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MultiCards - Terms and conditions

GENERAL TERMS & CONDITIONS MULTICARDS
version 2.0 November 20, 2011

1. DEFINITION OF TERMS
The terms used in this AGREEMENT shall have the meaning as defined in article 25.
2. MULTICARDS
MULTICARDS is engaged in business and performs services, including but not limited to MERCHANT solicitation, underwriting, risk mitigation, gateway services and client relations as required to mitigate and lessen the potential of losses with fraud and other unscrupulous forms of TRANSACTION processing, on behalf of ACQUIRERS in a professional and timely manner. Visa International Inc. recognizes the services rendered by MULTICARDS as an INTERNET PAYMENT SERVICE PROVIDER as defined by VISA;
and MC recognizes the services rendered by MULTICARDS as a PAYMENT FACILITATOR as defined by MC.
MULTICARDS as an ASSOCIATE of the ACQUIRER is authorized to market ACQUIRING SERVICES with regard to CARD NOT PRESENT TRANSACTIONS to MERCHANTS in the REGION and refer MERCHANTS to the ACQUIRER for acceptance.
3. MERCHANT
3.1 MERCHANT accepts that MULTICARDS due diligence on prospective MERCHANTS shall include, but not be limited to:
3.2 performing a credit check, background investigation and reference check of the MERCHANTs owners, partners or principal shareholders, depending on the MERCHANTs legal status.
3.3 performing inspection of the MERCHANTs premises and websites and records to ensure that it has the proper facilities, equipment, inventory and, if applicable, operational licenses or permissions, and other capabilities to conduct its business.
3.4. A MERCHANTs website shall fulfil the following requirements:
a. VISA and MC brand marks in correct colour to indicate VISA/MasterCard acceptance;
b. Complete description of the goods or services offered for sale by that MERCHANT on its website;
c. A return/refund policy`s terms and conditions must be specified on the MERCHANTs website(s):
d. A MERCHANTs service contact, including electronic mail address or telephone number;
e. Address of the MERCHANTs permanent establishment within REGION;
f. Transaction currency;
g. Any export restrictions, if applicable;
h. A delivery policy`s terms and conditions must be specified the MERCHANTs websites(s):
i. Disclosure of the country in which the MERCHANT outlet is located at the time of presenting payment options to the CARDHOLDER;
j. A consumer`s data privacy policy`s terms and conditions must be specified on the MERCHANTs website(s):
k. Security capabilities and policy for transmission of payment card details. MERCHANT shall fulfil the PCI DSS requirements on card security.
4. OBLIGATIONS OF THE PARTIES
4.1. The MERCHANT accepts that MULTICARDS undertakes to perform risk management on the MERCHANTS transactions, which shall include functions such as, but not limited to, TRANSACTION monitoring, velocity checking, assignment of risk parameters as may be necessary including restricting the number of times a particular CARD may be used within a predetermined period of time, prohibiting specific transactions from settling that may be deemed fraudulent, performing appropriate so called data scrubbing to ensure all transactions submitted for payment are valid TRANSACTIONS for products or services provided. MULTICARDS is entitled to set parameters for risk management if MULTICARDS considers such measures necessary.
4.2. MULTICARDS ensures compliance to PCI DSS on data security of the MULTICARDS GATEWAY, or data security within any software MULTICARDS provides to MERCHANTS, as well as any other third party contractual agreements in relation to its credit CARD TRANSACTION processing.
4.3. The MERCHANT shall be responsible of informing MULTICARDS of sudden increase or decrease in the MERCHANTs TRANSACTION volume and any information change, including but not limited to ownership, company name, main contact, phone numbers, email addresses and etc.
4.4. This AGREEMENT is only designed for MERCHANTS with relatively moderate turnover. In the event where a single MERCHANT exceeds the TOTAL MONTHLY VOLUME for three consecutive months, the MERCHANT must contract directly with MULTICARDS ACQUIRER. Failure to do so, agree on and move the MERCHANT into a new model, will result in termination of the MERCHANT.
