Terms & Conditions

These General Terms and Conditions outline the terms and conditions under which PAYMENTWORLD Europe Ltd., a company incorporated under the laws of Malta, registered with the Registry of Companies under company number C65783, having its registered office at Pieta, Malta and its business address at Skyway Offices, Office 3, Block A 177, Marina Street, Pieta PTA 9072, Malta (“PWE”) will provide Services to the MERCAHNT as specified in the Payment Service Agreement (“Agreement”). In case of any conflict or discrepancies between these General Terms and Conditions and the provisions of the Agreement including its Appendices, the provisions of the Agreement shall prevail. PWE and MERCHANT shall ensure full compliance with the Association Rules as well as the rules of any other financial institution or payment provider, if applicable. In case of any conflict between these General Terms and Conditions and the Association Rules, the provisions of the Association Rules shall prevail.

Definitions

For the purpose of the Agreement and its Appendices as well as of these General Terms and Conditions the following definitions apply:

Verantwortliche Stelle und Datenschutzbeauftragter

Verantwortliche Stelle nach Artikel 4 Nr. 7 DSGVO ist:

Paymentworld Europe Ltd.
Skyway Office Block A, Suite 3
177 Marina Street
PTA 9072 Pieta
Malta

E-Mail-Adresse: info@paymentworld.eu.

Weitere Angaben zu uns können Sie dem Impressum auf unserer Website
entnehmen.

Sie erreichen unseren Datenschutzbeauftragten am besten per E-Mail:
dpooffice@paymentworld.com

oder schriftlich unter der oben angegebenen Adresse.

Acquirer or Acquiring Bank

a financial institution that is licensed by an Association to acquire MERCHANT’s Transactions and process them for clearing and settlement purposes; Acquirer is identified in Appendix C of the Agreement;

Alternative Payment Method

any payment method other than Card used by a Customer in order to fulfil a payment obligation or to top up the eWallet such as but not limited to PayPal, PaySafeCard or Sofortüberweisung;

Applicable Law

any and all applicable national and European laws and regulations applicable to a Transaction, the prevailing rules and regulations of any regulatory authority and the Association Rules to which each Party is subject in respect of the performance of its obligations under the Agreement, including without limitation all consumer credit and consumer protection statutes and regulations and any data protection laws to the extent applicable to a Party;

API

Application Programming Interface used for transmission of information between an application and programs, in this case to transfer information between the marketplace and the payment gateway of PWE.

Issuer:

an entity that is a member of the Association and that issues Cards to Cardholders pursuant to the Association Rules;

Consents

all licences, permissions, consents, authorisations, registrations and approvals from all relevant authorities, Government Bodies, Associations or other regulatory bodies as are necessary or desirable for a Party to fully and effectively perform its obligations under this Agreement;

Best Industry Practice

the standards that would be expected from an experienced and skilled service provider in the relevant industry for the provision of comparable services, having regard to factors such as the nature and size of the parties, the service levels, the term, the pricing structure, the locations in which the Services are being provided, and any other relevant factors;

Force Majeure Event

an event beyond the reasonable control of the affected Party, including war, but not limited to circumstances beyond its control, including but not limited to acts of God, fire, explosion, civil commotion, insurrections, riots, strikes or industrial disputes of any kind (whether of its own or third party employees);

Gateway Services

the technical processing of Transactions between the Acquiring Bank, PWE and MERCHANT and the services providing MERCHANT with an interface to be able to accept sales from customers over the internet ;

Fees

any fees payable by MERCHANT (and that are regularly offset against proceeds of a Transaction) for the provision of Services as set out in Appendix B (services and pricing) of the Agreement;

Business Day

means a day in the Territory other than (i) a Saturday or Sunday, (ii) a holiday observed by PWE, or (iii) a day on which PWE remains closed in accordance with Applicable Law;

MERCHANT Account

technical term, refers to a settlement account at a financial institute enabling to settle any payments based on provision of payment services by PWE;

Cardholder Information

all information about the Cardholder, including, without limitation, any Cardholder’s name, account number, or any information about any Transaction;

Card

a valid credit card, debit card or similar payment instrument (including a virtual or electronic instrument) that is issued to a Cardholder pursuant to a licence from one of the Associations;

Cardholder

an individual or an entity for whose use one or more Cards have been issued from time to time;

Association:

an entity such as MasterCard or Visa; that operates payment systems and grants licences to card issuing companies and the Acquirer and in respect of which PWE agrees to provide processing and settlement of an Transaction;

