Legal

Which Checkout.com entity is party to these Sub-Merchant Terms?

We have many different Checkout.com companies around the world. These Sub-Merchant Terms are with the Checkout.com company that is providing the CKO Services to the Regulated Platform in the country where Checkout.com has agreed with the Regulated Platform to provide the same.

In line with Payment Scheme Rules, if you receive the Regulated Services in more than one country, these Sub-Merchant Terms shall apply separately and individually with the relevant Checkout.com entity in each territory. This is generally because there are differences in the laws and regulations in different countries.

Details as to which Checkout.com entity is party to these Sub-Merchant Terms is set out at Part 3 of these Sub-Merchant Terms.

How will these Sub-Merchant Terms affect my Payment Processing Agreement?

The Payment Processing Agreement shall remain effective at all times during the term of these Sub-Merchant Terms. You must still comply with all terms of the Payment Processing Agreement. Nothing in these Sub-Merchant Terms will affect any of your rights or obligations under the Payment Processing Agreement.  These Sub-Merchant Terms supplement the Payment Processing  Agreement.

The Regulated Platform is responsible for providing the services set forth in the Payment Processing Agreement to you.  The Regulated Platform, and not Checkout.com, is responsible for providing customer service to you to resolve any issues you may have related to your use of the Regulated Services. Checkout.com is not a party to the Payment Processing Agreement, and expressly disclaims any responsibility to provide you with the services set forth in the Payment Processing Agreement, and any losses incurred by you or any third party that may result from the Payment Processing Agreement.

You understand and agree that Checkout.com may enforce any relevant provisions of the Payment Processing Agreement that relate to Checkout.com’s provision of, or your use of, the CKO Services, if applicable. You agree that you will indemnify the Indemnified Parties (defined below) for any losses caused by your breach of the Payment Processing Agreement and your use of any services provided under the Payment Processing Agreement.

If these Sub-Merchant Terms are terminated or suspended, or your use of the CKO Services is restricted in whole or in part, you may be unable to use some or all of the services provided by the Regulated Platform under the Payment Processing Agreement. If the Payment Processing Agreement is terminated, suspended, or restricted for any reason, you must notify Checkout.com immediately, and Checkout.com may immediately terminate, suspend or restrict  these Sub-Merchant Terms. Upon termination of the Payment Processing Agreement, Checkout.com’s obligation to provide you with the CKO Services under these Sub-Merchant Terms will immediately terminate.

What are the Sub-Merchant’s obligations under these Sub-Merchant Terms?

You agree to comply with all applicable laws, regulations, interpretations and directives of any regulatory authority (“Applicable Law”) and the Payment Scheme Rules.

If you breach any of the Payment Scheme Rules, a Payment Scheme may impose fees or fines upon Checkout.com or the Regulated Platform, which you shall be responsible for and this may result in the withholding or delayed settlement of your transactions, the conducting of audits of your transaction activity, or any other action that the Checkout.com deems reasonably necessary to determine whether you have breached Applicable Law or Payment Scheme Rules and address such breach.

In addition, Checkout.com or the Payment Scheme may terminate these Sub-Merchant Terms.

Without limiting the foregoing, you specifically agree to:

(1) only submit transactions authorised by the cardholder;

(2) only submit a sales transaction where you are the supplier of the goods and/or services and not for any products, services, or donations (i) prohibited by laws or Payment Scheme Rules, or (ii) prohibited or restricted under Checkout.com’s Use Policy as amended from time to time;

(3) not submit transactions on behalf of a third party. For the avoidance of doubt, this includes providing services as a payment facilitator or marketplace, as those terms are defined by the Payment Scheme Rules, or submitting transactions for goods and/or services sold by any other person;

(4) allow the Checkout.com’s employees, contractors or agents or those of any Payment Scheme reasonable access to your premises during normal business hours to check your compliance with these Sub-Merchant Terms or the Payment Scheme Rules;

