ACCESSION AGREEMENT
(PUBLIC OFFER AGREEMENT)
This Public (Accession) agreement (this «Agreement») govern your use of Geltano’s Payments LTD. (hereinafter as the Company or Geltano Payments) services made available to you by us (collectively, the «Service»).
You mean the organization, business, self-employed person or other legal entity (hereinafter as Organization or Merchant), selling their Goods through the Internet for which you act. You represent and warrant that: (1) you have full legal authority to bind the Organization to these Terms; (2) you have read and understand these Terms; and (3) you agree to these Terms on behalf of the Organization. Your Organization is legally and financially responsible for your access to and use of the Service as well as for the use of your Service account by others affiliated with Merchant, including any employees, agents, or contractors. If you are accessing the Service for personal use only (i.e. not in connection with any organization, business, or other legal entity) by using a personal e-mail to sign up for your Geltano Payments Account (or Merchant Account) then all reference to «You» means you as an individual.
The Parties mean You and Geltano Payments LTD. when together referred.
THE PARTIES AGREE AS FOLLOWS:
BY ACCEPTING THIS AGREEMENT OR BY ACCESSING OR USING THE SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
THIS AGREEMENT IS CONCLUDED BY JOINING TO THIS AGREEMENT AS A WHOLE. ACCEPTANCE THIS AGREEMENT AND ALL ITS CONDITIONS IS THE FACT OF REGISTRATION OF THE PERSONAL ACCOUNT ON THE COMPANY’S WEBSITE.
I. DEFINITIONS
The Parties agree that for the purposes of this Agreement, the terms included in this section shall have the meaning that they are respectively given below:
II. ACCOUNT REGISTRATION
III. RIGHTS AND OBLIGATIONS
III.2.1.Grant of Rights. You may use the Service, provided that you do not:
III.1.1. In any way damage or disrupt the Service and/or the operation of the Service or hardware;
III.1.2. Use the Service for any unauthorised or unlawful purpose.
III.2. The Company’s Rights and Obligations.
III.2.1. The Company shall:
III.2.1.1. register an Account in the Company’s system subject to successful completion of the Company’s Due Diligence process and after the Acceptance;
III.2.1.2. provide Merchant with the information required for using Services under this Agreement;
III.2.1.3. receive the Transactions’ funds from Customers and transfer such funds to Merchant’s Payout Account according to Section 6.2 herein, provided that Company reserves the right to deduct Fees from the Transaction’s amount;
III.2.1.4. deliver to Merchant the Transaction Notification for each effected Transaction promptly after the processing of the relevant Transaction if such notification is specified by the IT Protocol implemented by the Parties or reflect such Transaction information in the interface of the Account;
III.2.1.5. provide Merchant with Report not later than the day following the Reporting Period;
III.2.1.6. Taxes. The Company will withhold taxes on payments made to Merchant, if required by the applicable Law. Each Party will indemnify the other Party from any claims by any jurisdiction relating to taxes paid by such other Party and for any penalties, fines, additions to tax or interest thereon imposed on such other Party, as a result of the first mentioned Party's failure to timely remit the tax payment to the appropriate taxing jurisdiction.
III.2.2. The Company reserve the right:
III.2.2.1. to suspend, amend or cancel the Service at any time either temporarily or permanently.
III.2.2.2. retain and/or freeze funds of Transactions or Payments if required to do so by the applicable Law;
III.2.2.3. withhold the Payment Order amount from the total amounts due to Merchant and transfer the Payment Order funds to the Customer or notify Merchant about inability to complete the Payment Order due to insufficiency of the Deposit funds.
III.2.3. The Company shall not be a party to any dispute between any of Merchant, Customers or any Third party. This refers in particular to performance and to liability in respect of claims relating to the use of the products or services offered by Merchant.
III.2.4. The Company will not be liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties, including but not limited to the respective Banks and/or Merchant’s bank/Payment (financial) institution where the account is held.
III.2.5. The Company’s liability is limited only to the sending of funds as per Merchant’s instructions. the Company is not obliged to track and control Payments that were sent to Merchant.
III.2.6. The Company is not responsible for losses and other unfavorable consequences for Merchant, resulting from the access of third parties to the Personal Account as a result of disclosure or loss of Authorization Data by Merchant.
III.3. Merchant’s Obligations
Merchant shall:
III.3.1. use Account and the Service only (1) for lawful purposes; and (2) in accordance with this Agreement and it’s Terms.
III.3.2. use the PSP to accept payments made by the Customers in favor of Merchant and provide payment services to the Customer's Bank Cards in accordance with the payment details (including, but not limited to, the Bank Card number;
III.3.3. complete the integration works in accordance with the integration documents and follow reasonable instructions with regards to the technical integration of the Company’s Protocol into Merchant’s websites and software applications;
III.3.4. acquire, implement and maintain all software required to fulfill its obligations under this Agreement;
III.3.5. prevent that the Company becomes subject to any investigation by a regulatory authority because of the Company’s relationship with Merchant;
III.3.6. notify in advance, of any changes in its contact details, intended change of ownership, its legal representatives, a deterioration of Merchant’s financial situation or a change in business model, the products or services Merchant offers for sale or the nature of the Transactions;
III.3.7. accept Transactions and credit the Customer’s balance with Merchant on the basis of the relevant Transaction Notification;
III.3.8. inform Customers on the possibility of making Transactions posting the appropriate information in its end-user interfaces;
III.3.9. not initiate, perform, or otherwise be involved in any of the activities listed in Annex №2 hereto;
III.3.10. provide all reasonable assistance to the Company or the regulatory body to assist them with any investigations being carried out in respect of Merchant’s activities;
III.3.11. have the right to initiate Payment Order provided that the Deposit amount is sufficient to cover the amount of such Payment Order and relevant Fees;
III.3.12. not discourage Customers from using Service by imposing additional charges on Transactions;
III.3.13. provide with documents and information required for completion of the business customer Due Diligence by the Company;
III.3.14. provide with the Customer’s Personal Data and other information on the Customer’s activities as may be requested by the Company;
III.3.15. maintain sufficient Deposit amount in accordance with Section 4 and Annex №1herein;
III.3.16. be responsible for all Chargebacks and fines, penalties, and other charges imposed by the Card Schemes on Merchant and/or the Company due to Merchant’s business or Transactions;
III.3.17. not submit Transaction that Merchant knows or should know to be fraudulent or not authorized by the Customer, or that it knows or should know to be authorized by Customer colluding with Merchant for a fraudulent purpose. Merchant is deemed to be responsible for the conduct of its employees, agents, and representatives.
III.3.18. provide requested information and submit requested documents regarding Transaction and Payout (including but not limited to Chargeback) to the Company within no more 3 (three) business days;
III.3.19. Merchant must meet and follow all requirements and conditions for accepting the Payments for Merchant’s goods, as set forth by the Agreement, communicated by the Company from time to time and/or required by the Bank.
III.3.20. Merchant must comply with applicable Laws that govern distant sales contracts.
III.3.21. Merchant shall avoid providing misleading information or otherwise creating impression that the supplier of goods is the Bank and/or the Company.
III.3.22. Merchant’s website and its content shall be in compliance with the applicable Laws, rules and requirements of Settlement Participants.
