Checkout.com

This agreement (Platform Merchant Agreement) is between you, the Person identified to Checkout as a holder of a Checkout user account (Platform Merchant) that is to be integrated with your third-party e-commerce platform (Platform) provider (ECP) that uses Checkout’s services, and the applicable Checkout Group Company, specified in the ‘Checkout supplier’ section (which, where context requires, together with any other relevant Checkout Group Companies supplying the services under this Platform Merchant Agreement is referred to in this agreement as “Checkout”, “we”, “our” or “us”).

This Platform Merchant Agreement describes how you and the ECP may use Checkout’s services to enable you to access and/or use Checkout’s services (including to allow you to accept payments for goods or services, or receive charitable donations through the Platform and other related services).

Your access to or use of Checkout’s services through a Platform is subject to your acceptance of the terms and conditions of this Platform Merchant Agreement, including:

A. the Acquiring Services Terms (as defined below); and

B. where applicable, the Sub-Merchant Terms,

each of which (where they apply to you) are incorporated by reference into, and form part of, your Platform Merchant Agreement. By accessing or using Checkout’s services through the Platform, you expressly agree to the terms and conditions of your Platform Merchant Agreement (including the Acquiring Services Terms and, where applicable, the Sub-Merchant Terms) and any updates or amendments to those made from time to time by Checkout and notified to you.

Checkout shall not be bound by this Platform Merchant Agreement until Checkout has confirmed its approval for the ECP to provide or continue to provide (as the case may be) the Platform Merchant Services to you.

All references to the “Platform Merchant Agreement” hereinafter are to be read as including the Acquiring Services Terms and, where applicable, Sub-Merchant Terms. If there is a conflict between the Acquiring Services Terms and/or the Sub-Merchant Terms and this Platform Merchant Agreement relating to Checkout services that you use or access through the Platform, the terms of this Platform Merchant Agreement will apply.

It is important that you regularly check our website as throughout this Platform Merchant Agreement, we make reference to various matters that may be notified to you on our website (including any changes to the Acquiring Services Terms and/or Sub-Merchant Terms).

Defined terms used in this agreement: In this Platform Merchant Agreement, we use a number of defined terms:

Acquiring Services Terms means the terms and conditions which apply to payment acquiring, payment processing and related services provided by Checkout directly to you in the relevant jurisdiction as part of or otherwise in connection with the Platform Merchant Services (as such terms and conditions may be amended by Checkout from time to time), the current version of which (in respect of each relevant jurisdiction) as at the date of entry into this Platform Merchant Agreement is set out in Schedule 1 (Acquiring Services Terms).

Additional Collateral means non-interest bearing funds provided to us by the ECP and/or the Platform Merchant (or by a third party on behalf of the ECP or the Platform Merchant) as security to guarantee payment of any and all Merchant Liabilities and/or Outward Payments.

Affiliated Company means a legal entity that (a) owns or controls a party, directly or indirectly, or (b) is owned or controlled, directly or indirectly, by a party, or (c) is directly or indirectly under common ownership or control with a party.

Applicable Law means all laws, orders, decrees, rules, regulations, circulars, notices or guidelines (including the requirements of any Regulatory Authority) having legal effect and as applicable to a Party in respect of its rights and/or obligations under this Platform Merchant Agreement (and, in the case of the Platform Merchant, in relation to any Transaction, Refund or Chargeback) in force in any applicable jurisdiction from time to time. These include anti-money laundering, anti-bribery, anti-terrorist financing, Sanctions, data privacy, tax and consumer protection laws (as applicable).

Assessments means any assessments, fines, fees, charges or expenses of any nature which a Payment Scheme levies on us, the ECP or the Platform Merchant at any time, directly or indirectly, in relation to any aspect of our relationship with the ECP and/or the Platform Merchant (as applicable) including in respect of any Transaction.

Authorised Instruction means an instruction from the ECP on behalf of you (in the format prescribed by us and containing the information required by us from time to time) and relating to an instruction to make an Outward Payment, such instruction being in compliance with Applicable Law, Sanctions, Payment Scheme Rules and/or TPA Rules (as applicable).

Bank Account(s) means the bank account(s) held with a duly authorised credit institution in your name (and as acceptable to us), used to receive amounts from us and to pay fees and other amounts due to us under your Platform Merchant Agreement. Full details of such bank account(s) will be provided to us (directly or through the Platform) in the form specified by us and must comply with Applicable Law and Payment Scheme Rules.

Card means any form of credit card, debit card or prepaid card issued under a Card Scheme.

Card Scheme means Visa Inc., MasterCard Worldwide, Cartes Bancaires, JCB, American Express, Union Pay International, Diners Club International/Discover Network or comparable bodies which provide Cards and regulate Card acceptance, as supported by us and notified by us to you from time to time.

Card Scheme Rules means the rules and regulations which regulate participants in the Card Schemes.

Chargeback means a Transaction which is successfully charged back or reversed, in whole or in part, by the Card issuer on request of the customer or the payment method provider pursuant to the relevant Payment Scheme Rules resulting in cancellation of a Transaction in respect of which you have been paid or were due to be paid, notwithstanding any authorisation.

Data Breach means any occurrence which results in the unauthorised use, modification or access by a Person to confidential data relating to Card transactions stored by your business or any Person engaged by you to provide storage or transmission services in respect of that data.

Data Protection Laws means Directive 95/46/EC and Directive 2002/58/EC, in each case as transposed into domestic legislation of each Member State of the EEA and in each case as amended, replaced or superseded from time to time, including without limitation by the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”), the United Kingdom Data Protection Act 2018 and/or other applicable data protection or national/federal or state/provincial/emirate privacy legislation in force, including where applicable, statues, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, any Government Agency and other applicable authorities.

Deductions means all amounts we are entitled to deduct from Settlement under Applicable Law, the Payment Scheme Rules, the TPA Rules and/or the Platform Merchant Agreement (including the Acquiring Services Terms and, where relevant, the Sub-Merchant Terms) including: (i) Platform Fees; (ii) Chargebacks and reversed Transactions; (iii) Assessments; (iv) Refunds; (v) Outward Payments; and (vi) amounts equal to the Reserve(s) Rate and/or Additional Collateral amount. For the avoidance of doubt, as regards (i) to (v) (inclusive), such amounts include any Platform Fees, Chargebacks, reversed Transactions, Assessments, Refunds and Outward Payments submitted, requested, incurred, received or instructed (as applicable) by you or the ECP acting on your behalf.

Group Company means: (a) any direct or indirect holding company of a Party; and/or (b) any direct or indirect subsidiary of a Party or of any relevant holding company of a Party, including, where applicable, the Party itself.

Insolvent means in respect of a Party, the occurrence of any of the following events: (a) it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or that it has no reasonable prospect of so doing, or the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities; (b) there’s an execution or other process issued on a judgment, decree or order of any court of competent jurisdiction in favour of a creditor of that Party that is returned unsatisfied in whole or in part; (c) it passes a resolution for its winding up, a court of competent jurisdiction makes an order for its winding up or there’s a presentation for the Party’s winding up which is not dismissed within seven (7) days; (d) it commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or its solvent reconstruction; (e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that Party other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or its solvent reconstruction; (f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Party; (g) the holder of a qualifying floating charge over its assets has become entitled to appoint, or has appointed, an administrative receiver; or a Person becomes entitled to appoint a receiver over all or any of the assets of that Party; or a receiver, manager or similar is appointed over all or any of the assets of that Party; (h) any step to enforce security over, or a distress, execution or other similar process is levied or served against the whole or substantial part of that Party’s assets or undertaking; or (i) it suffers or is subject to any similar or equivalent event, circumstance or procedure to those set out above in any other jurisdiction.

Inward Payment means the value of funds received by us from you or from a third party with a reference identifying you as the intended recipient and beneficiary (which may be net of third party bank and/or other charges).

Loss means any claim, liability, loss, damage, proceeding, fine, penalty, Assessment, fee, cost, charge or expense (including reasonable and properly incurred legal fees and costs) and Losses shall be construed accordingly.

Merchant Liabilities means any debt, liability and/or Losses attributable to you in relation to your Platform Merchant Agreement (including the Acquiring Services Terms and, where relevant, Sub-Merchant Terms), including, Deductions, Outward Payments and/or any Losses arising out of or in connection with any Checkout services you receive or access.

Outward Payment means an outward payment instruction initiated and/or executed by us in accordance with an Authorised Instruction including: (i) Pay To Card payments; and (ii) where we execute a transfer (which may be net of any applicable third party bank and/or other charges) from funds held by us from Inward Payments and/or Settlement directly to the designated bank account of a third party.

Party means each of the entities identified as a party to this Platform Merchant Agreement and “Parties” shall be construed accordingly.

Pay To Card means a Transaction that results in a disbursement to the account number of a Card for a purpose permitted from time to time by a Card Scheme (other than a Refund or Chargeback), by whatever name, including Visa original credit transactions, Visa Direct, Mastercard payment transactions and Mastercard Send™.

Payment Facilitator means a Person which acts as a payment facilitator or provides equivalent or substantially similar services that require registration with any Card Scheme(s).

Payment Scheme is an entity regulating and/or offering the relevant payment method (including the Card Schemes and alternative payment method providers).

Payment Scheme Rules means the collective set of by-laws, rules, regulations, operating regulations, procedures and/or waivers issued by the Payment Scheme, as amended and/or supplemented from time to time, and with which you must comply when accepting the relevant payment method. The Payment Scheme Rules specifically include Visa Inc. (referred to as ‘Visa Core Rules and Visa Product and Service Rules’ and available at https://www.visaeurope.com/about-us/policy-and-regulation/veor), MasterCard Worldwide (referred to as ‘MasterCard Rules’ and available at https://www.mastercard.com/ca/merchant/en/getstarted/BM_Manual.pdf), Union Pay International, Cartes Bancaires, JCB, American Express and Diners Club International/Discover Network rules. Those rules that are not publicly available, shall be communicated to you in accordance with the guidance and instruction of the relevant Payment Scheme.

Data Security Standards means PCI DSS and the Payment Application Data Security Standard mandated by the Card Schemes for the protection of Cardholder details and transaction information, and any additional or replacement standards of which you are advised from time to time.

PCI DSS (Payment Card Industry Data Security Standards) means the security standards for transmitting, processing or storing: (i) cardholder data and (ii) any security-related information (including but not limited to Card validation codes/values, full track data (from the magnetic stripe or equivalent on a chip), PINs, and PIN blocks) used to authenticate cardholders and/or authorise Transactions (Sensitive Authentication Data), as updated from time to time and published by the PCI SSC at https://www.pcisecuritystandards.org and PCI SSC means Payment Card Industry Security Standards Council.

Person means an individual, firm, body corporate, unincorporated body or association, partnership, joint venture and any government agency or authority.

Personal Information means (a) 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 his physical, physiological, genetic, mental, economic, cultural or social identity of that natural Person; or (b) such other definition as may be set out from time to time in the Data Protection Laws.

Platform means the e-commerce platform that the ECP makes available for use by you and, through, or in relation to, the ECP provides its Platform Merchant Services.

Platform Fees means the amounts payable by the Platform Merchant as set out in the Platform User Agreement for Platform Merchant Services and any additional products, services and/or functionality provided by the ECP in connection with the Platform User Agreement.

Platform Merchant Agreement means this agreement, including the Acquiring Services Terms and, where applicable, the Sub-Merchant Terms.

Platform Merchant Data means any information about you and information about activity on your Checkout user account.

Platform Merchant Services means the products and services that the ECP provides to you through its Platform, whether or not fees are charged for these products and services.

Platform User Agreement means the agreement between you and the ECP under which the ECP provides its Platform Merchant Services to you.

Power of Attorney has the meaning assigned to this term in the ‘Power of attorney’ section.

Refund means a full or partial reversal of a particular Transaction where the funds are reimbursed to the buyer on your initiative or request (including where such initiative or request is taken or submitted on your behalf, or for your benefit, by or through the Platform).

Regulatory Authority means in respect of a Party, any competent governmental or regulatory authority, law enforcement department or agency, court of law or other law, rule or regulation-making body having jurisdiction over that Party (and, in relation to the Platform Merchant, also the ECP) and/or to which that Party (and, in relation to the Platform Merchant, also the ECP) submits or is subject, in any relevant territory and including any successor or replacement of any of the foregoing.

Reserve(s) means either a fixed reserve amount or a rolling reserve amount withheld by us from Settlement in accordance with the Reserve(s) Rate, in each case as security for Merchant Liabilities and held on the Reserve Account. The fixed reserve amount or applicable Reserve(s) Rate shall be communicated by the ECP to you.

Reserve Account means the balance funded by the Reserve(s).

Reserve(s) Rate means a percentage of the daily gross sales value processed by us under the relevant services agreement, which shall be subtracted from the daily Settlement and held in the Reserve Account.

Sanctions means any economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: (i) the United States government; (ii) the United Nations; (iii) the European Union; (iv) the United Kingdom; or (v) the respective Regulatory Authorities of any of the foregoing, including the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State and Her Majesty’s Treasury (together, the “Sanctions Authorities”).

