Paymix SoftPOS – General Merchant Terms and Conditions

Previous Versions: June 2022
18 July 2023 – v2.1
Please note the following important information
These General Merchant Terms and Conditions are legal terms which legally bind you. As such, please make sure that you have read and understood them before completing our Application Form. The General Merchant Terms and Conditions also set out certain limitations as well as guidance on how you are to properly use our Services.
These General Merchant Terms and Conditions apply to the provision of “Acquiring Services” provided by Finance Incorporated Limited to Merchants who are 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 using the Paymix SoftPOS Application. These General Merchant Terms and Conditions and constitute an integral part of the Merchant Agreement between:
(i) Finance Incorporated Limited (“Us”, “We”, “Our”, “Finance Incorporated”, “Paymix”), 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 VAT number MT22834215, is duly licensed by the Malta Financial Services Authority to transact the business of a Financial Institution in terms of the Financial Institutions Act 1994, including the provision of card acquiring services; and
(ii) The “Merchant” (“You”, “Your”).
A copy of these General Merchant Terms and Conditions shall be provided to the Merchant in a durable medium, during the registration process and can be made available in paper form if so requested.
1. Legal Relationship
These General Merchant Terms and Conditions shall form part of the Merchant Agreement that the Merchant shall sign upon successfully completing the merchant registration and on-boarding process. The Merchant Agreement (inclusive of these General Merchant Terms and Conditions), comprise the legal contract between the Merchant and Finance Incorporated Limited for the Acquiring Services and any additional service that Finance Incorporated Limited agree to provide to the Merchant. The Merchant Agreement is made up of the most up-to-date versions of these General Merchant Terms and Conditions, the Specific Merchant Terms and Conditions, the Paymix SoftPOS Application Terms and Conditions (and relevant Appendices), the Application Form, the Finance Incorporated Limited Privacy Policy and the Paymix Account Terms and Conditions (where applicable) as well as any instructions, additional service conditions, operating manuals and any policy documents issued by Finance Incorporated and in force from time to time which are expressly stated as relating to the Merchant Agreement.
The purpose of the General Merchant Terms and Conditions is to stipulate the rights and obligations related to the Acquiring Services provided by Finance Incorporated. The General Merchant Terms and Conditions shall form an integral part of every acquired and acquiring-related Transaction and shall be binding on both the Merchant and Finance Incorporated upon the Merchant’s approval of the Merchant Agreement.
The Merchant shall be required to read the following General Merchant Terms and Conditions carefully before registering on, accessing, browsing, downloading or using the Paymix SoftPOS Website and/or the Paymix SoftPOS Application.
The Merchant shall accept these General Merchant Terms and Conditions by signing the Merchant Agreement in accordance with the Merchant registration and on-boarding process implemented by Finance Incorporated Limited.
Finance Incorporated shall have the right, unilaterally, to modify and amend these General Merchant Terms and Conditions 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 Merchant Agreement in accordance with Clause 17 hereto. For the avoidance of any doubt, the termination of the Paymix SoftPOS Account and/or the General Merchant Terms and Conditions and/or the Merchant Agreement, shall bring about the termination of the Acquiring Services.
2. Definitions and Interpretation
2.1 Capitalised terms used, unless the context otherwise requires, shall have the meanings as set out below:
“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 the Acquiring Services to allow Merchant to accept contactless Card payments, accessed via the Paymix SoftPOS Application;
“Acquiring Services” means the activities provided by Finance Incorporated including the activation of the Paymix SoftPOS Terminal for purposes of acceptance of Card payments, the processing of Transactions, and the Settlement of collected Settlement Proceeds relating to Transactions that are: i) submitted to Finance Incorporated by the Merchant; and ii) which are Authorised and accepted by Finance Incorporated; and includes any related services to be provided by Finance Incorporated to the Merchant pursuant to the Merchant Agreement;
“Anticipated Liabilities” means amounts required to cover any sum due under:
(i) the indemnity in respect 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 the Merchant Agreement including fees due to Finance Incorporated;
“Application Form” means any registration or application form that Finance Incorporated asks the Merchant
to submit, (including electronically), when applying for the provision of Acquiring Services via the Paymix SoftPOS Application for the establishment of a Paymix SoftPOS Account and the Paymix SoftPOS Terminal through which the Acquiring Services will be accessed, as well as any pricing schedule, and any attached appendix as well as any addenda/amendments that Merchant may subsequently accept thereto;
“Authorisation” means the process whereby there is approval that Cardholder’s account with the issuer of the Card used to pay for the Payment 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;
“Business Day” means a day other than a Saturday or Sunday or a public holiday in Malta;
“Card” means a payment card, or another form of payment instrument/device, correctly issued by an authorised and licensed card issuer, bearing a trademark and of a Card type which the parties hereto have agreed shall be covered by the Merchant Agreement;
“Cardholder” means a customer of the Merchant who is (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 who purchases goods and/or services from the 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 contactless tap. In the case of contactless payments this would mean the presence of the contactless Card or other contactless payment instrument/devices;
“Card Scheme” means Mastercard or VISA or any other brand in conjunction with which card issuers provide Cards accepted by the Merchant in agreement with Finance Incorporated and which shall be covered by the Merchant Agreement between Finance Incorporated and the Merchant;
“Card Scheme Rules”mean the respective and collective bylaws, rules, regulations, operating manuals, reference guides and policies as may be amended from time to time and established and imposed by Card Schemes in respect of Cards;
“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 the Merchant. In each case notwithstanding any Authorisation, the amount of the Chargeback shall be passed on in all cases to the Merchant and where required, Finance Incorporated has the automatic right to recover and/or be reimbursed for such Chargeback by the Merchant;
“Chargeback Fee” means an adminsitration fee that the Acquirer shall charge to the 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 Information” means any and all information provided by one Party to the other including but not limited to technical, practical and commercial information save the following:
i. Information which is known or which will become known in full detail to the public other than by breach of the obligations herein contained;
ii. Information which the receiving party can show was in its possession before making this undertaking; and
iii. Information which the receiving party has received or will receive from a third party without restraints as to the disclosure thereof;
“Data” means Card Information and Transaction Data;
“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;
“Excluded Transaction/s” means Payment Transactions which: (i) are not related to the sale of goods and/or
services which Finance Incorporated has agreed with the Merchant including any Payment Transactions that fall within the scope of Finance Incorporated’s definition of restriction transactions list, which shall be communicated to the Merchant from time to time; and/or (ii) would result in either Finance Incorporated and/or the Merchant being in breach of any applicable laws and/or Card Scheme Rules;
”Financial Exposure” means any loss, cost or potential loss of Finance Incorporated due to acts and omissions of the 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 the 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 Acquiring Services provided under the Merchant 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; or an entity operating a commercial or professional business in Malta; entering into the Merchant Agreement with Finance Incorporated and for who Finance Incorporated, provides payment processing and transaction acquiring services;
“Merchant Agreement” means the Merchant Agreement between Finance Incorporated and the Merchant
comprising: (i) these General Merchant Terms and Conditions; (ii) the Specific Terms and Conditions; (iii) the Paymix SoftPOS Application Terms and Conditions (and relevant Appendices); (iv) the Application Form; (v) the Finance Incorporated Limited Privacy Policy; and (vi) the Paymix Account Terms and Conditions (where applicable) as well as any additional service conditions or operating manuals that may apply to the Merchant as well as any instructions, additional service conditions, operating manuals and any policy documents issued by Finance Incorporated and in force from time to time which are expressly stated as relating to the Merchant Agreement and which shall collectively constitute the legal agreements governing the relationship between the Merchant and Finance Incorporated;
“Merchant Category Code” refers to a 4-digit number assigned by Card Schemes used to classify the goods or services provided by the Merchant;
“Merchant Terms and Conditions” means these terms and conditions contained in this Merchant Agreement which apply to the provision of the Acquiring Services by Finance Incorporated to 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 e-Commerce 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 System” means the software system used by Finance Incorporated for collecting Card Information from the Merchant;
“Paymix Account” means an account in the name of the Merchant held with Finance Incorporated Limited operating under the brand iPaymix in the case of a natural person and Paymix Pro in the case of an entity and which will serve as the Merchant’s Settlement Account (where applicable);
“Paymix SoftPOS Application” means the mobile application that is downloaded on to the Merchant’s device from
the Google 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;
“Paymix SoftPOS Terminal” means an active point of sale terminal able to accept Cards as a means of payments by way of Tap on Phone, as a result of the Paymix SoftPOS Application having been successfully downloaded and installed on the Merchant’s Smart Device and the Merchant having been successfully registered by Finance Incorporated for purposes of accessing the Acquiring Services;
“PaymixVIA Account”means the data account that the Merchant has with Finance Incorporated;
“PCI DSS” means the universal Payment Card Industry Data Security Standard, as amended from time to time;
“Penalties” means any fines (together with any associated costs) which may be levied on Finance Incorporated by Regulatory Authorities or Card Schemes;
“PSD” means Payment Services Directive 2 being Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC;
“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 agencies or authorities and “Regulatory Authorities” shall be construed accordingly;
“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 the Merchant outstanding at any time including the Recourse Claims;
“Security” shall mean the forms of collateral / security provided by Merchant in accordance with Clause 5 and Appendix 1 of this Merchant Agreement, to secure to Finance Incorporated’s satisfaction, the performance of the Merchant’s obligations (including any contingent or potential obligations) from time to time under the Merchant Agreement whether by way of first demand guarantee, security deposit or any other form of Security acceptable to Finance Incorporated;
“Settlement” means the transfer to the Merchant by Finance Incorporated of the Settlement Proceeds from the Transactions processed by Finance Incorporated minus any fees, charges, Chargebacks, Refunds, Penalties and/or other obligations due by the Merchant to Finance Incorporated;
“Settlement Account” means an account in the name of the Merchant and nominated by the Merchant to Finance
Incorporated for purposes of Finance Incorporated transferring the Transaction amounts by way of Settlement with payments in respect of Transactions processed in terms of the Acquiring Services under the Merchant Agreement;
“Settlement Proceeds” means the proceeds of the Merchant’s Transactions processed by Finance Incorporated and which have been received by Finance Incorporated as cleared by Card Schemes. The Settlement Proceeds, less any fees, charges, Chargebacks, Refunds, Penalties and/or other obligations due by the Merchant to Finance Incorporated, shall form the Settlement which shall be transferred by Finance Incorporated to the Merchant in accordance with the terms of the Merchant Agreement;
“Smart Device” means a compatible mobile electronic device operated by Merchant, (including Merchant’s employees, authorised users, agents, contractors or representatives), to which the Paymix SoftPOS Application is downloaded to enable the device to become a point-of-sale terminal, the Paymix SoftPOS Terminal, capable of accepting contactless payment methods in order for the Merchant to access the Acquiring Services;
“Tap on Phone” means the functionality enabled by the Paymix SoftPOS Application that converts the Merchant’s Smart Device into a Paymix SoftPOS Terminal allows the Cardholder 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 Red Velvet Cake version 11.0 or higher. Tap on Phone only accepts contactless payments from contactless Cards (or other contactless payment devices) with the Card Scheme brands covered by the Merchant 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) Payment Transactions in which a Card is used as means of payment for purposes of a purchase, and (ii) Refunds of corresponding Payment Transactions processed by Finance Incorporated in respect of the Merchant pursuant to the Merchant Agreement. Transaction includes a series of Transactions;
“Transaction Data” documents, data and information of any kind relating to a Transaction and required by Finance Incorporated for the provision of the 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 the Merchant to Finance Incorporated and Cardholder information;
“Transaction Receipt” Document produced in two copies by the Merchant regarding the good and/or 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, where the Cardholder’s identity is authenticated with a code number, password/PIN or by any method other identity determinant in accordance with the Regulations.
2.2 In these General Merchant Terms and Conditions: (a) reference to a clause of an appendix is a reference to a clause of an appendix of the Merchant Agreement (b) headings are for reference only and shall not affect the interpretation of these General Terms and Conditions and the Merchant 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 Any reference in these General Merchant Terms and Conditions to a law or regulation includes: (i) any amendment or addition to it; (ii) any replacement of it; (iii) all rules, statements, codes and other requirements made under it; and (iv) all rules, statements, codes and other requirements set by the Regulatory Authority.
2.4 In these General Merchant Terms and Conditions: (i) reference to any document means the most up-to-date document or replacement that Finance Incorporated has informed the Merchant about; (ii) reference to an address or information, means the most up-to-date address or information that Finance Incorporated has informed the Merchant about; and (iii) any obligation to do or not do something includes an obligation to make sure that the thing is done or is not done (as appropriate).
3. Scope of Terms and Conditions
3.1 These General Merchant Terms and Conditions apply to the provision of Acquiring Services by Finance Incorporated to the Merchant who has successfully registered for a Paymix SoftPOS Account in accordance with the Paymix SoftPOS Application Terms and Conditions. Eligibility to register for the Acquiring Services can only be undertaken by the Merchant through the Paymix SoftPOS Application.
3.2 The Merchant is entering into a contractual relationship with Finance Incorporated for the provision of Acquiring Services, only after the successful fulfilment of the below stated conditions precedent: (i) the Merchant, having successfully passed through all KYC due diligence measures for identification and verification; (ii) the Merchant has successfully passed any credit check that Finance Incorporated may perform on the Merchant; (iii) the Merchant has provided all documentation required in terms of the Application Form (including any additional documentation requested by Finance Incorporated) in order for Finance Incorporated to comply with all applicable laws, regulations and rules; and (iv) a decision, (in the sole discretion of Finance Incorporated), has been made that the Merchant has successfully completed all conditions precedent of the registration process and the Merchant has been successful on-boarded. As a result of this decision to on-board the Merchant, Finance Incorporated will activate the Merchant’s Paymix SoftPOS Account and the Paymix SoftPOS Terminal.