III.3.23. Merchant understands and agrees that it may be required by the Company or/and Bank to present proof of the sales records (documents and records used to evidence a proper ordering, sale and delivery of products and services through the use of the Payment Methods), including to the respective Bank, upon request. Merchant shall establish a system to store and maintain copies of sales and proof of delivery, in such a manner so as to forward the said information within 48 hours of request. Merchant understands that it is essential to provide sales records, which duly evidence a particular Transaction, sale, delivery and associated events and actions, immediately and within a required time frame as communicated to Merchant in a particular case in order to meet deadlines and other requirements applicable to a particular case solving. Merchant understands that failure to respond to such a retrieval request constitutes a violation of the Agreement, which may result in Chargeback or other consequences.
III.3.24. The Agreement is personal, between the Company and Merchant. Merchant shall not assign or transfer any of its rights or obligations under the Agreement to any third party, without the Company’s prior written consent.
III.3.25. Merchant guarantees and declares that the online store, the mobile application belongs to Merchant, is stable, does not contain incorrect links and that Merchant does not receive payments for third parties, as well as a reward for the delivery of any goods specified in Appendix №2 to this Agreement.
III.3.26. Merchant acknowledges that any dispute regarding any product or service purchased or procured by any funds received by Merchant or Customer, or any transaction involving the Services is between the sender and receiver of the funds and/or the third-party goods or Settlement Participants.
III.4. Force Majeure. Neither Party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Services (each a «Force Majeure Event»), provided that the Party delayed will provide the other Party with a notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event.
III.5. Expenses. Each Party will cover its own costs and expenses in connection with this Agreement, including cost of facilities, equipment, employees, training, communication, computer systems and other business expenses, such as the applicable attorney fees, accounting fees, and other (unless otherwise provided by this Agreement).
III.6. Adjustment of Payment Orders. Once completed, a Payment Order is irrevocable and cannot be changed, adjusted, or terminated. Merchant acknowledges that the Company is not responsible for any loss incurred by Merchant due to an erroneous Payment Order being completed by the Company.
III.7. No Additional Charges. Merchant must verify and shall be responsible for the following: Merchant will not charge any commission on the Transactions, unless such commission is required to be charged by the applicable laws and regulations, in which case Merchant will notify the Company in this respect, and the Parties will use their commercially reasonable endeavors to decrease a potential financial burden for the Customers.
III.8. No Fiduciary Duty. The Parties agree that any funds being in the possession of the Company pursuant to a Transaction and Payout under this Agreement are held in trust and such funds cannot be commingled by the Company with the other Company’ funds.
III.9. Refunds. In the event that Merchant is required to affect a full or partial refund to a Customer in respect of a Transaction, then any such refund should be affected to the Card that was used in the Transaction. In no circumstance may Merchant affect a refund directly to a Customer via an alternative mechanism such as cash or a credit transfer to an IBAN.
III.10. Card Scheme Rules Compliance. Merchant acknowledges and understands the importance of compliance with Card Scheme security requirements, such as those relating to Transaction information, storage, and disclosure. Merchant will endeavor to protect Transaction information and will maintain and demonstrate compliance with the Payment Card Industry Data Security Standards (PCI-DSS) and all subsequent requirement updates. Merchant agrees that in its activities is guided by the rules of Card Scheme and APM providers, reimburses the Card Schemes, Third-Party Providers and other third party settling and agrees with legally imposed by them fines and other deductions related to Merchant's activities. Letters of the listed persons, including those received by facsimile and e-mail, as well as letters of the Company, compiled on the basis of information on the issuance and / or cancellation of fines and other deductions received from the listed persons, are sufficient grounds for the Company to collect, hold and/or claim and/or sue against Merchant for damages, as well as are appropriate evidence in the resolution of disputes in court.
III.11. Transaction Authorization. Merchant shall follow the following rules in course of the Transaction authorization:
III.11.1. Merchant must attempt to obtain the Card expiry date and forward it as part of the authorization request for any Transaction.
III.11.2. Merchant agrees that it will not present for payment a Transaction which has failed any one or more of the authentication checks.
III.11.3. Such authentication checks include but are not limited to CVV2/CVC2 and/or 3D Secure authentication.
III.11.4. Each request for authorization shall be for the total original Transaction amount, including applicable taxes.
III.11.5. Authorization can only confirm the availability of funds and that the Card has not been reported lost or stolen. Authorization shall not be deemed or construed to be a representation, promise or guarantee that the Company will accept the Transaction and that Merchant will receive payment, nor that the person making the Transaction is the Customer.
III.11.6. Authorization may not be sought or obtained on behalf of any third party. Merchant may obtain authorization for any merchandise to be shipped on any day up to seven calendar days prior to the Transaction date. The Transaction date is the date on which the merchandise is shipped. When carrying out a recurring Transaction, Merchant must:
(а) obtain authorization for each Transaction;
(b) provide the Company with the correct indicator for each Transaction in the authorization request;
III.11.7. Storage of authenticating data including (but not limited to) Card Verification Value (CVV) / Card Verification Value 2 is prohibited.
III.11.8. Merchant hereby undertakes to hold the Company harmless and fully indemnified against all actions, proceedings, claims, costs, demands and expenses which the Company may incur or sustain by acting upon or otherwise complying with any communications or instructions (including any authorization for a Transaction) which the Company shall reasonably believe to have been made or given on the Customer’s behalf, and this irrespective of whether or not such communications or instructions are made or transmitted without the Customer’s authority.
IV. DEPOSIT
V. SETTLEMENT
V.1. Fees. In exchange for the Services, Merchant agrees to pay the Service fees as listed in the fee schedule incorporated herein as an Annex №1. The Company has the right to unilaterally review fees. Fee is calculated in respect of each Transaction or Payout processed by the Company. Fees shall be due upon completion of a relevant Payout or a Transaction and shall be deducted by the Company from Merchant Payout Account amount or from the Transaction’s amount to be credited to Merchant Account.
V.2. Payments. The Company will transfer funds of the Payment Orders to Merchant’s Payout Account, provided that the Deposit funds are sufficient to cover such transfer and the related fees. The terms of payment will be agreed by the Parties in Annex № 1 to this Agreement.
V.3. Currency. All Transactions and Payment Orders shall be transacted the Agreement Currency. In case a Transaction’s or a Payment Order’s currency differs from the Agreement Currency, then the settlement amounts shall be calculated on the basis of the exchange rate used by the Company on the date of such Transaction and/or Payment Order.
V.4. Netting. The Parties agree to set-off their outstanding mutual obligations which may arise in course of their cooperation hereunder. Netting calculations will be done by Parties mutually. This netting agreement is irrevocable. For the avoidance of doubt, (1) in case of insufficiency of Merchant Payout Account funds to cover the Payouts requested by Merchant, the Company may in its sole discretion deduct the balance from the Transactions’ amount due to Merchant (from Merchant Account); (2) in case of insufficiency of the Deposit funds to cover the Allowable Deductions the Company’ may in its sole discretion, deduct the balance from Merchant Account or Merchant Payout Account. Netting calculations will be done by the Company and provided to Merchant in the Report. The Company may withhold payment of any amount payable to Merchant (in part or in whole) where there are any sums due or owing by Merchant to the Company, and Merchant agrees that the Company may exercise set-off and deduct such amounts due or owing by Merchant to the Company from any amount payable to Merchant by the Company.