(5) submit a transaction for the full amount owed by the cardholder for the transaction, including applicable fees, shipping charges, and taxes, except where you and the cardholder agree on a partial shipment, or where the transaction qualifies for delayed delivery or special order deposits;

(6) not establish minimum or maximum transaction amounts that a cardholder may pay for using any payment card (except as permitted by the Payment Scheme Rules), or unless permitted by Applicable Law condition charges for use of payment cards or any type of payment card, or discourage or incentivise the use of one card brand or type over another;

(7) not impose surcharges or convenience fees for the use of a payment card or type of payment card (except where and as permitted by Applicable Law and the Payment Scheme Rules) and, in such case, you will itemise and disclose the amount of the surcharge to the customer before they authorise the transaction, and you will only collect such amounts as part of the total submitted charge;

(8) not submit a transaction that represents collection of a dishonored cheque;

(9) only use the Payment Scheme logos or marks in a manner permitted by the Payment Scheme Rules;

(10) prohibit use of payment cards for disbursement of cash (except as permitted by the Payment Scheme Rules);

(11) comply with all applicable security and data privacy requirements imposed by Applicable Law, Payment Scheme          Rules, Regulated Platform or Checkout.com from time to time;

(12) observe and implement the fraud prevention procedures set out in any manuals, guides or directions provided to you by another Party or Regulated Platform, or required under the Payment Scheme Rules;

(13) provide clear customer disclosures and appropriate customer service, and make clear to customers that they are transacting with you prior to, during, and after the transaction, including providing clear statement descriptions;

(14) use all reasonable methods to resolve disputes with customers, including those resulting in a dispute or chargeback, and not attempt to charge a customer for a transaction that was previously charged back and subsequently returned to you unless the recharge is expressly authorised by the customer;

(15) provide and honor a clear return, refund and exchange policy to your customers, that is consistent with Applicable Laws and the Payment Scheme Rules; and

(16) comply with the Payment Card Industry Data Security Standard (“PCI-DSS”), as applicable, and only use cardholder data and sensitive authentication data as permitted by PCI-DSS, certify such compliance upon request by any Party, and use at least industry-standard measures to prohibit fraudulent use of payment cards and cardholder data.

If you are registered by Checkout.com as a “Marketplace” under the operating rules of Visa (“Visa Rules”) and you use the CKO Services to accept payments from Visa-branded payment cards, you will in addition agree to the following:

(1) enter into a contract with each Marketplace User before you submit transactions for them, the terms of which will conform to the Visa Rules for “Marketplaces”, these Sub-Merchant Terms, and the Payment Processing  Agreement;

(2) immediately stop submitting transactions for any particular Marketplace User at the direction of the Regulated Platform, Checkout.com, the Sub-Merchant, or Visa;

(3) ensure the transactions you submit for a Marketplace User are legal in the the jurisdiction you are incorporated and registered within and, if the Marketplace User is located outside such jurisdiction, the country of the Marketplace User;

(4) only submit transactions representing Marketplace Users’ sales of goods or services using your “Marketplace” platform website or application;

(5) not knowingly contract with a Marketplace User whose payment services previously have been terminated by or at the direction of the Regulated Platform, Checkout.com, Visa or any governmental authority;

(6) be liable for all acts and omissions of each Marketplace User, as well as all cardholder disputes, and other cardholder and customer service-related issues and losses arising from the activities of Marketplace Users;

(7) be responsible and financially liable for each transaction processed on behalf of the Marketplace User, or for any disputed transaction or credit;

(8) not transfer or attempt to transfer your financial liability by asking or requiring cardholders to waive their dispute rights;

(9) not permit a Marketplace User to transfer or attempt to transfer its financial liability by asking or requiring cardholders to waive their dispute rights;

(10) not deposit transactions on behalf of another merchant service provider;

(11) provide the names of principals and their country of domicile for each Marketplace User, and any other information Checkout.com requests to verify the identity of the Marketplace User and its principals;

(12) provide transaction reports to Checkout.com or Visa upon request;

(13) ensure that Marketplace Users comply PCI-DSS and the Payment Application Data Security Standard (“PA-DSS”); and

(14) represent and warrant that you have all permits, licenses, registrations, consents, non-objections, and authorizations necessary to conduct business as a “Marketplace,” as applicable in the jurisdictions where you conduct your business or provide services.

