, customer number and Merchant Category Classification (MCC) code, to terminal suppliers and other payment service suppliers.
19.4 Registration of Merchant in special registers may take place due to inter alia Merchant's breach of this Agreement or due to Merchant having provided incorrect, incomplete or misleading information, e.g. upon execution of the Agreement.
19.5 Such a register as referred to in Section 19.4 is maintained by, e.g. Card Schemes from time to time such as MATCH, in the case of MasterCard and VMAS in the case of VISA. In this Agreement, "Special Registers" also includes the various monitoring systems maintained by Card Schemes with respect to acquiring agreements which have been terminated due to breach of contract or for other similar reasons.
20. Assignment
20.1 Neither Party may assign any of its rights and/or obligations pursuant to this Agreement to any third party without the other Party's written consent.
20.2 Finance Incorporated may, however, without the consent of Merchant, assign its rights and/or obligations to companies within the same group as Finance Incorporated.
21. Miscellaneous
21.1 In respect of the day-to-day co-ordination pursuant to the Agreement, each Party shall appoint a contact person whose name and contact details shall be notified to the other Party. Each Party shall ensure that those of its employees who are required to have knowledge of this Agreement are informed of the content.
21.2 In the event the Agreement does not state the manner in which costs incurred as a consequence of the co-operation are to be borne or allocated, the Parties shall, upon taking a decision to carry out such a measure, also decide on the manner in which the measure shall be defrayed. In the absence of such a decision and where the Parties are unable to agree on the manner in which the costs shall be borne or allocated, and in the event the measure is nevertheless carried out, the Party that chooses to carry out the measure shall also be solely liable for the cost thereof.
21.3 Other than as stated in the Agreement, the Parties shall not be entitled to represent each other or to use each other's trademarks, company names or know-how without the other Party's written consent. Such right of use does not create any rights and shall cease immediately upon the termination of this Agreement.
21.4 Headings in this Agreement are for ease of reference only and shall not affect the interpretation of the Agreement. Save where the context otherwise requires, the singular includes the plural and vice versa and reference to any gender includes a reference to all other genders.
21.5 Each Party shall within reasonable time notify the other Party about matters that affects, or could affect, the Parties' co-operation pursuant to this Agreement.
21.6 Merchant may not, without written consent from Finance Incorporated, subcontract, sublicense, assign, license, franchise or in any manner extend or transfer to any third party, any right or obligation of Merchant set forth in this Agreement and any such transfer is to be deemed null and void. Finance Incorporated may retain subcontractors or third parties without Merchant's consent.
21.7 The Parties confirm that this Agreement (and any documents referred to herein) represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter and supersedes any previous agreement between the Parties with respect thereto.
21.8 In any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with this Agreement are contained in this Agreement and for the avoidance of doubt and without limitation, no Party has any right or remedy (whether by way of a claim for contribution or otherwise or for misrepresentation), whether negligent or otherwise, and whether made prior to, and/or in, this Agreement.
21.9 This Agreement may not be amended or modified except by written agreement between the Parties. However, amendments regarding countries, currencies and prices/fees can be made unilaterally by Finance Incorporated after a written confirmation (including e-mail) from Finance Incorporated.
21.10 All rights and obligations under (and the sections of) this Agreement shall survive the termination of this Agreement (howsoever caused) to the extent necessary until all such rights and obligations have been irrevocably and finally settled in full between the Parties. The confidentiality obligations contained in Section 20 shall survive the termination of this Agreement.
21.11 All messages in accordance with the Agreement shall be written and in English and handed over in person or through an internationally recognized courier firm, or by facsimile transmission or sent as a pdf attachment to an email to the relevant address, facsimile number or email address as previously notified by each Party to the other. The Parties agree that Merchant's potential complaints may be responded to English and may be delivered as set out in this section. A written message that has been sent to a Party shall be deemed to have reached the other Party upon delivery, provided that when a delivery takes place outside working hours, the message shall be deemed to have been received by the Party concerned at the start of ordinary working hours on the next Working Day. In this regard, ordinary working hours shall mean 8 am to 5 pm.
21.12 No delay by or omission of any Party in exercising any right, power, privilege or remedy under this Agreement shall operate to impair such right, power, privilege or remedy or be construed as a waiver thereof. Any single or partial exercise of any such right, power, privilege or remedy shall not preclude any other or future exercise thereof or the exercise of any other right, power, privilege or remedy. The waiver, express or implied, by any Party of any right under this Agreement or any failure to perform or breach by another Party shall not constitute or be deemed a waiver of any other right under this Agreement. The rights and remedies provided in this Agreement are non-exhaustive and not exclusive of any rights and remedies provided by law.
21.13 In the event any provision or part of this Agreement is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Agreement, will be inoperative.
22. Applicable Law and Disputes
22.1 The Agreement shall be governed by and construed in accordance with Maltese Law.
22.2 Disputes relating to the Agreement, its execution, interpretation and/or application or other legal relations connected to the Agreement shall preferably be resolved through negotiations between the Parties.
22.3 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, and which could not be resolved within thirty (30) calendar days pursuant to Section 22.2 above, shall be finally settled by the Courts of the Republic of Malta.