Processor Terms & Conditions – Payment processing services via Wix.com, Inc.

Agreement Last Updated: September 17, 2018
1. Definitions

Account Holder

Any person who is authorized to use a Payment Method (such as a Card) issued to him.

Acquirer / Acquiring Bank

A financial institution that is authorized by a Scheme Owner to enable the use of a Payment Method by accepting Transactions from merchants on behalf of the Scheme Owners, routing these to the Scheme Owners or Issuing Banks and collecting and settling the resulting funds to the Merchant. For Card Acquiring in the US for Merchant, Processor will perform the Acquiring under the acquiring license of Wells Fargo Bank, N.A.

Acquiring via Processor

Use of a Payment Method via Processor where Processor acts as the Acquirer or Processor contracts with the relevant third party Acquirer to enable the use by Merchant of such Payment Method.

Authorization

The process whereby an Account Holder (or Merchant on Account Holder’s behalf) requests permission for a Payment Method to be used for a particular purchase of Merchant’s Service or Merchant Product.

Capture Period

The period in which an Authorized Transaction can be Captured. The Capture Period varies per Payment Method.

Capturing

The confirmation by the Merchant to the Acquirer that a Transaction for which it received an Authorization is to be executed and the account of the Account Holder is to be actually charged for the Transaction.

Card

Any form of credit card or debit card, which may be used by a Cardholder to carry out a Transaction on a Cardholder's account.

Card Scheme

Visa, MasterCard or comparable bodies which provide Cards.

Cardholder

An Account Holder who is issued a Card and possesses and uses a Card and, where required on the Card, whose signature appears on the Card as an authorized user.

Chargeback

A Transaction which is successfully charged back on request of the Account Holder or the Issuer pursuant to the relevant Scheme Rules resulting in a cancellation of a Transaction in respect of which a Merchant has been paid or was due to be paid. If a Chargeback occurs for a Transaction in respect of which Merchant already received Settlement of the related funds, this results in the unconditional obligation for the Merchant to immediately return the Settled funds to Processor, to enable Processor to return such funds to the Scheme Owner or Acquirer.

Delivery Date

The date on which the complete Merchant Product and/or Merchant Service is delivered to the Account Holder who paid for the corresponding Transaction.

Fine

Any fine, uplifted service fee or other additional payment as imposed by the Scheme Owners and/or Acquirer to the Merchant, Processor as a result of situations such as, but not limited to, breach of Scheme Rules by the Merchant or caused by the Merchant, excessive Fraud levels or excessive Chargeback levels.

Hosted Payment Pages

The Payment Interface where an Account Holder is redirected from the Merchant shopping site to a payment site hosted by Adyen, on which the Payment Details are entered by the Account Holder.

Issuer / Issuing Bank

An institution that issues Payment Methods to the Account Holder and whose name appears on the Card or bank account statement as the Issuer or who enters into a contractual relationship with the Account Holder with respect to the Payment Method.

Merchant

The company who enters into a Merchant Agreement with (Processor) and for whom (Processor) processes Transactions related to the Merchant Service and Merchant Products of the Merchant.

Merchant Agreement

Means the Merchant Registration Form, together with the Schedules thereto (including these Processor Terms and Conditions).

Merchant Registration Form

The order form completed by Merchant either online or offline to order the provision of the Services via Partner, including the Know Your Customer (KYC) information provided by Merchant for Processor to perform KYC checks and registration of Merchant as user of the Services as mandated by applicable law and Scheme Rules.

Merchant Products and Merchant Services

A product/service which the Merchant is selling and for which Transactions are processed.

Partner

Wix.com, Inc. a company incorporated under the laws of Delaware, with a primary business address of 500 Terry A Francois Blvd San Francisco, CA 94158.

Payment Details

The information which makes up a Transaction message which needs to be submitted to the Payment Interface to enable the processing of the Transaction by Processor and to perform fraud checks, including details regarding the Card, the Account Holder, relevant authentication details and the payment amount.

Payment Interface

An electronic connection method provided by Processor to the Merchant for providing the Payment Details for individual Transactions allowing Processor to provide its Services with respect thereto.

Payment Method

Refund

A method of enabling payments by Account Holders to merchants such as Cards, online and offline bank transfers and direct debits offered by the Scheme Owners.

PCI DSS

The security standards for transmitting, processing or storing card data / payment details, known under the name PCI DSS as required to be observed under the Scheme Rules of the Card Schemes. (https://www.pcisecuritystandards.org)

Processing Fee

The fee that Processor charges for each Transaction submitted for processing to the Payment Interface, regardless of the Transaction amount and the type of Payment Method used.