What services does Checkout.com perform?

Checkout.com, along with its affiliates, is a service provider to the          Regulated Platform. Checkout.com does not provide any payment services directly to the Sub-Merchant unless otherwise set out in these Sub-Merchant Terms. Checkout.com or its affiliates may provide integration, communication, money transmission, and processing services to facilitate the Regulated Services that the Regulated Platform provides to you pursuant to these Sub-Merchant Terms and/or the Payment Processing Agreement.

In order for Checkout.com to provide services to the Regulated Platform you will provide certain information which we may rely on as being complete, accurate and not misleading or deceptive. Checkout.com is not obliged to verify the completeness or accuracy of such information. You authorise Checkout.com to execute any instruction you provide to the Regulated Platform.

How will Checkout.com and the Regulated Platform share data?

To receive any CKO and Regulated Services and comply with any applicable legal and regulatory obligations, you authorise the Regulated Platform and Checkout.com to provide information about you, your customers, and your transactions to each other the Payment Schemes and any applicable regulatory bodies. This includes sharing information you provided to the Regulated Platform under the Payment Processing Agreement.

To  comply with any anti-money laundering requirements, you shall provide such information as required by the Regulated Platform and / or Checkout.com to the Regulated Platform and authorise and direct the Regulated Platform to provide such information to Checkout.com as is required to verify your identity in line with any anti-money laundering requirements.

What are the Sub-Merchant’s indemnification obligations?

You will indemnify Checkout.com, and its respective officers, directors, direct owners, indirect owners, agents, service providers, and employees (“Indemnified Parties”), in full for any claims, liabilities, losses, damages, proceedings, fines, penalties, assessments, fees, costs, charges or expenses (including any reasonable and properly incurred legal fees and costs) (“Losses”) any Indemnified Party incurs that arises in any way from your breach of these Sub-Merchant Terms, Applicable Law, the Payment Processing Agreement, or your use of the CKO Services, including, but not limited to, any expenses any Indemnified Party incurs, any amounts an Indemnified Party must pay to another person or entity; and/or any chargebacks, fines or penalties any Indemnified Party is required to pay to a government authority or Payment Schemes.

You will also indemnify on demand and hold the Indemnified Parties harmless from any Losses related to third party intellectual property right infringement claims brought against them due to your actions or media (including the URL(s) and your products/services).

Sub-Merchant confirmations

By entering into these Sub-Merchant Terms, you represent and warrant to Checkout.com on a continuing basis that:

(1) you have the necessary authority to enter into and perform your obligations under these Sub-Merchant Terms;

(2) you have all necessary licenses to operate your business in the jurisdictions where you do business, and perform your obligations arising under these Sub-Merchant  Terms;

(3) there is no legal action or regulatory investigations pending or (to the best of your knowledge) threatened against you that might affect your ability to carry out your responsibilities under these Sub-Merchant Terms or to provide the goods and services for which you accept payments under these Sub-Merchant Terms;

(4) complying with these Sub-Merchant Terms will not cause you to breach any other agreements to which you are a party;

(5) you will not use the services provided to you to carry out any illegal or fraudulent activities;

(6) all information you have provided in connection with these Sub-Merchant Terms and / or Payment Processing Agreement is true, accurate, up to date and complete (including any information you have provided to the Regulated Platform as part of your merchant application form or thereafter);

(7) none of your directors, shareholders or other beneficial owners are subject to any sanctions imposed by a relevant government authority;

(8) you will not resell the services, in whole or in part, or otherwise allow the use of the services by any third parties unless such use has been approved by Checkout.com;

