Processing, General Terms & Conditions
By signing a Merchant Agreement with PayXpert, the Merchant accepts these General Terms and Conditions.
1. COMPLIANCE WITH ASSOCIATION RULES
The Merchant understands and agrees to comply with the bylaws, rules, regulations, policy statements and guidelines of the Card Associations, as communicated by PayXpert, or as published in relevant websites.
2. SALES DOCUMENTATION
2.1. Visa and MasterCard require PayXpert to obtain from the Merchant and forward to Credit Card Issuers, upon request, copies of sales or credit slips. The Merchant warrants that it shall fully comply with all local laws, rules and regulations, as amended from time to time.
2.2. Sale storage. The Merchant shall preserve a copy of the actual paper sales credit slips for at least three (3) years after the date the Merchant presents the transaction data to PayXpert. To assist in the resolution of any dispute and in addition to and without limiting the foregoing provisions of this paragraph, the Merchant agrees to retain for eighteen (18) months and make available within three (3) days of a request all pertinent records pertaining to each transaction in question, including but not limited to itemized bills, authorization requests, and other related documents. The Merchant shall store all such material in an area limited to selected personnel and exercise best efforts to maintain these materials in a secure manner. The Merchants obligations will continue for said period after the termination of this Agreement.
2.3. Sale documentation retrieval. The Merchant understands that its failure to respond in a timely fashion to a retrieval request from Credit Card Issuers for a sales slip may result in a chargeback under Visa and MasterCard rules and regulations, and ultimately in a penalty from the card schemes.
2.4. Delivery of service. The Merchant must deliver to the Cardholder a true and complete copy of the sales slip, or suitable receipt evidencing the transaction involving use of the credit card in accordance with the Merchants underlying agreement with the Cardholder.
2.5. Advance cash to customer. Neither the Merchant nor any owner, director, officer or employee of the Merchant (“Affiliates”) shall advance cash to a Cardholder in connection with the purported credit card sale, nor shall any Merchant or its Affiliates purchase, directly or indirectly, goods or services of the Merchant in connection with such a purported credit card sale;
2.6. Customer identity. In any credit card transaction, the Merchant warrants the customer’s true identity as an authorized user of the credit card, whether or not Cardholder’s permission is obtained, unless the Merchant obtains and notes legibly on the sales slip independent evidence of the customer’s true identity.
2.7. Customer confidentiality. The Merchant warrants that it shall not, without the Cardholder’s consent, sell, purchase, provide, or exchange credit card account number information in the form of imprinted sales information, mailing lists, tapes, or any other media obtained by reason of a credit card transaction or otherwise to any third party other than to the Merchant’s agents for the purpose of assisting the Merchant in its business, to PayXpert, to MasterCard or Visa, or pursuant to a lawful government demand.
2.8. Change of business. The Merchant shall not change its usual trade or business or commence operating an unrelated trade or business on the same premises as the Merchant operates its current stated trade or business without obtaining prior written consent to the change or addition.
2.9. Compliance of local rules. The Merchant acknowledges that the codes of professional responsibility and the rules of local, state, and national bar associations, or the rules and regulations of state, or other professional associations, may apply to the transactions covered by this Agreement. PayXpert does not represent or warrant that the terms and conditions of this Agreement are in compliance with such codes and rules, and the Merchant assumes full responsibility for compliance therewith. Unless otherwise indicated in this Agreement, the Merchant warrants that it will not conduct any transactions that are not in compliance with both this Agreement and any such codes or rules and will indemnify and hold PayXpert harmless against any loss or damage PayXpert may suffer as a result of a breach of this warranty by the Merchant.
2.10. Agreement inconsistency. The Merchant may however bring any inconsistency between this Agreement and such codes and rules to the attention of PayXpert and request a modification to this Agreement to eliminate such inconsistency. PayXpert will agree to such modification to the extent it is consistent with the bank’s policy and in conformity with the existing MasterCard or Visa rules and applicable laws and regulations.
2.11. Merchant company changes. The Merchant acknowledges that prior written notice to PayXpert shall be given in the event of any change of address or ownership of the Merchant.
3. TERM AND TERMINATION
3.1. This Agreement shall renew automatically for successive terms of one (1) year each, unless any Party provides at any time during the duration of this Agreement written notice of termination to the other Parties at least ninety (90) days prior to the effective date of termination.
All existing obligations, warranties, indemnities and agreements with respect to transactions entered into before such termination shall remain in full force and effect, and the Merchant shall remain liable for all obligations to Cardholders and PayXpert incurred while this Agreement was in effect.
In the event of the termination of this Agreement and/or a notice or intention of termination hereof by either Party, PayXpert shall have the right, at its sole discretion, to freeze and withhold any amount due to the Merchant and/or any amount in the Merchant account, for a period of up to six (6) months from the end of the month of the last approved transaction.
3.2. PayXpert may, at its option, suspend the Services and/or terminate this Agreement with immediate effect on written notice to the Merchant if:
- PayXpert reasonably determines that the transaction record is fraudulent or that the transaction is not a bona fide transaction in the Merchant’s ordinary course of business, or is subject to any claim of illegality, cancellation, rescission, avoidance, or offset for any reason whatsoever, including without limitation negligence, fraud, or dishonesty on the part of the Merchant or the Merchant’s agents or employees; or
- The number of occasions that the Merchant has failed to supply goods and/or services to customers in accordance with the terms and conditions agreed with the customer, relevant legislation and any terms implied by legislation (including the Unfair Terms in Consumer Contracts Regulations, the Unfair Contract Terms Act, Distance Selling Regulations) becomes unacceptably high; or
- The Merchant has failed to pay any sum when due; or
- The Merchant commits any breach of this Agreement or any other agreement that the Merchant may have in place with PayXpert or which either the Merchant has failed to remedy within thirty (30) days after written notice requiring it to do so or which is incapable of remedy; or
- The Merchant goes into liquidation, or a petition is presented for the Merchant’s administration liquidation; or
- PayXpert has reasonable concerns about the financial position of the Merchant; or
- The Merchant ceases or threatens to cease to carry on business or in any way changes the nature of its business and/or the nature of the goods and services it sells; or
- There is a change in Control of the Merchant, or of any person who has Control of the Merchant either directly or through a chain of persons, each of whom has Control over the next person in the chain, a change of Control occurring if any person acquires Control of the Merchant or any person who previously had Control of the Merchant ceases to have such Control (whether or not another person acquires Control of the other Party), and said Control would be transferred to persons who would not pass the KYC underwriting of PayXpert; or
- The Merchant engages in any activity which, in the absolute discretion of PayXpert, directly or indirectly competes with the business of PayXpert; or
- Any event occurs in relation to the Merchant which in PayXpert’s reasonable opinion could damage PayXpert’s reputation, prove detrimental to PayXpert’s business or may give rise to fraud, suspicion of fraud or any other criminal activity.
- PayXpert takes such business decision.
3.3. The Merchant may terminate this Agreement with immediate effect on written notice to PayXpert if:
- PayXpert commits any material breach of this Agreement and in the case of a material breach capable of remedy, fails to remedy it within 30 (thirty) days after service, and confirmation of receipt, of a written notice requiring it to do so; or
- PayXpert goes into liquidation (except for the purposes of a solvent amalgamation or reconstruction and in a way that results in its successor company being bound by this Agreement) or a petition is presented for PayXpert’s administration liquidation.
3.4. PayXpert may at any time terminate this Agreement at its convenience by giving the Merchant not less than two (2) months notice in writing, which termination shall be effective on the date specified in the notice of termination.
3.5. The rights to terminate this Agreement given by this clause shall be without prejudice to any other right or remedy of the Parties.
4. CONSEQUENCES OF TERMINATION
4.1. The termination of the present Agreement shall not result in the extinction of either Party’s obligation to pay any outstanding balance to each other.
4.2. In case this Agreement is terminated, the Merchant promises to pay PayXpert all the due fees agreed in the Merchant Agreement and in its Schedules at the effective date of termination.
4.3. Upon any termination of this Agreement, the obligations, warranties, and liabilities of the Merchant pertaining to sales data or credit memoranda presented prior to such termination (including without limitation the Merchant’s obligations as to subsequent chargebacks of such sales data, whether or not the amount of such subsequent chargebacks is liquidated as of the date of termination) shall survive such termination and shall continue in full force and effect as if such termination had not occurred.
4.4. Should any charges arise thereafter, PayXpert shall bill the Merchant and the Merchant shall promptly pay such charges.
4.5. PayXpert reserves the right to hold all funds due to the Merchant for a maximum period of a year from the termination of the Agreement to face the future Visa and/or MasterCard’s chargebacks or penalties.
5.1. The Merchant shall properly complete a credit slip, delivering one completed copy to Cardholder at the time of each return or cancellation of sale. The regular transaction fee will be applicable to all credit transactions.
5.2. The Merchant shall not, under any circumstance, issue:
- Cash or a check for returns of merchandise or cancellation of service where goods or services were originally purchased in a credit card transaction; or
- A credit slip to a Cardholder without having completed a previous purchase transaction with the same Cardholder; or
- A credit slip to a Cardholder for any prior sale or service made or provided at a location other than the location where the credit slip is issued.