3.3 The Merchant acknowledges and understands that Finance Incorporated reserves the right to suspend or terminate the Acquiring Services, if the Merchant does not provide complete and accurate information or if the Merchant fails to meet any registration or verification requirements for the commencement of the Acquiring Services.
3.4 By agreeing to participate in the Acquiring Services and signing the Merchant Agreement, the Merchant agrees and undertakes to comply with the Merchant Agreement, inclusive of these General Merchant Terms and Conditions, the Specific Merchant Terms and Conditions, the Paymix SoftPOS Application, the Finance Incorporated Privacy Policy and, the Paymix Account Terms and Conditions (where applicable). The Merchant shall accept these General Merchant Terms and Conditions by signing the Merchant Agreement. The Merchant shall additionally accept these General Merchant Terms and Conditions by actually using the Acquiring Services and in this case, the Merchant agrees that Finance Incorporated will treat use of the Acquiring Services by the Merchant as acceptance of the Merchant Agreement from the moment of first use of the Acquiring Services.
3.5 The Acquiring Services covered by these General Merchant Terms and Conditions are only provided to persons (natural or legal entities) who are Merchants 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 Cardholders. Therefore, the Merchant understand that to be eligible for the Acquiring Services, the 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 Acquiring Service for the Merchant’s legal business or professional activity in Malta.
3.6 In case the Merchant wishes to stop using the Acquiring Services, the Merchant must follow the instructions for termination as set out in Clause 17 of these General Merchant Terms and Conditions which will bring about the termination of the Merchant Agreement and/or the termination rules as set out in the Paymix SoftPOS Application Terms and Conditions. The Merchant understands that a termination of the Merchant Agreement and/or a termination of the Paymix SoftPOS Application Terms and Conditions, will bring about the termination of the Acquiring Services.
3.7 Finance Incorporated may suspend the Acquiring Services for operational reasons such as maintenance because of an emergency or reasons related to fraud, risk or compliance. The suspended Acquiring Services will be restored as soon as reasonably practicable. The 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 the Merchant or any third party arising from the suspension of the Acquiring Services.
3.8 Finance Incorporated will use all reasonable endeavours to correct any reported technical faults in the Acquiring Services as soon as reasonably practicable. However, Finance Incorporated gives no guarantees as to the performance of the Acquiring Services or any undertakings that the Acquiring Services will be continuously available or free of faults as authorisation process in some cases includes participation of third parties which are not under the control of Finance Incorporated.
3.9 Occasionally Finance Incorporated may:
(i) For operational reasons, update the technical specifications of the Services and/or update any manuals or documents related to the Services; or
(ii) Require the Merchant to follow instructions which Finance Incorporated believes are necessary for reasons of security or quality of service; or
(iii) For operational or commercial reasons make changes in the information provided for the Merchant to which the Merchant agrees by entering into the Merchant Agreement and accepting all applicable terms and conditions and/or by using and continuing to use the Acquiring Services.
4. Settlement, Set-Off, Retention and Deduction
4.1 The Merchant unconditionally agrees and instructs Finance Incorporated to hold the Settlement Proceeds received from Card Schemes in respect of the processed Transactions until such time that Finance Incorporated transfers the Settlement to the Merchant’s Settlement Account. The Merchant can choose to automatically route Settlements to a Settlement Account held with a credit institution or financial institution other than Finance Incorporated provided that the Merchant has informed Finance Incorporated in writing and Finance Incorporated had approved the Merchant’s nominated Settlement Account.
4.2 Settlement Proceeds are the proceeds of the Merchant’s Transactions processed by Finance Incorporated and which have been cleared by Card Schemes and received by Finance Incorporated. The Settlement Proceeds, minus any fees, charges, Chargebacks, Chargeback Fees, Refunds, Penalties and/or other obligations due by the Merchant to Finance Incorporated, i.e. the “Settlement”, shall become due to the Merchant and such Settlement shall be paid by Finance Incorporated to Merchant’s Settlement Account in a frequency as agreed between the parties and as shall be set out in the Table of Parameters contained in the Specific Merchant Terms and Conditions annexed to the Merchant Agreement. Finance Incorporated shall at all times retain the right of full recourse to the gross amounts of the Transactions processed, Settlement Proceeds collected and/or amounts paid by way of Settlement in terms of the Acquiring Services, for any and all obligations, acts or omissions which the Merchant is or has become liable for under the Merchant Agreement or otherwise.
4.3 The Merchant agrees and instructs Finance Incorporated to transfer the Settlement to the Merchant’s Settlement Account (whether held with Finance Incorporated or otherwise).
4.4 Finance Incorporated shall undertake to transfer the Settlement in accordance with the agreed Settlement Date as set out in the Table of Parameters in the Specific Merchant Terms and Conditions, subject always to Finance Incorporated’s rights as set out in Clause 4.5 herebelow and subject to the Merchant’s obligations pursuant to these General Merchant Terms and Conditions(including the Merchant’s obligations to respond to Cardholder’s disputes and handle Chargebacks in accordance with Card Scheme Rules and the Regulations). When transferring the Settlement, Finance Incorporated shall act as a payment agent and shall be liable only for the proper initiation of the Settlement to the Merchant’s nominated Settlement Account. Finance Incorporated shall execute such transfers in accordance with Finance Incorporated’s standard payment transaction execution times but shall but shall not be liable for any delay to a transfer caused by or resulting from the late or otherwise incorrect receipt of the Settlement Proceeds from the Card Scheme(s) or Issuer and/or any restriction of or on the Card Scheme(s).
4.5 The Merchant agrees that in addition to any other rights Finance Incorporated may have against the Merchant, Finance Incorporated may in its sole and absolute discretion:
4.5.1 either delay the Settlement Date on which the Settlement is due to the Merchant at the sole discretion of Finance Incorporated; and/or
4.5.2 withhold and retain (i) monies representing the Transactions processed and/or the Settlement Proceeds, (whether in whole or in part), as well as any other amounts received by Finance Incorporated for the Merchant (including any Transactions processed as may be in excess of any volume caps that may have been agreed between the parties) until such time as Finance Incorporated, acting reasonably, considers that the Merchant has discharged its obligations under the Merchant Agreement; and/or
4.5.3 set off against the Transaction processed and/or Settlement Proceeds (including any Transactions processed as may be in excess of any volume caps that may have been agreed between the parties) any obligation owed by the Merchant to Finance Incorporated under the Merchant Agreement against any sums owed by Finance Incorporated to the Merchant; and/or
4.5.4 debit and deduct sums owed by the Merchant to Finance Incorporated from any account of the Merchant held with Finance Incorporated or from monies held by Finance Incorporated in respect of the Merchant (such as by way of any Reserve or other form of Security) and/or from the Settlement Proceeds, in order to satisfy the obligations of the Merchant to Finance Incorporated; and/or
4.5.5 require the Merchant to pay an amount to Finance Incorporated for any liability that Merchant may in the future or has incurred pursuant to the Merchant Agreement, including any fines imposed by the Card Schemes.
4.6 The Merchant agrees that Finance Incorporated may exercise its right of withholding, deduction and/or set-off as set out in Clause 4.5 above in respect of:
4.6.1 the proceeds of the Transactions processed by Finance Incorporated before these are credited to the Merchant’s PaymixVIA Account (including any Transactions processed which are in excess of any volume caps agreed between the parties); and/or
4.6.2 the Settlement Proceeds before being transferred by way of Settlement to the Merchant’s Settlement Account; and/or
4.6.3 any of the amounts held in (i) the Merchant’s Settlement Account when such is held with Finance Incorporated or (ii) any other accounts held by the Merchant with Finance Incorporated; and/or
4.6.4 any amounts held by Finance Incorporated by way of Reserve or other Security as set out in Clause 5 of these General Merchant Terms and Conditions and as may be detailed in the Table of Parameters in the Specific Merchant Terms and Conditions.
4.7 Finance Incorporated may exercise its rights in Clauses 4.5 and 4.6 above in respect of any fees, charges, Chargebacks, Chargeback Fees, Penalties (whether from Card Schemes or other Regulatory Authorities), Claims, Anticipated Liabilities or any other amounts that the Merchant owes or may owe to Finance Incorporated under the Merchant Agreement or other legal agreements.
4.8 Finance Incorporated shall further have the right to use the amounts set-off, and/or deducted from Transactions processed (including any Transactions in excess of any monthly volume cap as may have been agreed between Finance Incorporated and the Merchant), without prior notice to Merchant, against any outstanding amounts that Merchant owes to Finance Incorporated under the Merchant 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 the Merchant Agreement shall in no way be limited by the balance or existence of any Reserve or other Security that may be held by Finance Incorporated or otherwise or by the Settlement Proceeds held by Finance Incorporated at any point in time.
4.9 The Merchant understands and agrees that where the Transactions processed by Finance Incorporated and/or the Settlement Proceeds and/or any Reserve (or other Security) held by Finance Incorporated or otherwise, and/or any balances held in the Merchant’s Settlement Account (or any other account where held with Finance Incorporated) are insufficient to discharge the Merchant’s obligations due to Finance Incorporated (including any Penalties whether related to Card Scheme fines or Regulatory fines), the Merchant shall make a direct payment to Finance Incorporated or shall cooperate with Finance Incorporated to facilitate the arrangements required to secure any direct debit or other debit arrangement.
4.10 Finance Incorporated may undertake any action set out in Clauses 4.5 and/or 4.6 in the following, but not limited to, circumstances:
4.10.1 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;
4.10.2 without limit in amount or time, if Finance Incorporated becomes aware or reasonably believes that the Merchant is in breach of or likely to be in breach of its obligations and/or failed to comply with the Merchant Agreement;
4.10.3 the Merchant, its employees, authorised users, contractors, representatives and/or agents have defrauded or attempted to defraud Finance Incorporated;
4.10.4 the aggregate value of the Refunds is more than the aggregate value of the Transactions;
4.10.5 it is reasonably suspected by Finance Incorporated that the number and/or size of the Transaction(s) is significantly greater than expected or, where the Merchant has substantially reduced the daily volume of incoming Transactions;
4.10.6 when the Merchant’s solvency is reasonably deemed by Finance Incorporated to be questionable;
4.10.7 when notice of termination of the Merchant Agreement and/or the Paymix SoftPOS Application Terms and Conditions), has been given;
4.10.8 the goods and/or services (as applicable) referred to in the Transaction:
(i) have been returned to the Merchant or have not been received by the customer; or
(ii) have been claimed by the customer to have been returned to the Merchant, or have been claimed not to have been received by the customer;
4.10.9 the customer claims that the goods and/or services referred to in the Transaction were not as described, are unsatisfactory or were returned and the Merchant failed to provide a refund to Cardholder’s Card;
4.10.10 the Transaction is alleged by the Cardholder to be illegal, null or invalid;
4.10.11 the Cardholder has disputed the authorisation, authenticity or validity of any Transaction or part of a Transaction;
4.10.12 a Transaction has been altered by the Merchant without the Cardholder’s permission; and/or
4.10.13 any other circumstance which Finance Incorporated, in good faith, deems appropriate.
4.11 The amount of any obligation due by the Merchant pursuant to the Merchant Agreement and the costs incurred, (where applicable), by Finance Incorporated in collecting the payment in satisfaction of any such obligation shall constitute a debt that is immediately due and payable by the Merchant to Finance Incorporated. Any collateral, reserve or other type of Security held by Finance Incorporated pursuant to this Merchant 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 the Merchant Agreement. Finance Incorporated’s right to make use of the Reserve or other Security as well as Finance Incorporated’s right of set-off, retention, withholding and/or delay in respect of the Transactions processed and/or Settlement Proceeds and/or Settlement shall survive the termination of the Merchant Agreement. For the avoidance of any doubt, Finance Incorporated shall at all times, including after the termination of the Merchant Agreement, retain the right of full recourse to the gross amounts of the Transactions processed, Settlement Proceeds received and/or paid by way of Settlement in terms of the Acquiring Services, for any acts or omissions which the Merchant is or has become liable under the Merchant Agreement or otherwise.
4.12 Finance Incorporated shall inform the Merchant of any decision to undertake any one or more of the actions set out in this Clause 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.
4.12 The Merchant shall not be permitted to pledge, charge, mortgage, assign, transfer, encumber or otherwise create security over the Merchant’s Settlement Account whether the Merchant’s Settlement Account is held with Finance Incorporated or another credit or financial institution.
4.13 If the obligations of the parties are expressed in different currencies, Finance Incorporated may convert either obligation for the purpose of any set-off and/or deduction undertaken pursuant to the Merchant Agreement.
4.14 Payment of the fees due to Finance Incorporated for the Acquiring Services shall take place through Finance Incorporated deducting such amount in accordance with the fee settlement arrangement as agreed between the parties as set out in the Table of Parameters in the Specific Merchant Terms and Conditions, provided however that nothing shall prevent Finance Incorporated from agreeing to an alternative fee settlement arrangement from time to time.
4.15 Finance Incorporated shall inform the Merchant of any decision to undertake any one or more of the actions set out in this Clause 4 and the reason for why such action is being undertaken (where legally permitted to do so). For the avoidance of doubt, the Merchant understands that any such notification may be undertaken after the decision has been made and the relevant action taken by Finance Incorporated.
