These GMPAYS Merchant Terms and Conditions (hereinafter referred to as “MSA Terms” set out below and the GMPAYS Merchant Agreement signed between MERCURIUS PARTNERS S.R.O., a company residing in I.P.PAVLOVA SQ .3, 120 00 PRAGUE 2, CZECH REPUBLIC (hereinafter referred to as the “PSP”) and individual Merchants, as may be amended from time to time pursuant to the method agreed between the Parties, shall form the basis of the mutual cooperation between the relevant Merchant and PSP.
The Merchant agrees and acknowledges that the Merchant Terms, as may be amended by G2A.COM from time to time, are an integral part of the Merchant Agreement.
Unless otherwise provided herein, all terms used in these Merchant Terms shall have the same meaning as defined in the Merchant Agreement.
All references to the Merchant Agreement shall also include these Merchant Terms unless the context requires otherwise.
In this Agreement, unless clearly inconsistent with or otherwise indicated by the context:
“Law on payment system” - Law no. 370/2017 of the Czech Republic on Payment System
“Agreement”, “MSA Terms” means this payment processing services agreement, including all exhibits, supplementary schedules, addenda or other agreements and documents incorporated and/or to be incorporated herein.
„Account” - a payment account in accordance with §2 of the Law on payment systems, which PSP creates for the Merchant through software in accordance with §210 of the Law on payment system intended for use by PSP services, access to which is provided to the Merchant automatically after its successful registration, verification and after the conclusion of this Agreement.
“Payments” means payments in according with the §3 of the Law on payment system for goods or services distributed (rendered) via the Merchant’s website.
“Payouts” means any transfer of funds to the personal accounts (purses) of Clients within the payment services systems of the Operators. Personal accounts (purses) of the Operators’ payment services shall be understood as electronic money personal accounts of the Operators’ Clients or any other payment services Operators and Communications service providers. Transfer of funds for Payouts are made by the PSP under the Merchant’s instructions within the Amount of Security.
“Operator of payment services, Operator” means any payment service Operator, including, but not limited to: the card scheme(s), the card Issuer, the acquiring Bank, the payment processing services provider, the payment system Operator, the money transfer Operator, the electronic money Operator, the payments reception Operator, the bank payment agent, rendering services on the payments reception from the Clients in favor of the Merchant, as well as effecting payments from the Merchant to the Client which are approved by the Merchant under this Agreement.
“Acquirer / Acquiring Bank” means an authorized financial institution, Credit institution or Bank which receives payments under the Agreement and which services the settlements of PSP.
“Business Day” means a day where banks are generally open in the Czech Republic and the Merchant's country of domicile.
“Card” means a valid electronically recognized credit or debit card issued by Credit Institutions authorized to issue payment cards. A Card is deemed to be valid if the transaction is concluded on a date falling between the first day of the year and month where indicated of Card’s validity term embossed on the Card, and the last day of the year and month of Card’s validity term embossed on the Card.
“Card Institution” means Visa, MasterCard, any ATM or debit network, other financial service card organization(s) authorized to issue payment cards.
“Cardholder” means a person who is a customer of the Merchant and to whom a Card is issued, or who is authorized to use the Card.
“Chargeback” means a transaction cancellation initiated by the cardholder or bank issuing the card.
“GM Pays” means a payment gateway, that is associated with authorization centers (payment providers and other financial institutions and which allows data to be transferred to the IT systems of these institutions in order to perform online payment transactions.
“Customer”, “End-User”, “Client” means any person, purchasing the goods and/or services offered at the Merchant’s website.
“Customer Data” means all information that Customer provides in the course of making a payment to the Merchant, including card information, transaction data and/or security-related information used to authenticate cardholders and/or authorize transactions.
"Fee Schedule" a description of charges to be paid for the services used through PSP.
“Intellectual Property” means all of the following owned by a party: registered and unregistered trademarks and service marks and trade names, and goodwill associated therewith; patents, patentable inventions, computer programs, and software; databases; trade secrets and the right to limit the use or disclosure thereof; copyrights in all works, including software programs; domain names.
“Merchant” means the entity who sells goods or services at its website and enters into this Agreement.
“Merchant's Bank Account” means the bank account that the Merchant specifies when providing his data during the registration procedure, to receive its Payout amounts.
“PSP Website” means https://gmpays.com/
“Payout amount” means the amount due to the Merchant from the Merchant transactions minus PSP's fees and any other Refunds, Chargebacks, Penalties or other amounts due to PSP.
“PCI DSS” means the payment card industry data security standards.
“Refund” means a refund issued by the Merchant through the Account registered on PSP website or through the Merchant API access.