5.3. With proper disclosure of where the purchased goods or services are delivered to Cardholder at the time the transaction takes place, then the Merchant may refuse to accept merchandise in return and refuse to issue a refund to a Cardholder. Or if so inclined the Merchant may accept returned merchandise in exchange for the Merchants promise to deliver goods or services of equal value available from the Merchant at no additional cost to Cardholder.
6.1. The Merchant expressly acknowledges and agrees to any charge or debit made by PayXpert against the Merchants reserve or settlement account as a result of the chargeback rights by a Cardholder or issuing bank or other intermediary pursuant to applicable operating regulations of VISA/MasterCard or other Card Associations.
6.2. Without prior notice, PayXpert shall have the right to reduce the Merchant’s credit card sales proceeds received from issuing banks or debit the Merchant’s reserve account for any credit card transaction which is disputed or returned to PayXpert by the financial institution or company which has issued the credit card utilized by the Cardholder, and to chargeback such sale to the Merchant.
6.3. The Merchant, whether consented to or not by Cardholder, shall not present to PayXpert for processing any sales slip representing a transaction which has been previously charged back to PayXpert and returned to the Merchant. The Merchant’s obligations and PayXpert’s rights under this paragraph shall survive the termination of this Agreement.
7. FRAUDULENT SALES
7.1. The Merchant shall not present PayXpert, directly or indirectly, any sales slip or transaction:
- That the Merchant knows to be fraudulent; or
- That results from a transaction outside the Merchant’s normal course of business as described in the Merchant Application, or specifically for products or services which to PayXpert has not authorized.
7.2. Should the Merchant do so, this Agreement with the Merchant may be immediately terminated by PayXpert without notice, all funds otherwise due to the Merchant will be placed on hold for not less than 180 days. Any subsequent investigation by PayXpert may be charged to the reserve or settlement account.
7.3. If PayXpert proves the Merchant’s fraud, the Merchant will be placed on the Combined Terminated Merchant File. Said action may result in the Merchant never being allowed to accept Visa and/or MasterCard again.
7.4. The Merchant hereby indemnifies and holds PayXpert harmless to the fullest extent permitted by applicable law for any loss or damage that may incur as a consequence of the Merchant being placed by PayXpert or its agents on the Combined Terminated Merchant File.
8. MERCHANT OBLIGATIONS AND WARRANTIES
8.1. The Merchant will promptly supply PayXpert with all information and documentation which PayXpert may ask for at any time to enable PayXpert to comply with any legal requirements relating to its Services, including as required by the Money Laundering Regulations 2019, and the Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU.
The Merchant will be solely responsible for performing and delivering, in a manner consistent with good industry practice, all its services and products to customers.
8.2. The Merchant will indemnify and hold PayXpert harmless from any claim or demand by any third party in respect of liability, loss, damage or costs resulting arising out of or in connection with the goods or services offered by the Merchant.
8.3. The Merchant will use its best efforts to avoid or minimize chargebacks. The Merchant shall have the obligation to daily monitor its chargeback performance and will immediately report to PayXpert in case it wishes to dispute a chargeback.
8.4. The Merchant shall refrain from making unauthorized use of the Services and shall act and behave in a manner which PayXpert is reasonably entitled to expect from a professional Merchant. In particular the Merchant shall:
- Inform PayXpert and keep PayXpert informed of every information that may be relevant for the provisions of Services, including a change in the goods or services offered to customers (also for change of the Merchant’s terms and conditions);
- Inform customers of the security measures that have been implemented to protect the credit card against any unauthorized use;
- Refrain from offering goods or services that are prohibited by either PayXpert or the Card Issuer;
- Refrain from offering goods or services that infringe any third-party intellectual property right;
- Refrain from offering any goods or services that PayXpert considers otherwise inappropriate, harmful or contrary to good faith. PayXpert hereby acknowledges that the provided list of URLs comply with this clause as of the date of submission;
- Implement security measures to protect the credit card against any unauthorized use;
- Refrain from sending unsolicited e-mail (‘spam’);
Obey all instructions, rules and regulations given by the Acquirer, the Card Issuer and/or PayXpert regarding the use of the Services.
8.5. The Merchant hereby authorizes and grants an irrevocable power of attorney to PayXpert, with full power of substitution, to act on behalf of the Merchant during the term of this Agreement to the extent necessary to render the Services and to carry out this Agreement, including but not limited to seeking authorizations, receiving proceeds of transactions and providing access codes to customers. The Merchant hereby covenants and agrees to indemnify and to hold harmless PayXpert from and against any liability PayXpert might incur for any steps taken by it in connection with this power of attorney.
8.6. The Merchant acknowledges PayXpert may provide financial transaction processing to the Merchant hereunder through contracts and/or subcontracts with third parties engaged in a part of all of the business of financial transaction processing and authorization.
8.7. The Merchant agrees to allow PayXpert to honour without discrimination all valid credit cards when properly presented for payment by customers in connection with bona fide, legitimate business transactions.
8.8. The Merchant shall only accept transactions for goods or services that have been notified to and authorized by PayXpert. In relation to e-commerce accounts, the Merchant shall notify PayXpert in advance of each uniform resource locator (URL) from which it intends to process any transactions.
8.9. The Merchant shall promptly provide all bank information that may be requested by PayXpert for the purposes of activating the Services. The Merchant acknowledges that any delay or failure to provide such information to comply with its obligations may result in PayXpert being unable to provide the Services. PayXpert accepts no responsibility for any losses, costs, damages or other liabilities arising from its inability to provide the Services in such circumstances.
8.10. The Merchant warrants that all information provided to PayXpert in connection with its application for Services and any other information it provides under this Agreement is correct and that no information has been withheld which could reasonably be expected to have adversely affected PayXpert’s decision to enter into this Agreement.
8.11. For the purposes of this Agreement, the Merchant’s and its group companies, subsidiaries, affiliates, successors and permitted assigns, shareholder and shareholder’s subsidiaries are all jointly and severally liable.
8.12. The Merchant acknowledges PayXpert will not be obliged to transfer the funds to the Merchant until the funds are received by PayXpert.
9.1. When the Merchant does not bring sufficient explanation to the requests made by PayXpert in relation with variances, within three (3) weeks, the Merchant acknowledges and agrees that PayXpert may hold funds, temporarily suspend processing under this Agreement or terminate this Agreement if there exist material variances in the nature of the Merchants business, type of or composition of credit card processing, actual average ticket size or actual monthly volume amounts from such amounts represented or disclosures made by the Merchant on the Merchant Application.
9.2. If such variances exist, or the Merchant does not receive authorization for transactions, or PayXpert receives excessive retrieval requests against the Merchant’s prior activity, or excessive chargebacks are debited against the Merchant’s prior activity, then PayXpert may delay or withhold settlement of funds for a period not less than 180 days or until PayXpert is reasonably certain that fraud or other activity detrimental to PayXpert has not occurred.
9.3. The Merchant should immediately contact PayXpert if material variances from the average ticket size or monthly volume occur. For the purposes hereof, PayXpert determination of materiality shall be binding upon the Merchant.
10. TRADEMARKS AND INTELLECTUAL PROPERTY
10.1. All intellectual or industrial property rights to the Software, the PayXpert Platform, (results of) the Services and other materials developed or provided under this Agreement, such as analyses, designs, documentation, reports, offers and any preparatory materials belonging thereto, shall solely be held by PayXpert or its licensors.
10.2. In the event that a collection of works, data or any other independent elements of information provided by the Merchant under this Agreement are systematically or methodically structured due to PayXpert’s substantial investment, as a result of which a (changed) database comes into existence, the copyrights, database rights and comparable rights therein shall solely be held by PayXpert.
11.1. The Parties undertake to regard as confidential throughout the duration of this Agreement, and after its expiry, the terms of this Agreement, as well as all information, whether commercial, technical or otherwise, obtained in the context of its performance or during the discussions prior to its conclusion.
11.2. Therefore, the Parties more specifically undertake not to communicate any of the confidential information, as previously defined, to third parties other than their staff.
12. DATA PROTECTION
12.1. Merchant’s personal data
12.1.1. PayXpert hereby informs the Merchant that PayXpert will process the Merchant’s (and its personnel, agents and contractors) personal data collected through this Agreement and during the commercial relationship between the Parties. The data controller is PayXpert, and the purposes of such processing are management of the provision of the Services and of the business relationship between the Parties as well as provision by PayXpert by any means of commercial communications that PayXpert considers to be of interest to the Merchant. PayXpert engages third parties to perform activities in connection with the Services (e.g.: financial institutions), and the Merchant accepts that the data may be provided to such third parties (within or outside the European Union) in accordance with PayXpert’s instructions. PayXpert informs the Merchant it can exercise the rights to access, rectification, cancellation and opposition (“ARCO rights”) its personal data by sending its request to the registered address of PayXpert stated in this Agreement. By signing this Agreement, the Merchant expressly consents on its own behalf and on behalf of its personnel and contractors engaged in the performance of this Agreement, to the processing of the personal data in accordance with the provisions of this clause.
12.2. Merchant’s customers personal data
12.2.1. In respect of the Merchant’s customers data, the Merchant and PayXpert hereby undertake to comply with all applicable data protection regulations to the processing of such data. Specifically, the Merchant guaranties that the customers’ personal data have been provided or obtained by the data holders themselves with their consent.