4.16 Payment of fees due to Finance Incorporated by the Merchant shall take place by Finance Incorporated deducting such amount in accordance with the fees and the fee settlement arrangements as set out in the Table of Parameters in the Specific Merchant Terms and Conditions provided however that nothing shall prevent Finance Incorporated from changing the fees subject to agreement with the Merchant and from agreeing a different fee settlement arrangement from time to time.
4.17 Any balance that remains of the funds retained, (including where retained from the proceeds received from the Transactions processed in excess of any monthly volume cap agreed between the parties), will be returned or released to Merchant’s Settlement Account in accordance with the time frame agreed by Finance Incorporated from time to time, unless such funds are subject to an investigation or from fraudulent transactions.
4.18 The Merchant acknowledges and agrees that it has no legal or beneficial interest in any sums that Finance Incorporated has exercised its rights over pursuant to this Clause 4.
4.19 Unless otherwise agreed between the parties, Finance Incorporated shall not perform currency conversion on the Settlement and Settlement shall be undertaken in accordance with the Settlement Currencies agreed between the parties and as set out in the Table of Parameters in the Specific Merchant Terms and Conditions.
4.20 Finance Incorporated is not liable to the Merchant for any interest that Finance Incorporated may receive on any funds that are held by Finance Incorporated as part of the Merchant’s use of the Acquiring Services. As such, interest earned is held solely to the account of Finance Incorporated.
4.21 For the avoidance of doubt, the provisions of this Clause 4 shall apply irrespective of whether the Transaction(s) have been Authorised and/or the Transactions have been processed by Finance Incorporated.
4.22 The provisions of this Clause 4 shall survive the termination of the Merchant Agreement and shall remain in full force and effect for a minimum period of six (6) months or such longer period after the termination date as may be required including as is required to be consistent with obligations and/or liabilities that Finance Incorporated and/or the Merchant may have under Card Scheme Rules and/or any liability that Finance Incorporated and/or the Merchant may have under applicable laws.
5. Reserve and Security
5.1 Finance Incorporated may from time to time in agreement with the Merchant, establish an account with Finance Incorporated which will be used to hold funds to secure the performance of the Merchant’s obligations under the Merchant Agreement. This account shall be called the “Reserve Account” and the funds held in the Reserve Account shall be known as the “Reserve” which shall serve as collateral, when required, to secure the Merchant’s obligations in connection with the Acquiring Services.
5.2 The Merchant agrees to provide Finance Incorporated with the necessary authorisation and instruction to fund the Reserve Account in the following ways:
5.2.1 by the Merchant paying Financing Incorporated, at Finance Incorporated’s request (whether agreed in the Application Form or otherwise), with a direct payment which we will deposit in the Reserve Account; and/or
5.2.2 transferring a portion of the funds that Finance Incorporated has received by way of Settlement Proceeds from the Transactions processed by Finance Incorporated for the Merchant to the Reserve Account, either until such proceeds meet a certain amount or so those payments match a certain percentage of the Merchant’s Transaction volume.
5.3 The Reserve Account shall be established for such amount and for such period of time as shall be agreed between the parties as set out in the Table of Parameters in the Specific Merchant Terms and Conditions. Finance Incorporated shall further have the right from time to time to require the Merchant to increase the amount and/or time frame for the holding of the Reserve in the Reserve Account through any of the actions set out in Clause 4.5 and 4.6 of these General Merchant Terms and Conditions. The Merchant understands that Finance Incorporated has the right to establish a fixed Reserve and/or a rolling Reserve at its sole discretion.
5.4 Where a Reserve Account is held, the Merchant agrees and instructs Finance Incorporated not to transfer the Reserve held in the Reserve Account to the Merchant’s Settlement Account until (such date to be a Business Day):
5.4.1 the period for Chargebacks to be brought against the applicable Transaction has expired (and where applicable, notwithstanding the termination of the Merchant Agreement); and/or
5.4.2 the period as set out in the Table of Parameters in the Specific Merchant Terms and Conditions agreed between the parties for the purposes of holding the Reserve (whether fixed and/or rolling Reserve) has expired; and/or
5.4.3 any and all of expected liabilities that the Merchant owes to Finance Incorporated under the Merchant Agreement have expired or paid in full.
5.5 The Merchant understands and agrees that Finance Incorporated shall have the absolute right to undertake any of the actions in Clauses 4.5 and 4.6 in respect of the entire amounts collected by Finance Incorporated in respect of the Transactions processed irrespective of any volume cap agreed between the parties. Furthermore, Finance Incorporated shall be entitled to withdraw and use all or any part of such funds held by way of Reserve as represent amounts that are owed to Finance Incorporated without prior notice or demand to Merchant and even after the termination of the Merchant Agreement.
5.6 The Merchant agrees that Finance Incorporated may apply funds represented by the Reserve at the sole discretion of Finance Incorporated against any Claims and/or Anticipated Liabilities and the Merchant shall not be permitted to pledge, charge, mortgage, assign, transfer, encumber or otherwise create security over any Reserve or any other Security held by Finance Incorporated pursuant to the Merchant Agreement.
5.7 Finance Incorporated’s right to hold funds representing the Reserve in the Reserve Account shall survive the termination of the Merchant 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 and/or liability that Finance Incorporated and/or the Merchant may have under the Card Scheme Rules and/or any liability that Finance Incorporated and/or the Merchant may have under Applicable Laws.
5.8 The Merchant shall not be permitted to pledge, charge, mortgage, assign, transfer, encumber or otherwise create security over any monies held in the Merchant’s Settlement Account whether held with Finance Incorporated or another credit or financial institution. This obligation shall survive the termination of the Merchant Agreement.
5.9 The Merchant shall not be entitled to dispose of the Reserve in any way.
5.10 Finance Incorporated may, unilaterally and without prior notification, use the Reserve (and/or any other security that the Merchant shall have provided to Finance Incorporated) to:
5.10.1 return Transaction amounts to the Cardholder for justified Chargebacks or Refunds; and
5.10.2 pay all sums due to Finance Incorporated under the Merchant Agreement including any Claim or Anticipated Liabilities enforced by Card Schemes, Regulatory Authorities, or law enforcement authorities.
5.11 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 the 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) implement or increase the value of and/or time frame over which each addition to the Reserve held in the Reserve Account is implemented; (iii) implement or request an increase in any existing Security; and/or (iv) request any additional Security. The Merchant shall agree to any such implementation or amendments promptly upon the request of Finance Incorporated. In the event that the Merchant does not implement any Reserve and/or other Security or does not increase the existing Reserve and/or other Security or provide additional Security when so requested by Finance Incorporated, Finance Incorporated reserves the right to suspend the Acquiring Services to Merchant until such time that the Merchant has implemented the Reserve or other Security, or increased the Reserve and/or Security, and/or the additional Security shall have been provided.
5.12 Finance Incorporated may, at any time, require the Merchant to provide additional Security (as shall be set out in the Table of Parameters in the Specific Merchant Terms and Conditions) in such amount, in such form and over such assets as Finance Incorporated reasonably requires and which shall be requested by Finance Incorporated from time to time for purposes of discharging the Merchant’s obligations for payments for which the Merchant is liable. Such obligations of the Merchant shall include, but shall not be limited to, Refunds, Chargebacks, Chargeback Fee, Claims, Anticipated Liabilities, Fees, Penalties or any other amounts or changes due to Finance Incorporated from Merchant under the Merchant Agreement or any other agreement, applicable laws, Regulations and/or Card Scheme Rules. Such additional Security can comprise a 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 the Merchant Agreement. If the Merchant does not provide such additional Security, Finance Incorporated reserves the right to suspend or terminate the Acquiring Services, without liability or compensation for damages. The Merchant hereby grants to Finance Incorporated a security interest in any additional 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 the Merchant under the Merchant Agreement.
5.13 The Merchant accepts and understands that in respect of any additional Security, it shall have no ability to cancel or amend such additional Security that may have been provided by Merchant in accordance with the Merchant Agreement.
5.14 Finance Incorporated shall further have the right to use the Reserve, (including from the Settlement Proceeds collected from the Transactions processed by Finance Incorporated including amounts in excess of any monthly volume cap agreed between the parties) and/or any additional Security, without prior notice or demand to the Merchant, against any outstanding amounts that Merchant owes to Finance Incorporated under the Merchant Agreement or any other agreement between Merchant and Finance Incorporated, in order to collect any amounts due to Finance Incorporated. Finance Incorporated’s rights to sums owed to it by the Merchant shall in no way be limited by the balance or existence of any Reserve or by any other Security held by/for the benefit of Finance Incorporated. This right of Finance Incorporated in respect of the Reserve and/or additional Security shall survive the termination of the termination of the Merchant Agreement.
5.15 The Merchant hereby grants to Finance Incorporated a security interest in the Reserve (and any other form of Security taken by Finance Incorporated in respect of the Acquiring Services), to secure to the satisfaction of Finance Incorporated, the performance of the Merchant’s obligations from time to time, under the Merchant Agreement. For the avoidance of doubt, Merchant hereby grants a security interest in favour of Finance Incorporated in respect of any amounts retained from the funds collected from the Payment Transactions processed by Finance Incorporated including amounts in excess of any monthly volume cap agreed between the parties.
5.16 The Merchant shall promptly, at its own expense, do whatever Finance Incorporated reasonably requires to facilitate the enforcement of the security interest over the Reserve and any additional Security which the Merchant has provided for the performance of the Merchant’s obligations, including any Claims and/or Anticipated Liabilities.
5.17 Finance Incorporated is not liable to the Merchant for any interest that Finance Incorporated may receive on any funds that are held by Finance Incorporated as part of the Merchant’s use of the Acquiring Services, including the Reserve Account. As such, interest earned is held solely to the account of Finance Incorporated.
5.18 The Merchant acknowledges and agrees that it has no legal or beneficial interest in any sums that Finance Incorporated has exercised its rights over pursuant to this Clause 5.
5.19 The provisions of this Clause 5 shall survive the termination of the Merchant Agreement and shall remain in full force and effect for a minimum period of six (6) months or such longer period after the termination date as may be required including as is required to be consistent with obligations and/or liabilities that Finance Incorporated and/or Merchant may have under Card Scheme Rules and/or any liability that Finance Incorporated and/or the Merchant may have under applicable laws.
6. PaymixVIA Account
6.1 Finance Incorporated grants to the Merchant a limited personal, revocable, non-transferable, non-sub-licencable licence to use and access the Acquiring Services (including the PaymixVIA Account and any applicable Data) solely for the purposes and in accordance with the terms set out in this Agreement. The PaymixVIA Account is an information and data account providing details of the Merchant’s Transactions and other related information management functionality. The Merchant understands that the PaymixVIA Account does not hold any funds or stored value of any kind. Finance Incorporated shall provide the Merchant with security credentials for purposes of accessing and using the Merchant’s PaymixVIA Account.
6.2 The Merchant is entitled to appoint additional authorised users for accessing and using the PaymixVIA Account using security credentials. Setting up additional authorised users constitutes the Merchant’s authorisation of that other person to use the PaymixVIA with their designated security credentials Account. The Merchant understands and agrees that Merchant shall be responsible for the management, control, actions and omissions associated with the authorised users and their security credentials, as well as their access and the use of the Acquiring Services.
6.3 The Merchant shall provide to Finance Incorporated any and all information required by Finance Incorporated in respect of the authorised users.
6.4 The Merchant understands that it is the Merchant’s responsibility to keep the security credentials and all equipment and systems used by the Merchant secure. The Merchant therefore undertakes to continuously monitor and establish security procedures and protocols as are appropriate to the size and nature of the business of the Merchant to comply with the provisions of this Clause and to ensure that only authorised users are able to access the Merchant’s systems for purposes of accessing the PaymixVIA Account and the Acquiring Services.
6.5 Where the Merchant suspects or knows that the security credentials for the PaymixVIA Account and/or the Merchant’s systems have been stolen, misappropriated, used without authorisation or otherwise compromised (as appropriate), it is the Merchant’s responsibility to immediately change security credentials and to contact Finance Incorporated without delay at acquiring@paymix.eu. Once Finance Incorporated has received valid notification of any suspected or known compromise to the security credentials in respect of the PaymixVIA Account, Finance Incorporated shall use all reasonable endeavours to stop further illegitimate access or use of the security credentials and/or the PaymixVIA Account.
6.6 Finance Incorporated may restrict the Merchant’s (and any authorised user’s) access to the PaymixVIA Account and the Acquiring Services on reasonable grounds relating to the valid use and security of the Acquiring Services and any of its security features. Finance Incorporated shall notify the Merchant of any suspension or restriction of the Merchant’s use of the Acquiring Services (and if applicable where legally permitted to do so, the reason for such actions being taken), in advance, or, where we are unable to do so, after the suspension or restriction has been imposed (unless notifying you would be in contravention of any Applicable Laws or otherwise compromise reasonable security). Finance Incorporated shall restore the Acquiring Services and/or the access to the Merchant’s PaymixVIA Account once Finance Incorporated is satisfied that the reason for the suspension/restriction no longer subsists.
7. Merchant Obligations, Representations, Warranties and Undertakings
7.1 The Merchant may only use the Acquiring Services in a bona fide manner and in accordance with the Merchant Agreement. The Merchant warrants and undertakes that each 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 Acquiring Services in connection with any other underlying illegal Transaction.