4.5. The MERCHANT shall ensure MULTICARDS that his business shall:
a. not knowingly submit any TRANSACTION that is illegal;
b. if MULTICARDS has specifically allowed certain transactions , that the MERCHANT has a valid license or other appropriate authority to operate its websites under the local law of the country where the MERCHANT has its principal place of business;
c. submit valid TRANSACTIONS, in order to ensure that the MULTICARDS can submit to it`s ACQUIRER records of valid TRANSACTIONS submitted by a MERCHANT;
d. comply with the CARD ASSOCIATIONS RULES as published and amended from time to time;
http://usa.visa.com/download/merchants/visa-international-operating-regulations-main.pdf http://www.mastercard.com/us/merchant/pdf/BM-Entire_Manual_public.pdf.;
e. promptly supply MULTICARDS and/or the CARD ASSOCIATIONS with any information upon request;
f. do not deposit a TRANSACTION RECEIPT before shipping or providing the goods or services to the CARDHOLDER, except in the case of a DEPOSIT TRANSACTION RECEIPT or an ADVANCE DEPOSIT TRANSACTION;
g. include the terms and conditions of its sales or services on its website;
h. are bound in writing to MULTICARDS right to immediately stop processing MERCHANTS TRANSACTIONS if MERCHANT has in any way breached any obligation laid on him;
i. authorise MULTICARDS ACQUIRER to contact them directly and conduct an onsite investigation of MERCHANT at any time to investigate the MERCHANTS compliance with CARD ASSOCIATIONS RULES;
j. do not accept CARDS or any other paytype for the purchase or trade of child abuse imagery or any other illegal goods or services, including but not limited to those determined by CARD ASSOCIATIONS from time to time;
k. do not in any way incorrectly identify the relevant good or service sold or in any way attempt to mislead MULTICARDS and it`s ACQUIRER and/or or the CARD ASSOCIATIONS as regards the subject matter of each TRANSACTION;
l. acknowledges, that MERCHANT is informed of the unblended pricing procedures of the Card Associations, i.e. the difference in prices for the following card types as a minimum:
Visa Credit Cards, Visa Debit Cards (e.g. Electron), Visa Commercial Cards, MasterCard Credit Cards, MasterCard Debit Cards (e.g. Maestro) and MasterCard Commercial Card;
5. TRANSACTIONS RECEIPT
5.1. MULTICARDS is authorized by the ACQUIRER and CARD ASSOCIATIONS to deposit TRANSACTION RECEIPTS on behalf of a MERCHANT.
5.2. A MERCHANT must not deposit a TRANSACTION RECEIPT until the TRANSACTION is completed. A TRANSACTION is deemed completed when any one of the following has occurred:
a. the goods or services are shipped or provided;
b. the purchased service is performed;
or
c. the CARDHOLDERs consent is obtained for a recurring TRANSACTION;
5.3. MULTICARDS name may appear alone, without the name of its MERCHANT, on the TRANSACTION RECEIPT and billing statement only if
a. the CARDHOLDER accesses the MULTICARDS website directly to make a payment;
and
b. MULTICARDS name is visible to the CARDHOLDER during the selection, order and payment processes.
5.4. The name of the MERCHANT in conjunction with the name MULTICARDS must appear in the clearing record and on the CARDHOLDERs statement, regardless of whether the CARDHOLDER accessed the website of the MERCHANT directly, or via the website of MULTICARDS (for example, MULTICARDS*MERCHANT).
5.5. For a TRANSACTION representing the purchase of goods or services by a CARDHOLDER from a MERCHANT, the outlet shall belong to the MERCHANT. MULTICARDS may only provide payment services to MERCHANTS in respect of those MERCHANTs outlets that are within the REGION. The MERCHANT country code included in the AUTHORISATION REQUEST and clearing record must be the country code of the MERCHANT. The location of the MERCHANT determines the location of a TRANSACTION not the location of the MULTICARDS.
5.6. MULTICARDS shall offer service to MERCHANTs CARDHOLDER if the CARDHOLDER can access MULTICARDS website directly. The service shall be given through MULTICARDS website. MULTICARDS and its MERCHANTS must provide service and after-sales support either directly from MULTICARDS or via its MERCHANT in all languages supported by the payment page. MULTICARDS and its MERCHANTS must clearly display details of their service contact on their websites.
6. REFUND
MERCHANT shall ensure a fair exchange and return policy and make adjustments with respect to goods and services sold and/or leased. Furthermore, MERCHANT shall ensure if goods are returned, or services are terminated or cancelled, or any price is adjusted, MERCHANT must prepare and transmit a credit or refund TRANSACTION, electronically, for the amount of the adjustment as a deduction from the total amount of TRANSACTIONS transmitted that day. If no refund will be given, CARDHOLDER must be advised in writing at the time of the Transaction that the sale is a -final sale- and -no returns- are permitted. CARDHOLDER must also be advised in writing of any policy of MERCHANT that provides for no-cash refunds and in-store credit only. MERCHANT shall follow CARD ASSOCIATION reservation/no-show policies. MERCHANT shall notify CARDHOLDER in writing of this policy on all advance reservations. MERCHANT also shall notify CARDHOLDER at the time of the reservation of the exact number of days required for reservation deposit refunds. If the amount of credit or refund Transactions by MERCHANT exceeds the amount of sales Transactions, MERCHANT shall pay MULTICARDS the excess. MERCHANT shall make no cash refunds on TRANSACTIONS and shall handle all credit adjustments as provided in this Section. MULTICARDS will receive and accept refund TRANSACTIONS for 60 days. However, where the MERCHANT has been closed by MULTICARDS, MULTICARDS will receive and accept refund Transaction for 30 days from that MERCHANT. MULTICARDS and its ACQUIRER are entitled to reject all refund TRANSACTIONS from MERCHANT with immediate effect should any fees, cost, charges, fines or penalties be assessed against MULTICARDS or its ACQUIRER by any CARD ASSOCIATION or Issuer.