Sanctions List means the “Specially Designated Nationals and Blocked Persons” list issued by OFAC, the Consolidated List of Financial Sanction Targets issued by Her Majesty’s Treasury, the French Treasury list, or any similar list issued or maintained or made public from time to time by any Sanctions Authorities from time to time.

Settlement means the receipt by us of the value of a Transaction as determined by the relevant Payment Scheme or TPA, as applicable, which may be net of Deductions (and “Settle” and “Settled” shall be construed accordingly).

Sub-Merchant Terms means such terms and conditions as Checkout may require the Platform Merchant to comply with in accordance with its obligations under the Payment Scheme Rules (as such terms and conditions may be amended by Checkout from time to time), the current version of which as at the date of entry into this Platform Merchant Agreement is set out in Schedule 2 (Sub-Merchant Terms).

Third Party Acquirer (TPA) means a financial institution or other institution that is authorised by a Payment Scheme to enable the use of a payment method by accepting Transactions submitted via the Checkout payment gateway, routing these to the Payment Scheme and/or Card issuers and collecting and paying out the resulting funds to us, to the ECP or directly to you and TPA Rules refers to the collective set of rules, regulations, operating regulations, procedures and/or waivers of the TPAs, as may be amended or supplemented over time, and with which you must comply when using the relevant services of such TPA.

TPA Rules means the collective set of rules, regulations, operating regulations, procedures and/or waivers of the TPAs, as may be amended or supplemented over time, and with which the ECP (and/or, where applicable, the Platform Merchants) must comply when using the relevant services of such TPA.

Transaction means a request made to us by the ECP on your behalf to process the payment request and/or consent of your customer to his/her payment service provider for you to receive the payment for products and/or services purchased by the customer.

Use Policy means the “Declined Lines of Business Policy” as set out at https://www.checkout.com/legal/terms-and-policies or as provided to the Platform Merchant in writing (as applicable, by Checkout or by the ECP or through the Platform) (as amended from time to time) as incorporated by reference herein.

Unless stated otherwise, the words “include” and “including” mean “including, without limitation”.

You represent to us that all of the information (including Platform Merchant Data) that you provide to us directly or through a Platform is accurate and complete, that we may rely on such information as being accurate and complete and we are not obliged to verify the completeness or accuracy of such information, and that you have all necessary rights, permissions, consents and authority to disclose that information to us (including where such information constitutes Personal Information the relevant individual’s prior consent to the disclosure in accordance with Data Protection Laws. You further represent to us that are authorised to agree to this Platform Merchant Agreement.

Checkout supplier: Depending on where you are based and/or receive the services from us, one or more Checkout Group Companies may be the supplier under and/or the party to this Platform Merchant Agreement. You agree, represent and warrant that each Checkout Group Company providing one or more of the services under the Platform Merchant Agreement is providing its element of the services as an independent contractor, and not as a partner or joint venturer with the other parties; shall be only severally liable in respect of its own obligations under this Platform Merchant Agreement; and shall not be liable in connection with the services provided by any other Checkout Group Company, whether jointly, jointly and severally or at all.

For Checkout’s services provided to the Platform Merchant in the United Kingdom, Checkout Ltd is the supplier of Checkout’s services and is a Party to the relevant Platform Merchant Agreement for the provision of such services. Checkout Ltd is a company duly incorporated under the laws of England and Wales under company number 08037323, having its registered office address at 54 Portland Place, London W1B 1DY, United Kingdom, authorised by the Financial Conduct Authority (“FCA”) as an electronic money institution under number 900816; and a principal member of Visa Inc., MasterCard Worldwide, JCB, Union Pay International, Diners Club International/Discover Network Card Schemes.

For Checkout’s services provided to the Platform Merchant in France and the EEA, Checkout SAS is the supplier of Checkout’s services and is a Party to the relevant Platform Merchant Agreement for the provision of such services. Checkout SAS, is a simplified joint stock company (société par actions simplifiée) duly registered under the laws of France with the Trade and Companies Register of Paris number 841033970, having its registered office address at 37-39 rue de Surène, 75008 Paris, France and is authorized by the Autorité de Contrôle Prudentiel et de Résolution (“ACPR”) as an electronic money institution entitled to provide payment services and a principal member of Visa Europe, MasterCard Worldwide, Diners Club International/Discover and an affiliate member of Cartes Bancaires. The ACPR is located at 4 Place de Budapest, 75436 Paris. Checkout SAS’s CIB code is 17208. Checkout’s ACPR licence can be viewed online at www.regafi.fr.

Your agreements with Checkout: Please read this Platform Merchant Agreement carefully. This Platform Merchant Agreement contains terms and conditions relating to your access to or use of Checkout’s services through the Platform. Checkout may from time to time agree to provide you with services in addition to those services that you access or use through the Platform as part of or in connection with the Platform Merchant Services that you receive from the Platform. Any such services that we may provide to you will be subject to the terms and conditions applicable to those services and you will need to enter into a separate services agreement with Checkout to receive those services.

Power of attorney: You expressly warrant that you have authorised the ECP to act for you and on your behalf in the context of this Platform Merchant Agreement by granting the general and unconditional authorisation to the ECP to act for you and/or on your behalf and on the basis of which the ECP is authorised to give us any instructions with respect to the provision of our services to you (Power of Attorney). On that basis, you unconditionally authorise the ECP to give us any instruction concerning your Checkout account and any other related transactions and to act for you and/or on your behalf, including to give us any instructions with respect to the provision of our services to you.

Your Checkout account: The ECP may assist you with creating your Checkout account and integrating it with its Platform to allow you to access and/or use Checkout’s services through the Platform. The ECP may act on behalf of the Platform Merchant (including communicating information about the Platform Merchant, the Transactions, fees and Refunds, handling disputes (including Chargebacks) and performing other functions as part of the Platform Merchant Services), provided that it does so in accordance with your Platform User Agreement and/or the Power of Attorney (as applicable). You should read your Platform User Agreement carefully to ensure that you understand the nature of the Platform Merchant Services, including the nature and scope of activities and functions that the ECP may conduct or perform on your behalf. The ECP is solely responsible for providing the Platform Merchant Services to you.

If you need support or have any questions relating to the services that you access or receive through the Platform, your Platform Merchant Agreement, the Acquiring Services Terms or the Sub-Merchant Terms please contact the ECP.

Your obligations: The Platform Merchant is solely responsible for the provision of any products and/or services to its customers and Checkout does not accept any responsibility and disclaims all liability for any such products and/or services or any obligations you may owe to your customers.

You represent, warrant and undertake throughout the term of your Platform Merchant Agreement that:

A. in receiving the Platform Merchant Services (including when using or accessing Checkout’s services through the Platform), you are acting solely in the exercise of your commercial occupational activity and the Checkout’s services shall not be accessed or used for any other purposes;

B. you will only use and/or access Checkout’s services for payment of those products and/or services which you registered for when entering into your Platform User Agreement as reflected in Platform Merchant Data and as set out in the application, submitted during on-boarding (as subsequently amended) or as otherwise approved by us from time to time, and in any event that you shall not submit transactions on behalf of a third party;

C. you may not use or access Checkout’s services to facilitate the payment for products or services sold on websites or applications other than those of the Platform, or, where the ECP is acting as a payment facilitator, those websites or applications which you own and operate and a list of which you have provided to the ECP for the purposes of the ECP providing the same to Checkout;

D. where the ECP is acting as a payment facilitator, only submit a sales transaction where you are the supplier of the goods and/or services;

D. you may not resell the services you receive from Checkout or access through the Platform, in whole or in part, or otherwise allow access to or the use of Checkout’s services by any third parties;

E. you are, and remain, solely responsible to ensure that the products and/or services sold by you are compliant with the Payment Scheme Rules, the TPA’s Rules and Applicable Law and regulation in your country of incorporation and in the countries where your customers are based;

F. you shall not access or use Checkout’s services for the payment of products and/or services prohibited or restricted under our Use Policy. You acknowledge and agree that the Use Policy forms part of your Platform Merchant Agreement and that it may be updated from time to time, at our discretion, in order to: (i) ensure compliance with Applicable Law, Sanctions, the Payment Scheme Rules and/or the TPA Rules; (ii) prevent high levels of Chargebacks, Refunds or Assessments; or (iii) mitigate reputational risk and/or reduce our exposure to potentially fraudulent or illegal Transactions. Where a published change affects a significant portion of the products/services you offer, you may terminate your Platform Merchant Agreement in accordance with the provisions of the ‘Term and Termination’ section;

G. you shall not use and/or access Checkout’s services (and Transactions may not be submitted for processing) for prepaying the products and/or services for which the delivery date (i.e. the date on which a complete product and/or service is delivered to the buyer who paid for the product/service) is in part, or in whole, more than six (6) months after the date the Transaction is submitted for processing, unless we provided an explicit prior written consent stating otherwise;

H. you shall not honour delivery address changes for any Transaction after authorisation has been requested for that Transaction;

I. you shall upon request from Checkout provide Checkout with such information as Checkout requires to conduct customer due diligence as is required by Applicable Law and Checkout’s policies and procedures and/or to comply with any other legal or regulatory obligations;

J. you shall comply with all applicable Card Scheme Rules and Applicable Law and contractual requirements in accepting Card payments and performing your obligations under the Platform Merchant Agreement (including under the Sub-Merchant Terms where applicable); and

K. you shall observe and implement the fraud prevention procedures set out in the manuals, guides or directions provided to you, save to the extent that Checkout has confirmed the contrary to you in writing.

You acknowledge and agree that:

A. other than the services that Checkout provides to you pursuant to, and in accordance with, the Acquiring Services Terms, Checkout does not provide any payment services or electronic money services directly to you;

B. we may obtain from any Card Scheme or a Person who is involved in any Card Scheme, any credit reporting agency or any other Person, information about your merchant history or Personal Information about you, an Affiliated Company, your officers, employees, staff or agents for any purpose relating to the operation of those Card Schemes and we can use any such information to determine whether we provide services to you; and

B. we are authorised to obtain from third parties financial and credit information relating to you in connection with our decision to provide to you services and in respect of our continuing evaluation of your financial and credit worthiness.

Security of payment instruments: You guarantee not to copy, capture or intercept a customer’s payment instrument related information such as Card number and Sensitive Authentication Data that are entered on the Checkout system including Checkout Web-based Payment Solutions. You acknowledge and agree that strict rules related to the security of payment instruments are imposed and enforced by the Payment Schemes (and specifically the Card Schemes) and PCI SSC to protect customers against misuse of their payment instruments and must be adhered to by you and by the ECP. You shall fully indemnify and hold each Checkout Group Company harmless from any Losses (including any Assessments, fines, fees, charges or expenses of any nature which a Payment Scheme levies on us or you at any time, directly or indirectly, in relation to any aspect of our relationship with you including in respect of any Transaction), incurred by us as a result of your breach of your obligations under this paragraph.

You shall immediately notify us (through the Platform) if any cardholder data, Sensitive Authentication Data or similar customer’s payment instrument related information is breached or compromised. You shall strictly comply, with respect to the security of the customer’s payment instrument, with the terms of your Platform Merchant Agreement, Platform User Agreement, Applicable Law, the TPA Rules and/or the Payment Scheme Rules (e.g. MasterCard’s Site Data Protection Program), as well as with the guidance, requirements and standards of PCI SCC (such as PCI DSS) as applicable to you.

You must have a permanent location where your employees or agents accountable for the sale or distribution of the goods or services work. This location must be both: (a) the actual location where you conduct business activities and (b) the location where those accountable for the sale / distribution decide what or how products are sold or distributed are located.

You shall notify us of any changes to your name and your address as well as of any expiration of or change to any power of representation (particularly the Power of Attorney) in relation to your Platform Merchant Agreement without undue delay. Such power of representation may be revoked on your initiative, and you shall inform the ECP and Checkout by registered letter with acknowledgement of receipt or by signing an online form. The revocation takes effect on the date of receipt of the notice of revocation by Checkout. You remain liable for the Transactions initiated by the ECP on your behalf until that date. Your Platform Merchant Agreement will terminate automatically upon revocation of the power of representation becoming effective.

Data breaches: You acknowledge that Checkout, in certain circumstances, is obliged to report Data Breach events to Card Schemes, law enforcement agencies and/or regulators. Where that is the case you grant irrevocable and enduring consent for Checkout to release details of any such Data Breach events to the aforementioned bodies. In any case, if you have suffered a Data Breach you shall take all steps necessary, as determined by Checkout, to assist Checkout in its investigation of such Data Breach and ensure such Data Breach is remediated to a standard acceptable to Checkout.

Your Platform User Agreement: You understand and agree that the ECP and Checkout may share information about you, including your Platform Merchant Data, in order to provide services to you (including to facilitate your access to Checkout’s services through the Platform). Where Checkout receives your Platform Merchant Data from the ECP, Checkout may use the data in accordance with this Platform Merchant Agreement. For more information regarding Checkout’s use of data, please see Checkout’s Privacy Policy, published on our website www.Checkout.com, which sets out the personal data we may collect, the processing of such personal data and the purposes for obtaining it and other related useful information. You agree that you have read and understood the content of Checkout’s Privacy Policy. Where Checkout receives Platform Merchant Data directly from the Platform Merchant, the Parties shall comply with their respective obligations with respect to Data Protection Law under ‎Schedule 3.