7.2 The Merchant understands and acknowledges that Finance Incorporated shall in its sole discretion accept or reject the Merchant based on the information the Merchant provides to Finance Incorporated provide us (whether as part of the application process or otherwise). If any information provided by the Merchant to Finance Incorporated (including information related to the Merchant’s business model and/or the services provided by the Merchant to its customers) changes over time, the Merchant must notify Finance Incorporated immediately so that the information supplied to Finance Incorporated is always accurate, up to date, truthful and complete. In particular, the Merchant agrees not use the Acquiring Services for any other good and/or service that the Merchant has not agreed with Finance Incorporated, nor trade from any other premises or websites/online applications without seeking the prior written approval of Finance Incorporated. Any approval Finance Incorporated may provide related to the sale of goods and/or services of the Merchant in no way constitutes any advice or opinion by Finance Incorporated as to the legality or otherwise or the compliance with applicable laws of the goods and/or services provided by the Merchant. The registration of the Merchant to use the Acquiring Services provided by Finance Incorporated is expressly and strictly dependent upon this information and descriptions provided by the Merchant, together with the warranty that the Merchant will only use the Acquiring Services in the course of the Merchant’s own business, trade and profession and not as a consumer.
7.3 The Merchant agrees at all times to comply with the terms of the Merchant Agreement, perform its obligations at its own expenses and in a competent and business-like manner and with reasonable skill and care.
7.4 The Merchant agrees to provide Finance Incorporated with any and all information reasonably requested by Finance Incorporated in relation to the use of the Acquiring Services by the Merchant including in relation to any financial or reconciliation query that Finance Incorporated may have. This may include a request by Finance Incorporated and/or Card Scheme for evidence of a Transaction and/or account for the amount of the Transaction.
7.5 The Merchant consents and grants Finance Incorporated permission to make any enquiries with any third parties Finance Incorporated considers necessary to verify any information provided by the Merchant, whether to allow the Merchant to register and / or continue to use the Acquiring Services or otherwise. This may include Finance Incorporated obtaining, checking and/or reviewing applicable credit reports and/or commercial registers or databases.
7.6 The Merchant agrees to provide Finance Incorporated with any information which Finance Incorporated may reasonably required to assess the Merchant’s financial situation, including but not limited to financial statements, accounts, invoices etc.
7.7 The Merchant understand that information provided in the Application Form and/or in connection with the Application Form and the application process is used by Finance Incorporated to comply with applicable laws, including but not limited to anti-money laundering laws. During the term of this Agreement, the Merchant also agrees to provide Finance Incorporated with any and all additional information which Finance Incorporated may reasonably require, at any time, to comply with its legal and regulatory obligations. The Merchant agrees and approves Finance Incorporated, where required, to provide a report on the Merchant, (including the identity of the Merchant), with information as deemed necessary to the Card Scheme(s).
7.8 The Merchant agrees and undertakes to provide Finance Incorporated with any required information or documentation as may be necessary pursuant to the Merchant Agreement and the provision of the Acquiring Services, within five (5) working days from the date of request.
7.9 The Merchant undertakes to accept Cards from Cardholders as the means of payment only for the goods and/or services offered by the Merchant and to accept the Cards as the means of payment only for those goods and/or services offered by the Merchant as declared by the Merchant in the Application Form.
7.10 The Merchant agrees to establish and maintain during the term of the Merchant Agreement, in its name, a Settlement Account and shall provide Finance Incorporated with complete and accurate information concerning the Settlement Account. If for any reason Finance Incorporated is unable to transfer the Settlement to the Merchant’s Settlement Account (or under certain circumstances Finance Incorporated is unable to receive from the Merchant’s Settlement Account to pay amounts the Merchant owes to Finance Incorporated), the Merchant agrees to open and maintain a Settlement Account with Finance Incorporated, which allows Finance Incorporated to debit and receive funds from the Merchant.
7.11 The Merchant agrees and shall not change the Settlement Account without the prior written approval of Finance Incorporated. The Merchant undertakes, on an ongoing basis, to maintain sufficient funds in the Settlement Account to accommodate all Transactions and obligations pursuant to the Merchant Agreement and to meet any sums due and payable to Finance Incorporated as well as all other fees, charges, credits, Penalties, Anticipated Liabilities, Claims or other payment or amounts due or in connection with the Merchant Agreement.
7.12 The Merchant agrees to adhere to its obligations as set out in Clauses 4 and 5 of the Merchant Agreement.
7.13 The Merchant agrees to only use Third-Party Systems and Services from Third-Party Suppliers related to the use of the Acquiring Services where Finance Incorporated has provided its prior written consent. If the Merchant uses an approved Third-Party Supplier, the Merchant hereby authorises Finance Incorporated to obtain information from them as may be required by Finance Incorporated in order to carry out the Acquiring Services. If applicable, the Merchant agrees to pay any testing or accreditation costs incurred by Finance Incorporated when approving any Third-Party Systems and Services and/or associated Third-Party Suppliers. Following any approval given by Finance Incorporated for the use of a Third-Party Supplier, the Merchant agrees that no other third-party supplier shall be used unless they have been certified and accepted by Finance Incorporated.
7.14 The Merchant agrees that it shall be solely responsible for carrying out its business and performing any and all sale transactions entered into with the Cardholder in compliance with all Applicable Laws and Card Scheme Rules. To the extent that there is any inconsistency between the terms of the Merchant Agreement and the underlying Card Scheme Rules, the underlying Card Scheme Rules will prevail.
7.15 The Merchant agrees to accept all properly presented Transactions. The Merchant understands that it must not refuse a Transaction because of requiring additional details from the Cardholder, other than what is permitted by the applicable Card Scheme Rules.
7.16 The Merchant is authorised (where applicable under Card Scheme Rules), to provide Refunds for Transactions accepted by the Merchant under the terms of this Merchant Agreement. The Merchant understands that only Refunds to the Payment Instrument or Payment Account used for the original payment Transaction shall be executed, subject to any exceptions agreed with Finance Incorporated and in compliance with Card Scheme Rules:
7.16.1 The Merchant agrees to offer the Cardholder with a legally compliant refund policy which is consistent with the Merchant’s business industry practice and which the Merchant shall notify the Cardholder prior to them making a Payment Transaction with the Merchant.
7.16.2 In executing any Refund, the Merchant shall not offer a cash refund for any Payment Transaction, nor accept cash in consideration of making a Refund (unless it is permitted under Applicable Laws or the applicable Card Scheme Rules).
7.17 The Merchant must not execute the following types of Transactions:
7.17.1 Excluded Transactions;
7.17.2 Refunds, returns, reversals or other adjustments not initially processed by Finance Incorporated;
7.17.3 Transactions which the Merchant expects to receive payment in any other form than what the Merchant has submitted to Finance Incorporated (for example, the Merchant will not accept a Card payment Transaction and submit it via the Acquiring Services and also accept cash as a payment); and/or
7.17.4 Transactions which the Merchant knows or should know or suspect to be illegal or otherwise not authorised by the Cardholder.
7.18 The Merchant’s use of the Acquiring Services is strictly restricted to executing accepted Transactions directly between the Merchant and the Cardholder which are related to the legitimate and genuine sale of the Merchant’s goods and/or services (as described by the Merchant during the application process and on an ongoing basis and, approved by Finance Incorporated). The Merchant is strictly prohibited from facilitating payments for any services, good, item, make available or sold by third parties. The Merchant is also expressly prohibited from re-selling the Acquiring Services and/or in any way holding itself out to be an agent of Finance Incorporated.
7.19 The Merchant shall not be entitled to accept a Transaction in order to pay or refinance already existing obligations and the Merchant warrants that it shall accept Cards only as payment for the goods and/or services declared by the Merchant in the Application Form and only in the shop or establishment that the Merchant has declared in the Application Form.
7.20 The Merchant shall not be entitled to accept a Transaction if there is cause to doubt the identity of the Cardholder or to believe that the Card is being used fraudulently, unless the Merchant has taken steps to satisfy itself of the identity of the Cardholder and that the Card is being used legitimately.
7.21 Subject to any Applicable Laws and Card Scheme Rules, the Merchant shall not and shall also make it a policy not to discriminate in any way against the use of a Card Scheme and their associated payment methods (including in relation to the services sold by the Merchant). The Merchant must not require a minimum or maximum Transaction amount to accept a valid Card. In the event that the Merchant adds any surcharge to a Transaction, the Merchant shall provide complete and transparent information related to such surcharge. The Merchant agrees that Finance Incorporated has no liability nor responsibility to any Cardholder where the Merchant has failed to inform the Cardholder of any surcharge or related matter. The Merchant hereby acknowledges and agrees that if the Merchant is permitted to surcharge under any Applicable Laws and Card Scheme Rules and fails to disclose any form of surcharge to a Cardholder, it is possible that this may constitute an offence by the Merchant.
7.22 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 the Merchant is otherwise notified in writing by Finance Incorporated. The agreed Trading Limit and/or Floor Limit, where applicable shall be set out in the Table of Parameters in the Specific Merchant Terms and Conditions.
7.23 The Merchant shall clearly and prominently disclose and make available to the Cardholders details of its business identity in clear and intelligible language. The Merchant shall ensure that the Cardholders are aware that the Merchant is responsible for the submission of Transactions and the supply of goods and/or services throughout the course of the Cardholders’ dealings with the Merchant. This includes the Merchant providing a transparent and easily found notice of its business/trading name and its contact details (as appropriate) on the Merchant’s business premises.
7.24 The Merchant shall carry out and perform any Transactions entered into with the Cardholders (including matters such as the provision of the goods and/or services that are part of the sales transaction). The Merchant further agrees to providing any and all customer support to the Cardholders relating to the sale of its goods and/or services. The Merchant also agrees to offer customer service and complaints contact details to the Cardholders accessible by online contact, email and/or telephone. In performing customer service, the Merchant undertakes to always represent itself and its business operations as a separate entity or operation from Finance Incorporated. Finance Incorporated are not responsible for any goods and/or services, offered or sold by the Merchant.
7.25 The Merchant undertakes not to carry out any action or omit from acting in a manner which Finance Incorporated may reasonably consider to adversely impact its goodwill, reputation and/or branding and/or that of the Card Scheme.
7.26 If the Merchant’s business requires a regulatory licence to provide goods and/or services to the Cardholders, the Merchant shall without delay provide Finance Incorporated with evidence that such licence has been granted, continues to be valid and that Merchant’s offered goods and/or services comply with applicable laws. If such licence is withdrawn or if the Merchant is not aware of the legal status of its licence, the Merchant shall notify Finance Incorporated immediately without delay. The Merchant shall indemnify Finance Incorporated against all claims and liabilities arising due to the Merchant’s failure to notify Finance Incorporated. Finance Incorporated shall not be obliged to provide (or not to continue to provide as the case may be) the Acquiring Services to the extent that the Merchant does not at any time hold the necessary regulatory licence for its business.
7.27 The Merchant shall provide documents confirming the Transaction, Refunds and give explanations in relation to any Chargeback immediately, but not later than three (3) Business Days from receipt of the request from Finance Incorporated to do so.
7.28 The Merchant shall provide Finance Incorporated with such assistance in relation to Chargebacks as Finance Incorporated may reasonably request and shall act in accordance with the Card Scheme Rules and the Instructions of Finance Incorporated when considering Chargebacks.
7.29 The Merchant shall retain records of all Transactions for a minimum of five (5) years after the Transaction has been completed or such other time as may be stipulated by Applicable Laws and/or the Card Scheme Rules and this obligation shall survive the termination of the Merchant Agreement.
7.30 The Merchant undertakes that if the Cardholder rejects the services purchased by the Payment Transaction, to return the Transaction amount to the Cardholder in full or in part depending on the rules of the Merchant about cancelled Transactions.
7.31 The Merchant shall always use the SSL and follow PCI DSS requirements. If the Merchant is found non-compliant with PCI DSS and/or is engaged in Cardholder/account data compromise according to the Card Scheme Rules, the Merchant must collaborate with Finance Incorporated and/or the Card Scheme in providing all necessary information and documents.
7.32 The Merchant shall inform Finance Incorporated without undue delay (and in any case within thirteen (13) months of the date of the relevant Transaction, after discovering an unauthorised, incorrectly executed or an unexecuted payment transaction.
7.33 The Merchant undertakes to immediate inform Finance Incorporated (and by no later than three (3) Business Days of any cases of fraud or other illegal operations with the Cards suspected by the Merchant.
7.34 The Merchant agrees to process and handle any Chargebacks in accordance with the Card Scheme Rules. The Merchant also undertakes to assist Finance Incorporated and/or Card Scheme with such information or co-operation as required to manage the handling of any Claim or dispute raised by a Cardholder, Card Scheme or other third party in relation to any Transaction. The Merchant shall confirm to Finance Incorporated immediately but not later than within three (3) Business Days, whether it intends to accept a Chargeback or to dispute it by submitting requested documents to Finance Incorporated. If the Merchant wishes to dispute the Chargeback the Merchant shall be solely responsible for the dispute and proving any information requested by the relevant Issuer and/or Card Scheme. If in the reasonable opinion of Finance Incorporated a Chargeback appears valid and/or the Merchant does not provide satisfactory documentation to dispute a Chargeback, Finance Incorporated shall not progress a Chargeback further through the Chargeback process. The Merchant agrees that all fees and any associated costs related to the Chargeback ad Chargeback process shall be the sole responsibility of the Merchant. The Merchant also understands and accepts that any Card Scheme decision relating to all aspects of Chargebacks is final and binding.
7.35 The Merchant undertakes to provide the Reserve and any other Security according to the provisions of the Merchant Agreement and in the amount set in the Table of Parameters in the Specific Merchant Terms and Conditions, where applicable.