Processor

Adyen B.V., a company registered under number 34259528 and having its seat at Simon Carmiggeltstraat 6-50, 1011 DJ in Amsterdam, the Netherlands, represented in the US by Adyen Inc. at 274 Brannan Street, Suite 600, San Francisco, CA 94107.

Refund

A (partial) reversal of a particular Transaction on the initiative or request of the Merchant, whereby the funds are reimbursed to the Account Holder.

Scheme Owner

The party offering and/or regulating the relevant Payment Method.

Scheme Rule

The collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which Merchant must comply when using the relevant Payment Method. Processor may via Partner as service make extracts and summaries of the Scheme Rules available to Merchant, but only the then current applicable Scheme Rules as issued by the relevant Scheme Owner and/or the relevant Acquirer are binding on Merchant.

Services

The collective set of payment processing, payment routing, fraud control, reconciliation, reporting, Settlement and/or other services as provided by Processor to the Merchant to enable the Merchant to use Payment Methods to process Transactions.

Settlement

The payment of amounts owed to the Merchant, with respect to settlements received from Acquirers or Scheme Owners for Transactions validly processed for the Merchant, minus the amounts due for Refund, Chargebacks, fees and costs. “Settle” and “Settled” shall have the corresponding meanings.

Transaction

An Authorization request of an Account Holder for a payment from the Account Holder to the Merchant submitted by Merchant to Processor.

Uncompleted Orders

Authorized and Captured Transactions for which the Merchant Products and/or Merchant Services have not (yet) been delivered to the relevant Account Holders at that time and/or for which the return rights or order cancellation rights of the Account Holder under the terms and conditions of the Merchant and/or applicable law have not yet lapsed.

2. Description of the Service

2.1 PAYMENT PROCESSING VIA PARTNER

Merchant will be using the Services with the assistance of Partner. Partner is representing Merchant with respect to Merchant’s use of the Services and represents to Processor that Partner is fully authorized and mandated by Merchant to use the Services, submit Transactions, make decisions regarding the Services and request changes to the setup of the Services on behalf of the Merchant. Processor will not directly provide helpdesk, implementation or other support to Merchant in setting up and using the Services. All such support is provided by Partner to Merchant. Merchant hereby authorises Processor to enable Partner to  (i) access Transaction level data to provide support to Merchant at the level of individual Transactions and (ii) technically manage user settings of the Merchant with respect to the Services on Merchant’s behalf (e.g. 3D Secure, fraud control settings).

 

Processor shall not be liable to Merchant for any act or omission of Partner nor for any issue with respect to the Services caused by any act or omission by Partner or the services of Partner to Merchant, and Merchants holds Processor harmless for any loss, costs, fines or other penalties incurred as a result of actions or inactions of Partner.

 

The Services will provide real time or near real time Transaction processing capability over the Internet with a high availability service level applying to the Payment Interface. The Services include reconciliation services to help match processed Transactions with settlements received from the relevant Acquirers and Scheme Owners. Processor will make reconciliation data and reports available to Partner to enable Partner to provide consolidated reporting and reconciliation assistance to Merchant.

 

The Merchant shall be obligated to ensure all data that Processor requests to be provided for a Transaction, including, but not limited to, those needed for fraud checks, are provided. If the Merchant fails to provide the requested data with each Transaction, Processor may suspend Transaction processing and/or Transactions may be refused by the relevant Scheme Owners or third party acquirers. Processor may revise the required data needed to process Transactions from time to time by informing Merchant via Partner as needed to be able to process such Transaction and conduct fraud checks under applicable Scheme Rules.

2.2 MERCHANT REGISTRATION AND KYC CHECK

In order to enable Processor to comply with anti-terrorism, financial services and other applicable laws and regulations and KYC (‘Know Your Customer’) requirements imposed by the Scheme Owners and Acquirers, Merchant must when entering into the Merchant Agreement and thereafter on Processor’s first request provide information about itself, its activities and its shareholders (the “Registration Information”). Merchant warrants unconditionally that all Registration Information it provides is correct and up to date. Merchant will provide Processor with at least three Business Days prior written notice via Partner of any change of the Registration Information. Merchant will on first request from Processor provide such additional information and supporting documentation regarding its activities and identity and that of its shareholders as Processor may reasonably determine to need to ensure compliance with applicable laws and regulations and Scheme Owner and Acquirer KYC requirements. Merchant agrees that Processor may run further checks on Merchant’s identity, creditworthiness and background by contacting and consulting relevant registries, government authorities and Merchant relations. Processor’s acceptance of Merchant as user of the Services and the relevant Payment Methods is limited to the use by Merchant of the Services for payment of Merchant’s own products and services and not for any related or unrelated 3rd party. Merchant may not use the Services to facilitate the payment for products or services sold by third parties and therefor may not resell the Services to third parties. Support for each Payment Methods is subject to acceptance by the relevant Scheme Owner or Acquirer used by the Scheme Owner, which such Acquirer Scheme Owner may withhold or withdraw in its discretion at any time. Some Scheme Owners or Acquirers may require the Merchant to enter into a direct agreement with the Acquirer or Scheme Owner before the Merchant may use the relevant Payment Scheme. Merchant hereby authorizes Processor to submit Registration Information received from Merchant to US Card Acquirer and the relevant Scheme Owners and Acquirers to obtain permission for providing access to their Payment Methods for Merchant.