Customer

a natural person, partnership, association or legal entity that is customer of a merchant;

KYC

“know your customer”;

KYC Process

the process carried out by PWE in order to fulfil the KYC requirements requested by Associations, other financial institutions or public authority;

Services

any services provided to MERCHANT by PWE as agreed upon in the Agreement and its Appendices, in particular Payment Processing Services, Gateway Services or other payment related services;

Payment Card Industry Data Security Standards (PCI DSS):

a worldwide set of comprehensive requirements for enhancing payment account data security, as released from time to time by the PCI Security Standards Council;

Intellectual Property Rights

without limitation any patent, trademark, trade name, business name (including domain names and URLs), copyright and related rights, registered design, database right, unregistered design right (including rights in semiconductors) or other intellectual or industrial property protection and any application for such protection, and all rights in any secret process, know-how and inventions (whether patentable or registrable or not) or other confidential information in each case whether registered or unregistered and including applications for the grant of such rights and all other rights or equivalent forms of protection anywhere in the world;

Government Body

any foreign, national, international, regional, federal, state or local or other governmental authority or regulatory body including the European Union and any court, agency, authority or similar body;

Association Rules

the current and future bylaws, rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Association (as amended from time to time by such Association), which are applicable to the Services or other payment methods, including the rules and operating instructions applicable to the PCI DSS; Association Rules can be reviewed as follows:

Relevant Personal Data

personal data, being data used to identify a natural person (i) contained in the Transaction Data; (ii) relating to any merchant or Transaction; and / or (iii) generated or otherwise processed as a result of the performance of the obligations of either Party under this Agreement;

Payment Service Provider Guidelines

the guidance provided by PWE to MERCHANT in Appendix A of the Agreement as notified to MERCHANT in writing from time to time, that set forth the “dos and don’ts” to be observed by MERCHANT;

Chargeback

an invalid or disputed Transaction that is rejected by a Cardholder or by an Issuer and is returned under the Association Rules;

Transaction

the purchase or lease by a Customer of goods and / or services from MERCHANT, settled via a Card or Alternative Payment Method;

Transaction Data

all information required or used by the Associations and / or the Acquirer and / or a payment service provider and / or PWE in order to process a Transaction;

Transaction Record

an electronic or paper record of a Transaction generated at the point of sale or website evidencing the purchase of goods or services by a Customer using a Card or any Alternative Payment Method;

Agreement

the payment service agreement concluded between PWE and MERCHANT;

Territory

European Economic Area;

Services of PWE

1) The Services to be provided by PWE to MERCHANT are specified in the Agreement. PWE will only provide the Services to MERCHANT upon successful completion of its KYC Process and its anti-money-laundering and risk due diligence in accordance with the laws of Malta and the Federal Republic of Germany as well as European law, including, but not limited to, Directives 95/46/EC and 2005/60/EC and acceptance of MERCHANT by an Acquiring Bank and / or a provider of Alternative Payment Method, if not directly accepted by PWE in accordance with PWE’s ability as payment facilitator.

2) Changes to the Services shall generally be agreed upon between the Parties in written form. Notwithstanding the foregoing, PWE may issue new policies with regard to the Services, which will be published on www.paymentworld.eu. PWE will notify MERCHANT by giving thirty (30) Business Days’ written notice in advance, unless the change is required immediately due to legal or regulatory requirements. If MERCHANT does not raise any objections against the amendments prior to the point of time when pursuant to the notice of PWE the changes will become effective, and PWE has pointed out this legal consequence, it is deemed that MERCHANT has accepted the changes. In the event MERCHANT raises an objection to the changes, PWE is entitled to terminate the Agreement according to clause 14..

3) MERCHANT authorizes and instructs PWE (i) to act as its payment facilitator in connection with any Transaction in accordance with the terms and conditions set forth in the Agreement and these General Terms and Conditions and (ii) to claim on its behalf, but for the account of MERCHANT, the settled transaction amounts from the Acquiring Bank or the relevant financial institution. PWE shall be entitled to receive and to hold this amount on behalf of MERCHANT.

4) Depending on the Services agreed upon in the Agreement, MERCHANT may have to enter into additional agreements with the Acquiring Bank or other financial institutions or with PWE or its affiliates and / or provider of Alternative Payment Methods in order for PWE to render the Services to MERCHANT. If such agreement is required, but not concluded for any reason, the effected payment method or the specific service to be covered by the additional agreement shall not be considered part of the Services and PWE shall not be responsible in any way whatsoever for the nonavailability of the relevant payment method or specific service.