(9) you are, and will remain, solely responsible to ensure that your products or services sold are compliant with all Payment Scheme Rules and applicable law in your country of incorporation and in the countries where your customers are based;

(10) you own and/or have the necessary licenses to operate and have full control, responsibility and authority regarding the operation and content of your websites or applications (if any);

(11) you are not currently, and will not be, during the term of these Sub-Merchant Terms: (i) experiencing excessive chargebacks (according to the limits determined by the Payment Schemes); nor (ii) subject to any Payment Scheme’s monitoring program(s);

(12) you have never: (i) committed fraud; (ii) been terminated by an acquirer; nor (iii) been asked to terminate an agreement with an acquirer;

(13) you will not use the CKO Services  and / or the Regulated Services for the payment of products or services prohibited or restricted under Checkout.com’s use policy;

(14) you will comply with all Applicable Law, Payment Scheme           Rules, these Sub-Merchant Terms and the Payment Processing  Agreement; and

(15) you will give Checkout.com any information about you and your business that Checkout.com reasonably asks for (and / or the Regulated Platform requests on Checkout.com’s behalf) and notify the Regulated Platform if any of the information changes, in order to enable Checkout.com to comply with Applicable Law and the Payment Scheme Rules.

What are Checkout.com’s liabilities to the Sub-Merchant?

Checkout.com will only be liable to you, subject to the terms below for Losses you suffer if they arise directly from its breach of these Sub-Merchant Terms, but it will not be liable to you for (whether indirect, direct or consequential):

(1) any special, exemplary or incidental losses;

(2) loss of business, profits, contract, anticipated savings or business information; or

(3) business interruption,

and, in each case, regardless of whether arising from negligence or breach of these Sub-Merchant Terms and whether or not Checkout.com was aware of the possibility that such losses might be incurred.

Checkout.com is only liable for its own acts or omissions and not for the acts or omissions of any third parties, such as the Payment Schemes,  the Regulated Platform, third party acquirer(s) or issuers. In addition, Checkout.com is not liable to you for any events or activities originating outside its systems (such as infrastructure failure, internet disturbances or malfunctioning in third party systems) except where such events were caused by its willful misconduct or gross negligence.

Subject to the exclusions set out below, Checkout.com’s maximum total liability to you under these Sub-Merchant Terms will be limited to the amount of fees (net of third party fees such as interchange and Payment Scheme fees, where applicable) that it has received for processing your transactions in the 12 months immediately preceding the event which gave rise to your claim.

Checkout.com is not liable to you if its breach of these Sub-Merchant Terms is due to your breach of these Sub-Merchant Terms, negligence or failure to do something; its compliance with your instructions; or its compliance with applicable law, Payment Scheme  Rules and/or any other rules which apply to it.

Nothing in these Sub-Merchant Terms will limit or exclude Checkout.com’s liability for Checkout.com’s, willful misconduct, gross negligence, intentional misrepresentation; or other liability which cannot be excluded or limited by law.

What laws control these Sub-Merchant Terms?

Any dispute or claim arising out of or in connection with these Sub-Merchant Terms shall be governed by and construed in accordance with English law.

The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, these Sub-Merchant Terms. If you are incorporated in a country other than England and Wales or have assets in that other country, we may choose to enforce any judgment in that relevant country.

How long will these Sub-Merchant Terms be effective?

These Sub-Merchant Terms become effective as provided in the introductory paragraphs and will continue in effect until the earlier of (1) the termination of the Payment Processing Agreement;  (2) the termination of the CKO Services or these Sub-Merchant Terms by Checkout.com or Payment Scheme; or (3) the termination of the agreement between Checkout.com and the Regulated Platform

Checkout.com  may terminate these Sub-Merchant Terms at any time, which may limit or terminate your ability to use the CKO Services. Further, Checkout.com may terminate, suspend, or restrict these Sub-Merchant Terms if any Payment Scheme or government authority, at any time for any reason, requests or requires Checkout.com to terminate these Sub-Merchant Terms or limit your use of the CKO Services with respect to that Payment Scheme.