2.3 PAYMENT METHOD SUPPORT

Supported Payment Methods as part of the Services may change from time to time. Processor will give thirty (30) days written notice of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision. Processor will use its reasonable endeavors to offer an alternative for any discontinued Payment Method to the Merchant. Merchant understands that Acquirers and/or Scheme Owners might cancel certain Payment Methods, change the characteristics thereof or change the acceptance criteria under which they make them available. As a consequence, Processor may prohibit Merchant from further use of a Payment Method or impose additional restrictions or conditions on its continued use as a consequence of such decisions of the relevant Acquirer and/or financial institution offering the Payment Method. Where possible Processor will use its reasonable efforts to give Merchant prior notice of any such change or cancellation with respect to the Payment Methods agreed to be offered in the Merchant Agreement.

2.4 FRAUD CONTROL

All Transactions processed by the Services will be screened by the Processor’s Fraud Control Tool, which performs a number of checks on a Transaction and attaches a resulting total score to the Transaction, which represents the likelihood of the Transaction being fraudulent. The Fraud Control Tool does not guarantee the prevention of fraudulent Transactions, nor against resulting Chargebacks or Fines. Regardless of the resulting total score, Transactions may be fraudulent or non-fraudulent. Partner will manage the settings of the Fraud Control Tool on behalf of Merchant. Processor reserves the right to cancel Transactions that it has reasonable grounds to suspect to be fraudulent or involving other criminal activities, even if the Fraud Control Tool failed to block the Transaction.

2.5 CAPTURES

For some Payment Methods it is possible to ask for Authorization for a payment (to check whether the Account Holder indeed has an Account that can be charged for the payment amount) without immediately Capturing the Transaction. Merchant understands that Authorized Transactions have a limited maximum Capture Period in which they can be Captured which is set by the Issuing Bank or the relevant Scheme Owner.

2.6 SETTLEMENTS

Funds from the Account Holders charged for the validly processed Transactions of the Merchant which are Acquired via Processor are settled by the Acquirer or the Scheme Owner to the accounts held by the Processor. Processor will Settle received funds to Merchant with the frequency agreed in the Merchant Agreement. Processor is only obliged to provide Settlement of Transactions for which the Processor has received settlement(s) by the Acquirer or the Scheme Owner. Processor may further delay Settlement of funds to Merchant for Uncompleted Orders as cover for Chargebacks on those Transactions.  The Processor reserves the right to withhold Settlement of Transactions if they are Captured, but suspected to be fraudulent, related to illegal activities or likely to become subject to a Chargeback by Processor and/or the relevant Acquirer and/or Scheme Owner, until satisfactory completion of Processor's investigation, that of the relevant Acquirer or Scheme Owner or that of a third party nominated by any of these parties. Merchant will give its full co-operation to any such investigation.

2.7 REQUIRED DATA

Merchant shall from time to time on the first request of Processor provide all required information regarding the then current actual or expected Delivery Dates for processed Transactions and estimates for the average time between Authorization and the related Delivery Date. Further Merchant shall provide Processor on its first request with all requested information on Merchant’s then current ability to provide the Merchant Products and Services it sells by means of the Services, its financial status, solvability and liquidity.

2.8 MERCHANT OBLIGATIONS AND RESTRICTIONS

Merchant may only use the Services for payment of those Merchant Products and Services as reflected in the Merchant Registration Form. The acceptance by Processor of Merchant as customer is strictly linked to those Merchant’s Products and Services. Merchant must ask prior written approval for any change or addition to the Merchant’s Products and Services prior to submitting payment requests therefor.