MERCHANT Obligations

1) MERCHANT will notify PWE immediately – by at least thirty (30) Business Days’ advance written notice prior to the effectiveness of the change – of any relevant changes, including, but not limited to legal representative(s), bank account (for settlement), website / online shop URL, major ownership (10 % or more), key geographical markets, financial standing, type, scope or nature of your business of business, change of business name or entering into a joint venture or joint marketing agreement.

2) MERCHANT shall

  • provide PWE with any information necessary to provide the Services and respond promptly, at least within ten (10) Business Days, to requests of PWE to provide direction, information, approvals, authorizations or decisions that PWE deems necessary to perform the Services;
  • submits only unchanged and complete Transaction applications (i.e. including the account number, card expiry date, MERCHANT name or location, the Transaction amount or date, Cardholder signature, description of product or services, or authorization code et seqq.) for settlement purposes; in case of altered or incomplete information, such transaction will not be executed;
  • assist PWE with the implementation and performance of the Services, if necessary;
  • implement adequate security measures to prevent its programs from damage including data (re-) storage;
  • not forward its access data (User ID, password) for the Services to any third parties. MERCHANT acknowledges that, for security reasons, ghost names and pseudonyms cannot be used; and
  • inform PWE immediately, if an employee or any other person, who was given access to the Services, resigns. PWE will close this access for security reasons.

If PWE is unable to perform the Services for any reasons beyond the control of PWE which are caused by MERCHANT, PWE shall not be held responsible in any way.

3) While using the Services, MERCHANT undertakes

  • to provide such necessary information to its Customers as required pursuant to Applicable Laws;
  • not to sell any goods or offer services prohibited pursuant to Applicable Laws;
  • to comply with the Association Rules;
  • to comply with applicable European and / or national data protection laws;
  • to perform its obligations towards its Customers, including the assumption of responsibility for the acceptance of a Customer order and its fulfilment, in the agreed manner;
  • not to use the Services for any improper purpose or in any manner, which may constitute a violation of Applicable Laws or which may cause damage to PWE’s reputation or which may expose PWE to investigation, prosecution or legal action; and
  • to indemnify PWE and hold PWE harmless for all costs (including reasonable legal fees) and damages incurred resulting from a claim by a customer of MERCHANT or any other third party in connection with the business model or an act or omission of MERCHANT.

4) Before MERCHANT conducts any Transaction – if applicable – it will initiate an authorization for the full amount of the Transaction. Authorization is required for each instalment of instalment transactions.

5) In the event a “monthly transaction limit” is prescribed for MERCHANT (by an Acquirer), MERCHANT shall not process or submit Transactions that aggregate more than the “monthly transaction limit” established separately for MERCHANT.

6) MERCHANT will not use the services of any bank, corporation, entity or person other than PWE for authorization of Transactions throughout the term of the Agreement.

Chargebacks in case of credit card

1) All credit memos and payments of PWE to MERCHANT are subject to a Chargeback pursuant to the Association Rules. PWE will immediately inform MERCHANT about any Chargeback of payment amounts.

2) MERCHANT shall immediately pay PWE the amount of the Chargebacks without any further demand from PWE, unless a settlement with any sales or proceeds from submitted Transactions against MERCHANT is not possible.

3) A Chargeback may result from the following circumstances:

  • The Transaction Record is illegible or the data contained therein is otherwise indiscernible, .
  • MERCHANT fails to obtain prior authorization for the Transaction, if applicable in an individual case (e.g. reservation of a hotel or a rental car).
  • The Transaction Record is a duplicate of an item previously paid or is one of two or more Transaction Records generated in a single Transaction in violation of the Agreement.
  • The Cardholder disputes the validity or authorization of the Transaction Record, or the sale, delivery, quality or performance of the goods or services purchased; or alleges that a credit adjustment was requested and refused, or that a credit adjustment was issued by MERCHANT but not posted to the Cardholder’s account.
  • PWE determines that MERCHANT has violated any term of the Agreement in connection with the Transaction Record or the related Transaction.
  • PWE determines that the Transaction Record is fraudulent or that the related transaction is not a bona fide transaction in the ordinary course of MERCHANT’s business or is subject to a claim of illegality, cancellation, rescission, avoidance or offset for any reason whatsoever, including without limitation negligence, fraud or dishonesty for which you, your agents or employees are responsible.
  • The Transaction Record arises from a mail order, telephone order, or e-commerce transaction that the Cardholder disputes entering into or authorizing, or involves an account number that never existed or has expired.
  • In any other situation in which a Transaction has been charged back to PWE in accordance with the Chargeback rules established by the Association.