V.5. Reconciliation of payments. The Parties will reconcile their financial obligations hereunder on a monthly basis based on the aggregate reconciling file delivered by the Company to Merchant. If any discrepancy(-ies) is detected, Merchant will request an adjustment of the reconciliation statements. The Parties will use reasonable endeavors to clarify any disputable issue and to make adjustments to their account balances under the Agreement (if applicable). Merchant may request an adjustment at any time within this Agreement, provided that, if Merchant doesn’t not object on a reconciliation file within 10 days from date of receipt of the reconciling file from the Company, invoices and settlement data for that particular month will be deemed accepted by Merchant.
V.6. Special Provisions. Where the Company has made payment on any Transaction, the Company shall nonetheless be entitled to debit any amount credited to Merchant Account or, if such amount is not available in Merchant Account, seek reimbursement of any amount paid to Merchant, or may delay payments to Merchant for a period of time as determined by the Company within its sole discretion and, if applicable, may require additional information from Merchant from time to time, where:
V.6.1. Merchant is in breach of any of the terms of this Agreement in respect of any Transaction;
V.6.2. the Transaction is proved to have been created or generated improperly or without authority of the relevant Customer;
V.6.3. the Company suspects that Merchant is in breach of any terms and conditions of the contract giving rise to the Transaction or Merchant has made misrepresentation whether intentionally or negligently in the course of the Transaction;
V.6.4. the sale of Goods to which the Transaction relates involves a violation of Law or the rules or regulations of the Card Schemes or any governmental agencies, local or otherwise;
V.6.5. the Company is aware of any penalty and/or fine which may be imposed by the Card Schemes as a result of or in connection with the Agreement, any transaction or Goods or services relative to the transaction, any promotion or marketing of any Goods sold by Merchant, improper activity of Merchant, any misrepresentation by Merchant to the Customer or any breach of any obligation or duty that Merchant owes to the Customer, any investigations into transactions which are shown to involve fraudulent or criminal activity on Merchant’s part, any breach of, or failure by Merchant or its employees, agents or contractors to comply with the Agreement, any act or omission done wilfully or negligently by Merchant, its employees, agents or contractors as well as any violation by Merchant, its employees, agents or contractors of any applicable laws or regulations.
V.7. Chargebacks. If any amount is the subject of a pending Chargeback by Visa, Mastercard or any Affiliate, the Company shall withhold payment of that amount pending the final determination of the dispute. In addition, where the Company has made payment of any such amount, the Company shall nonetheless be entitled to debit such amount credited to Merchant Account or, if such amount is not available in Merchant Account, seek reimbursement of such amount paid to Merchant. the Company will charge Merchant with a Chargeback processing fee specified in Annex №1 hereto. Merchant acknowledges that due to currency exchange differences and issuing bank fees, the value of a Transaction and the value of an eventual Chargeback of the same Transaction may not be equal. Without prejudice to its other rights under this Agreement, the Company may delay payments to Merchant for a period of time as determined by the Company within its sole discretion and, if applicable, may require additional information from Merchant from time to time in the following cases:
V.7.1. if there are changes in the business model of Merchant that may have an impact on the risk to the Company;
V.7.2. if there are unexpected increases in chargeback / refund / fraud transactions processed by Merchant.
Without prejudice to any other provision of this Agreement, as a cover against losses from Chargebacks and/or Fees which cannot be recovered by the Company, the Company may block and retain a percentage or the full amount of the Transactions processed. The retention rate will be directly related to the Chargeback Rate.
VI. INFORMATION AND DOCUMEMTS REQUIREMENTS
VI.1. Each Transaction and Payment Order will include (among other) the following information:
VI.1.1. Customer’s full name and address (if applicable);
VI.1.2. Customer’s Bank Card’s number (PAN) and expiration date or the Bank Account’s details (if applicable);
VI.1.3. Amount to be transferred by or to such Customer.
Completion of Transactions and/or Payment Orders is subject to provision of certain documents and information about such Transaction and/or Payment Order, including Personal Data, to the Company as may be requested by the Company in its sole discretion. The Company reserves the right to reject or suspend any transaction and/or payment order if such documents and information have not been provided to the Company.
VI.2. Merchant permits the the Company to transfer information about Merchant contained in the Agreement, annexes thereto, questionnaires to the Bank, Card Schemes, Settlement Systems and Issuers.
VI.3. The Parties shall retain in their power, during the term of this agreement and/or for five (5) years following the processing of a relevant transaction or payment order, whichever is longer, all documents and information related to them, including without limitation, the customer information. the parties agree that such information shall be considered confidential information under this agreement. such information retained by Merchant shall be made available for audit and inspection to the Company upon request. the Company shall be entitled to make and retain copies thereof.
VI.4. The Parties have agreed that facsimile documents and / or documents in electronic (scanned) form, including those sent to Merchant 's e-mail address, received by the Company from the settlement participants, including claims for payment of fines received by the Company from the acquirer, settlement systems are a sufficient basis for the Company's claim for compensation by Merchant for losses incurred by the Company.
VII. INQUIRIES
VIII. CONFIDENTIAL INFORMATION
IX. PRIVACY
X. INTELLECTUAL PROPERTY
XI. INDEMNITY
You agree to indemnify the Company for any loss, cost or expense suffered or incurred by the Company as result of:
XII. REGULATORY COMPLIANCE
XIII.1. As of Your’s first use of the Services, including accessing the Account, if applicable the Agreement is effective and continues until terminated by one of the Party.
XIII.2. Party may terminate this Agreement at any time upon a 30- days prior written notice given to the other Party.
XIII.3. The Company may terminate this Agreement with an immediate effect by serving a written notice to Merchant, if:
XIII.3.1. the Company suspects that Merchant is involved in the activities listed in Annex B hereto; or
XIII.3.2.Merchant files for bankruptcy or meeting of creditors; or
XIII.3.3.Merchant does not cooperate regarding provision of the information requested by the regulatory authorities; or
XIII.3.4.the Company cannot continue providing the Services because of the Material Change of Law, duly justified by writing to Merchant; or
XIII.3.5.and if as a result of the implementation of internal control rules in order to prevent legalization (laundering) of criminal incomes and terrorist financing the Company suspect that the operation is performed in order to legalization (laundering) of incomes from crime and financing of terrorism; or
XIII.3.6.despite a request by the Company, Merchant did not implement the technical, security or other requirements that need to be met for duly provision of the services under the Agreement and compliance with the applicable laws, rules and requirements of the Banks or Merchant did not do so in due time; or
XIII.3.7.the business declared by Merchant differs from the actual business conducted by Merchant; or
XIII.3.8.the business conducted by Merchant could endanger the safety and/or soundness of the Company and/or Bank; or
XIII.3.9.termination is required by the Bank or Card Schemes.
XIII.4. Upon termination or expiration of this Agreement or any extension hereof, each Party shall cooperate, for the one hundred eighty day period (the «Winding Up Period») immediately following the date of such termination or expiration, in the prompt, orderly and efficient conclusion of the Service, including completing any in-process Payment Orders, transmitting any applicable funds relating thereto, performing a final accounting and reconciliation and, returning or destroying all Confidential Information found in the possession of the receiving Parties of the same in accordance with this Agreement. All amounts of funds owed by the Parties to each other shall become due and payable immediately upon termination of this Agreement (except for the amounts payable under Sections 4, 11 herein which have not been agreed by the Parties).