12.2.2. The Merchant is the data controller of its customers personal data. PayXpert will be the data processor of the Merchant’s customers data for the purposes related to the services provided to the Merchant by virtue of this Agreement.
12.2.3. PayXpert will process the data according to the following:
- PayXpert agrees to use the personal data to which it has access solely and exclusively to fulfil its contractual obligations with the Merchant. In this sense, PayXpert agrees to process the data in accordance with the instructions given by the Merchant and not to apply or use the personal for a different purpose, and not to disclose or transfer them, not even for preservation, to others.
- As required by the European legislation PayXpert agrees to adopt the technical and organizational measures necessary that guarantee the security of the Merchant’s customers personal and avoid its alteration, loss, processing or unauthorized access.
- PayXpert guarantees that the personal data will be handled only by those employees whose intervention is required for the contractual purposes and shall advise such employees of their obligations
- In the event that data owners exercise their rights of access, rectification, cancellation and opposition directly to PayXpert, in its capacity as processor, it should transfer the request to the Merchant as soon as possible in order that the latter can resolve what it considers appropriate and lawful.
- In the event that PayXpert had to outsource some or all of the services contracted by the Merchant involving the processing of personal data, outsourcing will require express authorization by the Merchant (in its capacity as data controller) in which authorized for assignment or subcontracting services, including where the company responsible for its implementation.
13. NON-SOLICITATION OF STAFF
13.1. The Merchant expressly undertakes not to approach, make offers of employment to or hire any of PayXpert’s members of staff, employees, or sub-contractors, whether directly or indirectly, throughout the duration of this Agreement, as well as for two (2) years, following the end of its performance.
13.2. In the event of a breach of the provisions of this clause, the Merchant shall be bound to pay PayXpert, by way of a penalty clause, lump sum compensation equal to twelve (12) months of the last gross monthly salary of the person approached or hired, plus the costs of recruiting a replacement.
14. AMENDMENT TO AGREEMENT
14.1. Parties can agree to amend the present Agreement.
14.2. PayXpert is entitled to make changes to the Merchant Agreement, General Terms and Conditions, Specific Conditions or individually at any time. PayXpert shall notify the Merchant of upcoming changes by e-mail. Changes shall take effect after thirty (30) days of the notice or on such other date as is specified in the notice. Merchant continued use of the Services after PayXpert notification of any changes, shall be deemed to constitute Merchant’s agreement to the changes.
15. FORCE MAJEURE
Neither Party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform any of its obligations, if the delay or failure was due to any cause beyond the Party’s reasonable control including (without limitation) flood, fire, acts of terrorism, civil disturbance, acts of any government or authority, revocation of any license or consent, default of any supplier or sub-contractor, failure of any power supply, theft, malicious damage, strike lock-out or industrial action, or the failure of any machine computer data processing system or communication link or by any other circumstance whatever beyond its reasonable control. However, PayXpert will use reasonable efforts, under the circumstances, to notify the Merchant and to resume performance as soon as possible.
16. LEGAL COSTS AND FEES
The Merchant shall be liable for and shall indemnify and reimburse PayXpert for all expenses (attorneys’ fees and other costs and expenses paid or incurred by PayXpert) resulting from any management by PayXpert to solve pendencies against financial institutions or any third parties, and will be charged to the Merchant.
17. FEES, RATES AND ADJUSTMENTS
17.1. Processing fees. They include two types of fees: the Commission fee, a percentage of the total credit card sales volume processed by the Merchant; and the several Transaction fees, fixed amounts charged on each sales slip and each credit slip, regardless of the total amount stated.
17.2. Rate adjustment. PayXpert shall have the right to adjust charges as necessary to offset any direct or indirect increase to PayXpert in the costs of providing the Services hereunder including, but not limited to, increases in the cost of living index, or due to changes in rules, regulations, or operating procedures of Visa or MasterCard, or other applicable credit card organization, or any additional requirement imposed by any governmental agency or regulatory authority, or due to any increase in communication costs charged to PayXpert by communications common carriers. Such increases shall, without prior notice become effective as of the date of change unless otherwise notified to PayXpert, in this case PayXpert shall transmit this information to the Merchant without delay.
17.3. Other credit cards. The Merchant agrees that should the Merchant elect to accept other credit cards under this Agreement in addition to Visa and MasterCard, that all duties and obligations herein shall apply to such other credit cards unless contrary to rules and regulations applicable to the issuers or acquirers of said credit cards.
17.4. Variable charges. Without limiting the foregoing, PayXpert shall have the absolute and unconditional right to increase Commission fee and/or transaction fees if the Merchant, or the Merchants transactions, do not satisfy eligibility requirements of Visa and/or MasterCard for minimum interchange fees. The Merchant acknowledges that fees and rates charged may vary as a consequence of variable charges incurred under Visa Payment Services 2001 and similar MasterCard programs as each may change from time to time upon acceptance of the Merchant who will decide to accept them or not.
17.5. Penalties. In the event of non-payment of any invoice 45 days after the due date, PayXpert reserves the right to interrupt the Services until the sums due are paid in full. After prior formal notice has been given and remained without effect, any sum remaining unpaid at its due date shall be automatically increased by a sum corresponding to the administration cost for unpaid sums and shall lead to all the debts not yet due becoming payable. In addition, any sum remaining unpaid at its due date shall be automatically increased by a moratory interest at 7%.
Interruption of the Services for a period of more than thirty (30) days shall lead to automatic termination of the Contract in the event of non-payment within fifteen (15) days, running from receipt of the formal notice, or the first presentation of the letter in the case of a recorded delivery of letter.
17.6. PayXpert reserves the right to take legal and/or disciplinary actions directly against the Merchant in case of infringement of the present Agreement including but not limited to the following cases: (i) damage of PayXpert’s brand image, (ii) carrying out internal investigations that cause a cost to PayXpert, (iii) termination of the business relation with the bank or dealer bank due of the malpractice of the Merchant.
The Merchant makes himself as only responsible for any tax liabilities on its activities and declares paying duly VAT and other taxes on consumption.
19. GOVERNING LAW AND JURISDICTION
19.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the United Kingdom law.
19.2. The Parties irrevocably agree that the courts of the United Kingdom shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter. In addition, the parties agree to be subjected to the bylaws and operating rules and regulations of Visa, MasterCard and another cards company used (Amex, JCB, Diners, etc.) as amended from time to time.
20. SEVERABILITY OF CLAUSES
20.1. The nullity, invalidity, absence of binding force or un-enforceability of any of the stipulations of this Agreement does not entail the nullity, invalidity, absence of binding force or un-enforceability of the other stipulations, which shall retain their full effect.
20.2. However, by joint agreement the Parties may agree to delete or vary certain clauses.
21.1. The applicability of general or specific conditions of the Merchant or any third party is expressly rejected by PayXpert. Stipulations which differ from this Agreement shall apply only as far as they have been agreed upon by the Parties in writing.
21.2. Merchant shall not have the right to transfer or assign its rights and obligations, in part or in whole, as laid down in this Agreement made between PayXpert and the Merchant, unless the Merchant has obtained prior written approval from PayXpert.
21.3. If any provision of this Agreement shall be held to be void, illegal, unenforceable, or in conflict with any applicable law, the validity of the remaining portions or provisions shall not be affected thereby. Notwithstanding the provisions of the foregoing sentence, the rights or obligations of either Party hereunder shall be subject to good faith re-negotiation between the Parties within the limits set by law.
21.4. Each Party will be entitled to use the other Party’s name and trademarks, subject to the prior written approval of that material by the other Party, which approval shall not be unreasonably withheld.
21.5. Any claim, for whatever reason, that the Merchant may have against PayXpert, shall be notified to PayXpert within the best delay.
21.6. Termination of this Agreement explicitly does not release PayXpert and the Merchant from those obligations which, by their nature, are intended to remain in effect, including the provisions with respect to intellectual property, confidentiality, liability, applicable law and dispute resolution.
21.7. These CTG constitutes the entire understanding between the Parties with respect to the subject matter of this Agreement and replaces and supersedes any prior verbal understandings, written communications or representations.
22. CONFIDENTIALITY AND NON-DISCLOSURE, NON-COMPETITION AND NON-CIRCUMVENTION AGREEMENT
22.1. The Parties agree to exchange confidential information under the terms and conditions of this Agreement.
22.2. Any information disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether provided orally or in writing, and on any medium, concerning the Disclosing Party’s business and/or operations, and including without limitation merchant details, website URLs, financial details provided by the Merchant with regards to its activities, financial institutions details, financial conditions offered, etc. under any circumstance, shall not be passed to any other Party, unless agreed otherwise or in the interest of the normal activity of both Parties relationship.
22.3. The Parties hereby and irrevocably bind themselves into guarantee to each other that they shall not directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass or obviate each other’s interest , or relationship between the Parties, merchants, financial institutions, acquirers, banks, brokers, dealers, consultants and advisors, agents and sales representatives, involved in the transaction or project, including technology owners; to change, increase or avoid directly or indirectly payments of established or to be established fees, commissions, or continuance of pre-established relationship, or intervene in un-contracted relationships with merchants, technology owners, financial institutions, banks, payment providers; or initiate buy/sell relationship or transactional relationship, that by- passes one of the Parties to one another in connection with any ongoing or future project or transaction.