4) PWE may charge back a Transaction in accordance with this section 4 even if an required authorization was obtained. PWE may impose a handling fee for each Chargeback that is processed. PWE may from time to time, at its sole discretion, and without prior notice, change the Chargeback fee. If the Chargeback activities of MERCHANT exceed a ratio of 1 % (calculated by dividing the number of Chargebacks in any month by the number of sales during that month) or any other amount as set forth by an Association, MERCHANT will pay an additional per-item charge established by PWE for processing such excessive Chargebacks (see Appendix B Services and Pricing). Since Association Rules may not allow the reversal of a Chargeback in certain electronic Transactions, MERCHANT agrees to accept all Chargebacks issued pursuant to the Association Rules. MERCHANT may also be charged a Chargeback research fee. If after MERCHANT Account has terminated, and MERCHANT fails to instruct us PWE to where to transmit funds that PWE is holding and that are due to MERCHANT, PWE may deduct a compensation associated with the maintenance of such funds on a monthly basis.

Security deposit in case of credit card transactions

1) Without prejudice to other statutory security interest and other securities agreed in this Agreement the Parties agree the following in order to secure all existing and future (including conditional and time restricted) claims of PWE against MERCHANT, in particular, claims for payment due to Chargebacks including any penalties of an Association: PWE is entitled to withhold an amount as percentage of the total turnover of card transactions as indicated in the Agreement or its Appendices, calculated within the respective settlement period from submitted card transaction data less any Chargebacks and credit memos (“Security Deposit”). The amount of the Security Deposit is based on the mandatory provisions in the Association Rules and currently amounts to 10 %. The Parties acknowledge that the Associations may amend the amount of the Security Deposit from time to time. Thus, PWE shall be entitled to amend the amount of the Security Deposit towards MERCHANT, based on an amendment of the Association Rules. MERCHANT hereby accepts and agrees to such amendment.

2) MERCHANT grants PWE the irrevocable security interest in view of funds and proceeds, that are in the possession of PWE based on the settlement of a payment by Credit Card and that are generally to be disbursed to MERCHANT, in the amount of the Security Deposit and MERCHANT assigns its claim against PWE of payment of the amount collected under the condition subsequent of the uneventful expiry of the period for a Chargeback in trust. The Parties agree that PWE shall be entitled to freely dispose on the Security Deposit in order to pay any Chargeback amounts and any costs in connection with the Chargeback.

3) After the expiry of one hundred eighty (180) days the respective withhold funds shall be disbursed to MERCHANT on a rolling basis, unless agreed otherwise in the following.

4) The Parties’ rights and obligations under this section 5 shall survive the termination of the Agreement, at least for a period of one hundred eighty (180) days, but in any case as long as any of MERCHANT’s transactions remain subject to Chargebacks.

Fees

MERCHANT is obliged to promptly – within ten (10) Business Days – pay the Fees and charges PWE establishes for the Services according to Appendix B (services and pricing) of the Agreement unless these are settled as indicated in the following; payments made by the Acquirer to PWE with reference to the Agreement will be passed through to MERCHANT minus applicable Fees and charges for the Services, including (without limitation) the following, to the extent applicable:

1) Service Fees. These are Fees listed in Appendix B (services and pricing) of the Agreement, as amended by PWE from time to time.

  • Fines and penalties: The Associations may impose fines or penalties upon PWE for violations of the Association Rules. The Associations may charge PWE a Chargeback handling fee or fine, for example, if MERCHANT exceeds certain thresholds set by the Association. PWE is entitled to settle any such fines and penalties against proceeds from the Transaction. Besides that, MERCHANT is obliged to pay or reimburse PWE (of fines and penalties caused by it) within twenty-four (24) hours of PWE’s request, whether or not MERCHANT intends to protest the Association’s assessment. MERCHANT may contact PWE for information regarding Association Chargeback limitations and fines.
    • 2) Legal fees and costs: PWE will pass through to MERCHANT, the legal fees and costs PWE necessarily incurred in seeking legal advice that MERCHANT is obliged to pay pursuant to and in accordance with the conditions of Sec. 8.1. The legal fees include, but is not limited to, contract disputes, legal procedures, bankruptcy or other similar events, whether the fees or costs are incurred during or after the term of the Agreement.