What happens if one Party cannot perform its obligations for reasons outside of its control?

Where one Party fails to do something under these Sub-Merchant Terms because of an event beyond that Party’s reasonable control (for example a natural disaster, strike, power outage or act of terrorism), that Party will not be treated as being in breach of these Sub-Merchant Terms, provided they took reasonable steps to avoid the breach. If that happens, the affected Party must inform the other Parties as soon as possible and take all reasonable actions to find a solution to the problem which allows it, as far as possible, to continue to perform these Sub-Merchant Terms. If the problem continues for more than 30 continuous days, then either party can write to the other and terminate these Sub-Merchant Terms immediately.

Checkout.com’s Software and Intellectual Property Rights

Checkout.com or Regulated Platform may make certain CKO Services available to you using Checkout.com’s API and software. Checkout.com may update or upgrade the APIs and software from time to time.

Whilst Checkout.com will always aim to make any upgrades or updates compatible, there might be cases where you will need to update or upgrade your integrations to align with the new versions of Checkout.com’s APIs and to comply with Applicable Law and/or get access to new features.

Checkout.com will tell the Regulated Platform about any material changes to the API, software and, where applicable, any other relevant software at least 2 months in advance. However, sometimes Checkout.com will provide less notice where it must comply with changes according to Applicable Law, Payment Scheme Rules and/or the requirements of third party acquirers or it needs to take action to improve security or otherwise protect its business.

Checkout.com (or its licensors) own all intellectual property rights subsisting in the API and/or the software including other related materials. You are granted a limited, non-exclusive and non-transferable personal licence (without the right to sub-licence) only to use the API, software and all other materials made available by Checkout.com solely for the purpose of using its services.

You must comply with any instructions Checkout.com sends to you or to the Regulated Platform by email or through a publication on the “Developers” section of the Checkout.com.com website (http://docs.checkout.com). If you don’t, then you will be in breach of these Sub-Merchant Terms and this may also result in a breach of Payment Scheme Rules.

You must not create, or attempt to create, any work based on Checkout.com’s intellectual property, or otherwise alter Checkout.com’s intellectual property.

What obligations exist in the event of a security breach?

If either: (1) Checkout.com, Regulated Platform, a relevant government authority or Payment Scheme, believes that you have suffered a security breach;  or (2) you become aware that there has been a compromise of any customer’s information, then you will be required to conduct a security audit of your systems and locations using an independent auditor at your own cost.

In the event of (2), you must notify the Regulated Platform promptly, but in no event later than 2 business days after you learn of such breach.

You must give Regulated Platform and Checkout.com a copy of the report, which they may then share with any relevant Payment Scheme, other provider or a government authority. You must also comply with all Applicable Law that may impose reporting, notification, or other compliance obligations on you in the event of a security breach.

What other miscellaneous terms apply?

The failure of Checkout.com to assert any of its rights under these Sub-Merchant Terms will not be deemed to constitute a waiver by it of its rights to enforce each and every provision of these Sub-Merchant Terms. These Sub-Merchant Terms may be amended by Checkout.com from time to time in the same manner upon notification by Checkout.com or the Regulated Platform on behalf of Checkout.com.

Checkout.com may inspect your locations and records to confirm that you are complying with these Sub-Merchant Terms and you agree to provide Checkout.com with reasonable access to do so.

These Sub-Merchant Terms may not be assigned by you without the prior written consent of Checkout.com. These Sub-Merchant Terms will be binding upon and insure to the benefit of the parties hereto and their respective permitted successors, transferees, and assignees.

If any provision of these Sub-merchant Terms is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and these Sub-Merchant Terms.

Who provides the service?

Checkout Ltd (company number 08037323)

Address: Wenlock Works, Shepherdess Walk, London, N1 7BQ, England

What authorisations does it have?