 

The Merchant shall not use the Services for the payment of Merchant Products and/or Merchant Services where it is illegal to offer or provide these to or from the relevant country and/or which are stated in Processor's Prohibited and Restricted Products and Services List (Merchant may obtain a written waiver for Products and Services in the ‘restricted’ section of this list, but such waiver may be revoked by Processor in its discretion). This list may be updated in Processor’s discretion where needed to ensure legal compliance, compliance to Scheme Rules, prevent high levels of Chargebacks and/or to reduce exposure to potentially fraudulent or illegal transactions. Merchant will be informed of updates of this list by Partner. Where a published change affects a significant portion of the Merchant’s Product or Services, Merchant may terminate the Merchant Agreement by giving written notice to Processor (via Partner).

 

Processor’s acceptance of Merchant as customer should not be interpreted as an advice or opinion of Processor as to the legality of Merchant’s Products and Services and/or of Merchant’s intended use of the Services therefore. Merchant is and remains solely responsible to ensure the Merchant Products and Services sold are compliant with the Scheme Rules and applicable laws in its country of origin and the countries it customers are based in. Further some Payment Methods apply additional restrictions as set out in the applicable Scheme Rules which Merchant must at all times ensure compliance with.

 

The Services of Processor shall not be used (and Transactions may not be submitted for processing) for prepaying Merchant Products and Services for which the Delivery Date is in part or in whole more than 12 months after the date the Transaction is submitted for processing. This can make Transactions more likely to be subject to Chargebacks.

 

For E-commerce Transactions, Merchant is obliged to provide on its website the following information to an Account Holder for every Transaction: complete description of the goods or services offered, returned merchandise and refund policy, customer service contact (including email address and/or telephone number), address, delivery policy, Merchant’s consumer data protection policy and all other legally required information to be provided to the Account Holder in the relevant jurisdiction.

 

The Merchants must maintain a copy of all electronic and other records related to the Transaction and the ordering and delivery of the Merchant Product and Services for a period of the greater of (i) 2 years subsequent to the Transaction being processed or (ii) the applicable warranty period of the delivered Merchant Product and Services. The copy of the records shall include, but not be limited to: shipping details, invoices for the delivered Merchant Product and Services and all contacts with the Account Holder. In case of investigations by Processor, the Acquirers and/or the Scheme Owners with respect to Chargebacks, suspected fraud or other RFI’s from the Scheme Owners, Merchant will fully co-operate in the auditing of such records. Merchant’s obligations to maintain documentation of its business according to applicable laws remain unaffected by this clause. Merchant shall not honor delivery address changes for any Transaction after requesting the Authorization as this can increase the risk of fraud (for which Merchant will be responsible) and/or Chargebacks.

2.9 WARNING – FINES SCHEME OWNERS

For violations of certain key requirements under the Scheme Rules by Merchants, some Scheme Owners (and in particular the Card Schemes) can levy significant Fines. The Scheme Owners do this to protect the Account Holders, Merchants and providers of the Payment Methods collectively against misuse, fraud, illegal activities, breach of applicable laws, reputational damage and excessive costs. Key examples of Scheme Rules which are subject to such Fines: (i) using the Payment Method for other Merchant Products and Services than for which the Merchant received express authorization to use it for; (ii) using the Payment Method for Merchant Products and Services which are violating applicable laws; (iii) using the Payment Method for selling Merchant Products and Services for which the Scheme Owner explicitly prohibited its use (e.g. adult content, drugs, arms, gambling); (iv) Using the Payment Method for the benefit of a third party / reselling the use of the Payment Method to a third party (the authorization for Merchant to use a Payment Method is strictly personal); (v) percentage of Transactions of a Merchant which is subject to a Chargeback is above the applicable acceptable level; (vi) breaches of security and confidentiality obligations with respect to Payment Details; (vii) fraudulent or misleading activities.

 

Merchant is strongly advised to regularly review the then current Scheme Rules and relevant changes to applicable laws as applicable to its Merchant Products and Services and business practices to ensure compliance to applicable Scheme Rules. Where Merchant finds the Scheme Rules (including Fine possibility) to be unacceptable, Merchant is free at any point in time to stop using the relevant Payment Method (the Scheme Rules and these terms remain applicable to previously processed Transactions for Merchant).

 

Where Processor becomes aware of and/or receives any notice of a potential exposure to a Fine related to any Merchant behavior, Merchant will on first request provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of Processor in such situation as per the Processor Terms and Conditions. Where possible Processor will share relevant feedback received by Merchant with the Acquirer/Scheme Owner handling the potential Fine so it can be taken into consideration by the Acquirer / Scheme Owner. If Fines are applied for Merchant violations these are invoiced by the Scheme Owners and/or the relevant Acquirer to Processor as their contracting party (for the benefit of the Merchant). Merchant shall fully indemnify and hold Processor and US Card Acquirer harmless from any Fines applied by the Scheme Owners as a result of Merchant’s breach of the terms of the Merchant Agreement and/or the Scheme Rules.