22.4. The Parties irrevocably agree that they shall not disclose or otherwise reveal directly or indirectly to a third party any confidential information provided by one Party to the other(s) or otherwise disclosed by the concerned sellers, buyers, and their respective legal, tax and financial advisors and banks, such as but not limited to: contract terms, product information, prices, fees, financial agreement, schedules and information concerning the identity of merchants, financial institutions, acquirers, banks and other providers of means of payment, agents, sales representatives, technology owners, or their representative and specially individuals names, addresses, telex/fax/e- mails or any other means of communication by any systems such as Skype personal data/telephone numbers, reference product or technology information and/or other information.
22.5. The terms and conditions of this Agreement are also confidential and the Parties, nor its authorized representatives, will not disclose them to third parties other than to their respective legal and tax or financial advisors and as otherwise required by applicable law or regulation.
22.6. Neither Party nor its authorized representatives, without the prior written consent of the other Party, will disclose to any person:
- The fact that any discussions or negotiations are taking place or have taken place between the Parties concerning a possible business transaction or business relationship between the Parties; or
- The fact that confidential information has been made available to the Receiving Party; or
- The terms, conditions or other facts with respect to any potential or actual business relationship or transaction, including the status of any discussions.
22.7. This confidentially clause will last two (2) years after the end of the commercial relationship between the Parties. All information disclosed under this Agreement is deemed confidential information whether or not it is so marked.
Where any notice is required by PayXpert terms to be given in writing, it must be written in the English language and:
- Where it is to be given by Merchant, it must be sent by email or by post to PayXpert Ltd, 1 Fore Street Avenue, London, England, EC2Y 9DT;
- Where it is to be given by PayXpert, it must be sent by email to the last email address which PayXpert holds for the Merchant or by post to the last postal address PayXpert holds for the Merchant, or to such other email or postal address which Merchant tells PayXpert to use by notifying in advance in writing in accordance with the provisions of this clause.
POS TERMINAL, TERMS & CONDITIONS
2.1 The Merchant hereby enters into an Agreement with PAYXPERT to use/or sell ALIPAY and/or WECHAT-TENPAY terminals under this contract’s terms and conditions:
2.2 The Agreement shall be deemed effective and in full force from the date of last signature or date of deployment.
2.3 This agreement shall be read in conjunction with the Acquiring Service Agreement where applicable.
2.4 Merchant may lease, rent or purchase, at Merchant’s option, POS from PAYXPERT about transactions throught ALIPAY and/or WECHAT-TENPAY. This Agreement may be reviewed and re-negotiated in the light of changing market conditions. Therefore this contract is subject to annual renewalin case of lease or rent.
2.5. PAYXPERT reserves the right to re-call non-performing terminal(s) and/or give notice to terminate the contract with Merchants holding non-performing terminal(s). Such terminals, in case of rent, should be returned within 60 calendar days and thereafter the terminal shall attract a penalty fees of GBP 250.
2.6 In the event that the terminal is damaged or lost the merchant shall pay for the costs of terminal repair or replacement.
2.7 All fees are exclusive of VAT.
2.8 PAYXPERT reserves the right to charge fees giving a 30 day notice period to the Merchant.
2.9 The terminal(s) shall be used and located only at the Merchant site(s) stated in this Agreement, or in the attached addenda. The Merchant must at all times know the location of the terminal(s). PAYXPERT shall conduct spot checks to ensure this condition is adhered to. Any re-locations must be approved by PAYXPERT in writing.
2.10 Subcontracting of terminals to third (3) parties os strictly prohibited, and PAYXPERT shall only recognize the contracted Merchant. PAYXPERT shall immediately revoke the contract without notice and recover all its terminals should the terminal be sub-contracted to a third party, be used at any other site, location contrary to the location stated herein or be used for any business other than the one stated herein.
2.11 In case of lease or rent, the terminal(s) remain the property of PAYXPERT, but the responsibility for the terminal and any stocks held therein shall remain with the Merchant.
2.12 The Merchant shall be required to take good care of the terminal.
2.13 The Merchant shall be liable for the full repair or replacement costs of a terminal that is damaged, lost or misplaced whilst in the Merchant`s custody. A schedule of costs is available from PAYXPERT upon request.
2.14 It is the Merchant’s responsibility to ensure adequate security of the terminal.
2.15 The Merchant must report the loss or misplacement of a terminal to PAYXPERT at the earliest opportunity within business hours. PAYXPERT shall take steps to set the terminal status to “out of service” at the earliest possible time.
2.16 Terminals shall only be operated by staff nominated and authorized by the Merchant. In addition, Merchant`s customers shall not in any way be permitted to operate the terminal.
2.17 Hardware technical support and services shall be carried out by the group’s technical department.
2.18 All terminal repairs shall be done on a carry-in basis.
2.19 The Merchant may call for hardware support by dialling technical helpline numbers +34 93 491 47 81 or sending the email to firstname.lastname@example.org. For statements, merchants can email email@example.com.
2.20 The Merchant shall:
- a) Permit PAYXPERT to place a POS Device in a position approved by PAYXPERT on all those premises where the Merchant will or proposes to or from which the merchant shall conduct debit Transactions throught ALIPAY and or WECHAT-TENPAY.
- b) Comply with all procedures for the Transactions as outlined in this Agreement and in the user guide as advised to the Merchant from time to time. The Merchant agrees to comply with PAYXPERT policy, compliance (including the compliance requirements of the Transaction Schemes where applicable), procedures and forms requirements, as amended from time to time, for the timely and secure processing of Transactions.
- c) Unless otherwise specified, the Merchant agrees to retain and provide, at PAYXPERT’s request, copies of all Sales and all Transactions records
2.21 PAYXPERT shall: a) Subject to compliance by the merchant with its obligations under these Terms and Conditions, acquire the Merchant’s PaymentTransactions presented to it through a POS Device installed as provided herein during the currency hereof and duly Authorized in accordance with this Agreement by or through that Device, at a price equal to the face value thereof less such deductions as may be permitted under this agreement hereof or otherwise hereby and payable in accordance with this agreement.
- b) Provide the Merchant with such number of POS Devices as Merchant will determine to be required from time to time to meet
its business needs of the Merchant and, subject to it is obligations under this agreement, to install and make operational such Devices on the premises of the Merchant, to keep such Devices with their communication links programmed and maintained and if necessary upgraded or replaced so as to provide a satisfactory service for the performance of this Agreement.
- c) Provide user training material to the merchant or any merchant staff as expressly authorized by the merchant on, user reconciliations and operational procedures, card security and fraud detection issues.
- d) Provide user training material per deployed outlet for merchant reference.
2.22 PAYXPERT, at its sole discretion, may change its policy, procedures or forms, any term or condition of any Agreement incorporating these Terms and Conditions or terminate any service and the Merchant agrees to comply with any such changes and PAYXPERT agrees to provide the Merchant reasonable notice for such effect.
2.23 PAYXPERT may at its absolute discretion and at any time amend any of the Schedules that may be attached to this Agreement from time to time and PAYXPERT agrees to provide the merchant reasonable notice for such effect.
2.24 Any change and/or amendment referred to in this Clause should become operative from the expiry of that mandatory notice period.
2.25 In case the Merchant refuses to comply with and/or accept any change and/or amendments referred to above PAYXPERT shall have the right to terminate this Agreement without any prior notice and without prejudice to any of its rights.
2.26 PAYXPERT may charge and the Merchant shall pay, upon demand, any charges arising as follows:
2.27 For all processing costs and any other charges incurred by PAYXPERT after termination of this Agreement.
(a) Transactioon Schemes Fines and Penalties. To the extent that the Merchant is responsible for the violation fines or penalties upon PAYXPERT for violation of their rules and regulations, PAYXPERT shall recover the same from the Merchant. This provision is valid even after this Agreement is terminated.
(b) Legal Fees and Costs. PAYXPERT shall pass through to the Merchant its legal fees (including fees on the attorney-client scale where applicable) and costs incurred in seeking legal advice in contract negotiations, work-outs, insolvency or other similar event, not in the ordinary course of the Merchant-PAYXPERT relationship described in this Agreement or costs incurred in the recovery of monies due to PAYXPERT hereunder. This provision is valid even after this Agreement is terminated.
(c) Collection of Fees and Charges. PAYXPERT shall collect any of and all the various charges and fees described in Appendix II by: (i) making a withdrawal without notice or demand of any kind from the Merchant’s Account or (ii) by direct payment by the Merchant to PAYXPERT or (iii) by any other way that PAYXPERT may decide.
2.28 The Merchant shall indemnify and hold PAYXPERT, its directors, officers, employees, agents, independent contractors or Sources harmless from any liability, loss, damage, claim or complaint, including reasonable attorneys’ fees, arising out of: (i) the Merchant’s failure to comply with or to enforce any provision of this Agreement; (ii) any loss if fraud precautions are not taken by the Merchant; and (iii) any loss caused by the Merchant’s violation of rules or regulations or the laws of the UK or of any other country. In the event of any fraud being unveiled the directors herein shall be held directly liable for any loss incurred by PAYXPERT.