“Invalidated Payment” means an attempt by the Cardholder to perform Transaction by using the Card or Card data to settle payment for purchase of goods or services from the Merchant, as a result of which Authorization is carried out denying the transaction performance.
“Reserve”, “Holdback” means amount expressed in absolute numbers or percents of the Merchant Payout amounts that PSP holds in order to protect against the risk of Refunds, Chargebacks, or any other risk, exposure and/or potential liability to PSP related to the Merchant use of PSP payment processing services.
“Amount of security” means the Merchant’s funds held by the PSP to ensure compliance with obligations to implement the continuity of Payouts. The Amount of security is determined by the Merchant at his own.
“Restricted Activities” means any activity specified in the “PROHIBITIONS AND LIMITATIONS” Section herein, a ban on certain actions, which the PSP updates regularly on its website in the section „PROHIBITION AND LIMITATIONS“.
“Services” means the services to be provided by the PSP under this Agreement.
“Transaction” means a transfer of funds between the Merchant and a third party related to the sale of goods and/or services.
“Website” means website or online system allowing Payers/Payees to make and receive Payments through the integration of the PSP Service and subject to the terms of this Agreement.
Any other terms, not defined in this Section, shall be interpreted pursuant to applicable laws, mentioned herein.
i. This Agreement shall become effective upon the signing hereof by the parties hereto ("Effective Date").
i. PSP provides Business Accounts.
iii. Business Account may be registered on behalf of any legal entity only by its authorized person.
iv. The registration of the Account requires that the Merchant specifies and uses their email address and a reliable password.
v. Upon the registration of the Account, in order to use PSP fully-fledged, the Merchant is obliged to pass the verification procedure through the provision to PSP of the additional information and the required documents. Until that authorization process is confirmed by PSP no services can be provided.
vi. Taking into account the KYC and AML and similar procedures of European Economic Area (EEA) and other countries, the Administration will require the Merchant to pass the compulsory verification when registering a new Account.
vii. As indicated above, after the Merchant agrees to be bound by this agreement and fill in the registration form, passes the authorization of its account, PSP will establish an account for the Merchant. Thereupon, the Merchant may establish only one Account.
viii. PSP may request additional information and/or documents from the Merchant in the process of identification and verification procedures, including the Merchant financial credentials and history. In case of insufficient credibility, in PSP’s judgement, PSP may terminate these MSA without notice
ix. The Merchant is fully responsible for all activity that occurs under their Account, including for any actions taken by persons to whom the Merchant has granted access to the Account, if done so. Administration reserves the right to suspend or terminate the Account of any Merchant who provides inaccurate, untrue, or incomplete information, or who fails to comply with the Account registration requirements or these Terms.
i. The Merchant is entitled to cancel its Account at any time.
ii. If the Account is cancelled: it will be deactivated or deleted; all of the rights granted under these MSA Terms will immediately come to an end.
iii. All of the Merchant’s data and content may be deleted from our systems provided that it is in compliance with the applicable Data Protection laws (EU General Data Protection Regulation, concerning the privacy of the individuals from within the EU/EEA, etc.), and/or duly archived for the necessary period of time if and where required by the Acounting Act of the Czech Republic, Law on Protection of Personal Data of the Czech Republic, AML Act of the Czech Republic and the Law on Payment Systém.
i. The subject of this Agreement is to define the rules of cooperation between the Merchant and PSP within usage of the GM Pays which allows a Customer to pay for the products and/or services purchased on the Merchant’s Website.
ii. Under the terms and conditions provided herein, PSP provides the Merchant with GM Pays to implement it at the Merchant’s Website.
iii. The PSP Service allows the Customers to use various methods of Payment (Card, APM), accepts the Payers’ Payments, confirms the Payments for the Customer and transfers these Payments to the Payee’s account, with respect to transactions concluded via the Website. The available Payment methods are displayed in the Merchant’s Account.
iv. Each Payment initiated on the PSP Service is assigned a unique Transaction identification code. The Customer should keep the number for the purpose of checking the Payment status as well as complaint procedures.
v. PSP provides processing Services for all payment Transactions, ensuring the data (including sensitive data) to be properly encrypted and highly secured in accordance with all industry standards, including Payment Card Industry Data Security Standards (PCI DSS).
i. The Merchant shall be the sole responsible party in relation to the end-users as per the Merchant’s products/services and/or their functionality, and the Merchant will in no manner represent that PSP is a guarantor or responsible party for those products, or otherwise involve PSP in an End User Customer or other third party dispute relating to the transaction, delivery or functionality of a product.
ii. Using the PSP Service, the Merchant shall have all required contact and identifying information on its website for purposes of informing the end-users of complaint, warranty and refund rights.