XIV. APPLICABLE LAW
XV. LIMITATION OF LIABILITY
XVI. ANNEXES
16.1. Annex №1. Terms of service and Fees
16.2. Annex №2. Prohibited Goods
XVII. CONTACT DETAILS
For all questions regarding this Agreement, please, contact using the email address: [email protected]
You mean the organization, business, self-employed person or other legal entity (hereinafter as Organization or Merchant), selling their Goods through the Internet for which you act. You represent and warrant that: (1) you have full legal authority to bind the Organization to these Terms; (2) you have read and understand these Terms; and (3) you agree to these Terms on behalf of the Organization. Your Organization is legally and financially responsible for your access to and use of the Service as well as for the use of your Service account by others affiliated with Merchant, including any employees, agents, or contractors. If you are accessing the Service for personal use only (i.e. not in connection with any organization, business, or other legal entity) by using a personal e-mail to sign up for your Geltano Payments Account (or Merchant Account) then all reference to «You» means you as an individual.
The Parties mean You and Geltano Payments LTD. when together referred.
THE PARTIES AGREE AS FOLLOWS:
BY ACCEPTING THIS AGREEMENT OR BY ACCESSING OR USING THE SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
THIS AGREEMENT IS CONCLUDED BY JOINING TO THIS AGREEMENT AS A WHOLE. ACCEPTANCE THIS AGREEMENT AND ALL ITS CONDITIONS IS THE FACT OF REGISTRATION OF THE PERSONAL ACCOUNT ON THE COMPANY’S WEBSITE.
I. DEFINITIONS
The Parties agree that for the purposes of this Agreement, the terms included in this section shall have the meaning that they are respectively given below:
- Acceptance means the decision by the Company to accept You and enable to use the Services.
- Account Information means information about your Geltano Payments account and information that you and your Users provide to in connection with (1) the creation or administration of your Geltano Payments account; or (2) Geltano’s Payments maintenance of your Geltano Payments Account or the Service. For example, Account Information includes names, usernames, passwords, email addresses, and billing information.
- Agreement means this Public (Accession) agreement, including the terms, schedules, annexes, addenda and any documents referred to in it, in particular the Rules, concluded between the Company and Merchant for the provision of the Services to Merchant.
- Allowable Deductions mean any of the following items the Company may deduct from amount due to Merchant: fees charged by the Company, refunds and reversals, adjustments and Chargebacks, Deposit and any fees, charges, fines, assessments, penalties or other liabilities that are imposed on the Company by the Card Schemes or Third-Party Provider in connection with the processing of Transactions and Payouts.
- Alternative Payment Method or «APM» means a payment method (other than Card) which we are able and have agreed to process: e-wallets, payments from the phone account.
- Authorization means electronic procedure of the International Payment System in order to obtain the Issuer's authorization to conduct a Transaction after proper verification of the Card, Transaction Data, results of identification of the Cardholder and adequacy of funds on the Cardholder account.
- Authorization data means data in the form of a login and password used to access the Personal Account.
- Bank means a credit or other financial institution which is a member of the International Payment Systems and which provides services on processing of Transactions, Refunds and Chargebacks.
- Bank Account means a checking (current) account open to a person at a bank.
- Card shall mean a bank card, enabling cardholders to make purchases and/or withdraw cash and have these transactions directly and immediately charged to their accounts, whether these are held with the card issuer or not, including without limitation debit cards linked to a Bank Account, prepaid cards, PEX cards, commercial cards, other similar sources of funds, or a bank card, enabling cardholders to make purchases and/or withdraw cash up to a prearranged credit limit, and both bearing the trademark of the Card Schemes.
- Cardholder means private individual who holds and uses the Card to pay for the Goods of Merchant.
- Card Schemes shall mean «MasterCard Worldwide» («MasterCard») or «VISA Inc.» («Visa») International payment system, or other payment systems as applicable.
- Chargeback means unconditionally executed electronic payment request for a refund, which is issued by the issuing Bank to the Payment System/Card Scheme on the basis of a Cardholder's claim.
- Confidential Information shall mean all information about the Parties, their organization, business, financials, technical and Login details and the Parties’ services, each in the broadest sense, exchanged and obtained by the Parties under the Agreement, including any data or information, oral or written, treated as confidential that relates to either party’s past, present, or future research, development or business activities, including any unannounced products and services, any information relating to Services, developments, relevant documentation (in whatever form or media provided), processes, plans, financial information, third parties data, transaction volume, projections.
- Customer means a natural person or legal entity ordering or purchasing the godos from Merchant.
- Deposit shall mean an amount of funds, specified in Annex №1 hereto, deposited by Merchant with the Company to enable Merchant to perform its obligations.
- Due Diligence shall mean the investigation or exercise of care that a reasonable business or person is expected to take before entering into an agreement or contract with another party, or an act with a certain standard of care.
- Geltano Payments Account (hereinafter as Account) means the account on the Service you register and open in order to access and use the Service. Account protected by the access control system, which provides current information on Funds Transfers, remuneration, the technical state of connection to the Company’s System, receiving statistical data on Funds Transfers in favor of Merchant and other necessary information.
- Goods mean goods/works/services, results of intellectual activities, and other types of objects of civil law rights.
- Issuer means the credit institution or another legal entity who issued the Card.
- IT Protocol means a technical integration protocol, provided by the Company , implemented by the Parties.
- IP Rights mean all intellectual property rights, such as copy rights, trademarks, patents, rights in design and tradenames and all other intellectual property rights and forms of protection of a similar nature.
- Merchant (Personal) Account means a section on the Company’s website, protected by an access control system, which provides current information on funds transfers, remuneration, the technical state of connection to the Company system, the ability to receive statistical data on funds transfers in favor of Merchant and other information necessary for the current use by Merchant’s the Company systems. The personal account is located at the following address: https://geltano.com. Merchant (Personal) Account means not a bank account, just an internal record established by the Company for Merchant.
- Merchant`s Payout Account means internal record established by the Company for Merchant that shall be used in accordance with section 6.2 of the Agreement. The available payout methods are specified in the Annex №1 to the Agreement.
- Payment Methods mean methods available for the Customer to make a payment to Merchant;
- Payment Order means an instruction given by Merchant to the Company to execute a Payment.
- Personal Data shall mean any information relating to an identified or identifiable natural person (Data Subject); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
- Refund means the procedure by which Merchant requests a return of a Transaction Amount or a part of a Transaction Amount to a Cardholder.
- Reporting Period shall mean a period of time specified in Annex №1 hereto.
- Service means the Company provide Transaction and Payment Order processing and settlement services on the terms and conditions of this Agreement. The Company provides Merchant with payment services, allowing the Customers to pay for Merchant's goods/works/ services using bank cards and alternative payment methods through payment service providers (hereinafter as PSP), and also allows such Merchants to fulfill their financial obligations to the Customers (refunds, chargebacks).
- Settlement Participants mean Client, Card Schemes, Issuer, Bank, the Company, when jointly mentioned.
- The Company’s Website means Website available at https://geltano.com is owned and operated by the Company.
- Third Party (or Partner) means any individual, self-employed person or legal entity with which the Company enters into business relations both on the basis of an agreement and due to actual circumstances (including, but not limited to, under the Accession Agreement on the Website).