7.36 The Merchant agrees, undertakes and shall pay to Finance Incorporated:
7.36.1 the fees to be paid to Finance Incorporated by the Merchant as set out in the Table of Parameters;
7.36.2 the amount of any Refunds;
7.36.3 on demand, the amount of any justified Chargeback;
7.36.4 on demand all charges, costs, expenses and/or damages imposed on Finance Incorporated by the Card Scheme in connection with any breach of Card Scheme Rules by the Merchant;
7.36.5 on demand all charges, costs, expenses, damages and losses (whether indirect or consequential) caused to Finance Incorporated by any non-fulfilment of the Merchant’s obligations or any actions or inactions of the Merchant under the Merchant Agreement or Applicable Laws or as a consequence of the Merchant breaching the terms of the Merchant Agreement and/or Card Scheme Rules and/or Applicable Laws;
7.36.6 on demand any indemnity due to Finance Incorporated in accordance with its obligations under the Merchant Agreement in terms of Clause 12; and
7.36.7 within five (5) calendar days any invoice issued by Finance Incorporated to the Merchant
7.37 The Merchant is liable for and shall pay to Finance Incorporated all amounts which equal any and all Chargebacks, Penalties and associated costs related to the Merchant’s use of the Acquiring Services. Each Chargeback and/or Penalty shall represent a debt immediately due and payable by the Merchant to Finance Incorporated. The Merchant’s liability for Chargebacks and/or Penalties shall survive the termination of this Agreement.
7.38 In addition to the rights of set-off, retention and deduction in Clauses 4 and 5 of this Agreement, the Merchant irrevocably authorises Finance Incorporated, without any additional agreement or authorisation, to deduct from the Transaction processed, the Settlement Proceeds (including any Transactions processed in excess of any volume cap agreed between the parties), the Settlement, Settlement Account, any Reserve and/or any other Security, the amounts required in order to satisfy the amounts due by the Merchant to Finance Incorporated pursuant to the Merchant Agreement.
7.39 The Merchant warrants and undertakes to Finance Incorporated that its business activity complies with all Applicable Laws.
7.40 If the Merchant wishes to dispute a Chargeback, all the costs arising from consideration of the dispute, including Chargeback Fee and all related fees including any costs of arbitration, shall be paid by the Merchant. Any dispute of a Chargeback shall not limit the rights of Finance Incorporated stipulated in the Merchant Agreement to delay the sums in the amount of Chargeback.
7.41 The Merchant bears full financial responsibility for all complaints and claims made by the Card Schemes and/or Finance Incorporated, as well as undertakes independently to pay all the fines imposed by the Card Schemes and compensate Finance Incorporated all the losses that are connected with the Card Schemes’ fines.
7.42 The Merchant warrants and confirms that the Merchant agrees to be provided with the Data in accordance with Clause 6 of these General Merchant Terms and Conditions.
7.43 The Merchant shall pay fees to Finance Incorporated for the Acquiring 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 the Merchant. However, the fees for the Acquiring Services may depend on interchange fees and other similar fees of Card Schemes and in such cases, the fee for the Acquiring Services may be changed by Finance Incorporated with a shorter notice in the case of any such changes. All fees agreed between the parties shall be set out in the Table of Parameters in the Specific Merchant Terms and Conditions.
7.44 In addition to the fees (and where applicable), the 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 the 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 agreed with the Merchant.
7.45 The Merchant acknowledges and agrees that such fees may be set-off from the Transaction amounts collected by Finance Incorporated in respect of Payment Transactions processed (including from the Transaction amounts collected from the Payment Transactions processed by Finance Incorporated in excess of any monthly volume cap agreed between the parties) and/or the Settlement and/or debited directly from the Merchant’s Settlement Account or, upon written confirmation from Finance Incorporated, may be paid directly by Merchant.
7.46 The Merchant understands that the Merchant Identification Number (MID) provided by Finance Incorporated to the Merchant must always be used in conjunction with the 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.
7.47 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.
7.48 The 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 this Clause 7 and the terms of the Merchant Agreement.
7.49 The Merchant acknowledges and agrees that, notwithstanding any termination of the Merchant Agreement for whatever reason, Finance Incorporated shall remain entitled to recover from the Merchant, (and from any person who has provided Finance Incorporated with a guarantee or security relating to the Merchant’s obligations under the Merchant 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 the Merchant Agreement and all related costs incurred by Finance Incorporated that occur in relation to Transactions effected during the term of the Merchant Agreement.
8. Finance Incorporated Rights and Obligations
8.1 Finance Incorporated undertakes to:
8.1.1 provide the Acquiring Services with respect to the acceptance of Card payments for the sale of goods and/or services between the Merchant and the Cardholder under the Card Scheme brands, for the specific Sales Methods, in the permitted Settlement Currencies and in accordance with the details of the Table of Parameters as set out in the Specific Merchant Terms and Conditions;
8.1.2 hold the Settlement Proceeds in respect of the Transaction processed and to deduct any fees, Penalties, Anticipated Liabilities, Claims, Chargebacks, Refunds and any other charges and obligations of the Merchant in accordance with the terms of the Merchant Agreement until such time as Finance Incorporated shall transfer the Settlement to the Merchant’s Settlement Account in accordance with the Table of Parameters as set out in the Specific Merchant Terms and Conditions;
8.1.3 redeem E-Money representing the Settlement Proceeds by transferring the amount representing the Settlement to the Merchant’s Settlement Account, in accordance with the conditions in the Table of Parameters as set out in the Specific Merchant Terms and Conditions; and
8.1.4 transfer Transaction amounts to the Cardholder(s) by way of Refund;
in each case in accordance with the Merchant Agreement, Applicable Laws and Card Scheme Rules. A Transaction in respect of which Authorisation has been obtained is not guaranteed and it may be cancelled or be subject to a Chargeback by a Cardholder in accordance with applicable Card Scheme Rules. For the avoidance of doubt Finance Incorporated shall not be obliged to provide the Acquiring Services in whole or in part where it is suspected that any Transaction is fraudulent, involves other illegal activity, is not within the ordinary course of the Merchant’s business and/or was non-compliant with PCI-DSS obligations. Moreover, Finance Incorporated may continue to delay and withhold Settlement of the Settlement Proceeds to the Merchant until in the reasonable opinion of Finance Incorporated it is determined that any of these matters in 3.1.1 to 3.1.4 (inclusive) no longer apply and such Transactions are no longer liable to be subject of a Chargeback.
8.2 Finance Incorporated shall deduct the applicable fees, charges and Refunds from the Settlement Proceeds before transferring the net amount to the Merchant’s Settlement Account in accordance with the Table of Parameters in the Specific Merchant Terms and Conditions. If for any reason the amount received by Finance Incorporated from the Card Scheme is less than the sum of the Payment Transactions processed by Finance Incorporated, Finance Incorporated shall transfer the amounts actually received to the Merchant after deducting any sums due or which, in the reasonable opinion of Finance Incorporated, become due from the Merchant in accordance with the terms of the Merchant Agreement.
8.3 If any transfer date specified in the Table of Parameters in the Specific Merchant Terms and Conditions is not a Business Day, the transfer shall be made on the next Business Day.
8.4 Finance Incorporated shall be entitled:
8.4.1 to accept or reject the received Merchant Application in its absolute discretion;
8.4.2 to deduct from the Settlement Proceeds collected from the Transactions processed (including from the Transactions processed by Finance Incorporated in excess of any monthly volume cap agreed between the parties), any sums due to Finance Incorporated from the Merchant, including those that are due, or become due, under the Merchant Agreement;
8.4.3 to use the rights of set-off, retention and/or deduction in Clause 4 and Clause 5 of these General Merchant Terms and Conditions;
8.4.4 to use the Reserve and any other Security according to the Merchant Agreement;
8.4.5 to invoice the Merchant for the remainder of any sums due to Finance Incorporated if the amounts collected by way of Settlement Proceeds are not sufficient to satisfy all sums due to Finance Incorporated from the Merchant;
8.4.6 to request from the Merchant transaction any and all documents and substantive explanations about transfers conducted by the Merchant;
8.4.7 to withhold and delay the Settlement (in whole or in part) if the Merchant has not provided any documents and/or information within three (3) Business Days from the time that Finance Incorporated’s request is notified to the Merchant;
8.4.8 if in the reasonable opinion of Finance Incorporated the Merchant has not fulfilled its obligations pursuant to the Merchant Agreement, to delay and withhold the Settlement to the Merchant (whether in whole or in part), until in the reasonable opinion of Finance Incorporated it is determined that the Merchant has complied with its obligations;
8.4.9 having reasonable grounds, to inform the Card Scheme and/or appropriate law enforcement agencies of any suspected fraudulent operations of the Merchant;
8.4.10 to request from the Merchant the Action Plan, if the number of Chargebacks or fraudulent Transactions exceeds Card Scheme parameters;
8.4.11 to delay transfer of any Transaction amounts and/or Settlement to the Merchant and/or the processing of any Transaction where in Finance Incorporated’s opinion there is suspicion of illegality of the Transaction or, illegality relating to the activity of the Merchant, or otherwise not acting or being undertaken in accordance with the Card Scheme Rules;
8.4.12 to delay transfer of any Transaction amounts and/or Settlement and/or the processing of any Transactions for a period in accordance with Card Scheme Rules where they relate to Transactions in which Chargebacks arose. If a Chargeback is found invalid according to the Card Scheme Rules or was withdrawn by the Issuer, Finance Incorporated shall transfer those sums to the Merchant. If a Chargeback is justified, the sums shall be used for redemption of liabilities towards the Cardholder and shall not be transferred to the Merchant;
8.4.13 to suspend, with immediate effect, the acceptance of Cards, the processing of any Payment Transactions, Refunds and the Settlement of the Settlement Proceeds until all the circumstances are clarified to Finance Incorporated’s satisfaction if Finance Incorporated suspects:
8.4.13.1 that the Transactions relate to money laundering or financing of terrorism;
8.4.13.2 that the Transactions pose an unacceptable risk in the sole discretion of Finance Incorporated; or
8.4.13.3 if the Merchant has notified Finance Incorporated that (or a suspicion that) the Paymix SoftPOS Security Credentials have been lost, stolen, misappropriated or used in an unauthorized way.
In such case, Finance Incorporated shall have the sole and absolute discretion regarding when to resume accepting Cards, processing Transactions, Refunds, and transferring the Settlement, taking into account the available information and any recommendations of the Card Scheme;
8.4.14 to suspend, with immediate effect, the acceptance of Cards, the processing of Transactions, Refunds and transfers of the Settlement to the Merchant’s Settlement Account until all the circumstances are clarified to Finance Incorporated’s satisfaction if the Merchant breaches the Merchant Agreement and/or the Card Scheme Rules. Finance Incorporated shall have absolute discretion following such a suspension as to when to resume accepting Cards, processing Transactions, Refunds, transferring the Settlement to the Merchant’s Settlement Account, taking into account the available information and any recommendations of the Card Scheme Rules;
8.4.15 to suspend the provision of Acquiring Services under the Merchant Agreement: (i) if the Card Scheme Rules are subsequently amended in such a way as, in the reasonable opinion of Finance Incorporated, to make the continued provision of Acquiring Services impracticable or economically unviable; and/or if the Merchant is suspected of breaking those Card Scheme Rules;
8.4.16 to suspend, with immediate effect, the acceptance of Cards, the processing of Transactions and the transfer of the Settlement to the Merchant’s Settlement Account if the number of Chargebacks received in one calendar month exceeds acceptable thresholds as determined in the sole opinion and discretion of Finance Incorporated and/or in accordance with Card Scheme Rules. Finance Incorporated reserves the right, in its sole discretion to terminate the Merchant Agreement should the number of Chargebacks be deemed excessive;
8.4.17 to suspend, with immediate effect, the acceptance of Cards, the processing of transactions and the transfer of the Settlement to the Merchant’s Settlement Account if fraudulent Transactions in one calendar month exceed acceptable thresholds as determined in the sole opinion and discretion of Finance Incorporated and/or in accordance with Card Scheme Rules. Finance Incorporated reserves the right, in its sole discretion to terminate the Merchant Agreement should the number of Chargebacks be deemed excessive;
8.4.18 to unilaterally revise cooperation conditions under the Merchant Agreement and to revise practicability of such a cooperation with the Merchant, if:
8.4.18.1 the Merchant has not provided the Action Plan requested by Finance Incorporated within seven (7) Business Days from the moment of reception of such inquiry from Finance Incorporated; and/or
8.4.18.2 the statistics of the Chargebacks and fraudulent Transactions of the Merchant does not improve during three (3) calendar months from the moment of receipt of the Action Plan by Finance Incorporated.
8.5 To the extent permitted by applicable laws and regulations, Finance Incorporated shall notify the Merchant before exercising its rights to provide information to the Card Scheme (or law enforcement agencies), to delay processing of Transactions, Settlement and/or Refunds, or to suspend the Acquiring Services in their entirety. If the grounds for exercising those rights no longer exist, Finance Incorporated shall notify the Merchant without undue delay after learning this and shall resume the normal provision of the Acquiring Services.
8.6 Finance Incorporated shall make available to the Merchant through the Merchant’s PaymixVIA Account, the details of the executed Payment Transactions and other information relating to the Transaction history of all Transactions processed by Finance Incorporated (including Refunds, Chargebacks, voided and declined Transaction). The Merchant agrees to reviewing the Transactions through the PaymixVIA Account transaction history.