iii. The Merchant acknowledges that respective Card Association Rules for the Merchant’s credit card acceptance policies and procedures may require the Merchant to make changes to its website and working conditions to make sure that they are in compliance with financial credit card institution standards. The Merchant shall allow PSP to monitor its activities.
iv. PSP informs that Merchant is responsible for identifying the end customer in the context of fulfilling AML international requirements. At the request of the PSP, the Merchant is obliged to provide all the necessary information about his final client and to interact with the client in the event of a PSP request.
i. PSP may prohibit the sale of products/services in accordance with its internal policies, at its sole discretion.
ii. PSP may impose limits on sales of products/services and refuse to process Transactions for specific Customers for any reason, at its sole discretion.
iii. PSP shall not be held liable to the Merchant for any losses, expenses, or damages, including claims for lost profits, resulting from or related to PSP's imposition of limits on Transactions or Reserve amounts, for any reason.
iv. In case of reasonable suspicion that Merchant activity or any of its parts contains information about prohibited items/services or induces to illegal/illicit activity, the Administration has the right to block an access to such information without prior notice.
v. The Merchant shall comply with PSP’s list of Prohibited/Restricted Items and Activities as set forth on its Website and updated as appropriate, and/or as indicated in the Appendix 2 of this MSA.
vi. PSP may change the list without prior notice to Merchant. Tracking changes and timely testing of their activities in accordance with the List of Prohibitions and Limitations is a direct responsibility of the Merchant.
vii. The Merchant’s responsibility to ensure that it does not use the PSP’s services for transactions that may be considered illegal in the Merchant’s jurisdiction.
viii. Administration reserves the right to suspend or terminate the Merchant’s Account at any time if reasonably believe to be required to do so by law or in order to comply with recommendations issued by a relevant government authority or recognized authority for the prevention of financial crime.
ix. The Merchant is strictly forbidden to use his Account for any illegal purposes including but not limited to fraud and money laundering. The Merchant is prohibited from using his Account in an attempt to abuse, exploit or circumvent the usage restrictions imposed by the Merchant on the services it provides.
x. It is strictly forbidden to use PSP services for business activities or websites which was not previously approved in PSP dashboard and/or by PSP compliance team.
xi. In case the Merchant performs transactions within PSP payment processing system with the Merchant Account by using a website which was not previously indicated in the registration form as the Merchant’s website, through which the Merchant operates (the ‘registered website’), or the Merchant using PSP for business activities which are different from activities approved by PSP on the date of website approval, using redirects, fake websites, misleading of customers to another website to submit the payment using approved website, redirects or in case the Merchant's website fully or partially fails to comply with pre conditions stated in this Agreement, PSP reserves the right at its sole discretion:
· to apply contractual penalties of unregistered website (25 000 EUR); and/or
· unilaterally terminate this Agreement and stop provision of services hereunder to the Merchant; and/or
· suspend provision of the services and block all of the Merchant’s amounts and their payment until full clarification of all circumstances.
i. The Merchant shall be solely liable for the content of its website(s) and full compliance with the mandatory laws and regulations of the country(-ies) where the Merchant operates or is directly or indirectly involved in the sale of goods or services from its website(s).
ii. The Merchant will be entitled to the PSP support services that are specific to the services they selected during the enrollment process and to any subsequent service package selected.
iii. The Merchant shall be fully liable for content, correctness of advertisements in its website(s) and their compliance with requirements of applicable laws.
iv. The Merchant shall inform PSP of any changes in business products or services it provides or any other anticipated changes. A warning of PSP must be made in writing at least 10 working days before the entry into force of such changes. The Merchant can notify the PSP through the information system in which the Merchant is registered, or by sending an email to the official PSP email or by mail service with the delivery certificate. The merchant must make sure that such a notice has been received by the PSP.
v. The Merchant shall inform PSP on any changes in Merchant’s Bank Account(s) number(s), where the PSP amounts due to the Merchant should be paid, at least 3 business days starting from coming into effect of such changes.
vi. The Merchant is obliged to:
· not use PSP services in an unlawful manner. The Merchant will not use Services for the sales of goods and/or services which are in breach of any legislation and particularly the Czech legislation, local Merchant’s legislation and international legislation. The particular attention should be paid to the area of fraud, Money Laundering or Terrorist Financing, and the sanction legislation.