CHINESE PAYMENTS, TERMS & CONDITIONS
Unless otherwise specified, the following terms herein shall be defined as follows:
Alipay Account: means an account allocated to an Alipay User by Alipay upon completion of registration at Alipay’s designated website at www.alipay.com. Each Alipay Account is for payment and collection between Alipay and the applicable Alipay User;
Alipay Account Balance: means one of the payment funding sources whereby Alipay Users can use the stored value in his or her Alipay Wallet to make Payments;
Alipay’s Platform: means the payment processing system developed by Alipay;
Alipay Services: The different services presented under this commercial agreement
Alipay User: means an individual who has completed Alipay’s membership registration process and has opened an Alipay Account;
Applicable law: any applicable law, regulation, rule, policy, judgment, decree, order or directive, at a state or local level, including, without limitation, any regulatory guidelines or interpretations or regulatory permits and licenses issued by governmental or regulatory authorities having jurisdiction over the relevant Party, that are applicable to a Party or its business or which the Party is otherwise subject to;
PayxpertPlatform: means the platform on which the Alipay Services are accessed by the Merchants through the Company’s provision of service as set forth in the Service Application Form;
Data Compromise: means any loss, theft, unauthorized access of revealing of any personal data of Alipay Users or data related to Transactions held by the Company (including its employees, agents, sub-contractors and other acting on its behalf) and/or any Merchant (including its employees, agents, sub-contractors and other acting on its behalf);
Effective Date: Means in the event of a physical signing, the date or the later of the dates (if different) on which this Agreement is executed by both Parties
Intellectual Property: means any (i) copyright, patent, know-how, domain names, trademarks, trade names, service marks, brand names, corporate names, logos and designs (whether registered or unregistered) and all associated goodwill; (ii) applications for registration and the right to apply for registration for any of the same; and (iii) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world (including its application programming interfaces);
Merchant: means a client of the Company to whom the Company provides payment processing, authorization and settlement services;
Merchant Aplication Form: it’s the document provided by the Merchant with all the necessary information about the business, for providing Alipay Services.
POS Terminal: has the meaning given to it in Appendix II
Products: means any and all goods, products, services and/or items that a Merchant makes available for sale to any person, including Alipay Users;
Refund: means, as appropriate, either (i) the process whereby a Payment already made by an Alipay User is credited, in whole or in part, to that Alipay User as instructed by the Company or (ii) the amount of such returned funds;
Service Fee: has the meaning given to it in Appendix I
Settlement Funds: means the amount equal to the Funds Available for Settlement less any Service Fee payable, which is payable to Payxpert in accordance with this Agreement;
WeChat: refers to the cross-platform messaging tool which supports single-user and multi-user participation, transmission of voice, short message, video, image and text, and other instant messaging services, and is composed of relationship chain development tools, WeChat Public Accounts, open platforms and other software systems and services.
WeChat Public Platform: refers to the internet technology service platform provided to the Merchant, which can be used to release information to its customers.
WeChat Public Account: refers to the account registered by the MERCHANT at the WeChat Public Platform, which is used to log in to the WeChat Public Platform.
WeChat Payment Service: refers to the third-party payment system and funds transferring services provided by Tenpay via WeChat, including online and offline WeChat payment.
WeChat Payment Cross-border Acquiring Service: refers to Tenpay’s Payment Service which allows European acquirers to offer Merchants the acquiring services required to use WeChat Payment Service, and to provide funds settlement service to the Merchants, allowing the Merchants to receive payment in their local currency for goods and services provided to customers paying via WeChat payment service.
User/Customer: refers to a buyer who purchases products or services by using the WeChat Payment Service.
WeChat Payment Merchant Account: refers to the account allocated to the MERCHANT which is used to store the identification and transaction information of the Merchant. It will allow the MERCHANT to enquire or calculate the sum of trade receivables. MERCHANT Account will be directly bundled with the legitimate bank account provided by the Merchant.
Acquiring Device: refers to the device with communication function, which may be installed by PAYXPERT at the Merchant’s premises and can be used to scan or to display QR Code or Barcode so as to convey financial transaction information and to exchange information according to payment orders. This device may be provided by PAYXPERT or by a third party who will then bare the responsibility.
Business Day: means a day (other than a Saturday, Sunday or British or PRC bank holiday) on which Tenpay and PAYXPERT are open for general business.
Relevant Country: All countries where PAYXPERT licence is valid
Tax: means all federal, state, provincial, territorial, county, municipal, local or foreign taxes, including but not limited to sales, use, license, excise, good and services, value added, stamp or transfer taxes, duties, imposts, levies, assessments, tariffs, fees, charges or withholdings of any nature whatsoever levied, imposed, assessed or collected by a taxation authority together with all interest, penalties, fines or other additional amounts imposed in respect thereof.
Term: means, as appropriate, either the Initial Term or any Renewal Term, each as defined in the Clause XV
Territory: means the countries, states or jurisdictions where the payment can be offered as stated in the Service Application Form;
Transaction: means the purchase of Product(s) by an Alipay User from a Merchant under one purchase order, payment for which is effected using Spot Payment and through Payxpert;
Working Day: means a day (other than a Saturday or a Sunday or any public holiday) on which banks generally are open both in Hong Kong and in Spain.
2. CONTENTS OF SERVICE
2.1 With authority from the Chinese Acquirers, PAYXPERT will provide service to MERCHANT and its Customers based on the Chinese payment technologies it has developed and for which it has the due cross border licence from the related Acquirers, so that when Customer, typically from China, purchases goods or services from MERCHANT, Customer can complete the payment transaction through its mobile device, with service details agreed hereunder.
Payxpert will make available the Chinese payment solutions depending on the request done by the merchant :
- a) In-App Web-based Payment: Payment services where the goods or services are displayed through an Public Platform.
- b) In-APP Payment: MERCHANT may setup a virtual store inside an APP (application) to display goods and services. Where User interacts with the app to make purchases.
- c) QUICKPAY: MERCHANT initiates the Payment Service by scanning the QR code on Users’ devices, in exchange of the goods or services provided in the MERCHANT’s offline point of sale.
- d) QR Code Payment: USERS initiate the Payment Service by scanning the QR codes provided by MERCHANT.
Chinese Cross-border Acquiring Service can only be used for goods or services which are declared by MERCHANT to PAYXPERT and approved by either Wechatpay, Alipay and/or PAYXPERT. Each transaction shall not exceed the transaction amount limit stated by The payment provider and/or PAYXPERT.
MERCHANT understands and agrees that the payment providefrs and/or PAYXPERT are entitled to adjust the limit of the amount of their transactions according to the types of goods or services operated by the MERCHANT and the risk profile of those commercial activities
3. SECURITY CLAUSE
3.1 Safekeeping of Software provided by PAYXPERT. MERCHANT shall take effective measures to secure the software, including, but not limited to, DLL provided by PAYXPERT, and shall not provide them for use by a third party or disclose them to any other party in any manner whatsoever. MERCHANT shall be solely responsible for all operation with software provided by PAYXPERT.
3.2 Reporting of leak of Software Proprietary Information . If safety of the software provided by PAYXPERT has been compromised and may be subjected to unauthorized use, MERCHANT shall immediately report the incident to PAYXPERT.
Upon receipt of formal notification of leak from merchant, PAYXPERT is entitled to present MERCHANT with formal notification of the follow-up procedure. The formal notification shall take effect from the time at which PAYXPERT expressly notifies MERCHANT by email that “the formal notification of leak has taken effect”. MERCHANT shall be liable for consequences of all operation through the software before the formal notification of leak has taken effect. The MERCHANT payment function will be suspended after the formal notification of leak has taken effect, but account receivables (if any) can still be remitted into such account.
3.3 Effective Means for Submission or Cancellation of Notification of Leak. Upon notification of leak and cancellation of notification of leak, the Parties shall communicate with each other using the telephone number or e-mail address specified in this agreement. MERCHANT acknowledges that, in order to avoid any malicious notification of leak or cancellation of notification of leak, PAYXPERT only accepts the notification of leak through the means mentioned above.
3.4 System Security. The Parties shall ensure the security of their respective computer systems and the related procedures, and undertake that their respective computer systems and the related procedures are free from “trapdoor”, “logic bomb”, “data theft” and any software that may threaten the system security of the other party.
4. RIGHTS AND OBLIGATIONS FOR MERCHANT
4.1 MERCHANT shall honestly and truthfully provide information on the qualifications of MERCHANT to PAYXPERT, including but without limitation, basic information on business and operation, business license (or an identification documentation issued by a competent administrative certifying that the company is legally registered in accordance with the laws of its place of registration), identification of the contact person or authorized representative, settlement bank account information, corporate e-mail address (other than personal e-mail account), etc. Moreover, if MERCHANT is engaged in the business which needs to obtain special license in accordance with the laws or regulations of relevant country or region where MERCHANT is located, MERCHANT should also provide the relevant qualification documents.