- Third Party Services mean any third party service, connection, site, platform, application, software or integration that interoperates with Service
- Transaction shall mean a payment sent by a Customer to Merchant using a Customer’s Bank Card via Merchant’s website and mobile application.
- Transaction Notification mean short information on the processed Transaction generated by the Company electronic system and sent to Merchant automatically, as may be provided by IT Protocol.
II. ACCOUNT REGISTRATION
- Account Registration. In order to access and use the Service, you must register for Geltano Payments Account. You must provide and maintain accurate, current, and complete Account Information.
- Eligibility. In order to open and maintain an Account, you hereby represent, warrant, and covenant that you have the legal capacity (including, without limitation, being of sufficient age) to enter into contracts under the law of the jurisdiction in which you reside. Merchant, prior to the Registration of the Personal Account, as well as at the request of the Company, provides the Company with up-to-date and reliable information about Merchant. Information is provided in the form of a questionnaire, if necessary, with supporting documents attached.
- Credentials. To set up and use your ccount, you may create a user ID and password to access your account. You are responsible for maintaining the confidentiality of your ccount credentials. You agree to immediately notify the Company of any suspected or actual unauthorized use of your Account. You agree that you are responsible and liable for all uses of the Service under your Account, including without limitation, compliance with all applicable laws, and regulations, and third-party terms. You further agree that the Company will not be liable for any cost, loss, damages, or expenses arising out of a failure by you to maintain the security of your Account or your Third Party Login credentials.
- The Parties agree that the Company has the right to unilaterally make changes and additions to the Agreement, its annexes, technical integration protocols without prior notice to the other party. All the above changes come into force and become binding on the Parties from the moment they are posted on the Company’s Website.
III. RIGHTS AND OBLIGATIONS
III.2.1.Grant of Rights. You may use the Service, provided that you do not:
III.1.1. In any way damage or disrupt the Service and/or the operation of the Service or hardware;
III.1.2. Use the Service for any unauthorised or unlawful purpose.
III.2. The Company’s Rights and Obligations.
III.2.1. The Company shall:
III.2.1.1. register an Account in the Company’s system subject to successful completion of the Company’s Due Diligence process and after the Acceptance;
III.2.1.2. provide Merchant with the information required for using Services under this Agreement;
III.2.1.3. receive the Transactions’ funds from Customers and transfer such funds to Merchant’s Payout Account according to Section 6.2 herein, provided that Company reserves the right to deduct Fees from the Transaction’s amount;
III.2.1.4. deliver to Merchant the Transaction Notification for each effected Transaction promptly after the processing of the relevant Transaction if such notification is specified by the IT Protocol implemented by the Parties or reflect such Transaction information in the interface of the Account;
III.2.1.5. provide Merchant with Report not later than the day following the Reporting Period;
III.2.1.6. Taxes. The Company will withhold taxes on payments made to Merchant, if required by the applicable Law. Each Party will indemnify the other Party from any claims by any jurisdiction relating to taxes paid by such other Party and for any penalties, fines, additions to tax or interest thereon imposed on such other Party, as a result of the first mentioned Party's failure to timely remit the tax payment to the appropriate taxing jurisdiction.
III.2.2. The Company reserve the right:
III.2.2.1. to suspend, amend or cancel the Service at any time either temporarily or permanently.
III.2.2.2. retain and/or freeze funds of Transactions or Payments if required to do so by the applicable Law;
III.2.2.3. withhold the Payment Order amount from the total amounts due to Merchant and transfer the Payment Order funds to the Customer or notify Merchant about inability to complete the Payment Order due to insufficiency of the Deposit funds.
III.2.3. The Company shall not be a party to any dispute between any of Merchant, Customers or any Third party. This refers in particular to performance and to liability in respect of claims relating to the use of the products or services offered by Merchant.
III.2.4. The Company will not be liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties, including but not limited to the respective Banks and/or Merchant’s bank/Payment (financial) institution where the account is held.
III.2.5. The Company’s liability is limited only to the sending of funds as per Merchant’s instructions. the Company is not obliged to track and control Payments that were sent to Merchant.
III.2.6. The Company is not responsible for losses and other unfavorable consequences for Merchant, resulting from the access of third parties to the Personal Account as a result of disclosure or loss of Authorization Data by Merchant.
III.3. Merchant’s Obligations
Merchant shall:
III.3.1. use Account and the Service only (1) for lawful purposes; and (2) in accordance with this Agreement and it’s Terms.
III.3.2. use the PSP to accept payments made by the Customers in favor of Merchant and provide payment services to the Customer's Bank Cards in accordance with the payment details (including, but not limited to, the Bank Card number;
III.3.3. complete the integration works in accordance with the integration documents and follow reasonable instructions with regards to the technical integration of the Company’s Protocol into Merchant’s websites and software applications;
III.3.4. acquire, implement and maintain all software required to fulfill its obligations under this Agreement;
III.3.5. prevent that the Company becomes subject to any investigation by a regulatory authority because of the Company’s relationship with Merchant;
III.3.6. notify in advance, of any changes in its contact details, intended change of ownership, its legal representatives, a deterioration of Merchant’s financial situation or a change in business model, the products or services Merchant offers for sale or the nature of the Transactions;
III.3.7. accept Transactions and credit the Customer’s balance with Merchant on the basis of the relevant Transaction Notification;
III.3.8. inform Customers on the possibility of making Transactions posting the appropriate information in its end-user interfaces;
III.3.9. not initiate, perform, or otherwise be involved in any of the activities listed in Annex №2 hereto;
III.3.10. provide all reasonable assistance to the Company or the regulatory body to assist them with any investigations being carried out in respect of Merchant’s activities;
III.3.11. have the right to initiate Payment Order provided that the Deposit amount is sufficient to cover the amount of such Payment Order and relevant Fees;
III.3.12. not discourage Customers from using Service by imposing additional charges on Transactions;
III.3.13. provide with documents and information required for completion of the business customer Due Diligence by the Company;
III.3.14. provide with the Customer’s Personal Data and other information on the Customer’s activities as may be requested by the Company;
III.3.15. maintain sufficient Deposit amount in accordance with Section 4 and Annex №1herein;
III.3.16. be responsible for all Chargebacks and fines, penalties, and other charges imposed by the Card Schemes on Merchant and/or the Company due to Merchant’s business or Transactions;
III.3.17. not submit Transaction that Merchant knows or should know to be fraudulent or not authorized by the Customer, or that it knows or should know to be authorized by Customer colluding with Merchant for a fraudulent purpose. Merchant is deemed to be responsible for the conduct of its employees, agents, and representatives.
III.3.18. provide requested information and submit requested documents regarding Transaction and Payout (including but not limited to Chargeback) to the Company within no more 3 (three) business days;
III.3.19. Merchant must meet and follow all requirements and conditions for accepting the Payments for Merchant’s goods, as set forth by the Agreement, communicated by the Company from time to time and/or required by the Bank.
III.3.20. Merchant must comply with applicable Laws that govern distant sales contracts.
III.3.21. Merchant shall avoid providing misleading information or otherwise creating impression that the supplier of goods is the Bank and/or the Company.
III.3.22. Merchant’s website and its content shall be in compliance with the applicable Laws, rules and requirements of Settlement Participants.