      3) Set up fees: If MERCHANT terminates the Agreement before an agreement between MERCHANT and the Acquirer has been concluded, PWE shall be entitled to claim for compensation for set up costs – such as costs of verifying management, use of partner-databases or costs of due diligence and other – in the amount of EUR 1,500.00 up to EUR 2,000.00. MERCHANT shall be entitled to furnish proof of lesser damage.

Representation and Warranties of MERCHANT

Without limiting any other warranties in accordance with the Agreement, MERCHANT represents and warrants by way of an independent warranty that

1) Sthe information provided in the application and the KYC Process is true and accurate and provides an accurate picture of the true nature of MERCHANT’s business;

2) each Transaction submitted for processing represents a bona fide sale or lease of the goods, products or services which MERCHANT has provided in its ordinary course of business and the transaction is not submitted on behalf of a third party;

3) the Transaction does not involve any element of credit for any purpose other than payment for a current transaction (including payment of a previouslydishonoured check) and, except in the case of approved instalment or pre-payment plans, the goods have been shipped or services actually rendered to the Cardholder;

4) the Transaction is free from any alteration not authorized by the Cardholder;

5) the amount charged in the Transaction is not subject to any dispute set-off or counterclaim;

6) to MERCHANT’s best knowledge the Transaction does not indicate any facts or circumstances which would impair the validity or collectability of the Cardholder’s obligation and the transaction is in compliance with all Applicable Laws, ordinances and regulations; and MERCHANT has originated the Transaction in compliance with the Agreement and the Association Rules;

7) to MERCHANT’s best knowledge, the goods described in each Transaction are MERCHANT’s sole property and it is free to sell them;

8) MERCHANT has made no representations or agreements for the issuance of refunds except as it states in its return / cancellation policy;

9) for a Card sale where the Cardholder pays in instalments or on a deferred payment plan, a Transaction Record has been prepared separately for each instalment or deferred payment on the date(s) the Cardholder agreed to be charged. All instalments and deferred payments, whether or not they have been submitted to PWE for processing, shall be deemed to be a part of the original Card sale.

10) MERCHANT will not hold any funds on behalf of its Customers. It is PWE’s sole duty in case to hold Customer funds in order to process payment transactions among Customers of MERCHANT if applicable.

Indemnification, Liability and limitation of liability

1) MERCHANT shall indemnify and keep PWE and any member of its affiliates (together with its officers, servants and agents) indemnified from any and all liability, losses, damages, costs, penalties and fines incurred or suffered (including reasonable professional legal fees) or other assessments imposed on PWE, arising out of any dispute or proceedings brought by a third party, including any Government Agency, against PWE or any member of its Affiliate arising out of

  • any breach of any of its obligations under the Agreement, including, without limitation, any breach or alleged breach of any of the warranties and representations of the Agreement or
  • any act within MERCHANT’s reasonable sphere of control or
  • any violation of any Applicable Law or Association Rule or
  • any violation security guidelines or failure (whether negligent or otherwise) to maintain the security or confidentiality of Cardholder Information, or your misuse of any such information.

2) PWE shall not liable to MERCHANT

  • for damages resulting from the provision of the Services and ancillary services relating to KYC and account Information in accordance with the Agreement and the Applicable Laws, unless directly caused by its gross negligence or wilful misconduct;
  • for any failure or delay in performing its obligations under the Agreement if such failure or delay is caused by acts or omissions of third parties or circumstances beyond PWE’s control. For the avoidance of doubt, any act regarding the provision of the Services, especially the nonexecution or incorrect execution of a payment by PWE (such as an unauthorized payment) shall be considered as within PWE’s reasonable sphere of control; in the case of an intermediary the liability of PWE shall be limited to the due selection of the first intermediary; and
  • for any consequential, indirect, incidental, reliance or exemplary damages arising out of or relating to the Agreement and its Appendices as well as these General Terms and Conditions.

3) In the case of a simple negligent breach of essential contractual duties which are indispensable for the attainment of the contract purpose and which MERCHANT must therefore be able to rely upon (so-called cardinal contractual obligations) the liability of PWE shall be limited to damages that are typical of this type of contract and foreseeable when concluding the contract.

4) In addition to the limitation of liability pursuant to Sec. 8.3 PWE’s liability for simple negligence shall be limited to an amount of EUR 25,000.00 per damaging event and to an amount of EUR 50,000.00 per calendar year.