· notify PSP in the event of theft or any unauthorized access to the data of transactions, as quickly as possible, but no later than 24 hours afterwards;
· be involved, grant cooperation and assist PSP to solve issues or disputes arising between all parties involved in performance of the Agreement (Acquirer(s), Card Organisation(s), Cardholder(s), Customer(s)) so that the amount of potential claims, fines or other losses and costs would be decreased to the minimum extent;
· keep documents and any information confirming the transactions (receipts, if any, confirmations of supply and others) for at least 10 years after performance of transactions and submit them to PSP upon its request;
· develop and maintain (including hosting of the arrangements) the Merchant website ensuring its accessibility on the internet. Through the Merchant website, it should be ensured that any placed orders for products and/or services shall be properly fulfilled. The Merchant must also ensure unobstructed transmission of any transactional information to the PSP’s servers and that the Merchant’s system (software and hardware) is not tainting the transmitted information in any way;
· ensure that collection, storage and transmission of client data is performed using security policies that are in line with business best practices and which protect the privacy of client data as required by the processing of personal data (protection of individuals) Law. For using its service, the PSP may review the Merchant data handling process and if deemed necessary, request that the Merchant undertake to bolster its process, within reasonable commercial limits, to further safeguard the client data and the overall security of the PSP service;
· ensure that any information procured through the use of the PSP service should only be used in conjunction with the service and in such a way that it is acceptable in accordance with the Agreement and the PSP policies. The Merchant should not permit the use of such information by any other third party other than in conjunction with the service;
· use the PSP service in accordance with the terms and conditions stipulated in the Agreement;
· ensure that the Merchant is up to date with any amendments to the terms and conditions of the Agreement and with any changes to the services provided by the PSP;
· maintain the Amount of security balance necessary for the Payouts;
· promptly provide access to all necessary documentation and give full cooperation and disclosure as required to complete security audits.
vii. The Merchant is responsible for the registration, filing, reporting, and payment of all applicable taxes with connection to its business nature and activity.
viii. The Merchant agrees to pay the Fees as consideration for the applicable services provided by the PSP to it. The payable Fees are as stipulated in the Schedule of Fees as provided for either in the Agreement signed with the Merchant or as provided on the PSP website. Fees may be changed from time to time, at the sole discretion of the PSP and the revised fee schedule will apply to any new Agreement, or upon renewal of the Agreement which will be subject to the terms and conditions applicable at the time. The Merchant has the right to not renew the Agreement if it objects to any revision on Fees.
ix. Any Fees that are due upon entering into this Agreement should be settled immediately in any of the forms accepted by the PSP and stated in the Schedule of Fees. The Merchant agrees that any fees that are due at the time the service is delivered, will be settled either immediately by the PSP withholding the respective fee amount from its Client’s account.
x. All fees owed by the Merchant to third parties are not subject to this Agreement and they are his/her sole responsibility.
i. PSP shall provide the Merchant the services stated in this Agreement to the Merchant in due quality and within the limits of its technical possibilities:
· providing with certain software and documentation related to the use of the GM Pays to enable the use of the GM Pays on the Merchant’s Website. PSP hereby grants the Merchant a royalty free, non-exclusive, revocable, non-sublicensable, non-transferable, limited license to use GM Pays on the Merchant’s Website during the Term of the Merchant Service Agreement.
ii. The PSP agrees (always subject to the terms and conditions of the Agreement) and is responsible to:
· provide the services for which the Merchant subscribes to and pays for to the Merchant;
· provide the Merchant with (or provide access to through the PSP platform system) standardized transaction reports as well as accounting reporting tools that the Merchant can use in preparation of its accounting records.
· transfer the collected funds to the Merchant after withholding:
- PSP’s Fees in accordance with the Appendix 3;
- amounts of the PSP’s bank commissions (transfer fees, conversion fees);
- the Amount of security (its balance);
iii. The PSP has the right and the Merchant agrees that it may at any time:
• amend the terms and conditions of the Agreement including any and all of its Schedules including but not limited to vary unilaterally, if the number of rejected Authorizations exceeds 10% (ten per cent) of the total monthly number of Authorizations, the amount of the fee charged from the Merchant and/or to unilaterally discontinue Authorizations. Information on a variation in the amount of the fee or on the discontinuation of Authorizations will be communicated to the Merchant in the form of a written notice sent to the Merchant’s e-mail specified in the Agreement;
• change all or part of the services it offers to the Merchant under the Agreement;
• amend and/or change services of any kind as indicated above in the Agreement, that will be enforced and be binding within 5 working days upon the provision of written or electronic notification to the Merchant. The method of delivery of the aforementioned amendments and/or changes to the services will be chosen by the PSP at its sole discretion. Although the PSP will endeavor to inform the Merchant of the aforesaid in the delivery methods prescribed, the Merchant agrees to remain updated of any such amendments to the terms and conditions and any changes to the services, by periodically reviewing the various delivery methods for any such notifications. Continued use of the services by the Merchant will be construed as acceptance of the amendments and/or changes, and the Merchant agrees to be bound by them;
• unilaterally and without prior notice to the Merchant, use the Holdback (i.e. Funds held by the PSP to cover any possible charge(s), penalties, fines, Chargeback(s), fees and expenses mentioned or referred to in the Agreement) and/or funds of the Merchant for the refund of the sums to a customer related to the discharge of a Chargeback(s) made by a Customer, a card issuer, as well as upon prior notice for the purpose of fulfilment of the Merchant’s responsibility and liabilities within the framework of the Agreement (coverage of the PSP’s charges and/or penalties imposed by the card organization(s) and/or regulatory authorities).