Access and information rights: You undertake to:

A. allow our employees, contractors or agents or those of any Card Scheme reasonable access to your premises during normal business hours to check your compliance with the Platform Merchant Agreement (including the Acquiring Services Terms and, as applicable, the Sub-Merchant Terms), the Data Security Standards or for the purposes of the relevant Card Scheme Rules; and

B. provide us with all information and assistance reasonably required to perform our obligations and to deal with any queries in relation to Checkout’s services which are provided to you.

Fees: The fees for your access to and/or use of Checkout’s services through the Platform are set out in your Platform User Agreement. Checkout does not control and is not responsible for setting the fees that the ECP charges to you under the Platform User Agreement. The ECP is solely responsible for communicating, collecting and enforcing any usage, recurring or application fees charged to you for your use of the Platform and/or the Platform Merchant Services. Checkout’s fees will be included in the fees the ECP charges you for Platform Merchant Services. Checkout reserves the right to deduct any fees due to Checkout or to the ECP (as specified by the ECP) from your Checkout account balance or, if the balance on your Checkout account is insufficient, you authorise Checkout to debit the amount owed from your Bank Account.

You shall, upon our request, set up (and maintain throughout the term of your Platform Merchant Agreement) with your bank a Direct Debit instruction (or equivalent) to authorise us to directly debit from your Bank Account(s) through the use of Bankers’ Automated Clearing Services (BACS) or other networks, including Faster Payments Services (FPS), any sums due to us and payable by you under or in connection with your Platform Merchant Agreement. You shall ensure that your Bank Account(s) shall at all times have a credit balance sufficient to meet any sums due and payable to us under or in connection with your Platform Merchant Agreement.

You shall maintain your Bank Account(s) throughout the term of your Platform Merchant Agreement and for such period as may be required thereafter for the purposes of any applicable provisions of your Platform Merchant Agreement.

Representations and warranties: You represent and warrant that as at the effective date, and for the term, of your Platform Merchant Agreement:

A. you shall not, directly or indirectly, mischaracterise or disparage any Checkout Group Company or our representatives;

B. you shall not access or use Checkout’s services in connection with any illegal or fraudulent business activities;

C. where the Platform Merchant is a body corporate, it is a validly organised and validly existing company in good standing under the laws where it is incorporated and where its principal office is located (if different) and you shall inform us immediately in writing should this change;

D. you have obtained and shall maintain any and all licences, permits and registrations required under Applicable Law to conduct your business in all jurisdictions where you are established and where you sell the products and/or services;

E. you have the power to execute, deliver and perform your obligations under the Platform Merchant Agreement; the Platform Merchant Agreement is duly authorised; your entry into the Platform Merchant Agreement will not violate any provisions of Applicable Law or conflict with any other agreement to which you are subject;

F. to the best of your knowledge, there is no action, suit or proceeding at law or in equity now pending or threatened by or against or affecting you which would substantially impair your right to carry on your business as now conducted or adversely affect your financial condition or operations;

G. you or your directors, shareholders and ultimate beneficial owners are not listed on any Sanctions Lists and you undertake to inform us immediately should this change; and

H. you, your Group Company, your directors, employees or agents have not been, at any point, listed on a database of terminated merchants maintained by any Card Scheme or have otherwise disclosed that fact to us,

and you undertake to inform us immediately in writing should any of the above cease to be correct and true at any time.

You may not use our logo on your website or otherwise without the prior express written approval of Checkout.

You represent and warrant that you have never: (i) experienced excessive Chargebacks; (ii) committed fraud; (iii) been terminated by an acquirer or a payment facilitator/ processor; (iv) been asked to terminate your agreement with an acquirer; or (v) been subject to any Payment Scheme’s monitoring programme(s).

Limitations of liability: Checkout is not responsible for and disclaims all liability for acts or omissions of the ECP, its agents or employees in providing the Platform Merchant Services to you or your customers or any non-compliance by the ECP with Applicable Law or the Platform User Agreement relating to its offering, performing or providing the Platform Merchant Services or any related activities or functions to you.

Checkout does not make any representations, guarantees or warranties in respect of any of the services to be provided under the Platform Merchant Agreement. To the maximum extent permitted by Applicable Law, any and all implied representations, warranties and guarantees are excluded.

You are solely responsible for compliance with Applicable Law relating to your business activities, including any legal, regulatory or contractual obligations you may have as regards advertising, offering or providing goods and/or services to your customers; or registration, reporting, filing or other requirements or any other actions not related to the Checkout’s services. Checkout is not responsible and disclaims all liability for your compliance with Applicable Law and your obligations related to your business activities (including the provision of your goods and/or services to your customers or, where relevant, receipt of charitable donations). You shall indemnify on demand and hold Checkout harmless from any Losses arising out of or relating to your failure to comply with Applicable Law, your legal or contractual obligations to your customers and/or any fines imposed by a Card Scheme because of your conduct in relation to your activities, including any fines imposed as a result of an unacceptable rate of Chargebacks.

Changes: We may revise this Platform Merchant Agreement from time to time by giving notice to you via email (which may originate from Checkout or from the ECP), posting a notice through the Platform or by posting such changes on our website (Change). If you do not notify us of your objections to the Change within the notice period provided, you will be deemed to have accepted the Change. If you do not wish to accept the change, you must: (i) notify us of your objection to the Change within the notice period (before the effective date of the Change); and (ii) immediately cease to use and/or access Checkout’s services. If you continue to use and/or access any of the services after the effective date of the Change, then you will be deemed to have agreed and consented to the Change.

Term and Termination: This Platform Merchant Agreement is effective upon: (i) the date when the Platform Merchant Agreement is signed by the last of all signatories and it enters into force; or (ii) the date on which you first access or use any of Checkout’s services having accepted and/or entered into your Platform User Agreement, if earlier, and will continue in force unless and until it terminates or is terminated in accordance with its terms. You may terminate this Platform Merchant Agreement by giving one (1) month’s prior written notice to us and ceasing to use and/or access Checkout services. However, if you continue or commence to use or access the services after such notice, you will be deemed to have consented to the terms and conditions of this Platform Merchant Agreement and it will apply until you cease to use our services and/or access our services through the Platform.

We may also terminate this Platform Merchant Agreement and/or restrict or suspend the provision of or access to any service we provide to you immediately upon written notice (which we may give through the ECP): (i) if you are in breach of this Platform Merchant Agreement and (where such breach is capable of being cured) fail to cure such breach within thirty (30) days’ notice by Checkout; (ii) if you have experienced an adverse change in financial circumstances, including, for the avoidance of doubt and without limitation, circumstances when we consider that there are clear indications that you are, or are likely to become Insolvent (subject to the binding decision of the Court in charge of the insolvency proceedings imposing the continuation of this agreement); (iii) we are required to do so under Applicable Law and/or at the direction of a Regulatory Authority and/or a Card Scheme; (iv) we reasonably suspect that the provision of products and/or services by you is in breach of Applicable Law; (v) you undertake or have undertaken activities (such as scams or other fraudulent activities) which in our reasonable opinion are detrimental to our brand, image or reputation, or are the target of such activities whether with or without your knowledge; or (vi) act in a manner that, in our reasonable opinion, may or does give rise to increased risk of Losses or liabilities to us; (vii) our agreement with the ECP through which you access Checkout’s services is terminated; (viii) when you are flagged by our internal controls as an increased risk for which we estimate that increasing the Reserve(s), Additional Collateral or other action permitted under Applicable Law would not be an appropriate measure to address the relevant risks; (ix) you or any service provider (other than Checkout) that you use in connection with your activities have suffered a Data Breach; (x) where you have been notified in writing by Checkout that the Sub-Merchant Terms apply to your use of and/or access to Checkout’s services, you notify Checkout in writing that you do not wish to be bound such terms; or (xi) for any reason upon giving you one (1) months’ prior written notice.

This Platform Merchant Agreement will terminate automatically and immediately if Checkout’s registration as a member service provider or independent sales organisation with any Card Scheme is cancelled.

You authorise Checkout to disclose to any Card Scheme notice of termination of your Platform Merchant Agreement and the reasons for the termination. You acknowledge that the information concerning termination of your Platform Merchant Agreement then becomes available to any member of the Card Schemes. This information, available to any member of the Card Schemes, may be used in assessing subsequent applications for merchant facilities.

All provisions of this Platform Merchant Agreement that give rise to continuing obligations (including the ‘Limitation of liability’ section) will survive termination of this Platform Merchant Agreement. Termination shall not affect accrued rights, obligations and liabilities of any Party as at the date of such termination. You agree that you shall be, and remain, liable after termination for any obligations and/or liabilities which occur post termination in relation to Transactions submitted to us for processing (including through the Platform) prior to such termination.

GENERAL TERMS

Entire Agreement: This Platform Merchant Agreement constitutes the entire agreement between you and Checkout in respect of Checkout services that you use or access through the Platform. If any provision of this Platform Merchant Agreement is found by any court or other administrative body of competent jurisdiction to be illegal, invalid or unenforceable, such provisions: (i) should be changed or deleted so that they cease to be illegal, invalid or unenforceable and (ii) in any event, shall not affect the other provisions of this Platform Merchant Agreement which shall remain in full force and effect.

No agency: This Platform Merchant Agreement does not create any partnership, joint venture, agency or employment relationship between you and Checkout.

Assignment and sub-contractors: We may assign, novate or otherwise transfer this Platform Merchant Agreement or any of our rights and obligations under it to another Checkout Group Company without your prior consent by providing written notice to you of such transfer. You may not assign, novate or transfer this Platform Merchant Agreement or any of your rights under it without our prior written consent.

We may appoint at any time, and without prior notice to you, an agent or subcontractor to perform any of our obligations under this Platform Merchant Agreement. You may only use an agent or sub-contractor for the performance of your obligations under the Platform Merchant Agreement with our prior written consent, and we may reasonably withhold that consent at any time.

No waiver: Checkout’s failure or delay to exercise (or single or partial exercise of) any right or remedy under this Platform Merchant Agreement or under Applicable Law does not constitute a waiver or release of (and shall not prevent or restrict any further exercise of) such or any other right or remedy. No waiver of any term of this Platform Merchant Agreement will be deemed a further or continuing waiver of such term or any other term. A waiver of any right or remedy under this Platform Merchant Agreement (or any other services agreement you may have with Checkout) or under Applicable Law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

Force Majeure: Checkout shall be relieved from its obligations under and shall not be deemed to be in breach of this Platform Merchant Agreement or otherwise liable to you for any delay in performance or non-performance of any of its obligations insofar as it is prevented from undertaking such obligations, in whole or in part, by reason of any event or circumstance beyond our reasonable control (or beyond the reasonable control of any of our sub-contractors or assignees).

Notices: Any notice given under or in connection with this Platform Merchant Agreement must be given in writing and is taken to be received: (i) if delivered personally, at the time of delivery; (ii) if sent by pre-paid post, on the third day after the posting; (iii) if sent by facsimile transmission, on the date the transmitting machine records transmission of the complete document; (iv) if sent by email, at the time when the email enters your information system. You acknowledge that any notice given by us to you under or in connection with this Platform Merchant Agreement may be given by Checkout or the ECP. The address, facsimile number or email address to be used for notices is the last address, facsimile number or email address advised by a Party. You must inform the ECP immediately of any change of your address, facsimile number or email address.

Governing law, jurisdiction and language: With the exception of applying a national law of public order, English law applies to this Platform Merchant Agreement and any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) and any such disputes or claims will be settled by English courts, provided always that, for the enforcement of any judgment relating to this Platform Merchant Agreement we shall have the right to bring the relevant action in any jurisdiction where you are incorporated or may have assets. With the exception of applying a national law related to public order, it is expressly stipulated that English is the language chosen and used by the Parties in their pre-contractual and contractual relationships, and to the conclusion of the Platform Merchant Agreement.

Third party rights: A Person who is not a Party to this Platform Merchant Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Platform Merchant Agreement, except for any Checkout Group Company which provides services to you or to the ECP through which you access the Checkout’s services.

Schedule 1
ACQUIRING SERVICES TERMS (EEA)

These terms and conditions (as amended from time to time) (the Acquiring Services Terms) describe the terms and conditions that apply to your use of the Acquiring Services (defined below) where they are provided to you in the EEA, with Checkout SAS being the supplier of such Acquiring Services. By accessing or using the Acquiring Services you agree to abide by all the terms and conditions of these Acquiring Services Terms. If you do not understand any of the terms or conditions set out in these Acquiring Services Terms, please contact us before accessing or using the Acquiring Services.

While the Acquiring Services Terms apply to counterparties of all sizes, you confirm that you are and that, at the time you entered into your Services Agreement you were not, a natural person acting for non-professional needs in the sense of the French consumer code. You therefore agree that: (i) none of the provisions mentioned in article L.133-2 of the French Monetary and Financial Code applies to the Services Agreement; and (ii) in accordance with article L. 314-5 of the French Monetary and Financial Code, the provisions of Sections 3 and 4 of Chapter IV of Title I of Livre III of the French Monetary and Financial Code do not apply to your Services Agreement (with the exception of articles L. 314-7, III and L. 314-13, I).