7. FEES
7.1. MERCHANT undertakes to pay MULTICARDS all fees mutually agreed by MULTICARDS and MERCHANT and specified in Appendix 1 as amended by MULTICARDS, from time to time. MERCHANT also agrees to pay MULTICARDS the amount of any fees, cost, charges, fines or penalties assessed against MULTICARDS or its ACQUIRER by any CARD ASSOCIATION or ISSUER for violations by the MERCHANT of the CARD ASSOCIATION RULES. Furthermore, MERCHANT agrees to pay MULTICARDS or its ACQUIRER reasonable management cost arising from MULTICARDS or its ACQUIRER reasoning with CARD ASSOCIATION to lower or erase the fines or penalties the CARD ASSOCIATIONs have warned. As an example, management cost is travelling cost for management in connection with necessary meetings with the Card Association`s representatives.
7.2. MULTICARDS discount rate is deducted from the gross amount authorised and settled in every single SETTLEMENT to the MERCHANT in addition to other fees when applicable. MULTICARDS service charge and fees are stated in Appendix 1 to this AGREEMENT.
7.3. Rates given in Appendix 1 are calculated based on presumptions on general MERCHANT profiles and behaviour.
7.4. MULTICARDS reserves the right to review a MERCHANT relation at any time in its sole discretion based on margin for MULTICARDS being unsatisfactory compared to MULTICARDS benchmark. Reasons thereof may include, but are not limited to the MERCHANT risk category, MERCHANTs behaviour or high domestic interchange rate. An explanation will be given with the review or MULTICARDS will suggest an acceptable change. MULTICARDS also reserves the right to raise issues with the MERCHANT if volume diagnosis reveal that the margin for MULTICARDS is unsatisfactory compared to MULTICARDS benchmark, where the final result may be that MULTICARDS in its sole discretion changes the fees, with a two weeks’ notice, or terminates MERCHANT setup or this AGREEMENT in accordance with Section 18.
7.5. If CARD ASSOCIATIONs fees (e.g. interchange fees, volume related fees, clearing and settlement fees) change, MULTICARDS reserves the right to change any affected fee in this AGREEMENT with a two weeks notice.
9. SETTLEMENT
9.1. MULTICARDS pays the MERCHANT directly or appoints a trustee or escrow agent as MULTICARDS SETTLEMENT agent, for and on behalf of MULTICARDS.
9.2. TRANSACTIONS shall be settled in accordance with Appendix 1 (TERM SHEET).
9.3. MULTICARDS shall be settled with by the CARD ASSOCIATIONS in the respective currency of an account setup for the MERCHANT. MULTICARDS payment to the MERCHANT shall be made on a BUSINESS DAY in the same currency as the SETTLEMENT by the CARD ASSOCIATIONS.
9.4.MULTICARDS shall deliver payment to MERCHANT by a credit to the SETTLEMENT ACCOUNT. This credit will be reduced, if necessary, by:
(i) the sum of all CARDHOLDER charges denied, refused or CHARGEBACK;
(ii) all refunds processed on account of CARDHOLDERS during said time period, if allowed in Appendix 1;
(iii) the fees and charges, including CHARGEBACK the MERCHANT owes MULTICARDS hereunder and calculated foreseeable fees;
(iv) any justified claim against the MERCHANT, irrespective of whether the claim is because of SETTLEMENT or adjusting entries, or originates in other business between the PARTIES;
(v) all taxes, penalties, fines, charges and other items incurred by MULTICARDS that are reimbursable pursuant to this AGREEMENT, including CARD ASSOCIATION`s penalties and fines;
(vi) all rates, fees and charges described in Appendix 1.
9.5. If a portion of MERCHANTs assets becomes subject to attachment, distrait or other equivalent sequestration or MERCHANT enters bankruptcy proceedings, commences upon debt negotiations, ceases payments or acknowledges insolvency, MULTICARDS is authorised to withhold payments for guaranteeing potential reclaims against the MERCHANT. In exercising this provision, MULTICARDS shall see to it that it does not withhold more capital than necessary for such a guarantee and not longer than necessary.
9.6. In the event of breaches of the provisions of this AGREEMENT, MULTICARDS shall be entitled to subtract the amount from subsequent amount referred for SETTLEMENT. In case the AGREEMENT is terminated as a result of the breach, MULTICARDS is entitled to withhold due SETTLEMENT if MULTICARDS aggregated coverage with MERCHANTS ROLLING RESERVE and due SETTLEMENT is negative or less than 10% of MERCHANT volume for the last 6 months according to MULTICARDS risk calculations. If due SETTLEMENT is being withheld MERCHANT will receive a copy of MULTICARDS risk calculation. The SETTLEMENT will be paid out according to MULTICARDS risk calculation.
9.7. In the event where MERCHANTs turnover has risen considerable in MULTICARDS opinion, MULTICARDS is entitled to withhold any due SETTLEMENT and ROLLING RESERVE. MERCHANT will receive a copy of MULTICARDS risk calculation. The SETTLEMENT will be paid according to MULTICARDS risk calculation.