5) Except in respect of payment liabilities, neither Party shall be liable for any failure to perform or delay in performing its obligations under the Agreement if such failure or delay is caused by a Force Majeure Event, however to the Party so delaying immediately notifying the other Party in writing of the reasons for the delay and the likely duration of such delay; and such Party shall be granted an extension of time for performance equal to the period of delay, provided always that if the conditions of Force Majeure Event apply for a period of more than three (3) months either Party may terminate the Agreement immediately upon providing notice of termination in writing to the other Party.

6) Notwithstanding the foregoing, nothing in the Agreement or its Appendices, including these General Terms and Conditions, shall exclude or limit the liability of a Party for wilful misconduct or gross negligence, for an injury of life, limb or health, or damage or loss incurred by the other Party as a result of the fraud of that Party or in case of a breach of a warranty by PWE.

Monitoring of MERCHANT activity

1) PWE is entitled to monitor MERCHANT’s daily Transaction activity. MERCHANT acknowledges that PWE periodically reviews MERCHANT relating to the KYC Process during the term of the Agreement, including inter alia, monitoring of fraud reports and Chargeback rates, screening against sanctions and PEP lists, Website content checks and periodic credit ranking and monitoring of settlement reports.

2) MERCHANT authorizes PWE to obtain, from time to time, credit, financial, and other information regarding MERCHANT from third parties, such as credit reporting agencies. MERCHANT authorizes PWE to respond to requests from others about PWE’s experience with MERCHANT. MERCHANT agrees to provide PWE, at its request, with:

  • an updated financial statement;
  • information regarding the ownership, character and nature of your business; and
  • the estimated amount and volume of MERCHANT’s future Transactions.

3) MERCHANT commits to provide any requested information about the MERCHANT, the Customer and / or the Cardholder for purpose of a possible requested revision of the Transactions, in each case considering the relevant data protection provisions and the Association Rules.

Confidentiality and data protection

1) “Confidential Information” means any information belonging to or in the possession or control of a Party that is of a confidential, proprietary or trade secret nature and that is furnished disclosed or imparted by one Party (the “Disclosing Party”) to the other (the “Receiving Party”), including, but not limited to, any technical or non-technical information (whether in oral, written or other form), Relevant Personal Data, ideas, confidential or proprietary concepts, know-how, development, reports, designs, flow charts, data, specifications, computer programs, databases, inventions and any commercial, financial and business information (in any form), industry knowledge and expertise, business plans and strategies, marketing plans and techniques, which relates directly or indirectly to the Agreement including the relationship between the Parties arising out of the Agreement as well as all information for which a Party owes a duty of confidentiality to any third Party. Confidential Information will remain sole property of the Disclosing Party. Confidential Information shall not include information which

  • was demonstrably already in the possession of the Receiving Party before receipt under the Agreement or is independently developed by the Receiving Party without access to or use or knowledge of the Confidential Information;
  • was demonstrably lawfully received by the Receiving Party or its employees from a third party free of any obligations of confidence to such third party; or
  • demonstrably is in or subsequently comes into the public domain other than by breach of the Agreement.

2) The Receiving Party shall only use the Confidential Information as strictly necessary for the performance of its obligations under the Agreement and maintain confidential all Confidential Information and not disclose it to any third party except in confidence and on a need to know basis to its employees, officers, advisers, agents or sub-contractors who are subject to confidentiality obligations in respect thereof under their contracts of employment or engagement. Confidential Information may be disclosed in accordance with judicial or governmental order or if required by Applicable Law or court order

3) Each Parties shall exercise at least the same degree of care as it uses with its own data, but in no event less than reasonable care, to protect the Confidential Information from misuse and unauthorized access or disclosure, including

  • maintaining adequate physical controls and password protections for any server or system on which any data may reside;
  • encrypting any data that is in transmission; and
  • encrypting any data located on any storage media.

3) Relevant Personal Data shall only be processed in accordance with applicable data protection law. The Parties shall only collect, save and process Personal Data that are necessary, adequate, relevant and not excessive in relation to the purpose for which they are collected or further processed.

4) If at any time either Party determines that account number information has been compromised, such Party will notify the other Party immediately and assist in providing notification to the proper parties as PWE deems necessary. MERCHANT’s information may be shared by PWE with its affiliates in terms of provisions of the Agreement and Association Rules.