In the event you are provided additional Acquiring Services within the United Kingdom these shall be provided by Checkout Ltd, not Checkout SAS, and separate Acquiring Services Terms shall apply for these purposes. In such circumstances you agree that Checkout SAS and Checkout Ltd in their respective provision of any Acquiring Services: (i) are providing those Acquiring Services as independent contractors, and not as a partners or joint venturers with the other; (ii) shall be only severally liable in respect of their own obligations under the Acquiring Services Terms to which they are providing Acquiring Services; and (iii) shall not be liable in connection with the Acquiring Services provided by the other, whether jointly, jointly and severally or at all.

1. DEFINITIONS

In these Acquiring Services Terms, the following definitions shall apply:

Acquiring Service(s) means those payment acquiring, payment processing and related services (as may be amended from time to time) provided by Checkout and received and accessed by you through the ECP or as otherwise provided under your Services Agreement, in each case in connection with your use of the Platform.

Additional Collateral means non-interest bearing funds provided to us by you (or by a third party on your behalf) as security to guarantee payment of any and all Merchant Liabilities and/or Outward Payments.

Alternative Payment Acquiring Service means the transmission of a payment instruction, processing of such instruction and/or receipt of the related Transaction funds from the relevant Payment Scheme by us in connection with your acceptance of an Alternative Payment Method.

Alternative Payment Method means a payment method which can be used by a Buyer as a means of payment for a Transaction and which is accepted by you as an alternative to a Card, including bank transfers, direct debits, vouchers, post-pay solutions and wallets such as Klarna, Giropay and iDEAL.

Applicable Law means all laws, orders, decrees, rules, regulations, circulars, notices or guidelines (including the requirements of any Regulatory Authority) having legal effect and as applicable to a Party in respect of its rights and/or obligations under this Agreement (and, in the case of the Platform Merchant, in relation to any Transaction, Refund or Chargeback) in force in any applicable jurisdiction from time to time. These include anti-money laundering, anti-bribery, anti-terrorist financing, Sanctions, data privacy, tax and consumer protection laws (as applicable).

Application Form means the form completed in relation to the application to receive services from us.

Assessments means any assessments, fines, fees, charges or expenses of any nature which a Payment Scheme levies on us or you at any time, directly or indirectly, in relation to any aspect of our relationship with you including in respect of any Transaction.

Authorisation means the process whereby a Buyer (or the ECP and/or Platform Merchant on a Buyer’s behalf) requests permission for a Payment Method to be used for a particular purchase of the Products/Services. You acknowledge and agree that if a Transaction status is “authorised”, this means the Transaction is likely to be successful but the payment is not guaranteed and may still be blocked, rejected or subject to Chargeback by the Buyer (where Chargeback is possible under the relevant Payment Scheme Rules and/or TPA Rules). The likelihood of a payment as “authorised” being blocked or unsuccessful depends on the Payment Method which is used. In case of direct debit transactions in most cases a status of “Authorisation Success” or similar only means the bank account exists and not that there are enough funds in the bank account to actually perform the payment (and Authorise and Authorised shall be construed accordingly).

Authorised Instruction means an instruction from you provided through the ECP (in the format prescribed by us and containing the information required by us from time to time) to make an Outward Payment, such instruction being in compliance with Applicable Law, Sanctions, Payment Scheme Rules and/or TPA Rules (as applicable).

Bank Account(s) means the bank account(s) held with a duly authorised credit institution in your name (and as acceptable to us), used to receive amounts from us and to pay any amounts due to us under your Platform Merchant Agreement. Full details of such bank account(s) will be provided to us (directly or through the Platform) in the form specified by us and must comply with Applicable Law and Payment Scheme Rules.

Business Day means: (i) a day other than a Saturday or Sunday on which banks are open for normal business in the territory in which the Checkout Group Company providing the services is located; and/or (ii) if stated differently in respect of a specific Service, as set out in the terms applicable to that Service.

Buyer means any person who is authorised to use a Payment Method issued to him/her, who has ordered Products/Services from the ECP or the Platform Merchant (in each case, through the Platform) and has initiated a Transaction in respect of that order.

Card means any form of credit card, debit card or prepaid card issued under a Card Scheme.

Card Acquiring Service means the Authorisation, clearing and Settlement of a Card Transaction.

Card Scheme means Visa Inc., MasterCard Worldwide, Cartes Bancaires, JCB, American Express, Union Pay International, Diners Club International/ Discover Network or comparable bodies which provide Cards and regulate Card acceptance.

Cardholder means any person who is issued a Card and is the authorised user of that Card.

Chargeback means a Transaction which is successfully charged back or reversed, in whole or in part, by the Issuer on request of the Buyer or the Payment Method provider pursuant to the relevant Payment Scheme Rules or TPA Rules resulting in cancellation of a Transaction in respect of which the ECP and/or the Platform Merchant have been paid or were due to be paid, notwithstanding any Authorisation.

Chargeback and Assessment Costs has the meaning assigned to it in clause 2.2(c).

Checkout means (as the context requires) in respect of a given Service, the relevant Checkout Group Company that shall provide such Service to the ECP and/or Platform Merchants, as identified under the Services Agreements, which shall be the Checkout Group Company(ies) parties listed in the Services Agreement, and references to “we”, “us” and “our” shall be construed accordingly. Deductions means all amounts we are entitled to deduct from Settlement under Applicable Law, the Payment Scheme Rules, the TPA Rules and/or the Services Agreement including: (i) Platform Fees; (ii) Chargebacks and reversed Transactions; (iii) Assessments; (iv) Refunds; (v) Outward Payments; and (vi) amounts equal to the Reserve(s) Rate and/or Additional Collateral amount. For the avoidance of doubt, as regards (i) to (v) (inclusive), such amounts include any Platform Fees, Chargebacks, reversed Transactions, Assessments, Refunds and Outward Payments submitted, requested, incurred, received or instructed (as applicable) by you or the ECP acting on your behalf.

ECP means an e-commerce platform provider.

Electronic Money means any monetary value stored on a Wallet, representing a claim on the E-Money Issuer, and issued in exchange for the amounts received by us from the Payment Scheme or the TPA for Transactions validly processed for you, for the purpose of payment transactions, as described in clause 2.16.

E-Money Issuer means Checkout SAS as issuer of Electronic Money.

Exchange Rate means the reference currency exchange rate notified by us to you (via the ECP) from time to time.

Group Company means (i) any direct or indirect holding company of a Party; and/or (ii) any direct or indirect subsidiary of a Party or of any relevant holding company of a Party, including, where applicable, the Party itself.

Handling of Funds Service means a service whereby we receive Transaction related funds where we do not provide the Card Acquiring Services and/or the Alternative Payment Acquiring Services (as applicable) but where we have introduced you to the TPA providing such services.

Insolvent means in respect of a Party, the occurrence of any of the following events:

(a) it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or that it has no reasonable prospect of so doing, or the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities;

(b) there’s an execution or other process issued on a judgment, decree or order of any court of competent jurisdiction in favour of a creditor of that Party that is returned unsatisfied in whole or in part;

(c) it passes a resolution for its winding up, a court of competent jurisdiction makes an order for its winding up or there’s a presentation for the Party’s winding up which is not dismissed within seven (7) days;

(d) it commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or its solvent reconstruction;

(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that Party other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or its solvent reconstruction;

(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Party;

(g) the holder of a qualifying floating charge over its assets has become entitled to appoint, or has appointed, an administrative receiver; or a person becomes entitled to appoint a receiver over all or any of the assets of that Party; or a receiver, manager or similar is appointed over all or any of the assets of that Party;

(h) any step to enforce security over, or a distress, execution or other similar process is levied or served against the whole or substantial part of that Party’s assets or undertaking; or

(i) it suffers or is subject to any similar or equivalent event, circumstance or procedure to those set out above in any other jurisdiction.

Issuer means an institution that issues Cards to Cardholders and whose name appears on the Card or bank account statement as the ‘issuer’.

Loss means any claim, liability, loss, damage, proceeding, fine, penalty, assessment, fee, cost, charge or expense (including reasonable and properly incurred legal fees and costs) and Losses shall be construed accordingly.

MATCH (“Member Alert to Control High Risk”) means a database of terminated merchants maintained by MasterCard International. It is referred to in MasterCard’s Security Rules and Procedures as the MATCH System.

Merchant Liabilities means any debt, liability and/or Losses attributable to you in relation to your Services Agreement, including, Deductions, Outward Payments and/or any Losses arising out of or in connection with any Checkout’s services you receive.

Merchant Portal means the secured user interface on Checkout’s website where the ECP can access information including regarding: (i) the Transactions (e.g. number of approved Transactions, status of Transaction, Transaction ID, value/amount of Transaction, Payment Method used during the Transaction, sales revenue relating to processed Transactions, net sales revenue relating to processed Transactions); (ii) the number of Chargebacks and Refunds; (iii) the Buyers; (iv) risk settings; (vi) the payment balance; and (vii) information similar to information in (i) to (vi) relating to the Platform Merchants.

Outward Payment Date means the Business Day (notified to the ECP by Checkout from time to time) on which the Outward Payment is initiated by us.

Party means each of the entities identified as a party to the Services Agreement and “Parties” shall be construed accordingly.

Payment Method means those payment methods provided by Payment Schemes and that are supported by Checkout, enabling Platform Merchants to accept payments from Buyers including Cards and Alternative Payment Methods. The Payment Methods offered by us are published on our website www.Checkout.com (as amended from time to time) and their availability may vary depending on the Platform’s or Platform Merchant’s jurisdiction and/or its business type.

Payment Scheme means an entity regulating and/or offering the relevant payment method (including the card schemes and alternative payment method providers).

Payout means the amount paid by us to you (or to the ECP, for your benefit and/or on your behalf) following where applicable the conversion of the Electronic Money (corresponding to the amounts received by us from the Payment Scheme or the TPA for Transactions validly processed for you and simultaneously converted in Electronic Money) with respect to the Settlement received by us from the Payment Scheme or the TPA, for Transactions validly processed for you which may be net of Merchant Liabilities.

Payout Currency means the currency in which the funds are remitted by us to you.

Payout Date means the Business Day on which a Payout is initiated by us taking into account the relevant payout frequency and/or any accelerated and/or deferred payment terms you may have agreed with the ECP.

PCI DSS (Payment Card Industry Data Security Standards) means the security standards for transmitting, processing or storing Cardholder data and Sensitive Authentication Data, as updated from time to time and published by the PCI SSC at https://www.pcisecuritystandards.org.

PCI SSC means Payment Card Industry Security Standards Council.

Platform means the e-commerce platform the ECP makes available for use by Platform Merchants and through which the ECP provides Platform Services.

Platform Fees means the amounts payable by the Platform Merchant as set out in the Platform User Agreement for Platform Services and any additional products, services and/or functionality provided by the ECP in connection with the Platform User Agreement.

Platform Merchants means Platform users.

Platform Services means the products and services that the ECP provides to Platform Merchants through its Platform (including providing customer service, notifications, receipts, handling returns and refunds and Buyer complaints or taking any other action or performing any other functions in relation to or in connection with the operating of the Platform) whether or not fees are charged for these products and services.

Products/Services means (i) the Platform Services; (ii) goods and/or services which the Platform Merchant is selling through the Platform; and/or (iii) any other goods and/or services which are being sold on the URL(s) and, in each case, for which Transactions are submitted for processing by us under the Services Agreement or any other services agreement that the ECP or Platform Merchant may have with us.

Recurring Transaction means a repetitive periodic Transaction agreed in writing and in advance between you and the Buyer for which you are authorised to debit the Buyer’s debit/credit Card or bank account, such as subscriptions or instalments.

Refund means a full or partial reversal of a particular Transaction where the funds are reimbursed to the Buyer on your initiative or request (including where such initiative or request is taken or submitted by the ECP on your behalf or for your benefit).

Reported Fraud means value of the Issuer fraud advices reported to us by the Payment Scheme (e.g. TC40 reported by Visa Inc.).

Reported Fraud-to-Sales Ratios means value of the Reported Fraud divided by the gross sales value and calculated on a monthly basis for a one (1) month period.

Reserve Account means the balance funded by your Reserve(s).

Reserve(s) Rate means a percentage of the daily gross sales value processed by us under the Services Agreement, which shall be subtracted from the daily Settlement and held in the Reserve Account.

Sensitive Authentication Data means security-related information (including but not limited to card validation codes/values, full track data (from the magnetic stripe or equivalent on a chip), PINs, and PIN blocks) used to authenticate cardholders and/or Authorise Transactions.

Services Agreement means your Platform Merchant Agreement together with these Acquiring Services Terms as incorporated by reference therein, as may be amended or replaced from time to time.

Settlement means the receipt by us of the value of a Transaction as determined by the relevant Payment Scheme or TPA, as applicable, which may be net of Deductions (and “Settle” and “Settled” shall be construed accordingly).

Third Party Payment Service means the service enabling the initiation and/or execution by Checkout of Outward Payments.