8.7 Where a Cardholder escalates a Chargeback or similar procedure in accordance with Card Scheme Rules, Finance Incorporated shall inform the Merchant and shall cooperate with Merchant in such procedure as per the Card Scheme Rules. 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.
8.8 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 the Merchant, including in the Merchant’s Account and to start an investigation without prior notice to the Merchant. The Merchant is obliged and undertakes to cooperate with Finance Incorporated and provide all requested information relating to the alleged fraud or unauthorised payments. The Merchant acknowledges and agrees that in some cases of violations, Finance Incorporated may be obliged to report the Merchant to Card Scheme registers or Regulatory Authorities and terminate the Acquiring Services to the Merchant, for which Finance Incorporated shall not be liable.
9. Data Security and Privacy
9.1 The Merchant undertakes to comply with the Payment Card Industry Data Security Standard (PCI DSS) as published from time to time on www.pcisecuritystandards.org. The Merchant shall be responsible for and must ensure that any Card Information and Transaction Data which the Merchant stores (or which a third-party stores on the Merchant’s behalf) is held securely and in accordance with Card Scheme Rules, PCI Compliance Standards, any instructions provided by Finance Incorporated and Applicable Laws. The Merchant further agrees (and undertakes to procure that any relevant third party will) be bound by and comply with the terms of the same. The Merchant shall not sell, purchase, provide, exchange or in any manner disclose Card Information and/or Transaction Data (for example, a card account number or other personal data related to a Cardholder) to anyone other than Finance Incorporated, the applicable Card Scheme or in response to a valid regulatory demand. In providing the Acquiring Services Finance Incorporated shall be responsible for the security of Data that is processed or otherwise stored or transmitted on behalf of the Merchant.
9.2 Finance Incorporated shall strive to inform the Merchant of important news and changes to PCI DSS in the manner and with the frequency that Finance Incorporated deems appropriate.
9.3 The Merchant undertakes to provide reports in writing regarding the validation of PCI DSS compliance of the Merchant to Finance Incorporated, upon request.
9.4 The Merchant undertakes not to store any Card Information or Transaction Data In cases where the Merchant’s business requires handling and storage of Card Information or Transaction Data, such handling and/or storage must be carried out in accordance with all Applicable Laws and the Regulations.
9.5 The Merchant will, and will ensure that any Third-Party Service Provider utilized by the Merchant for the purpose of this Agreement (or for any service provided hereunder) only use technical equipment for the Acquiring Services that is compliant in all respects with (and, if required, approved under) the applicable standards published by PCI Security Standards Council, and the Merchant assumes liability for the compliance of any equipment used by any such Third Party Service Provider with the standards.
9.6 Finance Incorporated shall at all times have the right at its request (following the giving of reasonable notice where possible) to:
9.6.1 receive all information (and confirmations) with respect to the Merchant’s and any relevant Third-Party Service Provider´s compliance with the Clauses above in this Clause 9;
9.6.2 request the audit, review or assessment of Merchant’s and/or any third party´s compliance with Clauses above; and
9.6.3 have Finance Incorporated’s forensics investigators of choice investigating any breach or suspected breach of, or non-compliance with, the requirements of this Clause 9.
9.7 All costs in relation to any request made by Finance Incorporated pursuant to Clause 9.6 shall be borne by the Merchant.
9.8 The 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 Clause 9 that the Merchant becomes aware of.
9.9 In case Merchant suspects irregularities or fraudulent use of Card Information and/or Transaction Data, Merchant is required to report this suspicion to Finance Incorporated without delay.
9.10 Finance Incorporated shall monitor, analyse and confirm that the Transaction activity of the Merchant is conducted in a legal manner and in full compliance with the Regulations regarding the minimum monitoring requirements.
9.11 To this end, Finance Incorporated shall continuously review and monitor the 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. The Merchant acknowledges the Card Scheme requirements with regards to continuous website monitoring and the Merchant will comply with any such requirements and upon request provide reports to both Card Schemes and Finance Incorporated.
9.12 Finance Incorporated may, from time to time, provide the Merchant with procedures, forms, rules, instructions and manuals with which the Merchant shall comply and implement, and which shall become an integral part to the Merchant Agreement.
9.13 Finance Incorporated shall also monitor the Sales Methods utilised by the Merchant and analyse the Transaction activity of the Merchant 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 the Merchant refuse to cease any such Sales Method, Finance Incorporated reserves the right to terminate the Merchant Agreement.
9.14 The Parties agree to work for a constantly low rate (both by count and volume) of disputed and fraudulent Transactions and therefore, the Parties agree that it is in their best interest that each Party takes the measures it deems appropriate in order to minimize the number of fraudulent Transactions. In the event of reaching the threshold for disputed Transactions, as determined and communicated by Finance Incorporated, the Merchant is obligated to establish a plan to reduce the number of complaints. Merchant will follow any instructions issued by Finance Incorporated.
9.15 In the event Finance Incorporated and/or Card Schemes believes that the 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 Schemes have imposed Penalties or additional fees or measures upon Finance Incorporated, then Finance Incorporated shall be entitled to terminate the Merchant Agreement with immediate effect.
9.16 In its sole discretion, Finance Incorporated may decline to continue with the provision of the Acquiring Services to the 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 Clause 17 of these General Merchant Terms and Conditions.
10. Trademarks
10.1 The 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.
10.2 The 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 the Merchant or the performances under the Merchant Agreement.
10.3 The 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 Acquiring Services.
10.4 Subject to the other terms of this Agreement, Finance Incorporated hereby grants to the Merchant a limited, revocable, non-exclusive, non-transferable, royalty-free license, during the term of the Merchant Agreement, to use Finance Incorporated’s trademarks and brands if and only to extent necessary for Merchant to perform its obligations pursuant to the Merchant Agreement.
11. Liability Of The Parties
11.1 Notwithstanding any other provision of the Merchant Agreement, neither party excludes or limits liability to the other party for:
11.1.1 fraud or fraudulent misrepresentation;
11.1.2 death or personal injury caused by negligence;
11.1.3 a breach of any implied condition as to title, encumbrances and/or quiet employment; or
11.1.4 any matter for which it would be unlawful for the parties to exclude liability.
Liability of Finance Incorporated
11.2 Finance Incorporated shall not in any circumstances, whether in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise for:
11.2.1 any loss (whether direct or indirect) of profits, sales, business, business opportunities, revenue, turnover, reputation or goodwill;
11.2.2 any loss or corruption (whether direct or indirect) of data or information;
11.2.3 any loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time);
11.2.4 any loss or liability (whether direct or indirect) under or in relation to any other contract; and/or
11.2.5 any other special, indirect or consequential losses.
11.3 Finance Incorporated will not be liable to the Merchant if Finance Incorporated executes a Transaction in accordance with a unique identifier/and/or Transaction amount and/or Transaction currency provided by the Cardholder, but where the unique identifier/and/or Transaction amount and/or Transaction currency provided was incorrect. Such Transactions shall be deemed to be correctly executed by Finance Incorporated and shall not be construed as unexecuted or incorrectly executed payment transactions for which Finance Incorporated may have liability. However, Finance Incorporated will make reasonable efforts to recover the funds involved in the payment transaction and the Merchant agrees that Finance Incorporated may charge the Merchant for its actual costs in attempting any such recovery.
11.4 Subject to the other Sub-Clauses of this Clause 11, Finance Incorporated’s aggregate liability to the Merchant under the Merchant Agreement (whether the liability arises in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent but not fraudulent), restitution or otherwise), arising in connection with the performance or contemplated performance of the Merchant Agreement or any collateral contract shall be limited to an amount equal to the total fees due by the Merchant to Finance Incorporated or paid under the terms of the Merchant Agreement during the six (6) month period immediately preceding the event giving rise to the Claim for liability (minus any costs such as Card Schemes’ fees).
11.5 Subject to Clauses 11.1 and 11.6, Finance Incorporated shall not be liable to the Merchant for:
11.5.1 any business interruption, loss of profits, loss of business, loss of revenue, loss of goodwill, loss of opportunity, loss or injury to reputation or loss of anticipated savings arising from or in connection with the Acquiring Services, even if Finance Incorporated was made aware of a possibility that such loss or damage could occur; or
11.5.2 any indirect or consequential loss or damage which may arise from or in connection with Finance Incorporated’s performance, purported performance or failure to perform its obligations under the Agreement; or
11.5.3 any loss or damage of a type which was not reasonably foreseeable when the Merchant Agreement was concluded, whether or not the possibility of that type of loss or damage was subsequently advised to or otherwise became known, or should have become known, to Finance Incorporated after the date of the Merchant Agreement; or
11.5.4 any claim where the circumstances giving rise to a Claim:
11.5.4.1 are due to an unusual and unforeseeable event, outside Finance Incorporated’s reasonable control and the consequences of which could not have been avoided even if all due care had been exercised (such as, for example, force majeure, events of war and acts of God, strike, lockout, traffic disruption, acts of domestic or foreign governmental authorities); or
11.5.4.2 were caused by Finance Incorporated’s compliance with applicable laws and regulations; or
11.5.5 any loss or damage to the extent that the Merchant contributed to that loss or damage by any action or omission (whether negligent or not) and the Merchant’s liability in that instance shall be determined in accordance with the principles of contributing negligence; or
11.5.6 the actions or inactions of any intermediary service provider appointed by Finance Incorporated, and Finance Incorporated’s liability in such instance shall be limited to using reasonable care in the selection, appointment and instruction of such intermediary service provider (but not of any third party such provider may use); or
11.5.7 any delay or shortfall in the receipt of funds from the Card Schemes;
11.5.8 any failure or disruption in the technical infrastructure which the Merchant uses if such failure or disruption is due to abnormal and unforeseen circumstances beyond Finance Incorporated’s control.
11.6 Nothing in this Clause 11 excludes or limits the liability of Finance Incorporated for the following:
11.6.1 the correct execution of a Refund unless Finance Incorporated can demonstrate to the Cardholder and/or applicable Issuer or other PSP that they received the Refund payment amount in accordance with Finance Incorporated’s payment execution times;
11.6.2 charges for which the Merchant is responsible, and any interest the Merchant may have to pay as a result of the non-execution and/or defective execution by Finance Incorporated of a validly submitted Transaction;
11.6.3 for the transmission in accordance with Applicable Laws of a payment transaction order where you have validly initiated the payment as the intended recipient of the funds which are the subject of the payment transaction.
11.7 Where the Merchant acts as payer such as when the Merchant executes a refund, Finance Incorporated will be liable to refund to the Merchant any incorrectly executed or unauthorised transactions in accordance with applicable laws. Finance Incorporated’s liability to the Merchant for any unexecuted or incorrectly executed or unauthorised or incorrectly executed transaction shall be limited:
11.7.1 to the amount of the respective payment transaction plus any amount to restore the Merchant’s account to the state in which it would have been had the defective or unauthorised or incorrectly executed transaction not taken place plus any charges for which the Merchant is responsible and any interest which the Merchant must pay as a consequence of the unauthorised or incorrectly executed transaction; and
11.7.2 to those transactions where the Merchant notified Finance Incorporated without undue delay using the contact details provided to the Merchant by Finance Incorporated or on acquiring@paymix.eu. Such notification shall be undertaken by the Merchant on becoming aware of that unauthorised, unexecuted or incorrectly executed transaction or in any event within thirteen (13) months of the date of the payment transaction. That thirteen (13) month period shall commence once Finance Incorporated has made the relevant information about the incorrectly executed or unauthorised transaction available to the Merchant in accordance with terms of the Merchant Agreement.
Liability of Merchant
11.8 The Merchant shall exercise the degree of care and expertise expected of a responsible business person and shall be liable for (and shall indemnify) Finance Incorporated from and against all expenses, costs, claims, obligations or any liability and all other direct damage or loss arising from any breach by the Merchant of its obligations under the Merchant Agreement and/or of Applicable Laws and regulations and Card Schemes’ Rules.
11.9 Where the Merchant is acting as a payer such as in the case of a Refund, the Merchant may be liable to Finance Incorporated for up to €50.00 for any losses incurred in respect of an unauthorised payment transaction, arising from the use of a lost or stolen Card or, where the Merchant has failed to keep safe personalised security features of the Card, or has otherwise contributed to the misappropriation of the Card. The Merchant will, however, be liable for all such losses where it has acted fraudulently or has failed (with intent or gross negligence) to comply with its obligation in relation to maintaining the safety and security of any security credentials or Card issued by Finance Incorporated pursuant to the Merchant Agreement.