III.3.23. Merchant understands and agrees that it may be required by the Company or/and Bank to present proof of the sales records (documents and records used to evidence a proper ordering, sale and delivery of products and services through the use of the Payment Methods), including to the respective Bank, upon request. Merchant shall establish a system to store and maintain copies of sales and proof of delivery, in such a manner so as to forward the said information within 48 hours of request. Merchant understands that it is essential to provide sales records, which duly evidence a particular Transaction, sale, delivery and associated events and actions, immediately and within a required time frame as communicated to Merchant in a particular case in order to meet deadlines and other requirements applicable to a particular case solving. Merchant understands that failure to respond to such a retrieval request constitutes a violation of the Agreement, which may result in Chargeback or other consequences.
III.3.24. The Agreement is personal, between the Company and Merchant. Merchant shall not assign or transfer any of its rights or obligations under the Agreement to any third party, without the Company’s prior written consent.
III.3.25. Merchant guarantees and declares that the online store, the mobile application belongs to Merchant, is stable, does not contain incorrect links and that Merchant does not receive payments for third parties, as well as a reward for the delivery of any goods specified in Appendix №2 to this Agreement.
III.3.26. Merchant acknowledges that any dispute regarding any product or service purchased or procured by any funds received by Merchant or Customer, or any transaction involving the Services is between the sender and receiver of the funds and/or the third-party goods or Settlement Participants.
III.4. Force Majeure. Neither Party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Services (each a «Force Majeure Event»), provided that the Party delayed will provide the other Party with a notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event.
III.5. Expenses. Each Party will cover its own costs and expenses in connection with this Agreement, including cost of facilities, equipment, employees, training, communication, computer systems and other business expenses, such as the applicable attorney fees, accounting fees, and other (unless otherwise provided by this Agreement).
III.6. Adjustment of Payment Orders. Once completed, a Payment Order is irrevocable and cannot be changed, adjusted, or terminated. Merchant acknowledges that the Company is not responsible for any loss incurred by Merchant due to an erroneous Payment Order being completed by the Company.
III.7. No Additional Charges. Merchant must verify and shall be responsible for the following: Merchant will not charge any commission on the Transactions, unless such commission is required to be charged by the applicable laws and regulations, in which case Merchant will notify the Company in this respect, and the Parties will use their commercially reasonable endeavors to decrease a potential financial burden for the Customers.
III.8. No Fiduciary Duty. The Parties agree that any funds being in the possession of the Company pursuant to a Transaction and Payout under this Agreement are held in trust and such funds cannot be commingled by the Company with the other Company’ funds.
III.9. Refunds. In the event that Merchant is required to affect a full or partial refund to a Customer in respect of a Transaction, then any such refund should be affected to the Card that was used in the Transaction. In no circumstance may Merchant affect a refund directly to a Customer via an alternative mechanism such as cash or a credit transfer to an IBAN.
III.10. Card Scheme Rules Compliance. Merchant acknowledges and understands the importance of compliance with Card Scheme security requirements, such as those relating to Transaction information, storage, and disclosure. Merchant will endeavor to protect Transaction information and will maintain and demonstrate compliance with the Payment Card Industry Data Security Standards (PCI-DSS) and all subsequent requirement updates. Merchant agrees that in its activities is guided by the rules of Card Scheme and APM providers, reimburses the Card Schemes, Third-Party Providers and other third party settling and agrees with legally imposed by them fines and other deductions related to Merchant's activities. Letters of the listed persons, including those received by facsimile and e-mail, as well as letters of the Company, compiled on the basis of information on the issuance and / or cancellation of fines and other deductions received from the listed persons, are sufficient grounds for the Company to collect, hold and/or claim and/or sue against Merchant for damages, as well as are appropriate evidence in the resolution of disputes in court.
III.11. Transaction Authorization. Merchant shall follow the following rules in course of the Transaction authorization:
III.11.1. Merchant must attempt to obtain the Card expiry date and forward it as part of the authorization request for any Transaction.
III.11.2. Merchant agrees that it will not present for payment a Transaction which has failed any one or more of the authentication checks.
III.11.3. Such authentication checks include but are not limited to CVV2/CVC2 and/or 3D Secure authentication.
III.11.4. Each request for authorization shall be for the total original Transaction amount, including applicable taxes.
III.11.5. Authorization can only confirm the availability of funds and that the Card has not been reported lost or stolen. Authorization shall not be deemed or construed to be a representation, promise or guarantee that the Company will accept the Transaction and that Merchant will receive payment, nor that the person making the Transaction is the Customer.
III.11.6. Authorization may not be sought or obtained on behalf of any third party. Merchant may obtain authorization for any merchandise to be shipped on any day up to seven calendar days prior to the Transaction date. The Transaction date is the date on which the merchandise is shipped. When carrying out a recurring Transaction, Merchant must:
(а) obtain authorization for each Transaction;
(b) provide the Company with the correct indicator for each Transaction in the authorization request;
III.11.7. Storage of authenticating data including (but not limited to) Card Verification Value (CVV) / Card Verification Value 2 is prohibited.
III.11.8. Merchant hereby undertakes to hold the Company harmless and fully indemnified against all actions, proceedings, claims, costs, demands and expenses which the Company may incur or sustain by acting upon or otherwise complying with any communications or instructions (including any authorization for a Transaction) which the Company shall reasonably believe to have been made or given on the Customer’s behalf, and this irrespective of whether or not such communications or instructions are made or transmitted without the Customer’s authority.
IV. DEPOSIT
- Merchant shall deposit a Deposit amount specified in Annex №1 hereto with the Company, as a security that Merchant will properly fulfill its financial obligations hereunder the Company is authorized to use the Deposit to settle the amount of funds due and payable to the Company by Merchant, including but not limited to, the amounts of Allowable Deductions and Fees for provision of Services hereunder.
- Merchant hereby gives its irrevocable consent to the Company to use the Deposit funds to provide security and/or any other guarantee as may be required from time to time by the Card Schemes for payment against potential Chargebacks and/or payments of any charges/assessments and/or fines to the said Card Schemes for any breach that is caused by Merchant’s actions and/or inactions, and/or payments of any commissions/fees charged by third party banks and/or by the Card Schemes for completion of required activities under this Agreement (including without limitation registration/certification of Merchant with the Card Scheme and others), and/or costs for an audit or other check initiated by the Card Scheme and related to Merchant’s activity/inactivity.
- The Company reserves the right to use and enforce the Deposit and/or any other security to pay Chargebacks and/or payments of any charges/assessments/fees and/or fines and/or penalties, even in the instance where Merchant declares bankruptcy or insolvency and the Company reserves the right to retain the Deposit and/or any other security for a period of six (6) months, or any longer period as determined by the Company in its notice to terminate, after the termination of this Agreement.
- Merchant acknowledges that Deposit is not covered by any depositor protection scheme. The funds held in Deposit do not accrue interest.
V. SETTLEMENT
V.1. Fees. In exchange for the Services, Merchant agrees to pay the Service fees as listed in the fee schedule incorporated herein as an Annex №1. The Company has the right to unilaterally review fees. Fee is calculated in respect of each Transaction or Payout processed by the Company. Fees shall be due upon completion of a relevant Payout or a Transaction and shall be deducted by the Company from Merchant Payout Account amount or from the Transaction’s amount to be credited to Merchant Account.