Third Party Acquirer (TPA) means a financial institution or other institution that is authorised by a Payment Scheme to enable the use of a Payment Method by accepting Transactions submitted via the Checkout gateway, routing these to the Payment Scheme and/or Issuers and collecting and paying out the resulting funds to us or directly to the ECP and/or a Platform Merchant (as the case may be).

Transaction means a request to us by the ECP (including on behalf of a Platform Merchant) to process the payment request and/or consent of the Buyer to his/her payment service provider for the Platform Merchant to receive the payment for Products/Services purchased by the Buyer.

Transaction Currency means the currency in which the Transaction is originally offered to the Buyer and submitted to the Payment Schemes.

URL(s) means the address of any websites and/or mobile applications owned and operated by the ECP, (or, in circumstances where the ECP is a Payment Facilitator by the ECP and the Platform Merchant) where the ECP and/or the Platform Merchant (as applicable) accepts, or states that it will accept, payments by Payment Methods supported by us in relation to Products/Services which are purchased by the Buyer on such websites and/or mobile applications, the initial URL(s) being those which have been listed in the Application Form (or your Services Agreement, as applicable), together with any future URL(s) approved by Checkout, in each case as recorded in the Merchant Portal, from time to time.

VMAS (“Visa Merchant Alert Service”) means a database of terminated merchants maintained by Visa.

Wallet means an Electronic Money account on which the units of Electronic Money are stored.

Wallet-to-Wallet Payment means the payment initiated from your Wallet to another Wallet, as described in clause 2.6(j) to (o).

2. CARD ACQUIRING SERVICE, ALTERNATIVE PAYMENT ACQUIRING SERVICE AND HANDLING OF FUNDS SERVICE

2.1 THE SERVICE

(a) Where you take our Card Acquiring Service and/or Alternative Payment Acquiring Service in order to access the Acquiring Services through the Platform (including to enable you to accept payments for the Products/Services sold through the Platform) we will provide you with one or more of the following services, as applicable:

(i) enabling Transactions to be routed to the relevant Payment Scheme (directly or via a TPA);

(ii) providing information and messaging about the status of the Transaction on the Payment Scheme network, including Authorisation status (e.g. authorised, declined), clearing and settlement advisement, Chargeback dispute status;

(iii) collecting and/or receiving Settlement;

(iv) value dating and crediting the Settlement amount of a Transaction to your payment balance on such terms as to frequency and amount as have been agreed with the ECP;

(v) reconciling: (i) the information routed to the relevant Payment Scheme with the information processed by that Payment Scheme, and communicated to us; (ii) the records and accounts of your entitlement to relevant funds with the records and accounts of the amounts safeguarded (where applicable); and (iii) our internal records and accounts with those of our banking partners safeguarding the relevant funds (where applicable);

(vi) handling of the funds related to Refunds, Chargebacks and/or disputed Transactions, and supporting the representment of disputed Transactions upon request;

(vii) foreign exchange services (where applicable); and

(viii) making Payouts to your Bank Account(s).

(b) You acknowledge and agree that:

(i) Checkout’s provisions of its Services shall be based on the issuance of Electronic Money remitted on your Wallet, including services such as Outward Payments to Buyers, split payments for marketplaces and Card Acquiring Services to Checkout customers with a Payout frequency set out in the Pricing Schedule at three (3) Business Days or more; and

(ii) all funds received and/or collected shall be simultaneously converted in Electronic Money at par value and stored on your Wallet.

2.2 CHARGEBACK AND ASSESSMENT LIABILITY

(a) You agree that, as between Checkout and you, you are solely responsible for and shall indemnify us in respect of any and all Chargebacks and Assessments under the Services Agreement. Each Chargeback and Assessment represents a debt immediately due and payable to us on demand by you on its occurrence notwithstanding any expiry or termination of the Services Agreement or any Acquiring Services.

(b) Any Chargebacks for which you are required to reimburse us shall correspond to the whole or part of the processing value of the original Transaction, as applicable.

(c) Where a Chargeback or an Assessment occurs, we shall immediately be entitled to debit the Reserve Account, Additional Collateral, and/or make a deduction/set-off from any Settlement received by us from the Payment Schemes or the TPA in accordance with the Services Agreement and/or invoice you to recover: (i) the full amount of the relevant Chargeback or Assessment; and (ii) any other Losses which we have incurred as a result of or in connection with such Chargeback or Assessment (“Chargeback and Assessment Costs”).

(d) Where the full amount of any Chargeback, Assessment and/or any Chargeback and Assessment Costs is not debited by us from the Reserve Account, Additional Collateral, and/or deducted/set-off from any Settlement and/or paid under invoice, then we shall be entitled to otherwise recover from you by any means the full amount of such Chargeback, Assessment and/or Chargeback and Assessment Costs still due and owing.

(e) We shall not be obliged to investigate the validity of any Chargeback or Assessment by any Issuer, Payment Scheme or TPA (as applicable), whose decision or determination shall be final and binding in respect of any Chargeback or Assessment.

(f) If a Chargeback occurs for a Transaction in respect of which you already received a Payout in respect of the related funds, this results in the unconditional obligation for and liability on you to immediately return to us an amount equivalent to the Payout for that Transaction in addition to any Chargeback and Assessment Costs.

(g) You shall indemnify on demand and hold us harmless from all and any Losses brought against us by any third party (expressly including the Payment Schemes and the TPAs) and/or otherwise incurred by us arising out of: (i) your and/or your representatives’ breach of the Services Agreement; Applicable Law and/or (ii) the Payment Scheme Rules and/or TPA Rules applying to Checkout services used by you and specifically in respect of all Chargebacks, Assessments and Chargeback and Assessments Costs.

2.3 CHARGEBACK AND ASSESSMENT PERIOD

As Chargebacks and Assessments may arise a considerable period after the date of the relevant Transaction, you acknowledge and agree that, notwithstanding any termination of the Services Agreement for any reason, we shall remain entitled to recover Chargebacks, Assessments and Chargeback and Assessments Costs from you (and, where relevant, from any person who has provided us with a guarantee or security relating to your obligations under your Services Agreement) in respect of all Chargebacks, Assessments and Chargeback and Assessment Costs that occur in relation to Transactions effected during the term of the Services Agreement.

2.4 REFUNDS

(a) You shall not: (i) give cash Refunds to a Buyer where the payment is made with a Card (unless required by Applicable Law); or (ii) accept cash or other compensation for making a Refund.

(b) We reserve the right to refuse to execute a Refund if it is prohibited by Applicable Law or does not meet the conditions of the Services Agreement. We also reserve the right to suspend or restrict the Refund functionality where you (or the ECP) are placed under fraud investigation, are deemed by us to be generating excessive Chargebacks and/or for any other risk related reason. We will notify you (via the ECP) of such refusal, restriction or suspension, indicating the reasons for the same and the procedure for correcting factual mistakes that led to it where possible, subject to any restrictions under Applicable Law. Any payment order that we refuse will be deemed not to have been received for the purposes of: (i) any execution times; and (ii) liability for non-execution or defective execution.

(d) NOT USED

(e) You shall inform us promptly by notifying the ECP without undue delay (and in any event no later than ten (10) Business Days) after the date of any unauthorised or incorrectly executed Transaction and/or Refund and, where legally required, we shall refund you immediately for such unauthorised or incorrectly executed Refunds.

(f) You shall inform us promptly by notifying the ECP without undue delay (and in any event no later than ten (10) Business Days) after you become aware of any non-execution or defective execution of the Refund and, subject to the preceding provisions of this clause ‎2.4, we will make immediate efforts to trace the Refund and notify you (via the ECP) of the outcome. Where we are liable for the non-execution or defective execution, and where legally required, we will immediately refund the amount of the non-executed or defective Refund.

2.5 NOT USED

2.6 VALUE DATING, PAYOUTS, DEDUCTIONS AND WALLET TO WALLET PAYMENT

(a) Where we provide you with the Card Acquiring Service, Alternative Payment Acquiring Service and/or the Handling of Funds Service, we will record each Settled Transaction to your payment balance following our receipt of Settlement and simultaneously convert the funds into Electronic Money at par value and store it on your Wallet.

(b) Following value dating and recording of validly processed Transactions to your payment balance and converting the funds into Electronic Money, and storing it on the Wallet, we will initiate or procure the initiation of each Payout by bank transfer to your Bank Account(s) provided to us via the initial application for Checkout’s services or as otherwise provided by you in a manner approved by Checkout on the later of: (i) the Payout Date; or (ii) the expiry of any period of deferment in respect of the relevant Transactions.

(c) We are only obliged to make Payouts related to the Transactions for which we have received Settlement and the Payout amount may be net of Merchant Liabilities including third party bank charges and any applicable Platform Fees. It is your responsibility to evaluate if the conditions of Payout (which are set by the ECP under or in connection with your Platform User Agreement) are acceptable to you before entering into the Services Agreement. You agree that any overpaid and/or incorrectly received Payouts (e.g. related to the Transactions for which we have not received Settlement, or overpaid due to the IT infrastructure breakdown) shall be, upon our written notice to you (which you may receive from or through the ECP) of such overpayment/error, at our option: (i) deducted by us from the Settlement related to subsequent Transactions before the next Payout(s); and/or (ii) refunded immediately to us by you; and/or (iii) deducted from any security we hold including the Reserve Account and/or Additional Collateral.

(d) Payouts shall be subject to any limits or thresholds agreed between you and the ECP under or in connection with your Platform User Agreement.

(e) We may agree to make Payouts to a bank account in the name of a third party on your written request, subject in each case to our prior written approval (which may be withdrawn at any time) and always in our absolute discretion. You acknowledge and agree that any such Payout made as instructed or directed by you, must satisfy our, any Payment Scheme and/or TPA rules and requirements and must comply with Applicable Law. You acknowledge and agree that our execution of a Payout to a third party on your instruction will fully satisfy our obligation and/or liability to settle funds to you and shall constitute good receipt by you of such funds. You undertake: (i) to provide all information we request in relation to the third party recipient and its relationship to you; and (ii) to execute any document and/or agreement (and procure execution by the third party recipient on request) in each case that we require from time to time in relation to such instruction from you.

(f) You acknowledge and agree that you shall be liable for all Merchant Liabilities (howsoever arising). We may in our sole discretion withhold, set-off and/or defer payment of any sums we owe and/or hold on your behalf in accordance with your Services Agreement: (i) until the Merchant Liabilities have been fully discharged; and/or (ii) in respect of reasonably anticipated Chargebacks, Refunds and Assessments.

(g) You acknowledge and agree that, to the extent permissible by Applicable Law, we will not be liable and/or otherwise be obliged to compensate you for late or non-performance, insolvency or bankruptcy of the Payment Scheme(s) and/or the TPA(s) and specifically where the same results in a failed or late Payout for processed Transactions.

(h) Notwithstanding anything to the contrary in the Services Agreement, we reserve the right to withhold and/or defer any Payout related to Transactions: (i) suspected to be fraudulent; (ii) suspected to be related to illegal activities or otherwise contrary to Applicable Law; (iii) which are likely to become subject to a Chargeback or Refund; (iv) which are subject to investigation by a Regulatory Authority, a Payment Scheme and/or a TPA, in each case until satisfactory completion of our investigation or that of the relevant Payment Scheme, TPA and/or Regulatory Authority (as applicable) or that of a third party nominated by such person. You shall give your full co-operation to any such investigation. No interest will accrue or be due and owing to you (in respect of any such suspended/withheld Payout amounts pending the satisfactory completion of an investigation in accordance with this clause 2.6(h)).

(i) You may also use the Electronic Money balance stored on your Wallet in order to initiate a payment from your Wallet to another Wallet (hereinafter referred to as “Wallet-to-Wallet Payment”).

(j) Before transmitting an order in order to carry out a Wallet-to-Wallet Payment, you must ensure you have a sufficient amount of Electronic Money available on your Wallets to cover the Wallet-to-Wallet Payment amount and the related fees.

(k) When transmitting an order, you must include the following information: (i) in the case of a one-time Wallet-to-Wallet Payment, details of the beneficiary of the Wallet-to-Wallet Payment, amount of the payment and date of execution of the payment; and (ii) in the case of recurring Wallet-to-Wallet Payments, the order includes details of the beneficiary of the Wallet-to-Wallet Payments and frequency of settlements.

(l) You give your consent to the execution of the Wallet-to-Wallet Payment by providing us with your payment order. This consent is irrevocable for one-time Wallet-to-Wallet Payments. In case of recurring Wallet-to-Wallet Payments, you may withdraw your consent one Business Day before the agreed date of execution of the Wallet-to-Wallet Payment.

(m) Checkout SAS shall execute the payment on the next Business Day, unless another date of execution has been specified by you.

(n) Checkout SAS reserves the right to block the Wallet for reasons related to the security of the Wallet or the presumption of unauthorised or fraudulent use of the Wallet. Checkout SAS shall notify you of its decision as soon as possible unless prohibited by national or Applicable Law.