9.8. In the event of incorrect SETTLEMENT to MERCHANT, to which MERCHANT is not entitled in accordance with this AGREEMENT, MULTICARDS shall be entitled to subtract the amount from subsequent amount referred for SETTLEMENT. Furthermore MULTICARDS shall be entitled to claim repayment without delay of such amounts or any other claim that MULTICARDS is entitled to against the MERCHANT in connection with this AGREEMENT or to claim such amounts by forwarding an invoice.
9.9. The MERCHANT shall have access to MULTICARDS BACK OFFICE and shall follow MULTICARDS rules and instructions regarding access, use and security of data.
9.10. MULTICARDS only delivers payments to MERCHANTs SETTLEMENT ACCOUNT if the funds to be transferred exceed a minimum of 500 units of the corresponding currency. Where the amount payable by MULTICARDS to the MERCHANT is lower than the minimum amount the amount payable is deferred until the total amount reaches the minimum limit.
10. ROLLING RESERVE ACCOUNT
10.1. MULTICARDS in cooperation with the ACQUIRER has established an account at a financial institution designated for the MERCHANT, but which shall be the property of ACQUIRER, for all future indebtedness of the MERCHANT to MULTICARDS that may arise out of or relate to the obligations of the MERCHANT under this AGREEMENT (hereinafter referred to as -ROLLING RESERVE ACCOUNT-), including, but not limited to, CHARGEBACKS, fees, and CARD ASSOCIATIONs fines and penalties, in such amount as MULTICARDS from time to time may determine at its sole discretion. One ROLLING RESERVE ACCOUNT per currency shall be established for the MERCHANT. The ROLLING RESERVE ACCOUNT is the property of ACQUIRER and ACQUIRER will retain all interest accrued on the ROLLING RESERVE ACCOUNT and will deduct from the ROLLING RESERVE any and all bank charges incurred in connection with the operation of the ROLLING RESERVE ACCOUNT.
10.2. MULTICARDS may fund the ROLLING RESERVE ACCOUNT by deduction from payments due to the MERCHANT or a charge against the MERCHANTs SETTLEMENT ACCOUNT or against any of the MERCHANTs accounts at MULTICARDS. The MERCHANT shall be able to check the status of the ROLLING RESERVE ACCOUNT through MULTICARDS BACK OFFICE. The calculation of the ROLLING RESERVE ACCOUNT shall be as described in Appendix 1.
10.3. MULTICARDS shall weekly repay the ASSOCIATE an amount equivalent to what was deducted as a ROLLING RESERVE for the weeks preceding the previous twenty-six weeks less what MULTICARDS has deducted according to this AGREEMENT. MULTICARDS shall remit the amount to the MERCHANTs SETTLEMENT ACCOUNT.
10.5. MULTICARDS is entitled to withhold the ROLLING RESERVE fund that MULTICARDS is to release in the next ROLLING RESERVE settlements subject to MULTICARDS risk calculations, for example if the MERCHANTs turnover is notably different from average monthly volume during the last six months, resulting in MULTICARDS aggregated coverage with the MERCHANTs ROLLING RESERVE and due SETTLEMENT being negative or less than 10% of the MERCHANTs volume for the last six (6) months. When 10% is reached, MULTICARDS will follow the aforementioned procedure (9.3) regarding settlement of the ROLLING RESERVE.
10.6. The ROLLING RESERVE ACCOUNT will be maintained for a minimum of six months after the date on which this AGREEMENT terminates or until such time as MULTICARDS determines that the release of the funds to the MERCHANT is prudent, in the best interest of MULTICARDS, and commercially reasonable, and that MERCHANTs account with MULTICARDS is fully resolved. MULTICARDS decision is based on its risk calculation model. The time period can be longer than six months. Any balance remaining in the ROLLING RESERVE ACCOUNT will be paid into the MERCHANTs SETTLEMENT ACCOUNT. MULTICARDS will inform the MERCHANT in writing of any charges debited to the ROLLING RESERVE ACCOUNT during this period.
11. TECHNICAL INTEGRATION BETWEEN MULTICARDS AND MERCHANT
11.1. MULTICARDS undertakes to provide the MERCHANT with access to MULTICARDS processing system to facilitate TRANSACTION processing for MERCHANTS, and the MERCHANT is required to interface at the MERCHANTs expense to MULTICARDS system.