V.2. Payments. The Company will transfer funds of the Payment Orders to Merchant’s Payout Account, provided that the Deposit funds are sufficient to cover such transfer and the related fees. The terms of payment will be agreed by the Parties in Annex № 1 to this Agreement.
V.3. Currency. All Transactions and Payment Orders shall be transacted the Agreement Currency. In case a Transaction’s or a Payment Order’s currency differs from the Agreement Currency, then the settlement amounts shall be calculated on the basis of the exchange rate used by the Company on the date of such Transaction and/or Payment Order.
V.4. Netting. The Parties agree to set-off their outstanding mutual obligations which may arise in course of their cooperation hereunder. Netting calculations will be done by Parties mutually. This netting agreement is irrevocable. For the avoidance of doubt, (1) in case of insufficiency of Merchant Payout Account funds to cover the Payouts requested by Merchant, the Company may in its sole discretion deduct the balance from the Transactions’ amount due to Merchant (from Merchant Account); (2) in case of insufficiency of the Deposit funds to cover the Allowable Deductions the Company’ may in its sole discretion, deduct the balance from Merchant Account or Merchant Payout Account. Netting calculations will be done by the Company and provided to Merchant in the Report. The Company may withhold payment of any amount payable to Merchant (in part or in whole) where there are any sums due or owing by Merchant to the Company, and Merchant agrees that the Company may exercise set-off and deduct such amounts due or owing by Merchant to the Company from any amount payable to Merchant by the Company.
V.5. Reconciliation of payments. The Parties will reconcile their financial obligations hereunder on a monthly basis based on the aggregate reconciling file delivered by the Company to Merchant. If any discrepancy(-ies) is detected, Merchant will request an adjustment of the reconciliation statements. The Parties will use reasonable endeavors to clarify any disputable issue and to make adjustments to their account balances under the Agreement (if applicable). Merchant may request an adjustment at any time within this Agreement, provided that, if Merchant doesn’t not object on a reconciliation file within 10 days from date of receipt of the reconciling file from the Company, invoices and settlement data for that particular month will be deemed accepted by Merchant.
V.6. Special Provisions. Where the Company has made payment on any Transaction, the Company shall nonetheless be entitled to debit any amount credited to Merchant Account or, if such amount is not available in Merchant Account, seek reimbursement of any amount paid to Merchant, or may delay payments to Merchant for a period of time as determined by the Company within its sole discretion and, if applicable, may require additional information from Merchant from time to time, where:
V.6.1. Merchant is in breach of any of the terms of this Agreement in respect of any Transaction;
V.6.2. the Transaction is proved to have been created or generated improperly or without authority of the relevant Customer;
V.6.3. the Company suspects that Merchant is in breach of any terms and conditions of the contract giving rise to the Transaction or Merchant has made misrepresentation whether intentionally or negligently in the course of the Transaction;
V.6.4. the sale of Goods to which the Transaction relates involves a violation of Law or the rules or regulations of the Card Schemes or any governmental agencies, local or otherwise;
V.6.5. the Company is aware of any penalty and/or fine which may be imposed by the Card Schemes as a result of or in connection with the Agreement, any transaction or Goods or services relative to the transaction, any promotion or marketing of any Goods sold by Merchant, improper activity of Merchant, any misrepresentation by Merchant to the Customer or any breach of any obligation or duty that Merchant owes to the Customer, any investigations into transactions which are shown to involve fraudulent or criminal activity on Merchant’s part, any breach of, or failure by Merchant or its employees, agents or contractors to comply with the Agreement, any act or omission done wilfully or negligently by Merchant, its employees, agents or contractors as well as any violation by Merchant, its employees, agents or contractors of any applicable laws or regulations.
V.7. Chargebacks. If any amount is the subject of a pending Chargeback by Visa, Mastercard or any Affiliate, the Company shall withhold payment of that amount pending the final determination of the dispute. In addition, where the Company has made payment of any such amount, the Company shall nonetheless be entitled to debit such amount credited to Merchant Account or, if such amount is not available in Merchant Account, seek reimbursement of such amount paid to Merchant. the Company will charge Merchant with a Chargeback processing fee specified in Annex №1 hereto. Merchant acknowledges that due to currency exchange differences and issuing bank fees, the value of a Transaction and the value of an eventual Chargeback of the same Transaction may not be equal. Without prejudice to its other rights under this Agreement, the Company may delay payments to Merchant for a period of time as determined by the Company within its sole discretion and, if applicable, may require additional information from Merchant from time to time in the following cases:
V.7.1. if there are changes in the business model of Merchant that may have an impact on the risk to the Company;
V.7.2. if there are unexpected increases in chargeback / refund / fraud transactions processed by Merchant.
Without prejudice to any other provision of this Agreement, as a cover against losses from Chargebacks and/or Fees which cannot be recovered by the Company, the Company may block and retain a percentage or the full amount of the Transactions processed. The retention rate will be directly related to the Chargeback Rate.
VI. INFORMATION AND DOCUMEMTS REQUIREMENTS
VI.1. Each Transaction and Payment Order will include (among other) the following information:
VI.1.1. Customer’s full name and address (if applicable);
VI.1.2. Customer’s Bank Card’s number (PAN) and expiration date or the Bank Account’s details (if applicable);
VI.1.3. Amount to be transferred by or to such Customer.
Completion of Transactions and/or Payment Orders is subject to provision of certain documents and information about such Transaction and/or Payment Order, including Personal Data, to the Company as may be requested by the Company in its sole discretion. The Company reserves the right to reject or suspend any transaction and/or payment order if such documents and information have not been provided to the Company.
VI.2. Merchant permits the the Company to transfer information about Merchant contained in the Agreement, annexes thereto, questionnaires to the Bank, Card Schemes, Settlement Systems and Issuers.
VI.3. The Parties shall retain in their power, during the term of this agreement and/or for five (5) years following the processing of a relevant transaction or payment order, whichever is longer, all documents and information related to them, including without limitation, the customer information. the parties agree that such information shall be considered confidential information under this agreement. such information retained by Merchant shall be made available for audit and inspection to the Company upon request. the Company shall be entitled to make and retain copies thereof.
VI.4. The Parties have agreed that facsimile documents and / or documents in electronic (scanned) form, including those sent to Merchant 's e-mail address, received by the Company from the settlement participants, including claims for payment of fines received by the Company from the acquirer, settlement systems are a sufficient basis for the Company's claim for compensation by Merchant for losses incurred by the Company.
VII. INQUIRIES
- Cooperation with the authorities. in case of investigations and/or requests initiated by the competent authorities, Merchant agrees to provide the Company with all necessary information, documents, and other assistance, unless such assistance is in violation of the Law applicable to Merchant. this provision shall remain in force for the period of this agreement and for five (5) years thereafter. The provision of requested information and document shall be without any charges.
- Early termination on false declarations. in case the Company obtains certificates or reports from the competent authorities that differ in context with the written declarations of Merchant and/or the shareholders or managers of Merchant, or in case such reports show that any of them is involved in money laundering, terrorist financing, trade of narcotics or any other illicit activity, or that any of them is in payment suspension, meeting of creditors, bankruptcy or subject to any undisclosed material litigation or sanctions or other similar restrictions, this agreement may be terminated by the Company with an immediate effect.