2.6A NOT USED

2.7 PAYMENT METHODS AND CURRENCIES SUPPORTED

(a) We will support the use by you (through the Platform) of the Payment Methods and in such currencies approved by the Payment Schemes and enabled on the Checkout system (subject to any restrictions under Applicable Law).

(b) We may decide at our reasonable discretion, or as requested by the Payment Scheme, the TPA or the relevant Regulatory Authority, to discontinue in certain circumstances the support of one or more of the Payment Methods and/or currencies or make future support conditional on the acceptance by you of additional conditions. We will give at least two (2) months’ written notice of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision. We will use our reasonable endeavours to offer an alternative for any discontinued Payment Method.

(c) Transactions which involve a currency conversion to complete payments (e.g. Payout Currency differs to Transaction Currency) are subject to an Exchange Rate. In the case of an error in the Exchange Rate, adjustments may be applied immediately and without notice to you to correct such errors. Where required, we will make available the Exchange Rate (and such other information relating to the currency conversions) in accordance with Applicable Law, from time to time.

2.8 CUSTOMER DUE DILIGENCE AND ADDITIONAL INFORMATION

(a) In addition, and without prejudice, to the provisions of the Platform Merchant Agreement relating to customer due diligence and provision of information by you, in the context of the Acquiring Services and in order to enable us to comply with Applicable Law, including anti-terrorism, financial services, anti-tax evasion, anti-bribery and corruption and anti-money laundering laws and regulations imposing customer due diligence (“CDD”) requirements, as well as with the Payment Scheme’s and/or TPA requirements, you shall, before entering into your Services Agreement, and thereafter on our first request, and no later than 72 hours from the receipt of the request, provide further CDD information and/or documentation and User Information about you, and in particular about your solvency and liquidity, your payment acquiring and processing arrangements, your shareholders, your ultimate beneficial shareholders, the Products/Services, your registered office address, as well as any and all regulatory licences and registrations required to sell the Products/Services. You warrant unconditionally that all CDD information and documentation you provide to us is correct and up to date, and undertake to provide us with at least five (5) Business Days prior written notice (or without delay if such prior notice is not reasonably enforceable), of any material change in the CDD information and documentation and/or User Information previously provided, including in particular (but not limited to) any change of its directors, shareholders and/or ultimate beneficial owners.

(b) You hereby authorise us to submit the CDD information and/or documentation and/or User Information, or any other relevant information received from you, to the relevant Payment Schemes and/or the TPA to obtain permission for providing access to their Payment Methods for you, or for any ongoing monitoring related purpose in respect of your Services Agreement, as required.

2.9 OBLIGATION TO IMPLEMENT RISK MANAGEMENT CONTROLS AND AUDIT

(a) In case of any investigation or audit by us, a Regulatory Authority, the Payment Scheme and/or the TPA (as applicable) as permitted under the Services Agreement, Applicable Law, the Payment Scheme Rules and/or the TPA Rules with respect to Chargebacks, suspected fraud or other requests for information, you undertake to fully co-operate in the investigation and/or audit of such records.

(b) You represent and warrant that throughout the term of the Services Agreement the average Reported Fraud-to-Sales Ratios will not exceed one (1) % in any period of three (3) consecutive months.

(c) In addition to the above, you agree to allow us, on thirty (30) days’ prior written notice, to inspect your locations to confirm that you are in compliance with the terms of your Services Agreement and are maintaining the proper facilities, equipment, inventory, records, licences and permits where necessary to conduct your business. Our representatives may, during normal working hours, inspect, audit and make copies of your books, accounts, records, and files pertaining to any Transaction processed under your Services Agreement.

(d) If we have any reason to believe that you are copying, capturing or intercepting any Cardholder data, Sensitive Authentication Data or similar Buyer’s payment instrument related information in violation of the Payment Scheme Rules, the TPA Rules and/or PCI SSC’s rules, recommendations and standards (including specifically PCI DSS), we reserve the right to inspect your location(s) and/or to suspend processing of Transactions, Refunds, Acquiring Services and/or making Payouts.

2.10 RECURRING TRANSACTIONS

(a) For each Recurring Transaction you are required to obtain a prior express Recurring Transaction consent from the Buyer (including specifically the Cardholder), at the point of checkout or sale, for the Products/Services sold using Acquiring Services. You shall provide the Buyer with the following information when obtaining consent: (i) the amount of the Recurring Transaction; (ii) whether the amount is fixed or variable; (iii) the date of the Recurring Transaction; (iv) whether the date is fixed or variable; and (v) an agreed method of communication for all future correspondence with the Buyer.

(b) You must also, using the agreed method of communication, provide the Buyer with a confirmation that a Recurring Transaction agreement has been entered into. This confirmation must be provided within two (2) Business Days of entering that Recurring Transaction agreement, which must be separate from the sales agreement.

(c) You shall notify the Buyer that this Recurring Transaction consent is subject to cancellation by the Buyer at any time, and should not debit or attempt to debit the Buyer’s Card, Buyer’s bank account or any other Payment Method account after being notified of the cancellation of the Recurring Transaction consent.

(d) You shall notify the Buyer in writing of the amount to be debited and the due date of the debit at least fourteen (14) days prior to (i) the first debit, and (ii) each subsequent debit (unless the Recurring Transaction consent sets out the amounts payable and the due dates and none of these have changed or other objective criteria are agreed with the Buyer for calculating the due dates).

(e) You shall retain the Recurring Transaction consent for the duration of the Recurring Transactions, and for a period of eighteen (18) months after the final payment that is made pursuant to it. You shall produce the Recurring Transaction consent to us on first demand.

(f) You shall not submit for processing by us an existing Recurring Transaction without our prior written consent; and shall provide us with a correct Recurring Transaction indicator, the frequency of the Recurring Transactions and the period over which the Recurring Transactions will take place. You shall comply with any and all additional Payment Scheme’s requirements and/or recommendations relating specifically to Recurring Transactions.

2.11 OBLIGATIONS TO COMPLY WITH THE PAYMENT SCHEME RULES (AND IN PARTICULAR THE CARD SCHEME RULES) AND TPA RULES

(a) You shall comply with the applicable Payment Scheme Rules and TPA Rules, and are strongly advised to regularly review the then current Payment Scheme Rules (and in particular the Card Scheme rules), TPA Rules and Applicable Law as applicable to Products/Services and business practices to ensure compliance therewith. For violations of certain key requirements, certain Payment Schemes such as Card Schemes can levy significant fines. Where you consider the Payment Scheme Rules or the TPA Rules to be unacceptable, you may be able to stop using the relevant Payment Method (in accordance with your Platform User Agreement), however the Payment Scheme Rules (and specifically the Card Scheme rules) and/or the TPA Rules (as applicable) and the Services Agreement shall apply to processed Transactions.

(b) Where we become aware of and/or receive any notice of a potential exposure to a fine related to any of your behaviour, you 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 we might have in such situation under the Services Agreement. If fines are applied, these may be invoiced by the Payment Scheme and/or the relevant TPA to us as their contracting party. You shall fully indemnify and hold us harmless from any fines applied by a Payment Scheme and/or a TPA as a result of your breach of the terms of the Services Agreement, the Payment Scheme Rules and/or the TPA Rules.

2.12 RESERVE ACCOUNT, ADDITIONAL COLLATERAL AND OTHER RELATED PROVISIONS

(a) You agree that either a fixed reserve amount or a percentage of the daily gross sales volume processed by us will be subtracted from Settlements received by us from the Payment Schemes or the TPAs as the Reserve(s), and shall be retained by us in order to be used to cover unpaid fees, Deductions or your other payment obligations under the Services Agreement. Where Reserve(s) are a percentage of the daily gross sales value processed, it may be capped or, converted to a fixed reserve amount after a set period of time, to be held in the Reserve Account, as determined by us. The Reserve Account serves the reserve functionality. The fixed reserve amount or applicable Reserve(s) Rate shall be notified to you by the ECP from time to time. You agree that you are not entitled to any interest on the funds credited in the Reserve Account, that you have no right to direct that account, and that you cannot and will not assign or grant any security interest in those funds or that account, or allow any encumbrance upon the funds contained in that account.

(b) Funds will remain in the Reserve Account for twenty-six (26) weeks following the date of termination the Services Agreement (the “Reserve Period”), provided, however, that you will remain liable to us for all Merchant Liabilities occurring beyond such twenty-six (26) week period.

(c) Where you are Insolvent or subject to proceedings according to Book 6 of the French Commercial Code (safeguard, receivership, liquidation), the funds held in the Reserve Account will be available for the purposes of the insolvency process only after the Reserve Period and subject to any additional Merchant Liabilities owed to us occurring between you becoming Insolvent and the expiry of the Reserve Period.

(d) In addition to the Reserve Account, we may request you to provide funds to us as Additional Collateral as a security to guarantee payment of any and all Merchant Liabilities including any Losses owed to due to a TPA and/or the Payment Scheme and/or arising out of or in connection with any Payouts and/or Third Party Payment Services. We will fund the Additional Collateral, replenish and maintain it at the designated level (or will instruct the TPA to do so where applicable) by deducting the required amount from Settlement or any other funds due to you.

(e) We may in our sole discretion at any time and without prior notice draw and receive amounts from the Additional Collateral, or instruct the TPA to do so if applicable, as required to cover any amounts owed to us, the Payment Schemes and/or the TPA which cannot be deducted from Settlement due to a lack of funds or otherwise. We may subsequently: (i) replenish the Additional Collateral, or instruct the TPA to do so, from Settlement and such other funds due to you under your Services Agreement; or (ii) require that you immediately make a payment to us for the amount required to replenish the Additional Collateral.

(f) Unless otherwise advised by us, the Additional Collateral will be held and maintained for a minimum of the Reserve Period. If after expiry of the Reserve Period there is still a risk of more Merchant Liabilities, then we will have the right to withhold, or instruct the TPA to withhold if applicable, the Additional Collateral until such risk is eliminated. Upon expiration of the Reserve Period (or longer, as the case may be), any remaining amount of Additional Collateral will be transferred to you. We will inform you of any charges debited to the Additional Collateral during this period.

(g) We may change the Additional Collateral upon notice and in our sole discretion depending on Refund ratios, fraud ratios, Chargeback ratios and other risk considerations.

(h) You expressly acknowledge and agree:

(i) that the Additional Collateral is separate to and does not form part of the funds subject to Checkout’s safeguarding obligations (where applicable);

(ii) to any charge or debit made by us or the TPA against the Additional Collateral;

(iii) that you are not entitled to any interest on the Additional Collateral;

(iv) that you have no right to direct the Additional Collateral; and

(v) that you cannot and will not assign or grant any security interest in the Additional Collateral or allow any encumbrance upon those funds.

(i) We may, without notice to you, apply the amounts standing to the credit in the Reserve Account and/or the Additional Collateral against any outstanding amounts owed to us under your Services Agreement, or any other future agreement between you and any Checkout Group Company. All our rights with respect to the Reserve Account and Additional Collateral shall survive the termination of the Services Agreement.

2.13 SECURITY

(a) We may at any time require you to procure that a person (either legal or physical or both) or persons satisfactory to us, provide us with a guarantee and/or indemnity in respect of your obligations (including contingent or potential obligations) from time to time under the Services Agreement. In such case a separate document from the Services Agreement may need to be executed by you and/or such person.

(b) We may at any time require you to grant to us, or procure the granting to us of, security other than guarantees or indemnities in such form, including the requirement to put funds into a bank account which we may specify (including a trust or other account which we may establish for such purpose) and over such assets (and free of other security interests or subject only to such other security interests and other rights as we shall permit) to secure to our satisfaction the performance of your obligations (including contingent or potential obligations) from time to time under your Services Agreement.

(c) We may exercise our rights under this clause ‎2.13 either to require additional security or to require the replacement of a previous security which has been withdrawn or which we, for any reason, require to be replaced.

(d) Without prejudice to any other provision of the Services Agreement, your failure to comply with any requirement made under this clause ‎2.13 strictly in accordance with the relevant time limits shall constitute a material breach of the Services Agreement allowing for immediate termination without notice.

2.14 HANDLING OF FUNDS SERVICE

Where you receive the Handling of Funds Service, we will be receiving Transaction related funds from your TPA and paying out these funds to your Bank Account(s) in accordance with your Payout arrangements. In such cases you hereby authorise us, as your agent, to receive from the TPA and hold Transaction related funds on your behalf before paying out such funds to your Bank Account(s) in accordance with the Payout arrangements. You acknowledge and agree that you are not entitled to any interest on funds received by us and held before such funds are paid out to your Bank Account(s) in accordance with the Payout arrangements agreed with you, which shall include simultaneously converting these funds into Electronic Money stored on your Wallet.