12. Indemnity
12.1 The Merchant shall indemnify, defend and hold Finance Incorporated (and its directors, officers, owners, co-branders or other partners, information providers, licensors, licensees, consultants, employees, independent contractors agents and other applicable third parties) (each an “Indemnified Party”) from and against all claims, demands, causes of action, debts, judgments, liabilities, costs, penalties, interest, taxes, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) (collectively “Losses”) suffered or incurred by an Indemnified Party arising out of, as a result of, related to, or in connection with any breach by the Merchant of its obligations under the Merchant Agreement and/or of Applicable Laws and regulations and Card Schemes’ Rules including but not limited to:
a) the actual or alleged breach, or negligent performance, or non-performance, or delay in performance of the Merchant Agreement (including a breach of Clause 8 of these General Merchant Terms and Conditions – Data Security and Privacy) by the Merchant, the Merchant’s employees, agents or sub-contractors or the warranties, representations, covenants, certifications, acknowledgments and/or obligations of the Merchant under the Merchant Agreement;
b) a Transaction, Pre-approved Payment, Refund, Chargeback, Penalty, Claim;
c) any Card Scheme Rules;
d) the Merchant being in alleged or actual breach of any Laws or failure to comply with any Regulatory Authority;
e) the Merchant’s breach or negligent performance or non-performance or delay in performance of any agreement or other legal relationship the Merchant has entered into with customers or Third Party Suppliers;
f) Finance Incorporated acting on the instructions of the Merchant’s Third-Party Suppliers (including if Finance Incorporated collects the fees on behalf of agreements the Merchant may have with Third Party Suppliers);
g) the Merchant’s business operations, a dispute the Merchant may have with customers, the goods and/or services the Merchant supplies and/or their delivery;
h) any Claim made against Finance Incorporated for actual or alleged infringement and/or violation of our or a third party’s intellectual property rights and/or proprietary rights (including actual or alleged infringement of any applicable licensing requirement) arising out of or in connection with the Merchant’s use of the Acquiring Services;
i) Finance Incorporated defending or being joined as party in any proceedings related to the customer/service provider relationship between the Merchant and the Merchant’s customers or the relationship between the Merchant and Third-Party Suppliers and/or any damages awarded against us in respect of any such proceedings;
j) any Claim arising out of Finance Incorporated’s permitted use, promotion or distribution of the information, related trademarks and logos, or images and other materials provided by the Merchant;
k) the Merchant’s wrongful or improper use of the Acquiring Services, the goods and/or services the Merchant provides; and/or
l) the enforcement (or attempted enforcement) of the Merchant Agreement.
12.2 The Merchant agrees that Finance Incorporated shall be entitled in its sole and absolute discretion to accept, dispute, compromise or otherwise deal with any Claim, alleged Claim, loss or liability which is made against Finance Incorporated.
13. Records and Audit Rights
13.1 Unless the Merchant’s PaymixVIA Account is fully restricted, the Merchant shall access details of executed Transactions and other by logging into the PaymixVIA Account. The Merchant agrees and undertakes to review such Transactions and transaction history through PaymixVIA Account instead of receiving periodic statements by mail and the Merchant shall also be able to access a downloadable report from the PaymixVIA Account. Finance Incorporated will ensure that the details of each Payment Transaction will be made available for you to view online for at least thirteen (13) months from when it is first made available.
13.2 The Merchant understands and agrees to keep its own records with respect to Transactions and any other associated Data that Finance Incorporated provides to or makes available to the Merchant under the Agreement and for reconciling such information with the Merchant’s own records. The Merchant undertakes to notify Finance Incorporated of any errors or unauthorised activity and shall notify Finance Incorporated as soon as possible (and no later than thirteen (13) months after the relevant Transaction date) of any unauthorised or incorrectly executed Transactions is reflected in the Merchant’s PaymixVIA Account.
13.3 The Merchant agrees to store and keep secure legible copies of all relevant Data for a period of at least five (5) years following the Transaction associated with the Data, in a manner and form permitted under the Card Scheme Rules and PCI Compliance Standards. This requirement to store and keep copies of the Data is in addition to the Merchant’s obligations to retain such information under Applicable Laws.
13.4 Without prejudice to any audit provisions in the Merchant Agreement, the Merchant will permit Finance Incorporated (or its authorised representatives, relevant Regulatory Authorities and/or the applicable Card Scheme) to audit the Merchant’s procedures, records and performance related to any matter referred to in the Merchant Agreement in such a manner as Finance Incorporated may reasonably consider appropriate. The Merchant agrees to co-operate in any audit request and to provide reliable truthful and complete answers to any questions raised during an audit. Finance Incorporated may retain copies of records which Finance Incorporated ascertains during the course of any audit, such copies to be considered “Confidential Information” for the purpose of the Merchant Agreement. Each party will bear their own costs with respect to complying with the auditing provisions of this Clause 13 of the General Merchant Terms and Conditions.
14. Warranties and Representations
14.1 Unless expressly agreed otherwise in writing, the Merchant represents, undertakes and warrants to Finance Incorporated that at the Effective Date and each time the Merchant uses the Acquiring Services, the Merchant is a Merchant operating from its registered office and/or who carries out its key business activities within the EEA and that the Merchant has the right, power, ability, full capacity and authority to enter into and perform the Merchant’s obligations under the Merchant Agreement.
14.2 Finance Incorporated shall not be responsible for the underlying sales transaction and are not a party to a sales contract, promotion or loyalty/reward programme between the Merchant and the Merchant’s customer (prospective or otherwise) and Finance Incorporated shall not mediate disputes between the Merchant and the Merchant’s customers nor enforce or execute the performance of any sales, offer or loyalty/reward programme contract. The Merchant solely shall be responsible for ensuring that the Merchant’s use of the Acquiring Services is not inconsistent with any other agreement the Merchant may have entered into with its customers.
14.3 The Merchant shall be solely responsible and liable for (and Finance Incorporated are not responsible or liable for) the Merchant’s communications, contracts, agreements, arrangements and/or disputes with and/or entered into with Third Party Suppliers. Any such matters are specifically and solely between the Merchant and the applicable Third-Party Supplier. Any warranties or representations made with regard to any Third-Party Supplier and their business or any products or services are made by the applicable Third-Party Supplier only, and not by Finance Incorporated. The Merchant acknowledges that the applicable Third-Party Supplier is solely responsible for the goods and/or services provided by them and for its products and services quality, suitability and fitness for purpose. The Merchant agrees to release us, Finance Incorporated (and its directors, officers, employees, owners, licensors and agents) from all Claims, demands and damages (actual and consequential) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any communications, organised activities or disputes between the Merchant and any Third-Party Supplier.
14.4 The Acquiring Services (including all content, functions, materials and information made available on, provided in connection with or accessible through the PaymixVIA Account) are provided on an “as is” basis. To the fullest extent permitted by Applicable Laws and under all circumstances other than those expressly made in the Merchant Agreement, Finance Incorporated, its agents, co-branders or other partners make no conditions, representations or warranties of any kind, express or implied, howsoever regarding the Acquiring Services including:
a) any implied conditions, representations and/or warranties of merchantability, satisfactory quality, and/or fitness for a particular purpose; and/or
b) that the Acquiring Services will meet the Merchant’s requirements, be compatible with the Merchant systems, any equipment or will contain any particular features or functionality.
14.5 From time to time, Finance Incorporated may carry out maintenance of the Acquiring Services, which may result in certain parts of the Acquiring Services not being available or accessible, in which case Finance Incorporated endeavours to give the Merchant advance notice.
14.6 The Merchant shall be responsible for implementing safeguards when using the Acquiring Services. While Finance Incorporated endeavours to maintain an uninterrupted Acquiring Service, and except as expressly provided for in the Merchant Agreement and as required by Applicable Laws, Finance Incorporated shall not guarantee that the Merchant’s access to the Acquiring Services will be delivered uninterrupted, securely, timely or error-free, or that the Acquiring Services will be free from viruses or other harmful properties. It is the Merchant’s responsibility to implement satisfactory safeguards and procedures to make sure any files that the Merchant obtains through the Acquiring Services are free from contaminations or other harmful properties.
15. Paymix SoftPOS Application
15.1 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 Merchant Agreement. In the case of any discrepancies between the Paymix SoftPOS Application Terms and Conditions and this Merchant Agreement, the Paymix SoftPOS Application Terms and Conditions shall prevail to the extent of the discrepancy.
15.2 The Merchant understands and agrees that for Finance Incorporated to provide the Acquiring Services, the Merchant shall be required to accept the Paymix SoftPOS Application Terms and Conditions prior to commencement of the Acquiring Services.
15.3 The use of the Paymix SoftPOS Application is in addition to and not in substitution of other payment channels that may be provided by Finance Incorporated. The 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.
15.4 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 the Merchant except for the licence rights specifically set forth in the Merchant Agreement or in the Paymix SoftPOS Application Terms and Conditions.
15.5 The Paymix SoftPOS Application Terms and Conditions will remain in force and binding on Merchant until the Merchant either terminates the Merchant Agreement and/or terminates the Paymix SoftPOS Application Terms and Conditions.
16. Non-Exclusivity
16.1 Nothing in thie Merchant 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.
16.2 Notwithstanding Clause 16.1, of the General Merchant Terms and Conditions, if the 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.
16.3 Finance Incorporated shall have the right to provide the Acquiring Services for any other person acting in any capacity, including merchant, seller, wholesaler, retailer, payment service provider, credit institution or financial institution.
17. Term and Termination
17.1 These General Merchant Terms and Conditions shall enter into force on the date of execution of the Merchant Agreement by the Merchant (the “Commencement Date”) and shall remain in force indefinitely, unless terminated by either party giving the other party prior written notice of at least sixty (60) calendar days, unless otherwise agreed by the parties.
17.2 The Merchant 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 the Merchant Agreement.
17.3 The 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 the Merchant Agreement if Finance Incorporated breaches its obligations under the Merchant Agreement including these General Merchant Terms and Conditions, the Specific Merchant Terms and Conditions, the Paymix SoftPOS Application Terms and Conditions, the Application Form, the Finance Incorporated Privacy Policy and, the Paymix Payment Account (where applicable) 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.
17.4 Finance Incorporated shall be entitled to terminate the Merchant Agreement with immediate effect or to suspend the Acquiring Services in the event Merchant breaches its obligations under the Merchant Agreement to make available funds such payments for which Merchant is or becomes liable in terms of the Merchant 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 Reserve and/or additional Security and/or debiting of the Settlement Account and/or exercising Finance Incorporated’s right of set-off in accordance with the Merchant Agreement in particular, these General Merchant Terms and Conditions and the Specific Merchant Terms and Conditions. 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.
17.5 Finance Incorporated shall also be entitled to terminate the Merchant Agreement with immediate effect or to suspend the Acquiring Services, to be notified to Merchant in writing, if:
17.5.1 Merchant commits a material breach of the Merchant Agreement other than that set out in Clause 15.4. 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 fifteen (15) calendar days of service of the notice requiring such remedy. If Merchant breaches its obligations under the Merchant 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;
17.5.2 Finance Incorporated, in its reasonable opinion, finds that Merchant’s insolvency may be anticipated or Merchant is in fact insolvent;
17.5.3 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;
17.5.4 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;
17.5.5 Merchant suffers or is subject to any equivalent event, circumstance or procedure to those set out above in this Clause 17 in any other jurisdiction;
17.5.6 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;
17.5.7 Merchant breaches any applicable Trading Limit or Floor Limit;
17.5.8 Merchant fails to comply with PCI-DSS and Data Protection obligations;
17.5.9 Merchant fails to perform any of its obligations against the Cardholders;
17.5.10 Merchant or a person connected to Merchant is, or becomes, entered in a register or circumstances occur which constitute grounds for such registration;
17.5.11 Merchant does not accept all Cards in accordance with Regulations;
17.5.12 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;
17.5.13 Finance Incorporated, in its reasonable opinion, finds that Merchant’s payment ability in respect of any payments that are due from the Merchant under the Merchant Agreement, can be called into question;
17.5.14 It comes to the attention of Finance Incorporated that the 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 the Merchant 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;
17.5.15 Merchant fails to perform any of its obligations in respect of the Reserve and/or Security under Clause 5;
17.5.16 The Merchant has included anything in the Application Form which is untrue, inaccurate or misleading or has provided incorrect, incomplete or misleading information to Finance Incorporated;
17.5.17 Finance Incorporated becomes entitled to enforce any additional Security from or in relation to the Merchant;
17.5.18 Finance Incorporated (i) becomes required to terminate the Merchant Agreement or suspend the Acquiring Services by any Card Scheme or Regulatory Authority or under Applicable Laws; and/or (ii) reasonably believes that a Transaction or Settlement or the Merchant Agreement or the performance of it may be contrary to applicable laws, the Regulations, Card Scheme Rules, applicable laws or sanctions (and Merchant acknowledges that Finance Incorporated cannot be obliged to provide any Acquiring Service if it reasonably believes such provision would result in a failure to comply with any applicable laws, sanctions, the Regulations or Card Scheme Rules);
17.5.19 The 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;
17.5.20 Finance Incorporation reasonably considers that any act or omission of the 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;
17.5.21 The ratio of Chargebacks to Transactions exceeds an amount, value or percentage which 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;
17.5.22 Any Regulatory Authority or court of competent jurisdiction has taken action or made statements, orders, requests, directives or demands regarding the 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 the Merchant Agreement; and/or
17.5.23 Any changes to or of applicable laws, the Regulations or sanctions, Card Scheme Rules (i) prohibits Finance Incorporated from exercising any of its rights and/or performing any of its obligations under the Merchant 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.
17.6 The Merchant hereby waives, and fully releases and discharges Finance Incorporated from, any action the Merchant may otherwise have arising from Finance Incorporated exercising its right of termination of the Merchant Agreement or suspension of Acquiring Services, including any challenge in relation to the exercise of Finance Incorporated’s discretion, and the 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.
17.7 Finance Incorporated shall regularly verify how the information which the Merchant has provided to Finance Incorporated, e.g. regarding the time which elapses between the date of payment by Card at the 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. The Merchant shall be obliged to assist, to a reasonable extent, in order to facilitate such verification.
17.8 The verification referred to in Clause 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.
17.9 If information provided by the 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 the 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.
17.10 In the event Merchant does not accept the measures demanded by Finance Incorporated pursuant to Clause 17.9 above, Finance Incorporated shall be entitled to terminate the Merchant Agreement with immediate effect in accordance with the provisions of this Clause 17 of these general Merchant Terms and Conditions.