12. WARRANTIES AND OBLIGATIONS
12.1. Without prejudice to any other obligations of the MERCHANT provided elsewhere in this AGREEMENT, the MERCHANT represents, warrants and undertakes that:
12.1.1. LEGAL
a. the MERCHANT is a corporation validly existing and in good standing under the laws of the country where it is registered and is authorized to engage in the business described in this AGREEMENT;
b. the MERCHANT has obtained all the necessary consents, authorizations or permissions, if any, from any governmental body, agency, commission, board or office, and any corporation or individual creditors, and other third parties;
c. the SETTLEMENT of the CREDIT CARD TRANSACTIONS will not constitute a breach of, violation of, or default under any law rule, or regulation of the laws of the country where the MERCHANT is registered and the CARD ASSOCIATIONS RULES;
d. there are no actions, suits, proceedings, or investigations pending or, to the knowledge of the MERCHANT, threatened against or affecting MULTICARDS with respect to any of the TRANSACTIONS presented to MULTICARDS ACQUIRER for SETTLEMENT;
e. all TRANSACTIONS originating from the MERCHANT will be honoured by both the CARD ASSOCIATIONS and the CARD issuing bank;
f. that all operations by the MERCHANTS are in compliance with the CARD ASSOCIATION RULES and applicable local law;
g. it will not contest the ownership of any of VISA or MC brands for any reason whatsoever and to immediately cease using the brands when, for any reason, MULTICARDS or it`s ACQUIRER requires;
and
h. it acknowledges and agrees that the CARD ASSOCIATIONS have the right to enforce any provision of their respective CARD ASSOCIATIONS RULES to prohibit the MERCHANT any conduct that may injure or may create a risk of injury to the respective CARD ASSOCIATION, including injury to reputation, or that may adversely affect the integrity of the CARD ASSOCIATION`s core payment systems, information, or both. The MERCHANT agrees not to take any action that might interfere with or prevent exercise of this right by the CARD ASSOCIATION.
12.1.2. GENERAL
Specifically, the MERCHANT warrants and ensures that:
a.The MERCHANTS has all the corporate powers to collect/accept these CARD TRANSACTIONS through MULTICARDS and it`s ACQUIRER;
and
b. only CARD TRANSACTIONS originating from CARD NOT PRESENT virtual terminals or POINT OF SALE TERMINALS that are VISA/MC compliant shall be presented to MULTICARDS and that these TRANSACTIONS will carry the appropriate validation from the issuers by providing valid CARD security value, CVV2/CV2.
12.1.3. RELATED TO REGULATORY ISSUES
a. The MERCHANT warrants that it shall make proper representations with MULTICARDS on the nature of its business and warrants that it shall abide by the provisions of the EU Directive 2005/60 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and Terrorist Financing. MULTICARDS is obliged to inform the ACQUIRER and to the appropriate government regulatory office(s) any TRANSACTION determined to be suspicious through its monitoring system.
13. LABELLING
13.1. MERCHANT must only use the logos/design approved by the CARD ASSOCIATIONS in accordance with their respective rules or MULTICARDS instruction, including any reproduction, usage and artwork standards that may be in effect from time to time.
13.2. By this AGREEMENT the MERCHANT receives a non-transferable, non-exclusive, terminable and royalty-free licence to use MULTICARDS name and trademark to the extent such serves the purposes of this AGREEMENT. The MERCHANT shall follow MULTICARDS instructions in regard to the use of said trademark and name and accepts that said licence may be altered or revoked at any time with immediate effect.
14. TRANSFER OF RIGHTS
14.1. The MERCHANT may not subcontract, sublicense, assign, franchise, or in any other manner extend or transfer to any third party any right or obligation the MERCHANT has with MULTICARDS according to this AGREEMENT.
15. AUDIT AND ACCESS PRIVILEGE
15.1. MULTICARDS will regularly monitor the MERCHANTs performance and procedures with regard to this AGREEMENT.
15.2. MULTICARDS and it`s ACQUIRER, CARD ASSOCIATIONS or its designees may from time to time conduct financial and procedural audits. The MERCHANT shall provide information requested pertaining to MERCHANTs financial condition upon request. Furthermore, the MERCHANT shall allow MULTICARD`s employees or its designated representatives such access to their facilities, data, information and material as may be necessary.
15.5. If the outcome of the monitoring, assessment and/or audit is in the ACQUIRERS’ opinion unacceptable, MULTICARDS has the right to terminate the AGREEMENT in accordance with Section 18, or terminate specific TERMINAL setups in MULTICARDS system if the ACQUIRER values that sufficient to control the problem.
16. AMENDMENTS TO THIS AGREEMENT
16.1. Amendment to Cards and/or Services. MULTICARDS may amend Cards or Services listed in Appendix 1 by notifying MERCHANT in writing of any amendment. All provisions of this Agreement shall apply to Cards or Services added to this Agreement. MULTICARDS shall notify MERCHANT of the fees for processing the additional Cards and Services. Acceptance by MERCHANT of a new approved Card as payment for a Transaction or use of a new Service after MULTICARDS has sent MERCHANT notice of an amendment shall constitute MERCHANTs agreement to the amendment and the fees or charges related to these additions.
16.2. Amendments to all other Provisions. MULTICARDS may amend this Agreement in any manner other than as described in Section 16.1 with one month`s notice. However, the notice period may be shorter if the amendments are caused by requirements from the CARD ASSOCIATIONS, authorities or by material security issues.
17. FORCE MAJEURE
Neither PARTY shall be responsible for any delay in performance or non-performance to the extent it is caused by any matter outside its reasonable control, provided that it shall use its best endeavours to minimize the delay or non-performance and to resume performance as soon as reasonably practicable.