2.15 TERMINATION RIGHTS

Without prejudice to the termination rights set out in the ‘Term and Termination’ section of the Platform Merchant Agreement, we have the right to terminate the Services Agreement and/or to restrict or suspend the provision of or access to any Acquiring Services, in whole or in part, to you immediately upon written notice if:

(a) the provision of Products/Services is reasonably suspected by us to be in breach of the Payment Schemes Rules or TPA Rules; or

(b) you have been listed on World-Check or a Payment Scheme’s fraud and risk databases such as MATCH, VMAS or equivalent; or

(d) the ratio of Chargebacks to Transactions exceeds one (1) %, the Reported Fraud-to-Sales Ratios exceeds one (1) %, or we otherwise consider, at our sole and absolute discretion, that the total value of the Refunds, Chargebacks, and/or Reported Fraud, and/or the number of declined Authorisation requests and/or the number of Buyer complaints is excessive; or

(e) you: (i) refuse to provide security requested in accordance with clause ‎2.13 of these Acquiring Services Terms and/or on the withdrawal, removal, termination or unenforceability of any security in relation to which we rely upon; or (ii) grant to a third party any security or charge over all or a significant proportion of your assets; or

(f) you (or the Platform Merchant(s)) undertake or have undertaken activities (such as scams or other fraudulent activities) which in our reasonable opinion are detrimental to the brand, image or reputation of us, any Payment Schemes or TPAs.

If the Services Agreement is terminated or any Acquiring Services are (or access to any Acquiring Services is) restricted or suspended (in whole or in part) under this clause ‎2.15, we reserve the right to report you to the Payment Schemes for entering into MATCH, VMAS or equivalent databases of terminated merchants, in accordance with the applicable Payment Scheme Rules and/or TPA Rules.

2.15A CHANGES

(a) Subject to sub-clause (b) of this clause 2.15A, we may revise these Acquiring Services Terms from time to time by giving notice to you via email (which may originate from Checkout or from the ECP), posting a notice through the Platform or by posting such changes on our website (“Change”). If you do not notify us of your objections to the Change within the notice period provided, you will be deemed to have accepted the Change. If you do not wish to accept the change, you must: (i) notify us of your objection to the Change within the notice period (before the effective date of the Change); and (ii) immediately cease to use and/or access Checkout’s services. If you continue to use any of the services after the effective date of the Change, then you will be deemed to have agreed and consented to the Change.

(b) Neither the Change notice period, nor your right to terminate will apply where the Change: (i) relates to an interest rate or Exchange Rate and, in our reasonable opinion, is more favourable to you; (ii) is implemented in order to comply with Applicable Law or requirements of a relevant Payment Scheme and/or TPA; or (iii) relates to the addition of a new service or extra functionality to an existing Service, and, in such instances, the Change will be made and shall become effective in accordance with the terms contained in the Change notice.

2.16 E-MONEY WALLET SERVICE

As part of the optional Wallet service, we will provide you with services such as the following:

(a) Issuance of Electronic Money: the funds received and/or collected as part of the Card Acquiring Service and Alternative Payment Acquiring Service or as part of the Handling of Funds Service are simultaneously converted in units of Electronic Money at par value and stored on your Wallet, as per clauses 2.1(i) and 2.14;

(b) Wallet-to-Wallet Payment, as described in clause 2.6;

2.17 AUTHORITY TO USE A PAYMENT ACCOUNT OR WALLET

You can give a person the authority to use your Wallet and assume full responsibility for the payment transactions as defined in a power of attorney or another relevant legal instrument. The provision of such authority: (i) will be confirmed by us using reasonable means decided at our discretion; (ii) will not come into effect until it is accepted by us; (iii) can be revoked on your initiative by informing your legal agent and us by registered mail with notice of receipt.

2.18 COMPLIANCE WITH APPLICABLE LAW AND STANDARDS

(a) Checkout SAS undertakes to comply with Applicable Law, industry standards and Payment Scheme Rules applicable to Checkout SAS as Payment Services Provider and E-Money Issuer.

(b) At any time during the contractual relationship, you may, upon request, receive a copy of your Services Agreement in a digital format.

3. NOT USED

3.1 NOT USED

3.2 SUBMISSION OF TRANSACTIONS AND REFUNDS FOR PROCESSING, INTEGRATION AND RELATED CONSENTS

(a) You shall ensure all data requested by us to be provided (including through the ECP) for a Transaction and/or Refund (including those needed for fraud checks) are provided with each Transaction and/or Refund submitted for processing by us. If you fail to provide the requested data with each Transaction and/or Refund, we reserve the right to immediately suspend the Transaction and/or Refund processing. We may revise the required data needed to process Transactions and Refunds from time to time by giving written notice to you (which you may receive from or though the ECP). Where we execute a Transaction or a Refund in accordance with the data provided by you (including through the ECP), the Transaction or Refund will be deemed to have been correctly executed by us, the TPA and/or the Payment Scheme involved. Where the data provided to us by you (including through the ECP) is incorrect, we are not liable for the non-execution or defective execution of the Transaction and/or Refund based on such data.

(b) You undertake to work with us in good faith to provide us with the email address of the Buyers and/or otherwise contact the Buyers at our request (which you may receive from or through the ECP) where we believe this is required under Applicable Law, Payment Scheme Rules and/or TPA Rules, to perform risk or fraud assessments and/or investigations, to verify your obligations under your Services Agreement, including in respect of a Transaction, Refund and/or Chargeback or otherwise in furtherance of the Services Agreement. You shall, in compliance with relevant data protection law, rely on valid legal ground or procure and provide consent where required to facilitate us contacting the Buyers directly for this purpose.

3.3 NOT USED

3.4 NOT USED

4. NOT USED

5. NOT USED

6. NOT USED

7. THIRD PARTY PAYMENT SERVICE

7.1 Where you receive the Third Party Payment Service we will provide you with the following services:

(a) Where you make a payment on account of your payment balance and/or where a third party makes a payment directly to your payment balance, we shall record each Inward Payment to your payment balance following our receipt of the corresponding funds. You acknowledge and agree that you shall not be entitled to receive any interest in respect of Inward Payments held on your payment balance.

(b) On receipt of a valid Authorised Instruction from you in the format prescribed by Checkout, and subject to your payment balance having sufficient funds, we will initiate or procure the initiation of each Outward Payment as directed by you on the later of the following:

(i) the Outward Payment Date, or

(ii) the expiry of any period of deferment which may apply.

7.2 We are only obliged to initiate and process an Outward Payment to the extent your payment balance has sufficient funds in the relevant currencies. To the extent your payment balance does not hold sufficient funds in the relevant currencies, you shall provide the necessary funds to us promptly and agree to hold us free from any liability in relation to the delay and/or failure to execute such Outward Payment whilst there are insufficient funds to pay these.

7.3 All Outward Payments are subject to any agreed limits and/or thresholds as agreed between us and the ECP and, in the case of Pay To Card payments, to any thresholds, restrictions and/or limitations as imposed by the Payment Schemes.

7.4 All Outward Payments must comply with Applicable Law including anti-money laundering laws and Sanctions and it is your responsibility to ensure your Authorised Instruction complies accordingly. Notwithstanding the foregoing, we may also impose restrictions on Outward Payments, including the currencies and countries available, in our sole discretion from time to time.

7.5 Notwithstanding anything to the contrary in the Services Agreement, we reserve the right to refuse, withhold and/or defer Outward Payments that: (i) we suspect to be fraudulent or related to illegal activities; (ii) we believe are likely to be refused by a Payment Scheme and/or financial institution for reasons of their own compliance rules; and/or (iii) we believe will likely be subject to a Payment Scheme and/or Regulatory Authority’s investigation. You will give your full co-operation to any such investigation. No interest will be due over amounts withheld in accordance with this clause 7.5.

7.6 You agree that you must, before submitting any Authorised Instruction, deposit specific Additional Collateral for the Third Party Payment Service in an amount specified by us and maintain such Additional Collateral as required as security for Merchant Liabilities related to the Third Party Payment Service throughout the term of the Services Agreement. You acknowledge and agree that Checkout may deduct Outward Payments from the Additional Collateral or any other funds made available to Checkout by you from time to time including Settlement.

7.7 NOT USED

8. LIMITATION OF LIABILITY

Provisions of this clause 8 are without prejudice to the provisions set out in the ‘Limitations of liability’ section of your Platform Merchant Agreement.

8.1 NOT USED

8.2 EXCLUSIONS OF LIABILITY

(a) Nothing in a Services Agreement shall exclude or limit any liability of any Party to it for: (i) fraud, death, personal injury or gross negligence; (ii) in the case of the Platform Merchant, paying any fees and/or other amounts due under the Services Agreement; or (iii) otherwise to the extent that it cannot be lawfully excluded or limited, and the following provisions in this clause ‎8.2 are subject to this clause ‎8.2‎ (a).

(b) You agree that we are only liable for our own acts or omissions and not for the acts or omissions of any third parties, including: (i) the Payment Schemes; (ii) the TPAs; and (iii) the Issuers.

(c) Without prejudice to the provisions set out in the ‘Force majeure’ section of your Platform Merchant Agreement, Checkout shall not be liable for any events or activities originating outside the Checkout system (such as infrastructure failure, internet disturbances or malfunctioning in third party systems), except where such events were caused by our wilful misconduct or gross negligence.

(d) No Party shall be liable to any other Party for: (i) any liquidated, indirect, consequential, exemplary, incidental damages (including but not limited to damages for loss of business profits, business interruption, loss of business information, loss of revenue, loss of goodwill, loss of opportunity, loss or injury to reputation, or loss of anticipated savings); and/or (ii) loss of business profits, goodwill, reputation, business, contracts, opportunity, bargain and/or anticipated savings; (iii) business interruption; or (iv) loss of business information, regardless of whether such Losses are indirect, direct or consequential, and, in each case, regardless of whether arising from negligence or breach of the Services Agreement (including access to, use of, inability to use, or unavailability of the Acquiring Services), and whether or not a Party was aware of the possibility that such Losses might be incurred.

(e) We shall not be liable to you: (i) for any loss or damage of a type which was not reasonably foreseeable when the Services Agreement was concluded, whether or not the possibility of that type of loss or damage was subsequently advised to or otherwise became known, or should have become known, to us after the date on which the Services Agreement was concluded; or (ii) for any claim where the circumstances giving rise to a claim: (x) are due to an unusual and unforeseeable event, outside our reasonable control and the consequences of which could not have been avoided even if all due care had been exercised (such as, for example, force majeure, events of war and acts of God, strike, lockout, traffic disruption, acts of domestic or foreign governmental authorities); or (y) were caused by us due to compliance with Applicable Laws and regulations; or (iii) to the extent that you contributed to the occurrence of any loss by any negligent or intentional action or omission and your liability in that instance shall be determined in accordance with the principles of contributing negligence.

8.3 LIMITATION OF LIABILITY

(a) To the fullest extent permitted by Applicable Law, the total aggregate liability of all Checkout Group Companies (and their respective employees, directors, agents and representatives) arising out of, or in connection with, your Services Agreement shall not exceed 1000 Euros.

(b) No Checkout Group Company will be liable for any failure to perform, or any defective or delayed performance of, any of its obligations under the Services Agreement and/or any other services agreement it may have with you if and to the extent that such failure, defect or delay is due to:

(i) any breach, negligence or bad faith act or omission by you (which shall include any breach, negligence or bad faith act or omission by the ECP acting on your behalf or for your benefit);

(ii) our compliance with your instructions (including any instructions the ECP gives us on your behalf);

(iii) any suspension of Acquiring Services (in whole or part) as permitted under the Services Agreement;

(iv) our compliance with Applicable Law, Payment Scheme Rules and/or TPA Rules; or

(v) the exercise of any rights or remedies available to us under the Services Agreement or any other services agreement you may have with us.

(c) If you are a body corporate, where one or more of your Group Companies receive services from us, you agree that you shall be jointly and severally liable with all such other Group Companies.

Schedule 2
Sub-Merchant Terms

These terms and conditions (as amended from time to time) (the Sub-Merchant Terms) describe the additional terms and conditions that apply to your use and/or access to Checkout’s services in connection with your use of the Platform Merchant Services where: (i) the ECP is acting as a Payment Facilitator and (ii) you have been notified in writing by Checkout (which we may give you through the ECP) that the Sub-Merchant Terms apply to your use of and/or access to Checkout’s services to ensure Checkout’s compliance with the Payment Scheme Rules. If you do not understand any of the terms or conditions set out in these Sub-Merchant Terms, please contact us before accessing and/or using (or continuing to access and/or use) Checkout’s services. Unless you notify us in writing within 7 days from receiving notice that the Sub-Merchant Terms apply to you, stating that you do not wish to be bound by these terms, you will be deemed to have agreed to these terms.

1. DEFINITIONS

In these Sub-Merchant Terms, the following definitions shall apply in addition to those set out within the Platform Merchant Agreement:

Cardholder means the Person in whose name a Card has been issued.

PIN means the personal identification number associated to a Card, allocated by a Card issuer or personally selected by the Cardholder.

Transaction Receipt means a document used to evidence a transaction.