• unilaterally with or without prior notification use the Holdback with the aim to:
- return transaction amounts to Customers, including but not limited to paying commissions, fees and costs of arbitration relating to consideration and processing of Chargebacks;
- pay penalties imposed by the PSP and the card organizations due to the breach of their rules or regulations by the Merchant and/or place such Holdback as a guarantee for fulfilment of liabilities of the Parties;
- pay the liabilities that have not been fulfilled by the Merchant in regard of the PSP;
- pay damages caused to the PSP (including reputational) by the Merchant’s actions.
iv. The PSP does not guarantee the security of the Services or Transaction data, and the PSP will not be responsible in the event of any infiltration of its security systems, provided that the PSP has used commercially reasonable efforts to prevent any such infiltration. The Merchant further acknowledges and agrees that Merchant, and not the PSP, is responsible for the security of Transaction data, or information or any other information stored on Merchant's servers, and that the PSP is not responsible for any other party's servers (other than subcontractors of the PSP solely to the extent the PSP is liable for its own actions hereunder).
i. The Merchant guarantees that the products/services offered by it shall be in compliance with the information specified in the name and description of the items.
ii. Placing information about the products/services subject to mandatory certification, where applicable, or licensed activities, the Merchant is responsible for the respective documentary permits availability, where applicable.
iii. In case the Administration reveals information, products, services prohibited to be published and/or offered in accordance with these MSA Terms and/or the applicable legislation, or the activity provided without appropriate authorization and permits, the Merchant account will be blocked automatically without notice.
i. The Merchant shall pay to PSP the Fees in the amount calculated in respect of each Payment amount at the rates specified in Appendix 3 to this Agreement. PSP shall be entitled to deduct the Fee from the amounts due to PSP before transferring the same to the Merchant.
ii. Fees can be payable in Euro, US Dollar and Russian Rubles. The Merchant agrees to pay all applicable sales, value added (VAT) and any other taxes relevant to the PSP services or to any payments made to the PSP where such relevant taxes apply. No deductions or withholding should be made to the aforesaid payments unless otherwise required by law. In such a case, the fee sum that the withholding party must pay, will be adjusted to include any such deduction or withholding, ensuring that the resulting amount the PSP receives is equal to what the amount would have been, should it not have been for such a deduction or withholding being required. Unpaid balances that are overdue (where overdue means that their “pay by” date has lapsed and any additional remedial period has also lapsed), will accrue a late charge interest of 2% per month or the maximum allowed under the law, where the lesser of the two will apply. In the event that the PSP cannot collect the fees due, it shall have the right to terminate the Agreement in accordance with the terms.
iii. Amounts due to the Merchant from Payments processed (directly or on behalf of the PSP), reduced for the amount of applicable Fees, shall be paid by PSP to an account designated by the Merchant, as agreed by the parties (report period, currency, etc. details).
iv. All Settlements hereunder shall be made in Euro and/or Rubles. The Merchant is entitled to specify the currency of transfer of funds by means of notification of the PSP via email.
v. In case of the currency of transfer of funds specified by the Merchant differs from the Currency of transaction than the funds due to the Merchant hereunder, shall be transferred to the Merchant after being converted at the exchange rate of the PSP’s bank which is prevailing at the date of exchange to be made. The Merchant shall bear responsibility to pay the PSP’s bank commissions for currency conversion.
vi. In case of volume of Payouts is more than the amount, which is to be transferred to the Merchant, than the Merchant increase by a transfer the Amount of security by transferring funds to the PSP.
vii. PSP may retain a portion of the proceeds of Transactions, to establish and maintain a Reserve. Any funds held in a Reserve for whatever reason shall accrue no interest, or any other earnings to the Merchant.
i. If the Merchant desires to cancel any Transaction and Refund the Transaction amount, the Merchant must inform PSP thereon in writing by email indicated in the Agreement or using its program interface on PSP transaction data recording system.
ii. The notice should include information on the initial Transaction, as well as the Transaction identification code. PSP will act strictly in compliance with this instruction within 1 business day after receipt of such instruction.
iii. In case some fraudulent transaction is found, it can be cancelled upon PSP initiative, together with all logically related Transactions and the Transaction amount repaid to the end Customer’s card.
iv. The Transaction cancel and Refund of the Transaction amount mentioned in this clause can be referred to all logically related Transactions which have been performed within previous 180 days.
v. PSP is entitled by informing the Merchant to unilaterally annul any suspicious or fraudulent Transaction and Refund the Transaction amount to the end user. In such case, where required at law, PSP may report a fraudulent Transaction to the competent authorities.