3. Payments

3.1 PAYMENT

Merchant agrees with the withholding from Settlement of any sums: (i) due to Processor under the Merchant Agreement including Chargebacks, Fines; and (ii) fees due to Partner for use of the Services of Processor and for the use of the own services of Partner. If the Settlement amounts are not sufficient to cover amounts due to Processor, the amounts remain due as per the due date as stated on the invoice and shall be paid separately by the Merchant within 30 days of the date of the relevant invoice. Merchant instructs Processor to Settle the amounts owed to Partner directly to Partner. Specifically, Processor reserves the right at any time to require immediate payment of sums (or withhold from Settlements) in the following cases:

  • Refunds and/or Chargebacks in case the outstanding Refund and/or Chargeback amounts exceed the Settlement amount.

  • Any amount required by Processor to cover any potential or expected Refund, Chargeback cost, Fine or any (potential) liability relating to a Transaction.

  • Any other charges or amounts due by Merchant under this Agreement including Fines from the Card Schemes.

Interest shall accrue on any unpaid amounts owed by the Merchant to Processor at the rate of 1% per month.

4. Integration

4.1 INTEGRATION VIA PARTNER

The Services shall be used by the Merchant via Partner, and Merchant will integrate with the Payment Interface of Processor via the systems of Partner. Merchant shall set up its integration with the Payment Interface of Processor with the assistance of Partner as agreed between Merchant and Partner. Processor is not responsible for such integration, but will ensure the Payment Interface is available for use by Partner for such purpose and will where needed provide second line support for such integration via Partner.

4.2 MEANING OF PAYMENT STATUS “AUTHORIZED”

If a payment request receives the status “Authorized” payment may still be blocked and/or charged back by the Account Holder (where Chargeback is possible under the relevant Scheme Rules). The likelihood of a payment marked as “Authorized” being blocked or unsuccessful depends on the Payment Method which is used. For example for direct debit transactions this risk is significant because in most cases the status “Authorized” only means the bank account exists and not that there are enough funds on the bank account to actually perform the payment.

4.3 SECURITY OF PAYMENT DETAILS

Merchant guarantees not to copy, capture or intercept Payment Details such as credit card numbers, CVM Codes, ‘PIN’ codes that are provided by the Account Holder for payments to be processed via the Services. This rule is imposed by the Scheme Owners to protect Account Holders against misuse of their Payment Details (like credit card numbers) and is strictly enforced by the Scheme Owners, and a violation of this rule can lead to the application of high Fines by the Schemes Owners. If Processor has reason to believe that Merchant is copying, capturing or intercepting Payment Details, Processor has the right to suspend processing of Transactions and Settlement. Merchant shall fully indemnify and hold Processor and US Card Acquirer harmless from any losses, claims (including applied Fines by the Scheme Owners), costs or damage Processor or US Card Acquirer incurs as a result of Merchant’s breach of this obligation.

If the Merchant itself handles any Payment Details which are submitted for processing, Merchant must at all times ensure it fully complies with the then current PCI-DSS rules and on Processor’s first request demonstrate such compliance and provide its valid certification of its compliance. If the Merchant cannot prove the compliancy to the PCI-DSS rules or its certification/compliancy becomes invalid, Merchant will notify Processor immediately. Processor has the right to immediately suspend Transaction processing for Merchant in case Processor has any indication that Merchant is not compliant with the PCI-DSS standards which Merchant cannot immediately prove to be not founded. Merchant shall fully indemnify and hold Processor and US Card Acquirer harmless from any losses, claims (including applied Fines by the Scheme Owners), costs or damage Processor or US Card Acquirer incurs as a result of Merchant’s breach of this obligation.

4.4 CHANGES TO SOFTWARE

Adyen reserves the right to change or amend the Software and the Services and the interface to it at any time, to provide the Merchant with a new version thereof, and/or to change the functionalities and characteristics of the Software and Services. Notice of material changes affecting the integration of Merchant with the Services will be provided via Partner.