18. TERMINATION OF AGREEMENT
18.1. This AGREEMENT shall become effective when signed by both PARTIES and will remain in full force until terminated by either PARTY with 30 days prior written notice.
18.2. MULTICARDS may terminate this AGREEMENT or Acquiring Services for a special type/s of brand/s with immediate effect to MERCHANT under any of the following circumstances, such termination becoming effective upon receipt of a notice in accordance with Appendix 1 of this AGREEMENT;
a. breach of this AGREEMENT by MERCHANT;
b. any information concerning MERCHANT obtained by MULTICARDS is unsatisfactory at sole discretion of MULTICARDS or it`s ACQUIRER;
c. any act of fraud or dishonesty is committed by MERCHANT and/or its employees, or MULTICARDS believes in good faith that MERCHANTS and/or its employees, its employees have committed, are committing or are planning to commit any acts of fraud or misrepresentation;
d. CHARGEBACK and/or fraud of MERCHANT is excessive in the opinion of MULTICARDS;
e. any representation or warranty made by MERCHANT in this AGREEMENT is not true and correct;
f. MULTICARDS or it`s ACQUIRER discovers through receipt of a warning from a CARD ASSSOCIATION or other risk control contracting party that a MERCHANT is selling illegal merchandise;
g. MERCHANT files a petition under any bankruptcy or insolvency law;
h. MERCHANTs percentage of error TRANSACTIONS or retrieval requests is excessive in the opinion of MULTICARDS;
i. any insurance policy obtained by MULTICARDS or it`s ACQUIRER relating to TRANSACTIONS and/or CHARGEBACKS from MERCHANT is reduced, cancelled or terminated for any reason;
j. MERCHANT fails to provide financial statements upon request and as may be requested by MULTICARDS ACQUIRER;
k. the MERCHANT ceases to conduct the business in the same way as it was operated at the time of conclusion of this AGREEMENT;
l. the MERCHANT acts in contravention of generally accepted business practice;
m. there is a significant change in MERCHANTs turnover or number of TRANSACTIONS without prior approval from MULTICARDS;
n. if volume restrictions set by the ACQUIRER for MERCHANT are not met;
o. MERCHANTs business practices cause, in MULTICARDS absolute discretion, a risk of loss or any other event or series of events whether related or not (including, without limitation, any material adverse change in the business assets or financial condition of the MERCHANT) which in the opinion of MULTICARDS may affect the ability or willingness of the MERCHANT to comply with all or any of its obligations or meet all or any of its possible liabilities under this AGREEMENT;
p. MERCHANT has not started processing within two months after MULTICARDS has issued the MERCHANT ID number;
q. if new management or new owners of MERCHANT have previously been in default of an agreement regarding CARDS;
r. if anything happens to the MERCHANT or in relation to the MERCHANT or arising from or incidental to the MERCHANTs business or the conduct of the MERCHANTs business (including trading practices and individual activities) that MULTICARDS or it`s ACQUIRER at its absolute discretion considers disreputable or capable of damaging their reputation or that of any of the CARD ASSOCIATIONS, detrimental to MULTICARDS or its ACQUIRER`s business or that of any of the CARD ASSOCIATIONS, or that may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity;
or
s. a CARD ASSOCIATION requires MULTICARDS or it`s ACQUIRER to terminate this AGREEMENT.
18.3. Termination of this AGREEMENT shall not affect any existing obligations, warranties, indemnities and agreements with respect to TRANSACTIONS entered into before termination of this AGREEMENT.
18.5. During the course of this Agreement MULTICARDS or it`s ACQUIRER reserves the right to place MERCHANT in a Terminated MERCHANT file established by the CARD ASSOCIATIONS for termination Due cause.
19. INDEMNITY AND LIABILITY
19.1. MULTICARDS and it`s ACQUIRER are responsible towards the CARD ASSOCIATIONS for the acts or omission of the MERCHANT.
19.2. The MERCHANT irrevocably agrees to indemnify and hold MULTICARDS harmless of any loss, claim, fines, demands costs and other payments, whatever their name or nature, resulting directly or indirectly of any breach by the MERCHANT of any provision of this AGREEMENT, any statement made in or in connection with this AGREEMENT or any breach of the CARD ASSOCIATIONS RULES.
19.3. The MERCHANT furthermore agrees to indemnify and hold MULTICARDS harmless from any and all losses, claims, damages, liabilities and expenses, including attorneys’ fees and costs (whether or not an attorney is an employee of MULTICARDS or it`s ACQUIRER) arising out of any fees and fines levied against MULTICARDS as the result of the MERCHANT exceeding one or more ASSOCIATION thresholds or standards. If any such fee or fine is imposed on MULTICARDS as a result of the activities of MERCHANT, such fee or fine will be assessed to the MERCHANT.