5) MERCHANT shall exercise the utmost care to prevent the disclosure of any Customer and / or Card or Cardholder Information, other than to the applicable Association, or as specifically required or permitted by Applicable Law and the Association Rules. MERCHANT agrees not to use any account information or other Customer / Cardholder Information other than for the sole purpose of completing the Transaction authorized by the customer for which the information was provided to MERCHANT, or as specifically allowed by Association Rules or required by Applicable Law. MERCHANT shall limitaccess to Cardholder Information to a secure area that is only accessible to selected personnel. MERCHANT’s disposal procedures must ensure the security of all Cardholder Information and all Cardholder Information that has been discarded must be rendered unreadable. MERCHANT may not retain or store magnetic stripe data and / or Card Verification Value 2 (CVV2) magnetic stripe data after a transaction has been authorized. If MERCHANT stores any electronically captured signature of a Customer / Cardholder, MERCHANT may not reproduce such signature except upon our specific request. MERCHANT acknowledges that it will not obtain ownership rights in any information derived from Transactions.

Intellectual Property Rights

Each Party acknowledges the Intellectual Property Rights of the other Party whether registered or not. MERCHANT shall pay full compensation to PWE for any violation of PWE’s copyrights or other Intellectual Property Rights. PWE will pursue any violation of its Intellectual Property Rights with claims for injunctive relief and damages. PWE is entitled to refer to MERCHANT as reference customer and to use its name, brand and logo for all kinds of marketing activities and campaigns free of charge, including, but not limited to, the use in marketing folders. MERCHANT herewith agrees that PWE’s logo is displayed to MERCHANT’s Customers, whenever MERCHANT uses the standard payment selection page and / or standard payment details page.

Termination for Good Cause

Either Party may terminate the Agreement at any time with immediate effect by giving prior written notice to the other Party if:

  • the other Party commits a material breach of any provision of the Agreement which, in the case of a breach capable of being remedied, has not been remedied to the satisfaction of the Party claiming the breach within thirty (30) Business Days’ of notice in writing specifying the breach and requiring the same to be remedied having been given; or
  • the other Party becomes insolvent or being unable to pay its debts as they fall due or any corporate action, legal proceedings or other procedure or step is taken or threatened in relation to (i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation, (ii) a composition, assignment or arrangement with any creditor or (iii) the appointment of a liquidator, receiver, trustee in bankruptcy, judicial custodian, compulsory manager, administrative receiver, administrator or similar office
  • the other Party commits (or its representatives or Affiliates commit) fraud; or
  • if it is required to do so due to an amendment of mandatory Applicable Law or due to a decision by a court or a Government Body.

2) PWE may at any time terminate the Agreement or individual Services of the Agreement with immediate effect if:

  • MERCHANT fails to notify PWE of any material change in the nature of its business, goods and / or services or of any additional business MERCHANT commences or any material business MERCHANT closes down within five (5) Business Days of such change;
  • an event occurs that may affect or a matter is brought to the attention of PWE which it considers may affect MERCHANT’s ability or willingness to comply with any or all of its contractual obligations or liabilities hereunder or if any other change in MERCHANT’s circumstances or the circumstances of MERCHANT’s business occurs (including a deterioration in or a change of MERCHANT’s financial position or ownership) which PWE, acting in good faith, considers material to the continuance of the Services;
  • PWE, acting in good faith, reasonably considers any activity or omission of MERCHANT to increase the risk of a claim against or loss or liability of PWE or a financial institution in its financial network;
  • any security granted to PWE by MERCHANT ceases to be enforceable, is withdrawn or loses considerable value;
  • the Association Rules require PWE to terminate the agreement or if an Association gives notice to PWE that it considers the provision of the Services to MERCHANT to constitute a breach of the Association Rules;
  • MERCHANT violates any duty to collaborate under the Agreement;
  • the Services are used by any third party or any third party benefits from the Services of PWE without PWE giving its prior written consent;
  • PWE, acting in good faith, reasonably believes that MERCHANT is involved in any activities or omissions that would qualify as a criminal offence pursuant to Applicable Laws;
  • MERCHANT disrupts PWE’s regular business activities by means of, for example, spoofing, parameter tampering, exploitation of bugs, brute force or denial of service attacks and any other malicious activities;
  • MERCHANT exceeds any threshold set out in Association Rules;
  • PWE is required by any Associations, Acquiring Banks or an order from any Government Body to cease providing Services to MERCHANT;
  • MERCHANT fails to successfully pass any anti-money-laundering or risk due diligence or KYC Process executed by PWE or fails to provide to PWE the relevant PCI certificate or PCI Self-Assessment Questionnaire upon request;
  • MERCHANT does not accept a variation of the risk and security arrangements (i.e. processing limit, reserve requirements) following any assessment or evaluation of MERCHANT.