17.11 Finance Incorporated shall be entitled to amend and issue new Instructions without the prior consent of the Merchant. Such amendments or new Instructions shall enter into force not earlier than thirty (30) calendar days after written notice to the Merchant. In the event the Merchant refuses to accept such amendments or new Instructions, the Merchant shall give written notice thereof to Finance Incorporated immediately, together with written notice of termination of the Merchant Agreement.
17.12 Notice of termination of the Merchant Agreement must be in writing. Notice of termination sent by email shall be deemed to have been given in writing.
17.13 In the event Merchant Agreement is terminated, irrespective of the reason, the provision of 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 whether using the Paymix SoftPOS Application or otherwise. The parties shall remain liable for any and all Transactions effected under the Merchant Agreement prior to termination, regardless of whether the Merchant Agreement is terminated or has expired.
18. Consequences of Termination
18.1 Upon termination of the Merchant 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.
18.2 The termination of the Merchant 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 Merchant Agreement which existed at or prior to the date of termination.
18.3 All rights and obligations of any party shall cease to have effect immediately, save that the Clauses of these General Merchant Terms and Conditions which expressly or by implication have effect after termination of the Merchant Agreement will continue to be in full force and effect and therefore enforceable notwithstanding such termination (including, for the avoidance of doubt, Clauses 3, 4, 5, 7, 8, 9, 10, 11, 12, 14, 17, 18, 20, 21, 24, 25 and 26) of these General Merchant Terms and Conditions.
18.4 Termination shall not affect accrued rights and obligations of any party under the Merchant Agreement as at the date of termination.
18.5 On termination of the Merchant Agreement, the Merchant undertakes to immediately pay all amounts owed by Merchant to Finance Incorporated under the Merchant Agreement and subject to Clauses 4 and Clause 5 of these General Merchant Terms and Conditions, Finance Incorporated shall immediately pay all amounts owed to Merchant under the Merchant Agreement.
19. Force Majeure
19.1 Neither party shall be liable for the failure to perform any obligation pursuant to the Merchant Agreement where such failure is due to a Force Majeure Event where such circumstances are beyond either party’s control which prevents or renders materially more difficult timely performance of its obligations.
19.2 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”).
19.3 In the event that a party wishes to be released from its obligations under the Merchant Agreement by relying on this Clause 19, the party shall, where possible, notify the other party thereof without undue delay.
19.4 In the event the performance of the Merchant Agreement is materially impeded for a period in excess of fifteen (15) Business Days due to a Force Majeure Event, either party shall be entitled to terminate the Merchant Agreement by giving thirty (30) calendar days written notice to the other party.
20. Data Protection
20.1 For the purposes of this Clause 20 of these General Merchant Terms and Conditions “process”, “Controller” and “Processor” have the meaning set out in the GDPR.
20.2 In relation to the performance of its obligations under the Merchant Agreement, each Party shall comply with the provisions of the Data Protection Legislation and any equivalent legislation or regulations in any relevant jurisdiction. For the avoidance of doubt, Finance Incorporated shall only comply with Data Protection Legislation, directly applicable to it.
20.3 Each Party shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Legislation and shall make such information available to any Data Protection Regulatory Authority on request.
20.4 The Parties acknowledge and agree that they shall each be a Controller for the purposes of Data Protection Legislation. In particular Finance Incorporated shall determine the purposes and manner of its own processing of Personal Data, including for the purposes of:
20.4.1 risk management including fraud monitoring, prevention, detection and prosecution;
20.4.2 regulatory compliance activity including anti-money laundering, financial crime compliance and identity screening;
20.4.3 the Company’s compliance with the Card Scheme Rules and
20.4.4 the Company’s compliance with any other Applicable Laws.
20.5 If either party receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data by the other party or to either party’s compliance with the Data Protection Legislation, it shall promptly notify the other party and it shall provide the other party with reasonable co-operation and assistance in relation to any such complaint, notice or communication.
20.6 Where the Merchant transfers Personal Data to Finance Incorporated, the Merchant warrants and represents to Finance Incorporated that it has the right to transfer such Personal Data to Finance Incorporated, and that it has either:
20.6.1 obtained all necessary consents to transfer the Personal Data to Finance Incorporated at the appropriate time, or
20.6.2 secured another lawful basis, in accordance with applicable Data Protection Legislation, to process the Personal Data and to share such Personal Data with Finance Incorporated for processing as envisaged by this Agreement,
20.6.3 and provided appropriate privacy notices to the relevant Data Subjects (as required by Data Protection Legislation) to enable it to share the Personal Data with Finance Incorporated for the purposes of providing the services envisaged by this Agreement.
20.7 Notwithstanding Clause 20.4, where (and only to the extent that) either party processes any Personal Data as a Processor on behalf of the other party in connection with the Merchant Agreement and the provision of the Acquiring Services, the first party will comply with the provisions and obligations imposed on a Processor by the GDPR, including the stipulations set out in Article 28(3)(a)-(h) of GDPR which shall form a part of, and be incorporated into, these General Merchant Terms and Conditions as if they were set out in full, and the reference to “documented instructions” in Article 28(3)(a) shall include the provisions of these General Merchant Terms and Conditions. Such processing shall be in respect of Cardholder Data and for the purposes set out in the Merchant Agreement, and such processing shall take place for the term of the Merchant Agreement and in compliance with Applicable Laws.
20.8 The Merchant acknowledges that, in order to provide the services under the Merchant Agreement, Finance Incorporated may be required to share Personal Data with (i) payment processors, credit reference and fraud prevention agencies; (ii) any other person if required by applicable law or regulation (including, without limitation, statutory or regulatory reporting obligations); and (iii) and any other person to whom Finance Incorporated transfers its rights under the Merchant Agreement in accordance with Clause 20 of these General Merchant Terms and Conditions.
20.9 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.
21. Confidentiality and Registration
21.1 Neither Party may disclose to any third-party information regarding the other Party’s business which may be considered a business or trade secret. This Clause 21.1 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
21.2 The Merchant consents to Finance Incorporated, in accordance with applicable bank secrecy rules, transferring such information as referred to in Clause 21.1 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’.
21.3 The Merchant consents to Finance Incorporated disclosing such type of information about the Merchant and the Merchant’s Transactions, that Finance Incorporated deems necessary, including fraud data, dispute related data, issuer data, to the parties listed in Clause 21.2 above. The 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 the Merchant Category Classification (MCC) code, to payment service suppliers.
21.4 Registration of the Merchant in Special Registers may take place due to inter alia the Merchant’s breach of this Agreement or due to Merchant having provided incorrect, incomplete or misleading information, e.g. upon execution of the Merchant Agreement.
21.5 Such a register as referred to in Clause 21.4 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 the Merchant 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.
22. Amendment
21.1 Finance Incorporated shall notify the Merchant in writing (which may include by email) of any amendments to the terms of this Agreement. Those amendments shall be deemed to have been accepted by the Merchant and shall take effect on the date stated in the notice (which shall be at least two (2) months after the date of the notice) unless the Merchant notifies Finance Incorporated in writing of its objection and Finance Incorporated receives that objection before the date on which those amendments are due to take effect.
22.2 Any notice from the Merchant objecting to the amendments shall operate to terminate the Merchant Agreement immediately prior to the proposed amendment becoming effective.
23. Assignment
23.1 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.
23.2 Finance Incorporated may, however, without the consent of Merchant, assign its rights and/or obligations to companies within the same group as Finance Incorporated
23.3 Finance Incorporated may assign its rights and obligations under the Merchant Agreement to another company at any time, on giving two (2) months’ prior written notice to the Merchant. If Finance Incorporated does this, the Merchant’s rights under the Merchant Agreement will not be affected.
24. Miscellaneous
24.1 In respect of the day-to-day co-ordination pursuant to the Merchant 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 the Merchant Agreement are informed of the content.
24.2 In the event the Merchant 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.
24.3 Other than as stated in the Merchant 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 the Merchant Agreement.
24.4 Headings in these General Merchant Terms and Conditions are for ease of reference only and shall not affect the interpretation of the Merchant 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.
24.5 Each Party shall within reasonable time notify the other Party about matters that affects, or could affect, the Parties’ co-operation pursuant to the Merchant Agreement.
24.6 The 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 these General Merchant Terms and Conditions or in the Merchant Agreement more broadly and any such transfer is to be deemed null and void. Finance Incorporated may retain subcontractors or third parties without Merchant’s consent.
24.7 The Parties confirm that the General Merchant Terms and Conditions and specifically the Merchant Agreement as a whole 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.
24.8 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 the Merchant Agreement are contained in the Merchant 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, the Merchant Agreement.
24.9 All rights and obligations under (and the Clauses of) these General Merchant Terms and Conditions Agreement shall survive the termination of the Merchant 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 Clause 19 of these General Merchant Terms and Conditions shall survive the termination of the Merchant Agreement.
24.10 All messages and notices in accordance with the Merchant 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 email address as previously notified in writing by the Merchant to Finance Incorporated. The parties agree that the Merchant’s potential complaints may be responded to English and may be delivered in accordance with the complaint’s process as set out on Finance Incorporated’s Website: https://www.paymix.eu/ 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 Business Day. In this regard, ordinary working hours shall mean 8 am to 5 pm Central European (Summer) Time.
24.11 No delay by or omission of any party in exercising any right, power, privilege or remedy under the Merchant 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 the Merchant Agreement or any failure to perform or breach by another party shall not constitute or be deemed a waiver of any other right under the Merchant Agreement. The rights and remedies provided in the Merchant Agreement are non-exhaustive and not exclusive of any rights and remedies provided by law.
24.12 In the event any provision or part of the Merchant Agreement is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Merchant Agreement, will be inoperative.
25. Regulatory Disclosures
25.1 The following information is provided to the Merchant in accordance with Finance Incorporated’s obligations under Applicable Laws.
25.2 Finance Incorporated’s registered address is located at: Capital Business Centre, Block A, Floor 2, Triq-Taz-Zwejt, San Gwann, SGN 3000, Malta.
25.3 Finance Incorporated is regulated by the Malta Financial Services Authority.
25.4 These General Merchant Terms and Conditions is Finance Incorporated’s “framework contract” as defined by the PSD and any applicable laws implementing the PSD in the Merchant’s jurisdiction.
25.5 The Merchant Agreement is provided and concluded in English. Finance Incorporated will communicate with the Merchant in English for all matters related to the use of the Acquiring Services. Where Finance Incorporated may have provided the Merchant with a non-English translation of the English language version of the Merchant Agreement, the Merchant understands and agrees that the translation is provided for the Merchant’s convenience only and that the English language version of the Merchant Agreement will govern the Merchant’s use of the Acquiring Services.
25.6 During the term of the Merchant Agreement and at the Merchant’s request, Finance Incorporated will provide the Merchant with a copy of these General Merchant Terms and Conditions. Finance Incorporated shall also provide the Merchant with information concerning the Transactions and other information which Finance Incorporated is required to provide to the Merchant under Applicable Laws. Finance Incorporated shall provide such information in a form which allows the Merchant to store and reproduce the information. It is the Merchant’s responsibility to maintain equipment and access to the Internet to receive such documents and information.
25.7 By signing the Merchant Agreement, the Merchant acknowledges that Finance Incorporated has been provided with the necessary information from and authorisation by the Merchant in order for Finance Incorporated to execute Transactions, to hold the Settlement in accordance with the Merchant Agreement, to execute payment orders to transfer funds to the Reserve Account (where applicable) and to transfer the Settlement to the Merchant’s Settlement Account, in accordance with the details provided in the Application Form and/or the Specific Merchant Terms and Conditions.
25.8 Finance Incorporated shall execute any Transactions and/or Settlements in accordance with the execution times that Finance Incorporated shall have communicated to the Merchant.
25.9 Finance Incorporated reserves the right in its sole discretion to refuse to execute a Refund if it was not requested in accordance with the terms of the Merchant Agreement, the applicable Card Scheme Rules or if it is not permitted by Applicable Laws. If Finance Incorporated has refuses to execute a Refund, the Merchant shall be notified of such refusal and if appropriate, the reasons for its refusal and how to rectify any possible mistakes made in submitting the Refund. Finance Incorporated shall endeavour to provide such information within the time it would have normally taken to fully process the Refund unless prohibited to provide such information by Applicable Laws. Any Refund that is refused by Finance Incorporated will not have been treated as being received and Finance Incorporated shall not be additionally liable for any non-execution nor defective execution of the Refund.
25.10 The Merchant shall notify Finance Incorporated, without undue delay (and no later than thirteen (13) months from the date the unauthorised Refund was shown to be debited from the Merchant’s PaymixVIA Account). Upon receipt of the necessary and relevant information from the Merchant, Finance Incorporated shall repay the Merchant an amount equal to the unauthorised Refund (including any associated costs we may have charged you in connection with the Refund), together with amending the Merchant’s PaymixVIA Account details to the state it would have been if the unauthorised Refund had not taken place. This provision is subject to Clause 11 (Liability).
25.11 Finance Incorporated’s Website is: https://www.paymix.eu/
26. Applicable Law and Disputes
26.1 These General Merchant Terms and Conditions shall be governed by and construed in accordance with Maltese Law.
26.2 Disputes relating to the Merchant Agreement, its execution, interpretation and/or application or other legal relations connected to the Merchant Agreement shall preferably be resolved through negotiations between the Parties.
26.3 Any dispute, controversy or claim arising out of or in connection with the Merchant Agreement, or the breach, termination or invalidity thereof, and which could not be resolved within thirty (30) calendar days pursuant to Clause 26.2 above, shall be finally settled by the Courts of the Republic of Malta.