19.4. If the MERCHANT violates its obligations under the AGREEMENT, according to MULTICARDS sole discretion, then MULTICARDS has the right to deduct the claim, fine, penalty or cost from the MERCHANTs SETTLEMENT(s) and/or terminate the AGREEMENT immediately in accordance with Section 18 of this AGREEMENT.
21. SEPARABILITY CLAUSE
If any one or more of the provisions contained in the AGREEMENT or of any document executed in connection herewith shall be invalid, illegal or unenforceable, the remaining provisions contained herein shall not in any way be affected or impaired.
22. CONFIDENTIALITY
22.1. The PARTIES acknowledge that during the process of this AGREEMENT, certain sensitive commercial information on each other`s business will be exchanged. The PARTIES agree that neither during the term of this AGREEMENT nor after its termination for whichever reasons, will they disclose of any such information to any third party or use such information in any way which may be detrimental to the other PARTY, save for:
a. obliged by law;
b. so ordered by court;
c. to its professional advisers bound by secrecy either by their professional ethics or by law, or;
d. so expressly accepted in writing by the other PARTY.
22.2. For the purposes of this Section, the term -sensitive commercial information- shall mean any information of whatever nature relating in any way to either the business of the PARTIES, the definition of which shall be at the sole and unilateral discretion of the PARTY which the relevant information concerns.
23. CARD ASSOCIATION RULES AND REGULATIONS In the event of any inconsistency between any provision of this AGREEMENT and the CARD ASSOCIATIONS RULES, the CARD ASSOCIATIONS RULES shall govern.
24. GOVERNING LAW
24.1. This AGREEMENT shall be governed by, interpreted and enforced under the laws of The Netherlands.
24.2 Rates and Fees are subject to VAT (BTW) in the Netherlands. EU Merchants outside The Netherlands with a valid VAT number in the EU are subject to VAT charge in their own country.
24.3. Any dispute concerning the validity or interpretation of this AGREEMENT or any other matter pertaining to the AGREEMENT shall be resolved according to applicable Dutch Law with the exclusive jurisdiction of the District Court of ‘s-Hertogenbosch as the court of first Instance.
25. DEFINITION OF TERMS
The terms used in this AGREEMENT shall have the following meaning:
1.1 ADVANCE DEPOSIT TRANSACTION means a TRANSACTION that an Airline, Car rental company, Hotel or a Cruise Line completes, resulting from a CARDHOLDERs consent to use a CARD for payment of an advance deposit required by the MERCHANT to reserve accommodation.
1.2 ACQUIRER means a member of a CARD ASSOCIATION that maintains MERCHANT relationships, acquires data relevant to a TRANSACTION from a MERCHANT, and submits that data to the CARD ASSOCIATION.
1.3 ACQUIRING SERVICES means the processing, clearing and settlement of CARD TRANSACTIONS between the CARD ASSOCIATIONS, the MERCHANTS and the ISSUERS.
1.4 AUTHORISATION means an affirmative response to an AUTHORISATION REQUEST, that a TRANSACTION is within the CARDHOLDERs available credit limit and/or that the CARDHOLDER has not yet reported the CARD lost or stolen.
1.5 AUTHORISATION REQUEST means a request by or on behalf of MERCHANT to effect a TRANSACTION.
1.6 BACK OFFICE means a secure website provided by MULTICARDS that allows the MERCHANT to view TRANSACTIONS, account statements, settlements and other information in relation to MERCHANTs CARD acceptance.
1.7 BUSINESS DAY shall mean any day other than (i) Saturday or Sunday, (ii) a public holiday in The Netherlands and/or in the country where the relevant MERCHANT has its establishments, and/or (iii) a day on which banking institutions in The Netherlands are authorised by law or by regulatory order to be closed.
1.8 CARD(S) means credit, debit and prepaid cards of VISA, VISA Electron, MasterCard and Maestro and other branded debit or credit cards like American Express etc.
1.9 CARD ASSOCIATION(S) means a worldwide incorporated body regulating and processing specific brands of CARDS, namely:
VISA, VISA International Inc. and MC.
1.10 CARD ASSOCIATIONS RULES means the CARD ASSOCIATIONS by-laws, Operating rules and, rules and regulations and MC`s Regional Board Delegations. Also guidelines, policy statements or threshold requirements of such parties.
1.11 CARDHOLDER means a holder of a valid CARD issued by a financial institution being a member of one or more of the CARD ASSOCIATIONS or other branded cards like American Express etc.
1.12 CARD NOT PRESENT TRANSACTION means a TRANSACTION, which is completed when neither the CARDHOLDER nor the CARDHOLDERs CARD is present at the POINT OF SALE, e.g. mail orders, telephone orders, e-commerce (Internet) orders or pre-authorised recurring order TRANSACTIONS.
1.13 CHARGEBACK means any debit of MULTICARDS by the CARD ASSOCIATIONS or, by a CARD issuer, in accordance with the CARD ASSOCIATIONs dispute rules and regulations.
1.14 CLEARING RECORD refers to the process by which financial details regarding a TRANSACTION, including records of a presentment, CHARGEBACKS, representments, reversal or adjustments are exchanged between an ACQUIRER and an issuer in order to clear the TRANSACTION, according to the CARD ASSOCIATION RULES.