4.2 When MERCHANT decides to use its own integrated cashier system, it is then responsible for the set-up of hardware platform and will assume the relevant equipment expenses and communication expenses. PAYXPERT shall adopt the technologies recognized by PAYXPERT to ensure the security, stability and practicability of the cooperation between the Parties, and shall not use any equipment or human resources that might adversely affect the information security, and shall ensure the security and confidentiality in the transmission process of payment information data.
4.3 MERCHANT shall not leak or transfer the interface technology, security protocol or certificate provided by ALIPAY or WeChat-Tenpay and PAYXPERT to a third party for any purposes outside the scope of this Agreement, or pass off other parties transaction as its own transaction to settle accounts with ALIPAY, WeChat-Tenpay and PAYXPERT.
4.4 MERCHANT shall keep the log-in names and passwords properly. All actions of the Acquirers Account are deemed as those of MERCHANT.
4.5 MERCHANT undertakes that all usage of PAYXPERT Payment Service is based on real transactions, and MERCHANT needs to provide sufficient evidence to prove the existence of such transactional relationships between the users and MERCHANT.
4.6 MERCHANT shall ensure the legitimacy, authenticity, accuracy and completeness of the order information. When accepting orders from users, MERCHANT shall record, including but not limited to, the product name, product number, price per unit, total price charged and delivery information of the product ordered.
4.7 MERCHANT shall properly keep the relevant transaction data and proof, including but not limited to the order details and the relevant receipt signed by the customer when accepting the goods for at least five years following the date on which the transaction takes place
4.8 MERCHANT shall not actively engage in or assist the cardholder to engage in any illegal credit card cash-out, money laundering, split transaction and or any other illegal business practices, or engage in false application, skimming, malicious close-down and other serious risk activities. If found to be so, Tenpay, Alipay and/or PAYXPERT are entitled to suspend or terminate the provision of the service under this Agreement and report MERCHANT’s information to the People’s Bank of China, the Ministry of Public Security and the relevant regulatory authorities.
4.9 If MERCHANT changes its address, suspends its business, or changes its domain name or contact number and other MERCHANT information, it shall notify PAYXPERT in advance. Tenpay, Alipay and/or PAYXPERT are entitled to suspend the service according to specific circumstances, and all complaints and disputes resulting from the failure to give timely notice shall be assumed by MERCHANT.
4.10 MERCHANT shall avoid using equipment or human resources in such a way that may impede the security and confidentiality of the devices. Requirements of acquiring equipment installation include:
(1) Acquiring Device position should be stable, safe and easy to operate;
(2) Acquiring Device should avoid direct sunlight, high temperature, damp or near the strong magnetic field;
(3) power supply, communication lines should be consistent with the Acquiring Device application;
(4) other conditions required for normal use of acquiring equipment.
If the installation conditions do not meet the above requirements, resulting in MERCHANT not being able to transact, it will be MERCHANT’s responsibility.
4.11 MERCHANT shall use the Acquiring Device within the scope of the Agreement. Without PAYXPERT’s written consent, MERCHANT shall not transfer, rental, lend, mortgage, pledge, lien or in any other way, dispose of the Acquiring Device. MERCHANT shall not transfer the Acquiring Device arbitrarily or move it to another place of business or exchange between different cashier. Otherwise, MERCHANT shall take responsibility on any directly economic losses incurred to the Customers, PAYXPERT and Tenpay.
4.12 PAYXPERT may withhold any payments to the MERCHANT that have resulted from fraudulent, suspect, or other questionable transactions, including transactions varying materially in character or volume from original ticket size or monthly volume disclosed by the MERCHANT to this Agreement, until such a time as questions regarding such transactions have been resolved to the satisfaction of PAYXPERT.
4.13 The MERCHANT hereby indemnifies and holds PAYXPERT harmless to the fullest extent permitted by applicable law for any loss or damage it may incur as a consequence of the Merchant´s activity.
4.14 Should the MERCHANT do so this Agreement with the MERCHANT may be immediately terminated by PAYXPERT without notice, all funds otherwise due the MERCHANT will be placed on hold for no less than 180 days. Any subsequent investigation by PAYXPERT may be charged to the reserve or settlement account.
4.15 MERCHANT undertakes to declare to the competent tax authorities the income they have received from this business. MERCHANT undertakes to pay any tax applicable to their activity.
4.16 MERCHANT have to paste, display, hang and maintain “WeChat Payment” and/or “Alipay” logo in a prominent position near the Acquiring Device, at their store or official website. MERCHANT shall not use “WeChat Payment”, “Tenpay” and related business logos and trademarks for any other purposes without prior written acceptation from PAYXPERT.
4.17 MERCHANT shall only use the Acquiring Device and the acquiring bank settlement account for the purpose in accordance with the Agreement, and shall not engage in or assist others for any commercial fraud or illegal activities.
4.18 MERCHANT shall not charge Customers any additional fee, or provide inferior service to customers using WeChat Payment Service and/or Alipay.
4.19 MERCHANT shall not use the WeChat Payment and Alipay Cross-border Acquiring Service beyond the business scope that is registered with PAYXPERT.
4.20 MERCHANT shall not reprint, copy, cut out or tamper with the contents on the website of Tenpay, Alipay and/or PAYXPERT or produce derivative products in relation to such contents without the written authorization from Tenpay and/or PAYXPERT.
MERCHANT agrees that it shall actively take precautions against unauthorized transaction of Customers, and promptly resolve all problems and issues relating to customer service. MERCHANT shall be liable for the goods/service transactions between itself and its customers, and PAYXPERT shall be exempted from all claims or losses arising from such transaction. In the event that PAYXPERT or any Users suffers any loss arising from the circumstances in the course of transaction, including but not limited to fake, fraud, theft, disguised transaction, denial of transaction, chargeback, account information leakage, violation of applicable state laws, rules and regulations, breach of commitments to customer, breach duties prescribed in this Agreement, MERCHANT shall cooperatively investigate the cause of claims. PAYXPERT shall not be held responsible for such claims. Where MERCHANT has been reasonably proven to be liable to the damages incurred, PAYXPERT is entitled to deduct the cost from the MERCHANT’s outstanding settlement amount. Where the settlement amount is insufficient for compensation, PAYXPERT may continue to claim for compensation against MERCHANT.
5. RIGHTS AND OBLIGATIONS OF PAYXPERT AND WECHAT/TENPAY
5.1 Tenpay is responsible for the development, operation and management of WeChat Payment and Alipay Cross-border Service Platform. Details of the Terms and Conditions of these Cross-border Service Platform are set out on the respective website of both Alipay and Tenpay. Except as otherwise provided by the Law, Alipay, Tenpay and PAYXPERT are entitled to add, decrease or otherwise change any of Terms and Conditions of their Payment Cross-border Service Platform from time to time. Where there are changes to these Terms and Conditions, PAYXPERT will give reasonable time after the public announcement on the website of Tenpay and/or Alipay for MERCHANT to revert with opposing opinion. If MERCHANT does not notify PAYXPERT with opposing opinion in writing, nor cease to use the service provided by PAYXPERT prior to the expiration of such announcement, the MERCHANT shall be deemed to have agreed to such changes or amendment.
5.2 PAYXPERT is responsible for the construction, operation and administration of the online transaction inquiry system and inquiry interface of the Payment Cross-border Acquiring Service, providing MERCHANT with MERCHANT transaction information management and inquiry services.
5.3 PAYXPERT has the authority from Tenpay and Alipay to promote WeChat Payment Service and WeChat Payment Cross-border Acquiring Service in United Kingdom and all the countries where its license is valid.
5.4 While PAYXPERT is responsible of providing MERCHANT with the Payment Cross-border Acquiring Service, any disputes between MERCHANT and users or other entities shall be handled solely by MERCHANT and shall have no relation with PAYXPERT Tenpay and/or Alipay.
5.5 PAYXPERT is entitled to regularly or irregularly review the business types of MERCHANT. PAYXPERT is entitled to suspend or terminate the provision of the service if MERCHANT engages in any business activity that does not conform to the provisions of this Agreement or those of the relevant applicable laws and regulations.
5.6 PAYXPERT Tenpay and/or Alipay can directly deduct the relevant amount from the Payment MERCHANT Account, to which MERCHANT shall have no objection, where 1) MERCHANT fails to make relevant payment to PAYXPERT Tenpay and/or Alipay in accordance with the provisions of this Agreement; or 2) MERCHANT’s breach of this Agreement causes losses to PAYXPERT Tenpay and/or Alipay or other entities.
5.7 MERCHANT who uses this service shall be deemed as authorizing PAYXPERT to collect and use in a reasonable manner any information or data gathered during Merchant’s use of the Payment Cross-border Acquiring Service, including but not limited to identity information, account information, transaction information. In order to provide better service to users, PAYXPERT is entitled to apply the above mentioned information or data to PAYXPERT’s business development and products improvement initiatives.
5.8 PAYXPERT will be entitled to use the MERCHANT’s name and trademarks subject to the prior written approval of that material by the other party which approval shall not be unreasonably withheld.
6.1 PAYXPERT shall be entitled to require MERCHANT to pay a deposit, in amount as stated in Appendix I of this Agreement.
6.2 MERCHANT shall pay the prescribed deposit for the business within ten (10) working days upon signing of this Agreement and the deposit should be deposited in the specified account designated by PAYXPERT.