3) Any termination of the Agreement does not relief MERCHANT of any obligations to pay any fees or costs accrued prior to termination and any other amounts owed by MERCHANT to PWE as provided in the Agreement and its Appendices or in these General Terms and Conditions. MERCHANT will continue to be responsible for any and all Chargebacks, credits and adjustments and all other amounts then due, or which later become due.

4) In the event, MERCHANT stops processing or any transaction in the course of this Agreement, PWE is entitled to invoice a minimum fee as indicated in Appendix B (services and pricing) and to reserve respective amounts to cover payment of such fees by MERCHANT.

Suspension of Services

1) If MERCHANT fails to probably fulfil its relevant obligations under the Agreement, PWE is entitled to suspend its services. In that case PWE shall notify MERCHANT thereof within three (3) Business Days following the suspension. In particular, the following cases entitle to suspension of services:

  • suspicious or unusual Transaction activity (that deviates from the processing of payments in the course of the ordinary business, e.g. in view of the amount of the payment to be processed);
  • material variance in the nature of MERCHANT’s business, type of product and / or service sold or average ticket size, monthly volume or swiped / keyed percentages, from such disclosures made by MERCHANT in the Agreement;
  • MERCHANT does not authorize Transactions;
  • MERCHANT receives excessive retrieval requests against its prior activity; or
  • excessive Chargebacks are debited against MERCHANT’s prior activity.

PWE shall provide MERCHANT with notice of such action.

2) Suspension of Services shall be for any reasonable period of time required by PWE to fully investigate MERCHANT’s account activity and resolve, to PWE’s sole satisfaction, the subject questionable, suspect or fraudulent Transactions or activity of MERCHANT.

3) In any event indicated in Sec. 13.1.1 to 13.1.5 PWE shall be entitled to divert the disbursement of received payments and any funds of the relevant Transaction for a reasonable time required to clarify the Transaction in question. Any such funds diverted shall be maintained by a separate noninterest bearing bank account and shall be disbursed immediately after clarification of the matter.

4) The right to extraordinary termination as set herein shall remain unaffected by such suspension.

Amendment of General Terms and Conditions

PWE is entitled to amend these General Terms and Conditions from time to time. MERCHANT shall be notified in writing no later than thirty (30) Business Days before the amendments become effective, unless these amendments are required immediately due to legal or regulatory requirements. Such amendments shall be deemed approved, unless PWE has received a written objection from MERCHANT prior to the indicated point in time when the amendment shall become effective. The notification to MERCHANT shall point out this consequence and lay out the material content of the amendments. In case MERCHANT raises an objection, PWE shall have the right to terminate the Agreement by giving two (2) weeks’ notice within six (6) weeks following the receipt of the objection.

Miscellaneous

1) All notices and declarations in connection with this Agreement which either Party may be required or desire to give to the other Party under the Agreement shall be in written form – unless otherwise agreed – (signed letter or facsimile). To the extent expressly agreed with PWE notices and declarations may be delivered electronically via e-mail. The requirement for written form shall also apply to an amendment of the form requirement

2) Neither the Agreement nor any rights, duties or obligations under it may be assigned, delegated, transferred, or otherwise disposed of by MERCHANT in whole or in part without the prior written consent of PWE, provided that the rights, duties and obligations of PWE under the Agreement may be assigned, delegated, transferred or otherwise disposed of, in whole or in part, to an affiliate and third party without MERCHANT’s prior written consent.

3) Neither Party shall publicise the existence of the referred arrangements between the Parties and / or the terms of the Agreement without the prior written approval of the other Party.

4) No failure or delay (in whole or in part) of either Party to the Agreement to enforce at any time any provisions of the Agreement, or to exercise any rights or remedies provided by law or under the Agreement shall be construed to be or operate as a waiver thereof or affect any other right or remedy. No single or partial exercise of any such right, power or remedy shall prevent any further or other exercise of the same or the exercise of any other right, power or remedy.

5) If any provision of the Agreement shall be declared invalid, unenforceable or illegal by the courts of any jurisdiction to which it is subject, such invalidity, unenforceability or illegality shall not prejudice or affect the remaining provisions of the Agreement which shall continue in full force and effect and the Parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the invalid, unenforceable or illegal provision which as nearly as possible validly gives effect to their intentions as expressed in the Agreement.

6) The Agreement shall be construed in accordance with and governed in all respects by Maltese law and the Parties hereto submit to the nonexclusive jurisdiction of the Malta Courts.