11 APPLICABLE LAW AND DISPUTES RESOLUTION
i. This contract is regulated by Act No. 89/2012 Coll. - the Civil Act of the Czech Republic. Payment services provided by the company are regulated by Act No. 370/2017 Coll. on payment services.
ii. All and any issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be governed by and construed in accordance with the laws of the Czech Republic and Visa/MasterCard Regulations.
iii. Any disputes, disagreements or claims arising from this Agreement or related to it or relating to its violation, termination, invalidity, interpretation and reimbursement of legal costs shall be resolved in the city court, which will be territorially related to the PSP. All disputes and disagreements that might arise from these MSA Terms shall be primarily resolved by means of negotiations.
iv. All disputes that relate to a conflict with these MSA or disputes related to fees for PSP services will be resolved through the Financial Arbiter of the Czech Republic, to whom Merchant may apply to assess the disputed situation.
v. If the rights of the Merchant are violated, or it seems to the Merchant that the PSP is acting illegally, he may contact the supervisor and regulator of the PSP - the Czech National Bank.
vi. The Merchant agrees that for the purposes of the settlement of disputes between the Parties, an e-mail correspondence with the authorized persons of the PSP shall be the effective and binding method of communication.
vii. If the Parties cannot agree on the subject of the dispute within thirty (30) days, the dispute shall be submitted to the competent court in accordance with the applicable law of the Czech Republic.
12 THE SOFTWARE/ TRADEMARK LICENSES
i. PSP grants the Merchant a revocable, non-exclusive, non-transferable license to use PSP’s:
· software applications in accordance with the documentation accompanying the software. This license grant includes all updates, upgrades, new versions and replacement software for the Merchant's use in connection with PSP payment processing services, as well as marketplace services;
· trademarks used to identify PSP payment processing services and marketplace services solely in conjunction with the use of PSP payment processing services and marketplace services.
ii. If the Merchant does not comply with the documentation and any other requirements provided by PSP, then the Merchant will be liable for all resulting damages suffered by the Merchant, PSP and the third parties.
iii. Unless otherwise provided by applicable law, the Merchant consents not to alter, reproduce, adapt, distribute, display, publish, reverse, engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the software.
iv. Upon expiration or termination of this Agreement, the Merchant will immediately cease all use of any software.
v. The Merchant consents that it will not at any time during or after this Agreement claim any rights in or do anything that may adversely affect the validity of any trademark or any other trademark, trade name or product designation belonging to or licensed to PSP, including, without limitation registering or attempting to register any trademark or any such other trademark, trade name or product designation.
13 INTELLECTUAL PROPERTY
i. Other than the express licenses granted by this Agreement, PSP does not grant any kind of right or license of PSP payment processing services, marketplace provision or any Intellectual Property (IP) rights of PSP.
ii. Each party shall retain all ownership rights, title, and interest in and to its own products and services and all IP rights therein, subject only to the rights and licenses specifically granted herein.
iii. The Merchant shall in no way represent, except as specifically permitted under this Agreement, that it has any right, title or interest in or to the IP of PSP.
i. The Merchant agrees to indemnify, defend, and hold harmless PSP, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of:
o the Merchant's violation of any applicable law, regulation, or Card Organization Rules and requirements.
o The Merchant shall also pay PSP for any related expenses incurred by PSP.
15 LIMITATION OF LIABILITY
i. PSP shall not be held liable to the Merchant or any third party for any consequential, indirect, incidental, reliance, or exemplary damages arising out of or relating to this Agreement, whether foreseeable or unforeseeable, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action, including but not limited to, damages for loss of data, goodwill, profits, investments, use of money, or use of facilities; interruption in use or availability of data; stoppage of other work or or impairment of other assets; or labor claims, even if PSP has been advised of the possibility of such damages.
ii. PSP assumes no liability for the Merchant's failure to perform in accordance with this Agreement or any results caused by acts, omissions or negligence of the Merchant, a subcontractor or an agent of the Merchant or an employee of any of them, nor shall PSP have any liability for claims of the third parties, including but not limited to, claims of the third parties arising out of or as a result of, or in connection with, the Merchant’s services, messages, programs, promotions, advertising, infringement or any claim for violation of copyright, trademark or other IP rights.
iii. Under no circumstances shall PSP’s total aggregate liability to the Merchant or any third party arising out of or related to this Agreement exceed the direct damages suffered by such party in an amount equal to the amounts paid/payable by the Merchant to PSP under this Agreement.