1.15 CREDIT & FRAUD RISK POLICY GUIDELINES (hereinafter referred to as CFRP GUIDELINES) means MULTICARDS guidelines of fraud and risk management, which include inter alia Know Your Customer (KYC) requirements, policies, procedures and internal controls, as defined from time to time.
1.16 DELAYED DELIVERY TRANSACTION means a single TRANSACTION where a CARDHOLDER endorses, and a MERCHANT completes, two separate TRANSACTION RECEIPTS. The first TRANSACTION RECEIPT functions as a deposit (such as a down payment) for goods or services;
the second is to pay the balance due to the MERCHANT.
1.17 DEPOSIT TRANSACTION RECEIPT means the first TRANSACTION RECEIPT in a DELAYED DELIVERY TRANSACTION.
1.18 FLOOR LIMIT means the TRANSACTION amount limit for all CARD TRANSACTIONS that shall be sent to the acquiring bank through MULTICARDS for AUTHORISATION.
1.19 GATEWAY means a PCI DSS certified device, approved by Card Associations that facilitates the transfer of information between a payment portal (such as a website or mobile phone) and the PROCESSOR or ACQUIRER.
1.20 INTERNET PAYMENT SERVICE PROVIDER (hereinafter referred to as IPSP) means an entity, as defined by VISA, which is registered with the relevant CARD ASSOCIATION by the ACQUIRER to facilitate TRANSACTIONS from MERCHANTS.
1.21 MERCHANT refers both to a SPONSORED MERCHANT and a SUB MERCHANT, being a legal entity legally domiciled in Europe (being those countries in Europe licensed from time to time by the CARD ASSOCIATIONS) and whose CARD TRANSACTIONS are conducted.
1.22 PAYMENT CARD INDUSTRY DATA SECURITY STANDARD (hereinafter referred to as (PCI DSS) means a worldwide information security standard defined by the Payment Card Industry Data Security Standards Council and applies to all organisations which hold, process, or exchange CARDHOLDERs information from any CARD, as presented from time to time on the website www.pci-dss.org.
1.23 PAYMENT FACILITATOR means an entity, as defined by MasterCard, which is registered with the relevant CARD ASSOCIATION by the ACQUIRER to facilitate TRANSACTIONS from MERCHANTS.
1.24 POINT OF SALE TERMINAL means a device used at the point of TRANSACTION that has the capability to process electronic data, obtain an AUTHORISATION and provide TRANSACTION RECEIPT data.
1.25 PROCESSOR shall mean a processor that is PCI DSS certified and approved by The Card associations and their acquiring bank.
1.26 REASONABLE EFFORTS shall mean with respect to a given goal, the efforts, that a reasonable person or a group/company in the position of the obligor would use as to achieve that goal as expeditiously as possible. The term excludes acting in a reckless or a careless fashion.
1.27 REGION means all European Countries as defined in the CFRP Guidelines.
1.28 SETTLEMENT ACCOUNT means the demand deposit account which, prior to accepting any CARDS, the MERCHANT shall establish and through which fees, charges and credits due in accordance with this AGREEMENT may be processed.
1.29 SPONSORED MERCHANT means a MERCHANT that contracts with an IPSP for that IPSP to (a) conduct the sale of that business` goods and/or services electronically over the internet and (b) provide payment services for those goods and/or services, in each case on that business` behalf, as defined by VISA.
1.30 SUB-MERCHANT means a MERCHANT that, pursuant to an agreement with a PAYMENT FACILITATOR, is authorized to accept CARDS when properly presented, as defined by MC.
1.31 MERCHANT APPLICATION means a questionnaire containing relevant APPLICATION details, containing due diligence information on the MERCHANTs business.
1.32 TERMINAL means MULTICARDS setup for a POINT OF SALE TERMINAL for a MERCHANTs website.
1.33 TOTAL MONTHLY VOLUME means the total volume of MERCHANTs TRANSACTIONS in each month, calculated into USD. The TOTAL MONTHLY VOLUME for VISA only or VISA and MC TRANSACTIONS combined shall amount to a maximum 100.000 USD. The TOTAL MONTHLY VOLUME for only MC TRANSACTIONS shall amount to a maximum 10.000 USD. The term TRANSACTIONS in relation to the definition of TOTAL MONTHLY VOLUME only refers to payments for merchandise sold/or leased and/or services provided to CARDHOLDERS by MERCHANT.
1.34 TRANSACTION means the acceptance of a CARD or information embossed on the CARD, for payment for merchandise sold and/or leased and/or services provided to CARDHOLDERS by a MERCHANT. The term TRANSACTION also includes credits, errors, returns and adjustments.
1.35 TRANSACTION RECEIPT means an electronic or paper record of a TRANSACTION (or a copy), generated at the TERMINAL, with one copy retained by the ACQUIRER or MERCHANT and, at the option of the CARDHOLDER, one copy retained by the CARDHOLDER.