Checkout Ltd is authorised by the Financial Conduct Authority (“FCA”) as an electronic money institution under number 900816

It is a principal member of Visa Inc., MasterCard Worldwide, JCB, Union Pay International, Diners Club International/Discover Network Card Schemes

UK Payment Services Regulations 2017 (Corporate Opt-Out) (“PSRs”)

The Sub-Merchant confirms and agrees that: (i) it is not a consumer, micro-enterprise or a charity within the meaning of the UK Payment Services Regulations 2017; (ii) none of the provisions of Part 6 of the UK Payment Services Regulations 2017 apply to this Agreement; (iii) regulations 66(1), 67(3), 67(4), 75, 77, 79, 80, 83, 91, 92 and 94 of the UK Payment Services Regulations 2017 do not apply to this Agreement.

The Sub-Merchant also agrees that, notwithstanding any other provision of this Agreement, the time period for notifying Checkout.com of any unauthorised or incorrectly executed Transaction and/or Refund is sixty (60) days of the alleged error rather than the 13 months of regulation 76 of the UK Payment Service Regulations 2017.

The Sub-Merchant further confirms, for the avoidance of any doubt, that notwithstanding any other provision of this Agreement, Checkout.com is not liable to the Regulated Platform or you for the losses or damages that you may suffer as a result of the matters referred to in Part 6 of the UK Payment Services Regulations 2017.

Additional Component

The Sub-Merchant agrees that Checkout.com's Use Policy is incorporated by reference into this Agreement and provides additional terms and conditions related to the Services. This document is an "Ancillary Document" for the purpose of this Agreement. For the avoidance of doubt, neither the Ancillary Documents nor the parts of this Agreement that incorporate the terms of the Ancillary Documents constitute "framework contracts" for the purpose of the Payment Services Regulations 2017 for Payment Institutions, as amended from time to time or any implementation of that directive in the UK (including, without limitation, the UK Payment Services Regulations 2017, as amended from time to time).

Who provides the service?

Checkout SAS (company number 841033970).

Address: 37-39 rue de Surène, 75008 Paris, France.

What authorisations does it have?

Checkout SAS is authorised 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 (CB). 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 and https://euclid.eba.europa.eu/register/.

Payment Services Regulations - Opt-Out

The Sub-Merchant confirms that it is not a natural person acting for non-professional purposes; and agrees that (i) the provisions listed in Article L.133-2 of the French Monetary and Financial Code (“Code monétaire et financier”) (“FMFC”) and (ii) the provisions of Sections 3 and 4 of Chapter IV of Title I of Book III of the FMFC (except paragraph III of Article L. 314-7 of the FMFC and paragraph I of Article L. 314-13 of the FMFC), do not apply to this Sub-Merchant Agreement.

Additional Component

The Sub-Merchant agrees that Checkout.com's Use Policy is incorporated by reference into this Agreement and provides additional terms and conditions related to the Services. This document is an "Ancillary Document" for the purpose of this Agreement. For the avoidance of doubt, neither the Ancillary Documents nor the parts of this Agreement that incorporate the terms of the Ancillary Documents constitute "framework contracts" for the purpose of the EU Payment Services Directive, as amended from time to time or any implementation of that directive in the EU or EEA (including, without limitation, the FMFC, as amended from time to time).

Who provides the service?

Checkout MENA FZ-LLC (company number 92041)

Address: Office No. 1601-1609, Floor 16, Al Shatha Tower, Dubai Media City, United Arab Emirates

What authorisations does it have?

Checkout MENA FZ-LLC is registered and licensed by the Dubai Development Authority and is regulated by the Central Bank of the United Arab Emirates (“CBUAE”).

It is an affiliate member of Visa Inc., and principal member of MasterCard Worldwide Card Schemes.

UAE Consumer Protection Legislation Circular 8/2020 - Opt-Out

The Sub-Merchant confirms and agrees that (i) it is not a consumer within the meaning of the UAE Consumer Protection Regulation and its accompanying Consumer Protection Standards; and (ii) as a result, the provisions of the Consumer Protection Regulation and Consumer Protection Standards do not apply to this Agreement.