6.3 PAYXPERT is entitled to adjust the amount of the deposit to be paid by MERCHANT on the basis of change in status of operation, changes in business and actual payment status. PAYXPERT will notify MERCHANT via e-mail on the amount of the deposit. If MERCHANT fails to provide the amount of the deposit within five (5) working days after receiving the notice, PAYXPERT will be entitled to suspend the provision of service to MERCHANT; if MERCHANT fails to furnish the amount of the deposit within thirty (30) days after receiving such notice, PAYXPERT may unilaterally terminate this contract without assuming any legal responsibilities.
6.4 During the term of this Agreement, if MERCHANT does not breach the Agreement and that no complaint or transaction dispute is lodged by a third party against MERCHANT within one (1) year after this Agreement has been terminated, PAYXPERT shall refund the deposit to MERCHANT without interest.
7. SERVICE FEES AND SETTLEMENT OF TRANSACTION
7.1 Handling Fees (Tax Included)
7.1.1 MERCHANT shall pay any outstanding fees to PAYXPERT into an account designated by PAYXPERT.
7.1.2 The Payment Cross-border Acquiring Service Handling Fees shall be a sum equal to each transaction amount completed by MERCHANT under its MERCHANT Account multiplied by Charge Rate for each Payment Cross-border Acquiring Service. The Charge Rates are listed in Appendix I.
7.1.3 PAYXPERT is entitled to debit The Payment Cross-border Acquiring Service Handling Fees from each transaction prior to crediting MERCHANT Account with the final amount.
7.1.4 If there is policy adjustment in relation to this Agreement from the People’s Bank of China or other applicable authorities or cooperation institutions, relevant regulatory authorities or cooperation institutions or there is any change in law or regulation which may impact on performance of this Agreement, PAYXPERT Tenpay and/or Alipay are entitled to unilaterally adjust the Charge Rate for The Payment Cross-border Acquiring Service and shall notify MERCHANT by writing. MERCHANT acknowledges and agrees that if MERCHANT does not raise written objections to the adjusted Charge Rate within five (5) working days after receiving the written notice from PAYXPERT, the adjusted Charge Rate will apply.
7.1.5 The Parties acknowledges and agrees that with respect to the settlement of fee rate, they recognize that minor discrepancies may arise from rounding down or up, with a difference of up to two decimal places.
7.1.6 Equipment Fee. In case of provision of a physical Terminal (mPOS) by PAYXPERT to the MERCHANT and Upon discontinuance of processing by Merchant or termination of this Agreement, PAYXPERT may impose, collect and receive from Merchant the value of any equipment rented from or through PAYXPERT that is not returmed to PAYXPERT within (10) days of the discountinuance of processing or the termination of this Agreement. PAYXPERT may withhold any such amount from settlement amounts due to Merchant pending return of such equipment. Merchant agrees to pay this fee.
7.2 Settlement of Transaction
7.2.1 PAYXPERT shall, after deducting all service fees payable to PAYXPERT from the corresponding transaction payment of MERCHANT, remit the balance to MERCHANT by way of electronic remittances transfer to the bank account designated by MERCHANT in currency agreed by the Parties. The MERCHANT’s bank account and currency is listed in Appendix I.
7.2.2 In case of MERCHANT changing the bank account for any reason, MERCHANT shall promptly give written notification to PAYXPERT of such change and provide any other information required by PAYXPERT. If MERCHANT changes the bank account but fails to promptly notify PAYXPERT, any costs or losses so incurred shall be borne by MERCHANT.
7.2.3 Payment transaction data shall be kept for six (6) months on the service platform of PAYXPERT and available for free access and download by MERCHANT. MERCHANT shall promptly download the transaction data and file the same for future reference.
7.2.4 Settlement Period: Settlement shall be made based as defined in Appendix I.
7.2.5 Unless otherwise provided in Appendix I of this Agreement, the minimum amount of transfer to MERCHANT by PAYXPERT is EUR 500 or its equivalent in other currencies. If the settlement payment to MERCHANT is less than the minimum agreed settlement limit in any settlement period, such settlement payment will not be remitted to MERCHANT and will be accrued to the next settlement period (Special note: Due to fluctuation of foreign exchange rate, PAYXPERT shall be entitled to make the transfer to MERCHANT even if the amount of transfer is less than the minimum amount mentioned in the above).
7.2.6 MERCHANT acknowledges and agrees that the actual time of receipt is subjected to operation and period of settlement of the intermediary banking systems.
7.2.7 PAYXPERT is entitled to adjust the settlement period on the basis of MERCHANT’s state of operation. Adjustment of business and actual payment status will be notified to MERCHANT via e-mail.
MERCHANT is expected to verify that the settlement from PAYXPERT is correct at the earliest possible opportunity. Where there is no feedback on discrepancies after 30 days, the settlement will be considered completed and no further requests will be entertained. Where a discrepancy is reported by the MERCHANT to PAYXPERT, a response will be given within 7 business days. During the course of investigation, the MERCHANT is expected to cooperate with the investigation.
8. REFUND PROVISIONS
8.1 Where a refund to User is deemed necessary, MERCHANT shall not refund the Customers in any alternative ways than from the payment Solution used to perform the initial payment transaction. Where an alternative form of refund is made, the resulting disputes and risks are to be borne by MERCHANT accordingly.
8.2 Refund arising from the transactions of MERCHANT will be handled in accordance with the following provisions:
（1） When making a request to PAYXPERT for refund, MERCHANT shall have sufficient deposit for the refund in the related Chinese payment method account. PAYXPERT will complete the refund by directly deducting the refund amount from the account of MERCHANT.
（2） If the refund cannot be deducted as a result of the insufficient balance of unsettled funds, MERCHANT shall make refund request to PAYXPERT again until the amount of unsettled funds is sufficient to be deducted.
（3） MERCHANT can request for refund up to ninety (90) calendar days from the day of transaction.
（4） PAYXPERT will charge a transaction handling fee for manually refunded amounts.
9. FRAUD AND RISK
9.1 If an ALIPAY or TENPAY User claims that the MERCHANT has submitted any Unauthorized Payment or other fraudulent Transaction via Alipay’s or Tenpay’s Platform the MERCHANT will comply with the following rules:
- Provides the Transaction Evidence to PAYXPERT within three (3) Working Days upon ALIPAY or TENPAY request.
- In case that the MERCHANT don’t send the duly Transaction Evidence within the above period, PAYXPERT will immediately charge an amount equal to the sum affected.
9.2 If PAYXPERT/ALIPAY/TENPAY reasonably believes that a number of Transactions constitute Prohibited Transactions, Unauthorized Payments or other fraudulent Transactions, it will on reasonable prior written notice from PAYXPERT, provide access to a personal of our tema during normal business hours so that PAYXPERT may review and assess on site the Company’s risk management capabilities and the effectiveness in rejecting Prohibited Transactions, Unauthorized Payments or other fraudulent Transactions.
9.3 PAYXPERT may monitor Merchant’s transactions for risk management purposes. If, compared to information contained in the application, such as annual volume (measured on an annual, prorate monthly or other basis), average ticket sixe, number of transactions, actual activity differs, or PAYXPERT or ALIPAY/TENPAY notices other unusual or suspicious activity (including, without limitation, unauthorized transactions, excessive Chargebacks, suspected or actual fraud, and or breach or default), PAYXPERT is authorized to take protective actions including closing terminals, blocking transactions, holding funds (including, without limitation, charging additional discount rates, and/or fees as a reserve or additional reserve) , and investigating these matters. Merchant agrees to hold PAYXPERT or ALIPAY/TENPAY and its affiliates harmless from and against any and all claims related to risk monitoring.
9.4 PAYXPERT shall consider the Merchant as client after approval of PAYXPERT internal controls.
10.1 Where a chargeback request is triggered, MERCHANT shall reply and provide the original receipts and relevant transaction record to PAYXPERT via e-mail within three (3) working days after receiving such notice from PAYXPERT. Would MERCHANT not provide enough information to PAYXPERT, he irrevocably accepts the deduction of the full amount including possible penalty related on the next settlement.
10.2 MERCHANT shall assist PAYXPERT in properly handling Users’ complaints regarding payment service, and cooperate to implement suggestions put forward by ALIPAY or TENPAY.
11. CONFIDENTIALITY AND NON CIRCUMVENTION OBLIGATIONS
11.1 Unless otherwise provided herein, neither Party shall disclose to any third party, the contents of this Agreement, including but not limited to: the users’ personal information, the customers’ payment information, the interface technology, the security protocol and certificate, the pricing offered, without the written consent of the other Parties. The Parties shall keep confidential the trade secret and know-how obtained during the performance of this Agreement. However, PAYXPERT and/or ALIPAY and/or TENPAY, are entitled to disclose the relevant business information of MERCHANT in any of the following situations:（1）the People’s Bank of China, or the China Banking Regulatory Commission, the China Securities Regulatory Commission, the China Insurance Regulatory Commission or other applicable financial industry regulatory authorities requiring ALIPAY and/or TENPAY to provide the relevant business information of MERCHANT; or(2）the public security authority, the court, the procurator or competent administrative authorities requiring ALIPAY and/or TENPAY and/or PAYXPERT to provide the relevant business information of MERCHANT; or（3）the customer complains about MERCHANT and requests ALIPAY and/or TENPAY and/or PAYXPERT to provide the relevant business information of MERCHANT.(4）The business information referred to herein includes but is not limited to the transaction order number, transaction proof, flow of funds and other transaction information between MERCHANT and the customers. The Parties warrant that its employees and agents shall fulfil the confidentiality obligation provided in this clause.