VIII. CONFIDENTIAL INFORMATION
- Confidential Information. Each party («Disclosing Party») may disclose Confidential Information to the other party («Receiving Party») in connection with the Service. Confidential Information is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, as well as non-public business, product, product roadmap, technology, and marketing information. If something is labeled "Confidential," that is a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (1) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) is received from a third party without breach of any obligation owed to the Disclosing Party; or (4) was independently developed by the Receiving Party.
- Protection and Use of Confidential Information. The Receiving Party will (1) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, and contractors who need to know such information in connection with the Service, provided, they are bound to confidentiality obligations at least as restrictive as those in these Terms; and (2) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of the Service and these Terms. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, such advisors are bound to confidentiality obligations at least as restrictive as those in these Terms.
- Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
IX. PRIVACY
- Parties are each responsible for their own privacy policy and compliance. The use of Personal Data by the Company as a Data Controller is subject of the Company Privacy Policy, which can be found on Website https://geltano.com. The Company is no party to the data processing agreement governing the processing of Personal Data between Merchant and the Third Party Platform.
- Acting in compliance with applicable Laws, the Company Processes the same elements of Personal Data of Customers for purposes determined by the Company, as a Controller as set forth in the Company’s Privacy Policy.
- Parties each shall put in place and sustains appropriate technological and organizational security measures to protect Personal Data from unlawful and unauthorized use and disclosure, and ensure secure processing of such data in conformity with the applicable Privacy Laws and generally prevailing industry standards, including, where applicable, the policies outlined in the Payment Card Industry Data Security Standard («PCI DSS»).
X. INTELLECTUAL PROPERTY
- The Company hereby grants Merchant a non-exclusive, non-transferable and royalty-free right to use the trademarks and the logo of the Company on its website(s) in order to indicate that it makes use of the Services. Merchant shall use the trademarks and logos of the Company and those of the Payment Methods strictly in accordance with the directions for use provided.
- Merchant also grants the Company a non-exclusive, non-transferable and royalty-free right to use the trademarks and the logo of Merchant on the Website and in off-line publications for promotional purposes. The Company shall use the trademarks and logos of Merchant strictly in accordance with Merchant’s directions for use.
- All IP Rights forming part, used or made available when providing the Services, are strictly owned by the Company or its licensors and Merchant shall only acquire such right of use as is explicitly granted under the Agreement.
- Upon termination of the Agreement, Parties will immediately stop using the trademarks and logos.
XI. INDEMNITY
You agree to indemnify the Company for any loss, cost or expense suffered or incurred by the Company as result of:
- Your breach of your obligations under the Terms;
- Intentional misuse of the Service;
- Your negligent acts or omissions in using the Service;
- Any claim brought against the Company by a third party in relation to your use of the Service.
XII. REGULATORY COMPLIANCE
- Each Party shall be responsible for its own and its agents’ or employees’ compliance with laws and regulations that apply to such Party, including without limitation all license, reporting, record-keeping, and other legal or regulatory requirements in the jurisdictions of such Party’s operation and business, and/or any other applicable jurisdictions.
- Each Party shall provide the other Party with such information and assistance as may be reasonably necessary for the requesting Party's legal or regulatory compliance, subject to the confidentiality provisions of Section 8 herein and applicable Law. The Parties agree to provide each other with any information that might facilitate their efforts to prevent money laundering and terrorist financing.
XIII.1. As of Your’s first use of the Services, including accessing the Account, if applicable the Agreement is effective and continues until terminated by one of the Party.
XIII.2. Party may terminate this Agreement at any time upon a 30- days prior written notice given to the other Party.
XIII.3. The Company may terminate this Agreement with an immediate effect by serving a written notice to Merchant, if:
XIII.3.1. the Company suspects that Merchant is involved in the activities listed in Annex B hereto; or
XIII.3.2.Merchant files for bankruptcy or meeting of creditors; or
XIII.3.3.Merchant does not cooperate regarding provision of the information requested by the regulatory authorities; or
XIII.3.4.the Company cannot continue providing the Services because of the Material Change of Law, duly justified by writing to Merchant; or
XIII.3.5.and if as a result of the implementation of internal control rules in order to prevent legalization (laundering) of criminal incomes and terrorist financing the Company suspect that the operation is performed in order to legalization (laundering) of incomes from crime and financing of terrorism; or
XIII.3.6.despite a request by the Company, Merchant did not implement the technical, security or other requirements that need to be met for duly provision of the services under the Agreement and compliance with the applicable laws, rules and requirements of the Banks or Merchant did not do so in due time; or
XIII.3.7.the business declared by Merchant differs from the actual business conducted by Merchant; or
XIII.3.8.the business conducted by Merchant could endanger the safety and/or soundness of the Company and/or Bank; or
XIII.3.9.termination is required by the Bank or Card Schemes.
XIII.4. Upon termination or expiration of this Agreement or any extension hereof, each Party shall cooperate, for the one hundred eighty day period (the «Winding Up Period») immediately following the date of such termination or expiration, in the prompt, orderly and efficient conclusion of the Service, including completing any in-process Payment Orders, transmitting any applicable funds relating thereto, performing a final accounting and reconciliation and, returning or destroying all Confidential Information found in the possession of the receiving Parties of the same in accordance with this Agreement. All amounts of funds owed by the Parties to each other shall become due and payable immediately upon termination of this Agreement (except for the amounts payable under Sections 4, 11 herein which have not been agreed by the Parties).
XIV. APPLICABLE LAW
- Canadian legislation governs this Agreement and its interpretation.
- Any dispute which cannot be solved amicably, will be exclusively submitted to the competent courts.
- The Parties irrevocably agree that the Courts of Canada have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute or claim relating to any non-contractual obligation). Each Party agrees to waive any objection to the Courts of Canada, whether on the grounds of venue or that the forum is not appropriate.
XV. LIMITATION OF LIABILITY
- Merchant expressly agrees that Merchant is using the services at its sole risk and that the services are provided on an «as is» basis without warranties of any kind, either express or implied, including, but not limited to, warranties of title or implied warranties, Merchant ability or fitness for a particular purpose. Without limiting the foregoing, the Company does not warrant that the process of using the services and/or Merchant’s account will be uninterrupted or error-free.
- Merchant acknowledges and agrees that, to the fullest extent permitted by the applicable law, the disclaimers of liability contained in section 15.1 apply to any and all damages or injury whatsoever caused by or related to use of, or inability to use, the services under any cause or action whatsoever of any kind in any jurisdiction, including, without limitation, actions for breach of warranty, breach of contract or tort (including negligence) and that the Company shall not be liable for any indirect, incidental, special, exemplary or consequential damages, including for loss of profits, goodwill or data, in any way whatsoever arising out of the use of, or inability to use, the services. Merchant further specifically acknowledges that the Company is not liable for the conduct of third parties, and that the risk of using the services rests entirely with Merchant. To the extent permissible under applicable Laws, under no circumstances will the Company be liable to Merchant for more than the amount Merchant has paid to the Company for a particular transaction or payment order. Notwithstanding the foregoing, nothing in this agreement shall affect Merchant’s statutory rights or exclude injury arising from any wilful misconduct or fraud of the Company.
XVI. ANNEXES
16.1. Annex №1. Terms of service and Fees
16.2. Annex №2. Prohibited Goods
XVII. CONTACT DETAILS
For all questions regarding this Agreement, please, contact using the email address: [email protected]
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