16 DISCLAIMER OF WARRANTIES
i. The Merchant acknowledges that the PSP payment processing services and marketplace services are a computer network-based services, which may be subject to outages and delay occurrences. As such, PSP does not guarantee continuous or uninterrupted access to PSP payment processing services and marketplace services.
ii. The Merchant further acknowledges that access to PSP website or its payment processing services, and marketplace services may be restricted for maintenance.
iii. PSP will make reasonable efforts to ensure that transactions are processed, and marketplace provided in a timely manner. However, PSP will not be held liable for any interruption, outage, or failure to provide its payment processing services and marketplace services.
iv. The Administration shall be entitled to change the design of PSP, its functionality, the used technical solutions, scripts, software, and other elements both visible and invisible to the Merchant at any time unilaterally without giving the Merchant a prior notice.
v. The Merchant agrees that it shall use PSP at their own discretion. The Administration shall not warrant that the operation of PSP will be uninterrupted, free from immaterial or critical errors, failures, or other defects.
vi. The Administration shall take adequate efforts for maintaining the appropriate operational condition of PSP.
vii. If the Merchant is unsatisfied with the conditions and/or quality of PSP or its functionality, they shall discontinue using PSP.
viii. The Merchant agrees that the Administration shall not incur liability for any losses (direct, indirect or accidental) or other property and non-property losses of the Merchant or third parties resulting from a failure in the operation of PSP, the use or impossibility of the use thereof, loss of the information (including files) being important to the Merchant due to technical reasons and as a result of the acts or omission of other Merchants.
ix. If the Merchant loses access to his/her Account as a result of his/her:
(i) violation of this Agreement,
(ii) negligence concerning the cybersecurity and any other necessary measures, including precautionary and preventive measures, that resulted in theft of the Merchant’s Account,
(iii) any other action (act or omission), the Administration shall not be liable under this Agreement,
the Merchant represents and warrants that he/she will be solely responsible for these losses and will not make any claims to the Administration connected to such losses.
17 TERM AND TERMINATION OF THE AGREEMENT
i. This Agreement shall commence on the Effective Date and shall continue for an indefinite period unless terminated as provided below.
ii. Either Party may terminate this Agreement with three calendar months written notice for any or no reason at any time following the Effective Date.
iii. Either Party may terminate this Agreement immediately:
· if either Party files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the Party or its business, or either Party goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily;
· if either Party violates or fails to comply with any applicable law, regulation or any order by a competent court or government authority;
· if PSP is required or reasonably likely to be required by any competent authority to cease providing services to the Merchant under this Agreement or otherwise.
iv. After termination by either party, the Merchant shall no longer have access to, and shall cease all use of PSP services.
v. Any termination of this Agreement does not relieve the Merchant of any obligations to pay any fees, costs, penalties, Chargebacks or any other amounts owed by the Merchant to PSP as provided under this Agreement, whether accrued prior to or after termination.
vi. Upon termination of this Agreement, any outstanding and unpaid fees and charges of the Merchant to PSP shall become immediately due and payable.
vii. PSP may at termination of this Agreement and at its sole discretion, hold back all then due purchase payments including any existing Reserve for a period of up to 180 (one hundred and eighty) days ("Holdback") so that to cover additional financial risks related to Disputes, Refunds, or Returns of products supplied by the Merchant that extend beyond the time of termination of this Agreement.
viii. Such Holdback may be necessary in order to protect PSP from serious risks in relation with Merchants who, e.g. change business activity, go bankrupt, have claims for undelivered products/services, any fees charged against them, etc. Any Holdback funds retained for this period will be used by PSP to pay for any outstanding disputes, refunds or returns of products supplied by the Merchant and/or related card association fines that are necessary for this period of financial risk to PSP after termination of this Agreement. The remainder of the Holdback monies will be returned after that period has elapsed.
ix. If PSP holds funds related to the Account at the termination of this Agreement and it is later determined that such funds should be sent to the Merchant, the Merchant’s legal name and address, email, and other details, as set in the Account on the date of termination, will be used to try to contact the Merchant regarding any funds that are being held for the Merchant. If PSP is unable to complete the payment of funds to the Merchant, or the duly authorized representative thereof, e.g. trustee, after a period of attempting to contact the Merchant, of not less than 12 (twelve) months, the funds will be subject to the applicable laws as unclaimed estates.
x. Upon Termination of this Agreement, the provisions of the Parties’ obligations under this Agreement shall survive such Termination.