5. Chargebacks and Refunds

5.1 CHARGEBACK LIABILITY

Many Scheme Owners, and in particular including direct debit Payment Methods and most Scheme Owners issuing Credit Cards allow Account Holders to Chargeback Authorized and Settled Transactions by requesting a Chargeback from the Scheme Owner or the Issuing Bank. Merchant’s receipt of a Settlement and/or Authorization confirmation regarding a particular Transaction therefore does not unconditionally entitle Merchant to receive Settlement of the Transaction amount or to keep the Settled amount as in case the Account Holder claims a Chargeback in accordance with the relevant Scheme Rules, Merchant loses entitlement for the relevant amount and must return it via Processor to the Account Holder. Please check the relevant Scheme Rules to see which Payment Methods allow Chargebacks and what procedures apply. Scheme Owners and Processor do not accept Merchant generating excessive levels of Chargebacks as Chargebacks are an indication of Merchant’s inability to provide the Merchant Products and Services in accordance with Account Holder expectations and create additional work and costs for all parties involved (including Scheme Owner, the Issuing Bank and Processor). If Chargeback levels of the Transactions of the Merchant for a specific Payment Method are above levels acceptable for Processor and/or the relevant Scheme Owner for that Payment Method or are expected to become above unacceptable levels, Processor reserves the right to suspend the availability of said Payment Method in its discretion. In general Merchant should take into account that a Chargeback level of more than 0.5% of the total volume of Transactions which is Authorized, is considered unacceptable for Processor and most Scheme Owners and can lead to suspension of Transaction processing for the relevant Payment Method and/or Fines being applied (for which Merchant will be responsible). For some Payment Methods higher or lower tolerances for Chargebacks levels may apply, please check the relevant then current version of the relevant Scheme Rules for this. Please note that the relevant Scheme Owner, Acquirer and/or Processor not taking immediate action in case of excessive Chargeback levels occurring cannot be interpreted as consent or a waiver of related rights by Processor, the relevant Acquirer or Scheme Owner. Merchant may not provide Refunds to an Account Holder for a previously processed Transaction using a different Payment Method than the method used for the original Transaction. The original Transaction can in such case still be charged back by the Account Holder or Issuer, causing the Merchant having to refund the received funds twice. This is a well-known method to make fraudulent use of stolen Credit Cards at the expense of Merchants!

In case Processor has reasons to suspect that Merchant is not delivering its Merchant Services or Merchant Product on or prior to the Delivery Dates used to calculate the Uncompleted Order Amount and/or if Processor has reason to suspect that the Merchant Products or Merchant Services for which Processor processes Transactions are based on fraud, likely to cause high Chargeback volumes and/or illegal, Processor has the right to suspend Settlement of all related Transactions and/or block Authorizations therefor until Processor has been given assurances to its satisfaction that the relevant Merchant Products and Services are actually delivered in accordance with applicable laws and orders placed by the Account Holder.

5.2 CHARGEBACK PAYMENT

For every Chargeback where Processor is obliged to pay the Chargeback amount, the same amount will be deducted from the Merchant Settlements.

5.2 CHARGEBACK PERIOD

As Chargebacks may arise a considerable period after the date of the relevant Transaction, the Merchant acknowledges and agrees that, notwithstanding any termination of the Merchant Agreement for any reason, Processor and US Card Acquirer shall remain entitled to recover Chargebacks, related fees and related Fines from the Merchant in respect of all Chargebacks that occur in relation to Transactions effected during the term of the Merchant Agreement.

6. Confidentiality, Privacy and Compliance

6.1 CONFIDENTIALITY

All information relating to the Merchant or to Processor and designated as being confidential, and all information not expressly designated as confidential but which should reasonably be deemed confidential by reason of its nature or content is considered “Confidential Information”. Each party remains the owner of all data made available to the other party. Each party undertakes to take all necessary steps to protect the confidential nature of all Confidential Information of the other party, agreeing, in particular:

  • to share Confidential Information solely with personnel and representatives of the parties (including Partner) which have a need to have access to such information in order to exercise rights and obligations under the Merchant Agreement; and

  • to refrain from making any Confidential Information available to any third party without the prior written consent of the other party except for Processor where necessary to perform the Services.

 

The obligation to maintain confidentiality does not apply to information: (i) available to the general public, (ii) disclosed to one of the parties by a third party without any obligation of confidentiality, (iii) already in the possession of or known to one of the parties at the time of disclosure, (iv) developed independently of the Confidential Information by the other party, or (v) if and to the extent to one of the parties and/or their employees are obliged under an act or by decision of a court or administrative authority to disclose such information. The obligation of confidentiality as described in this clause shall remain in effect also following the termination of the Merchant Agreement, regardless of the grounds for termination.