2. YOUR OBLIGATIONS

Data Security Standards

(a) This clause applies to you if you collect payment data directly from a Cardholder or store any Cardholder data. In addition to the other provisions of the Platform Merchant Agreement (including the Acquiring Services Terms and these Sub-Merchant Terms), you acknowledge and agree as follows:

(i) you must protect stored Cardholder data, regardless of the method used to store such data. Data storage also includes physical storage and security of Cardholder data. Some examples of other data storage which must be secured include an access or excel database and hard copy files. Storage should be kept to the minimum required for business, legal and/or regulatory purposes;

(ii) you must not store the PIN or Sensitive Authentication Data after authorisation (even if encrypted);

(iii) if we notify you that you must comply with the Data Security Standards, you must, at your cost, successfully complete the protocols for PCI DSS and PA DSS within the time frame stipulated by us or the Card Schemes. You acknowledge and agree that if you fail to do so:

(A) Checkout may terminate your Platform Merchant Agreement and suspend your access to Checkout’s services through the Platform; and

(B) You are liable for any fine imposed upon Checkout by the Card Schemes as a result of your failure to comply; and

(C) You are liable for any fines which the Card Schemes levy in the event that you suffer a Card data compromise incident, and have not complied with the PCI DSS and PA DSS accreditation program; and

Your duties to Cardholders

(b) Subject to the other provisions of the Platform Merchant Agreement (including the Acquiring Services Terms and these Sub-Merchant Terms), you:

(i) must accept any valid and acceptable Card in a transaction;

(ii) must only send the ECP a sales transaction when you have committed to provide the goods and services to the customer;

(iii) must not accept a Card in a credit card transaction for the purpose of giving a Cardholder cash;

(iv) must perform all obligations (including supplying all goods and/or services) to the Cardholder in connection with the sale;

(v) must not sell, purchase, provide or exchange any information or document relating to a Cardholder’s account number, or Card number, or a transaction, to any Person other than:

(A) the ECP;

(B) Checkout;

(D) as required by Applicable Law;

(vi) must destroy any document that is no longer required to be retained under Applicable Law or Card Scheme Rules, in a manner which makes the information unreadable;

(vii) must take reasonable steps to ensure that the information and documents mentioned in (v) are protected from misuse and loss and from unauthorised access, modification or disclosure;

(viii) must not make any representation in connection with any goods or services which may bind Checkout or any Card Scheme;

(ix) must not indicate or imply that we or any Card Scheme endorse any goods or services or refer to a nominated Card in stating eligibility for goods, services or any membership;

(x) must not accept a Card or a transaction which is of a type you have been previously advised is not acceptable;

(xi) must prominently and unequivocally inform the Cardholder of your identity at all points of Cardholder interaction (including on any relevant website, promotional material and invoice) so that the Cardholder can readily distinguish you from the ECP, any supplier of goods or services to you, or any other third party;

(xii) must provide notice to any Cardholder with whom you enter into a transaction that you are responsible for that transaction, including for any goods or services provided, any payment transaction, related service enquiries, dispute resolution, and performance of the terms and conditions of the transaction;

(xiii) must not unfairly distinguish between issuers of a Card when accepting a transaction;

(xiv) must not refuse to complete a transaction solely because a Cardholder refuses to provide additional identification information in circumstances where you do not legitimately require that information and we do not require you to obtain it;

(xv) must, if you collect or store Cardholder information, comply with any Data Security Standards notified to you;

(xvi) must not transfer or attempt to transfer financial liability under your Platform Merchant Agreement (including under these Sub-Merchant Terms) by asking or requiring a Cardholder to waive his or her dispute rights;

(xvii) must disclose to the Cardholder before a transaction is completed any fee that you will charge for completion of the transaction and do it in such a way that allows a Cardholder to cancel the transaction if they choose to do so, without the Cardholder incurring any costs; and

(xviii) must provide sufficient training to your employees to ensure you meet your obligations under your Platform Merchant Agreement (including these Sub-Merchant Terms).

3. INVALID OR UNACCEPTABLE TRANSACTIONS

(a) A transaction is not valid if:

(i) the transaction is illegal as per Applicable Laws;

(ii) if applicable, the signature on the voucher, Transaction Receipt or authority is forged or unauthorised;

(iii) the transaction is before or after any validity period indicated on the relevant Card;

(iv) You have been told by Checkout, the ECP or any issuing bank not to accept the Card;

(v) the transaction is not authorised by the Cardholder;

(vi) the particulars on the copy of the voucher or Transaction Receipt given to the Cardholder are not identical with the particulars on any other copy;

(vii) the price charged for the goods or services is inflated to include an undisclosed surcharge for Card payments or he price charged for the goods and services is different for a transaction processed through this facility when compared with other available forms of payments;

(viii) another Person has provided or is to provide the goods or services the subject of the transaction to a Cardholder;

(ix) You did not actually supply the goods or services to a genuine Cardholder as required by the terms of the transaction, or have indicated Your intention not to do so;

(x) the transaction did not relate to the actual sale of goods or services to a genuine Cardholder;

(xi) the transaction is offered, recorded or billed in a currency we have not authorised You to accept;

(xii) Your Platform Merchant Agreement was terminated before the date of the transaction;

(xiii) You have not complied with Your obligations in clause 2(c);

(xiv) if applicable, the details are keyed into equipment and You did not legibly record on a Transaction Receipt the information required; or

(xv) it is a credit transaction in which:

(A) the amount of the transaction or transactions on the same occasion is more than any applicable limit notified to You by us and/or the ECP;

(B) You collected or refinanced an existing debt including, without limitation, the collection of a dishonoured cheque or payment for previous card charges; or

(xvi) it occurs during a period in which Your rights under the Platform Merchant (including any rights under these Sub-Merchant Terms) were suspended;

(xvii) You cannot give a Transaction Receipt as required by clause 4, as set out in the Platform User Agreement;

(xviii) for any other reason, the Cardholder is entitled under the Card Scheme Rules to a Chargeback of the transaction; or

(xix) it is a remote transaction and You did not record the required details for the transaction.

(b) A transaction for a sale or refund is not acceptable if:

(i) the Cardholder disputes liability for the transaction for any reason or makes a claim for set-off or a counterclaim; or

(ii) it is of a category which Checkout decides, in its discretion, is not acceptable.

(i) refuse to accept a transaction if it is invalid or unacceptable, or may charge it back to you if it has already been processed, even if we have given you an authorisation;

(ii) reverse a sales transaction as a Chargeback, and debit Your account for the amount of the Chargeback, for any of the reasons in clauses 4(a) or 4(b) and any other reason we notify to You of from time to time; and

(iii) without limiting the above, delay, block, freeze or refuse to accept any transaction where Checkout and/or the ECP has reasonable grounds to believe that the transaction breaches Applicable Law or Sanctions or the laws or sanctions of any other country.

4. USE OF CARD LOGOS AND TRADEMARKS

(a) You acknowledge and agree that:

(i) the Card Scheme logos, names and holograms (the “Marks”) are owned solely and exclusively by the relevant Card Scheme;

(ii) You will not contest the ownership of the Marks for any reason;

(iii) the Card Schemes may at any time, immediately and without notice, prohibit you from using any of the Marks for any reason; and

(iv) You may only use advertising and promotional material for the Cards or which show a Mark in the manner Checkout approves, unless you have received authorisation from the Card Schemes through other means.

Schedule 3
Data Processing Terms

GDPR Terms. The following applies to processing activity governed by the GDPR:

1 ROLES OF THE PARTIES

1.1 Where Checkout.com processes Platform Merchant Data (which may include personal data, as defined in GDPR) while performing Checkout’s services or as otherwise envisaged in this Platform Merchant Agreement Checkout.com will act as a Data Controller, as described in paragraph ‎1.2. To the extent that the Platform Merchant sends, receives or otherwise processes Platform Merchant Data in connection with the Platform Merchant Agreement, then it shall also act as a Data Controller. The parties shall each be considered to be independent Data Controllers and nothing in this Agreement shall be construed as creating a joint or co-controller relationship between the parties.

1.2 The Platform Merchant authorises Checkout.com to Process the Platform Merchant Data, as a Data Controller, in the following cases where Checkout.com:

1.2.1 needs to Process the Platform Merchant Data in order to fulfil its legal or contractual obligations, for example, in order to: (i) comply with Applicable Law (including specifically anti-money laundering and counter-terrorism financing laws and regulations), Payment Scheme Rules, TPA Rules, Data Protection Law, or (ii) perform any obligation under the Platform Merchant Agreement, including in relation to the performance of the Services; and

1.2.2 Process the Platform Merchant Data for the purpose of internal research, fraud, security and risk management, product development and overall improvements of our services, analytics and assessing financial, credit or information security risk.

1.2.3 Transfer the Platform Merchant Data to any third party Data Controller or Data Processor for the purposes set out in paragraphs 1.2.1 and 1.2.2.

2 OBLIGATIONS OF THE PLATFORM MERCHANT

The Platform Merchant represents and warrants to us that, in relation to the Processing of the Platform Merchant Data in the context of the Services, it acts as a Data Controller and that it:

2.1 complies with Data Protection Law and acknowledges and understands Checkout.com’s Privacy Policy with respect to the Processing of the Platform Merchant Data. The Platform Merchant shall comply with the data protection laws of the Platform Merchant’s country of origin and of those countries in which the Platform Merchant offers Platform Merchant Products/Services and, in particular when Processing and sending the Platform Merchant Data to us in the context of using the Services and submitting Transactions (Lawfulness of processing);

2.2 relies on a valid lawful ground under Data Protection Law for each purpose of its Platform Merchant Data processing activities relevant to the Agreement, including obtaining Data Subjects’ appropriate consent if required or appropriate under Data Protection Law (Legal ground);

2.3 provides appropriate notice to the relevant Data Subjects regarding: (i) the Processing of Platform Merchant Data for the purpose of providing the Services, in a timely manner and, at a minimum, with the elements required under Data Protection Law; (ii) the sharing of the Platform Merchant Data with Checkout.com in its role as a Data Controller and with reference to the purposes for which Checkout.com will Process the Platform Merchant Data in accordance with its Privacy Policy; and (iii) the transfer of Personal Data to third parties located outside of the EU/EEA (Notice);

2.4 responds to Data Subject requests to exercise their rights of: (i) access; (ii) rectification; (iii) erasure; (iv) data portability; (v) restriction of Processing of the Platform Merchant Data; and (vi) objection to the Processing of the Platform Merchant Data in accordance with Data Protection Law (Data Subjects’ Rights); and

2.5 provides all reasonable cooperation to Checkout.com in order to facilitate the fulfilment of Checkout.com’s data protection compliance obligations in accordance with Data Protection Law (Cooperation).

3 OUR OBLIGATIONS

Checkout.com will:

3.1 only Process the Platform Merchant Data as required for: (i) the purposes provided for under paragraph 1.2 above; and (ii) any other purposes agreed by both Parties in writing;

3.2 cooperate with the Platform Merchant in its role as Data Controller to fulfil its own data protection compliance obligations under Data Protection Law, to the extent necessary with respect to the Processing of the Platform Merchant Data in the context of the Services;

3.3 keep internal records of Processing of the Platform Merchant Data carried out as a Data Controller with respect to the Services;

3.4 notify the Platform Merchant when local laws prevent Checkout.com from: (i) fulfilling its obligations under its Platform Merchant Agreement and have a substantial adverse effect on the guarantees provided by its Platform Merchant Agreement, except if such disclosure is prohibited by Applicable Law, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation.

4 DATA TRANSFERS

Where Checkout.com transfers the Platform Merchant Data, either directly or via onward transfer from the EEA to a recipient outside of the EEA in a country not recognised by the European Commission as providing an adequate level of protection for Personal Data, Checkout.com shall ensure the appropriate safeguards are put in place as required by Data Protection Law, including but not limited to standard contractual clauses approved by the EU. For the avoidance of doubt, any transfers of Platform Merchant Data that are made from the Platform Merchant to Checkout.com will (unless Checkout.com states otherwise) only be exported into a country within the EEA or another third country that is deemed as providing an adequate level of protection for Personal Data by the European Commission.

5 SECURITY OF PROCESSING, CONFIDENTIALITY AND PERSONAL DATA BREACH

5.1 The Parties must each implement and maintain a comprehensive written information security program with appropriate technical and organisational measures to ensure a level of security appropriate to the risk. In assessing the appropriate level of security, the Parties must take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing of Personal Data as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects and the risks that are presented by the Processing of Personal Data, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise Processed (Security measures).

5.2 The Parties must take steps to ensure that any person acting under their authority who has access to the Platform Merchant Data is subject to a duly enforceable contractual or statutory confidentiality obligation, and if applicable Process the Platform Merchant Data in accordance with the Data Controller’s instructions (Confidentiality).

5.3 The Parties must notify a Personal Data Breach that relates to the Platform Merchant Data to the other Party, without undue delay, after having become aware of a Personal Data Breach. The notified Party shall not notify any Supervisory Authority or otherwise disclose either publicly or to third parties any information relating to the Personal Data Breach, without the prior express written consent of the Party subject to the Personal Data Breach (Personal Data Breaches).

6 LIABILITY TOWARDS DATA SUBJECTS

6.1 Where the Parties are involved in the same Processing and where they are responsible for any damage caused by the Processing, both the Platform Merchant and Checkout.com may be held liable for the entire damage in order to ensure effective compensation of the Data Subject. If Checkout.com paid full compensation for the damage suffered, it is entitled to claim back from the Platform Merchant that part of the compensation corresponding to the Platform Merchant’s part of responsibility for the damage.

Legal

Platform Merchant Agreement (EEA)