18 FINAL PROVISIONS
i. These MSA Terms shall be valid till terminated by either Party.
ii. The Merchant shall be entitled to terminate these MSA Terms unilaterally at any time as stated above, subject to the deactivation of their Account and cessation of use of PSP.
iii. These MSA Terms shall supersede any other arrangements between the Parties as well as all prior versions thereof.
iv. Should any provision of these MSA Terms (a clause or a statement within a clause) be void, unenforceable or legally invalid otherwise, it shall not affect any other provision hereof, or these MSA Terms as a whole.
v. The Merchant is responsible to regularly monitor the PSP website or the Merchant’s account on the PSP dashboard for notice of changes to the PSP Services and fees. The Merchant shall be notified in advance of such changes in PSP Services and fees. Fees may be updated and revised by PSP upon 5 days notice.
vi. Any other amendments to this Agreement shall be agreed in writing and signed on behalf of each of the parties hereto.
vii. The following notifications sent by email must be immediately confirmed by the sender, by a registered mail or by delivering to the other Party against signature:
· complaints regarding fulfillment of the Agreement;
· claims for damages or payment of contractual penalties;
· notices regarding the termination of the Agreement.
Appendix 1. Template of the Deed
On the services provided under the Merchant Services Agreement as of ____ of __________, 2021
For the period from "01" __________ 2021 to "__" _____________ 2021
1 The day and the time of the report period start
2 The day and the time of the report period start
3 The PSP's debt on the beginning of the reporting period
4 The Merchant's debt before the PSP on the beginning of the reporting period
5 The security amount sent to the PSP by the Merchant
6 The overall amount of payments accepted by the PSP within the reporting period
7 Other income
8 The amount sent to the Merchant by the PSP
9 The overall volume of Security amounts sent to the Payment providers by the PSP
10 The overall volume of Payouts sent by the PSP to the Merchant's Clients
11 The PSP's remuneration for fulfilling the obligations under the Agreement within the reporting period
12 The PSP's expenses reimbursed by the Merchant
13 Total amounts of withholdings made by the PSP during the reporting period
14 The PSP’s debt before the Merchant on the end of the reporting period
15 The Merchant's debt before the PSP on the end of the reporting period
Appendix 2: Prohibited/Restricted List:
· Any form of illegal activity or transactions with items whose sale, distribution or offering for sale is prohibited by any applicable law;
· Operating a business that requires a license or a special permit without obtaining such license or permit;
· The next goods and services: pornography, any sexually suggestive materials involving minors and any obscene or sexually violent content;
· Escort or prostitution services;
· Any association with human trafficking or sex slavery;
· Transactions with body parts which includes organs or other body parts;
· Illegal or prescription drugs and paraphernalia;
· Bulk marketing tools which includes email lists, software, or other products enabling unsolicited email messages (Spam);
· Cable descramblers and black boxes which includes devices intended to obtain cable and satellite signals for free;
· Items that infringe another party's copyright, patent, trademark, design right, database right, or other intellectual property or other proprietary right, pirated software, CDs, videos and DVDs, OEM software, copyright unlocking devices or other devices designed to circumvent copyright protection, hacking and cracking materials which includes manuals, how-to guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property; stolen or illegally obtained goods;
· Counterfeit and unauthorized goods which includes replicas or imitations of designer goods; items without a celebrity endorsement that would normally require such an association; fake autographs, counterfeit stamps, and other potentially unauthorized goods;
· Drug test circumvention aids which includes drug cleansing shakes, urine test additives, and related items;
· Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles; o Regulated goods which includes air bags; batteries containing mercury; Freon or similar substances/refrigerants; chemical/industrial solvents; government uniforms; car titles; license plates; police badges and law enforcement equipment; lock-picking devices; pesticides; postage meters; recalled items; slot machines; surveillance equipment; goods regulated by government or other agency specifications;
· Traffic devices, which includes radar detectors/hammers, license plate covers, traffic signal changers, and related products;
· Time sharing;
· MLM (Multi-Level Marketing) merchants;
· Selling, hosting, distributing, producing or promoting offensive materials, including material that incites racial hatred or promotes discrimination based on race, sex, religion, national origin, physical ability, sexual orientation or age;
· Transactions with living animals and endangered species, including plants, animals or other organisms (including product derivatives) in danger of extinction;
· Transactions with intoxicating liquor and tobacco, including home-made alcoholic beverages (except where the seller is properly licensed under applicable law and received pre-approval from PSP in writing);
· Transactions with items subject to export restrictions or special declaration or clearance (e.g. Cuban cigars, certain encryption software, items that may have historical or museum value);
· Offensive weapons, poisons and dangerous substances (as defined by the applicable law or laws); firearms and ammunition, including hazardous, toxic, flammable, and radioactive materials and substances;
· Debt collections / Collection Agencies (unless they received a written pre-approval by PSP);
· Loan modification and debt repair services;
· Financial services operating anonymous accounts or accounts in fictitious names or numbered accounts; and
· other goods and services whose sales violate requirements of the applicable legislation.