6.2 PRIVACY

Where Processor processes personal data while performing the Services, Processor will act as data processor under the direction and responsibility of the Merchant in accordance with US privacy laws. Merchant will comply with the personal data protection laws of the Merchant’s country of origin and of those countries in which the Merchant offers its goods and/or services from time to time, in particular when processing and sending personal data to Processor in the context of using the Services and submitting transactions. Both Processor and Merchant shall implement appropriate technical and organizational measures to protect personal data against misuse. Processor shall not use personal data processed by Processor for Merchant under the Merchant Agreement for any other purpose then providing the Services and complying with applicable laws and Scheme Rules.

6.3 COMPLIANCE

The Merchant’s use of the Hosted Payment Page is PCI compliant under Processor's PCI DSS certification for the Hosted Payment Pages subject to Merchant complying to these Processor Terms and Conditions.

7. Duration and Cancellation

7.1 DURATION

Except where explicitly agreed otherwise in the Merchant Agreement, the Merchant Agreement shall be entered into for an indefinite period until it is terminated by either party by giving at least thirty (30) days written notice to the other party.

7.2 TERMINATION

Processor has the right to terminate the Merchant Agreement and/or stop processing or Settlement of Transactions for Merchant immediately in part or in whole if:

1. The provision of Merchant's Services/Products for which Processor provides the Service is reasonably suspected by Processor to be in breach with legislation in the country where the Merchant Services/Products are offered from or to.

2. Merchant has materially changed the type of Merchant Services/Products without obtaining Processor’s prior written permission to use the Services for the new or changed types of Merchant Services /Products;

3. Merchant materially breaches any of the terms of the Merchant Agreement, the Scheme Rules and/or applicable laws in the context of using the Services.

4. An Acquirer or Scheme Owner demands Processor to stop or suspend providing Services to Merchant with respect to Payment Methods made available by such Acquirer or Scheme Owner to Processor.

5. Processor finds there are clear indications that Merchant is or is likely to become insolvent and/or unable to provide a material part of the Merchant Products/Services. Or

6. The agreement the Merchant has entered into with Partner for the use of the services of Partner has been terminated or has otherwise expired and/or an event permitting a termination by Partner under any such agreement occurs.

8. Liability

8.1 NO LIABILITY FOR THIRD PARTIES

Processor and US Card Acquirer shall only be liable for their own respective acts or omissions and not for acts or omissions of third parties. Without limitation, neither Processor nor Acquirer shall be liable for acts or omissions of Scheme Owners or third party Acquirers or for events or activities originating outside the systems of Processor (such as internet disturbances or malfunctions in third party systems), except in case such events were caused by the intent or gross negligence of Processor.

8.2 LIMITATION OF LIABILITY

The total liability of Processor and US Card Acquirer under the Merchant Agreement towards Merchant for breach of contract, tort or under any other legal theory in any calendar year is limited to an amount equal to $USD$10,000. Neither Processor nor US Card Acquirer shall be liable for breach of contract, tort or under any other legal theory for any loss of profit, business, contracts, revenues, anticipated savings or damage to good name; or for any special, indirect, or consequential damages. Neither Processor nor any other party to the Merchant Agreement excludes or limits its liability under the Merchant Agreement for intent, gross negligence, death, fraud or personal injury.

9. Indemnification

If any claims for damages, costs and expenses are asserted, and reduced to a final judgment under the governing law and venue set forth herein, against Merchant by third parties asserting that these third parties are the owner of any rights regarding the Software and/or systems of Processor, Processor shall indemnify Merchant solely with respect to judgment emanating from these third-party claims, including Merchants reasonable costs of its legal defense, and offer Merchant the necessary assistance in its legal defense.

 

Merchant shall indemnify and hold Processor harmless from any claim (including legal fees) brought against Processor by any third party (expressly including Scheme Owners and their claims for payments of Fines) as a result of Merchants’ breach of the terms of the Merchant Agreement, applicable laws and/or the Scheme Rules applying to the Payment Methods used by Merchant. Merchant shall indemnify and hold US Card Acquirer harmless from any claim (including legal fees) brought against US Card Acquirer by any party in connection with the Merchant Agreement and/or Merchant’s violation of applicable laws

10. General Provisions

10.1 TRANSFER

Processor shall be entitled, at any time, to assign, novate or otherwise transfer the Merchant Agreement to another company in the Processor Group, i.e., a company with at least 50% the same shareholders, without the prior consent of the Merchant by providing written notice to Merchant of such transfer. The rights and obligations of Processor and/or US Card Acquirer hereunder may be transferred by Processor and/or US Card Acquirer, as applicable, without

notice to Merchant. Merchant acknowledges that the transferable rights of Processor and US Card Acquirer hereunder shall include, but shall not be limited to, the authority and right to debit the Merchant’s account(s) as described herein.