11.2 The aforesaid confidentiality and non circumvention obligation shall survive the termination of this Agreement.
12. FORCE MAJEURE
Neither party shall be liablefor failure to fullfill its obligations under this agreement if such failure is due to any cause and condition beyond such party’s reasonable control, such as: natural disaster, strickes, fire, floods, war, riot, electrical power failure, decrees of government bodies or communications failure.
13. REQUIREMENT REGARDING THE MERCHANT’S WEBSITE FOR E-COMMERCE
The Merchant’s website must contain at least the following information:
- The Merchant’s name, company registration number and address (including country)
- E-mail address and telephone number for customer service or similar department
- Description of the products/services that the Merchant sells (including prices, taxes, and fees)
- General terms and conditions (including the rules related to Cardholder’s right of cancellation, delivery and payment) as well as shipping costs
- A “click to accept” button or any type of confirmation function on the website whereby the Cardholder is required to accept the conditions governing return policy of the products
- It must be evident that the customer are able to pay using PAYXPERT payment
- Transaction currency (e.g. EUR, USD, DKK)
- Any other restriction from ALIPAY/TENPAY or by PAYXPERT.
14. RISK ASSESSMENT
PAYXPERT shall consider the Merchant as customer after approval of PAYXPERT ‘s internal controls. PAYXPERT reserves the right to perform a risk assessment of the Merchant at any time, including by obtaining credit information relating to the Merchant and its owners, board members, management and authorised signatories, and by requesting the disclouse of financial statements and other information required in order to perform an assessment of the Merchant’s creditworthiness and risk profile. If, on the basis of the risk assessment, PAYXPERT deems it necessary to do so, PAYXPERT may, with inmediate effect:
- Withhold the Merchant’s settlement in whole or in part
- Extend the settlement period for all or parts of the Merchant’s revenue
- Establish a risk and/or chargeback fee that the Merchant will be required to pay
- Ammend or terminate the Agreement in accordance with section
15. CHANGES IN THE MERCHANT’S CIRCUMSTANCES
The Merchant must inform PAYXPERT in writing (by letter or email) of any change in the circumstances reported to PAYXPERT with the application for the Agreement or as stated in the Agreement form itself; in this connection, The Merchant must provide PAYXPERT with written notice of changes in:
- Control of the Merchant
- The ownership of 25% or more of the Merchant or of the Merchant’s share capital
- The Merchant’s Management (including its Borad of Directors, Management and General Manager), as well as authorized signatories
- The Merchant’s Corporate form (e.g. change from a sole proprietorship to a private limited company)
- The Merchant’s line of business or licence
- Adress, telephone number, website address (URL), e-mail address (including the e-mail address used to receive PAYXPERT’s requests for copies of receipts)
- Bank account number
- Any other change in the Merchant’s circumstances of relevance to the Agreement.
During the term of this agreement, Merchant shall not engage or use any other “Acquiring Service Provider”. This exclusivity clause is meant to compensate the investment done by payxpert in relation with but not limited to, supporting the MERCHANT in : obtaining standard marketing operations and financial support from Both Alipay and WeChat ; training the MERCHANT and its employees to the concept of Chinese payments and cultural aspects ; Training the MERCHANT and its employees to the use of the Payment software ; providing the MERCHANT with quality Marketing displays to be displayed on the point of sale.
17. SPECIAL PROVISIONS
17.1 In case the Services are not available due to a failure of the Payxpert Platform, PAYXPERT will use its best efforts to solve the problems within a reasonable period of time.
17.2 PAYXPERT will provide the Services with due care in a professional manner. PAYXPERT does not warrant that the Services will be available uninterrupted and at all times. In particular they cannot have responsibility nor will they provide any warranty for or have any liability whatsoever for the non-availability of the Services due to the malfunction of telecommunication services, payment devices, telecommunication infrastructures and/or internet.
17.3 MERCHANT shall ensure to strictly comply with the mandatory laws, regulations and policies of the People’s Bank of China and MERCHANT’s country and region relevant to the card business. MERCHANT shall not involve in false trading, cash advance, and money laundering and any other illegal activities.
17.4 Fees for Discountinuing Processing. In the event Merchant (i) discontinues or ceases processing Transactions prior to end of the term hereof, (ii) gives notice of discontinuance of processing (including and invalid or ineffective termination notice), or (iii) violates the exclusivity section of this agreement, PAYXPERT will suffer a substantial injury for which it is impracticable or difficult to fix actual damages. In a effort to liquidate in advance the sum that should represent such damages, Merchant agrees to pay PAYXPERT the Early Termination Fee described in the Appendix of rates and fees attached to and made part of this Agreement. Merchant acknowledges that it has been given notice of the Early Termination Fee is fairand reasonable and does not constitute a penalty. Merchant agrees that PAYXPERT may inmediately collect the Early Termination Fee and other outstanding fees from Settlement Account, Reserve Account or any other Account to which PAYXPERT has access.
18. GOVERNING LAW
18.1 This Agreement shall be governed by and interpreted in accordance with the laws of England & Wales, without regard to the conflict of law principles.
18.2 With respect to any disputes arising out of this Agreement, the Parties shall negotiate with good will. In the event of a controversy or dispute between or among any Parties arising out of or in connection with this Agreement or regarding its interpretation or operation, the disputing Parties shall use their best efforts to resolve the dispute amicably.In addition, any dispute aring arising out or in relation to Agreement between the parties and/or any dispute that can be related directly or indirectly to Brexit circumstances shall be finally settled through arbitration by the Brexit Tribunal in accordance with the Internationall Arbitration of the AKDCAE Arbitration Institute in force at the time of commencement of arbitration.
19. TERM, AUTOMATIC RENEWAL AND EARLY TERMINATION
19.1 Any Party’s breach of the obligations provided in this Agreement constitutes a breach of contract. PAYXPERT is entitled to unilaterally terminate this Agreement and require MERCHANT to assume the liability for compensation where MERCHANT:（1）is directly or indirectly involved in any fraud or non compliance with regulations;（2）cannot conduct normal operations due to deteriorated operating and financial situations;（3）operates in violation of the relevant rules, and refuses to make corrections after being pointed out; (4）unreasonably rejects or intentionally delays the query and inspection requests of PAYXPERT and ALIPAY and/or TENPAY;（5）commits any act that harms the interest of PAYXPERT and ALIPAY and/or TENPAY;（6）breaches this Agreement, or engages in illegal business by using services provided by PAYXPERT and ALIPAY and/or TENPAY;（7）involves in risk events or abnormal transactions in PAYXPERT and ALIPAY and/or TENPAY, judgment; (8) The Merchant failed to provide information regarding changes after conclusion of the Agreement, cf. section XV (Changes to Merchant circumstances) or At the time the Agreement was entered into, the Merchant provide inaccurate or incomplete information about the industry in which it is active, or about the Merchant; (9) Ther Merchant’s breach of the Agreement continues, and such breach is not remedied by the Merchant within the time limit specified in writing (by email or letter) by PAYXPERT; (10) The owners or other persons associated with the Merchant appear on United Nations, European or American sanctions lists (e.g. OFAC’s SDN list and the EU’s list of economic sactions or list of terrorists) and (11) The risk assessment of the Merchant is not satisfactory to PAYXPERT.
19.2 The Agreement and its Appendix shall enter into force for one (1) year as of the date of signature and sealed by both Parties. In the event that the Parties fail to request in writing for termination of this Agreement one (1) month prior to the first and subsequent expiration of this Agreement, this Agreement shall be deemed to be extended for one (1) year automatically subject to no limitation.
19.3 Based on their respective operation needs, PAYXPERT is entitled to the early termination of this Agreement without assuming any legal responsibilities. Where the early termination of the Agreement is required, the Party who proposes to do so shall notify the other Parties in writing or via email one month in advance. In case of termination by Merchant, see the section 17.4 of this agreement.
20.1 By signing this Agreement, the MERCHANT accepts the conditions, requirements and restrictions set out in the Appendix and General Terms and Conditions. The MERCHANT acknowledges its/his/her sufficient legal capacity to sign this Agreement at the date first above written, and that the signature below on its behalf duly bind the Merchant.
20.2 This Agreement in no way shall be construed as being an agreement of partnership and none of the Parties shall have any claim against any separate dealings, ventures of assets of any other Party and none of the Parties shall be liable for the other.
20.3 The illegality, invalidity and non-enforceable provision of this document under the laws of any jurisdiction shall not affect its illegality, validity or enforceability under the law of any other jurisdiction or provision.
20.4 Unless otherwise agreed by the Parties, all notices hereunder shall be given by courier service, registered mail or E-Mail. All notices and communications shall be sent to the addresses or emails set forth below:
Contact Person: Nicolas RIEGERT
Address: 1 Fore Street Avenue, London, EC2Y 9DT, England
Telephone: + 44 (0) 122 360 6500