10.2 THIRD PARTY BENEFICIARY

Acquirer is an intended beneficiary of all of Processor’s rights, Merchant’s obligations, and an qualifications, conditions, or limitations for the benefit of Processor, in each case as set forth in the Merchant Agreement, and in the event of the filing of a voluntary or involuntary petition for bankruptcy by or against Processor, or Processor’s assignment of rights for the benefit of creditors US Card Acquirer may enforce all such terms directly against Merchant.

10.3 NULL PROVISIONS

In the event that any provision in the Merchant Agreement (including the Processor Terms and Conditions) is declared null and void or inapplicable, said provision shall be deemed non-existent, and all other provisions of the Merchant Agreement (including the Processor Terms and Conditions) shall remain applicable. The parties undertake to take all steps to eliminate the provision declared null and void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic objective of the provision declared null and/or inapplicable.

10.4 CHANGES TO THE TERMS AND CONDITIONS

Processor may revise the Processor Terms and Conditions from time to time by giving at least 30 days written notice to the Merchant via Partner. If the change has a material adverse impact on Merchant and Merchant does not agree to the change, Merchant may terminate the Merchant Agreement by giving at least one month written notice to Processor (such termination notice to be sent at the latest 60 days after Merchant received notice of the change). Merchant is not entitled to object to and shall not have the rights set out in this clause for any change which Processor implements in order to comply with applicable law or requirements imposed by the relevant Acquirers and/or Scheme Owners. For such imposed changes shorter notice periods may be applied by Processor as is need to comply with the relevant requirement.

10.5 DEVIATING TERMS

The applicability of Merchant's purchasing or other general terms and conditions is expressly rejected. In any case the terms of the Merchant Agreement as proposed by Processor, including the Terms and Conditions shall take precedence over any terms and conditions contained or referred to in in any such acceptance document from Merchant.

10.6 ONLINE CONTRACTING – WRITTEN CONFIRMATION

In case Merchant has concluded the Merchant Agreement with Processor via Partner’s website or via any other online means, Processor may at any time request that Merchant re-confirms its acceptance of the terms of the Merchant Agreement (including these Processor Terms and Conditions) by means of a written document signed by an authorized representative of the Merchant. If Merchant does not comply with such request within 5 working days after receiving a request by Processor to do so (which request may be issued to Merchant via the contact email address submitted by Merchant when concluding the Merchant Agreement), Processor reserves the right to suspend part or all of the Services until Merchant has complied with such request.

11. Settlement of disputes

11.1 APPLICABLE LAW AND JURISDICTION

The Merchant Agreement and these Processor Terms and Conditions shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to the principles of conflicts of law. Each of the parties irrevocably and unconditionally: (a) submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or the courts of the United States of America for the Southern District of New York, in any action or proceeding arising out of, or relating to, this Agreement or for recognition or enforcement of any judgment in respect hereof; (b) agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York state court or, to the extent permitted by law, in such federal court; (c) consents that any such action or proceeding may be brought in such courts; and (d) waives to the fullest extent permitted by law any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or any claim that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction.

WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, OR RELATING TO, THE MERCHANT AGREEMENT AND THE PROCESSOR TERMS AND CONDITIONS.

Member Disclosures Wells Fargo Bank

Member contact information

WELLS FARGO BANK, N.A. may be contacted by mail at: PO Box 6079, Concord, CA94524 and by phone at (844) 284-6834 .

Processor contact information

ADYEN B.V. may be contacted by mail via its US subsidiary Adyen Inc. at 274 Brannan Street, Suite 600, San Francisco, CA 94107and by phone at (415) 957 1000

Important Member Responsibilities

A. Member is the entity approved to extend acceptance of Card Scheme products directly to you.

B. Member must be a principal (signer) to the relevant Acquiring Addendum.

C. Member is responsible for educating you on pertinent Visa and MasterCard Rules with which you must comply; but this information may be provided to you by Adyen.

D. Member is responsible for and must provide settlement funds to you.

E. Member is responsible for all settlement funds prior to funding you (or Adyen as your agent).

Important Merchant Responsibilities

A. Ensure compliance with cardholder data security and storage requirements.

B. Maintain fraud and chargebacks below Card Scheme thresholds.

C. Review and understand the terms of the Acquiring Addendum.

D. Comply with Visa and MasterCard rules.

The responsibilities listed above do not supersede terms of the Merchant Agreement and are provided to ensure Merchant understands some important obligations of each party and that Member is the ultimate authority should Merchant have any problems.