9.10 Visa/Mastercard Processing Merchant Services
In consideration of the mutual promises and covenants contained in this MERCHANT Agreement (“Agreement”), the parties agree as follows:
The Parties to this Agreement are
HCE Service Limited, a corporation duly organized and existing under the laws of the United Kingdom whose address is 8 The Drive, New Barnet, Barnet, EN5 1DZ, United Kingdom, hereafter referred to as payment facilitor IPOSUP.com “PF”, and
Merchant User, a person, partnership or corporation, whose address is registered in the IPOS WALLET app, hereafter referred to as “MERCHANT”.
For the purposes of this Agreement and the Schedules referred to herein, the following definitions apply unless the context explicitly requires otherwise:
Address Verification shall mean a service that allows MERCHANT to verify the home address of Cardholders with the relevant Issuer.
Card Association(s) shall mean a world wide incorporated body regulating and processing specific brands of credit cards, namely: VISA, MasterCard International and
Authorisation shall mean an affirmative response, by or on behalf of an Issuer to a request to effect a Transaction, that a Transaction is within the Cardholder’s available credit limit and that the Cardholder has not yet reported the Card lost or stolen.
Authorisation Center shall mean the facility or facilities designated from time to time by PF-ACQUIRER or PF to which MERCHANT shall submit all requests for Authorization.
Business Day shall mean any day other than (i) a Saturday or Sunday, or (ii) a holiday in Iceland and/or in the state where the MERCHANT has its establishment (iii) a day on which banking institutions in Iceland are authorized by law or by a regulatory order to be closed.
Card(s) shall mean credit, debit and prepaid cards of the brands specified in Annex 1.
Cardholder shall mean the person or the entity that are authorized to use a Card.
Card Not Present Transactions shall mean a Transaction, which is completed when neither the Cardholder nor the Cardholder’s Card is present at the point of sale, e.g. mail orders, telephone orders, e-commerce (Internet) orders or Pre-Authorised Recurring Order Transactions.
Card Present shall mean a Transaction in which the Card is swiped through a terminal, register or other device, capturing the Card information encoded on the matnetic strip.
Chargeback shall mean any debit of PF-ACQUIRER by the Card Association or, by a Card issuer, in accordance with the Card Association’s regulations.
Issuer shall mean a member of a Card Association that enters into a contractual relationship with a Cardholder for the issuance of one or more Cards.
Non-Qualified Transactions shall mean: (i) any Transaction submitted for processing more than 2 days past the time the Authorization occurred; (ii) any Transaction missing required data.
Pre-Authorised Recurring Order Transactions shall mean Transactions that have been pre-authorised by the Cardholder and for which the goods or services are to be delivered or performed in the future by MERCHANT without having to obtain approval from the Cardholder each time.
Qualified Transactions shall mean: (i) Visa and MasterCard retail transactions in which the Card is swiped; (ii) Visa Card Not Present telephone, mail or Internet Transactions processed with Address Verification Service (AVS) for countries where it is possible; or (iii) MasterCard telephone, mail or Internet transactions or (iv) Transactions that are part of a special registered program approved by the Associations.
Services shall mean the transaction processing services provided by PF-ACQUIRER and PF under this Agreement.
Transaction shall mean the acceptance of a Card or information embossed on the Card, for payment for goods sold and/or leased and/or services provided to Cardholders by MERCHANT. The term “Transaction” also includes credits, errors, returns and adjustments. A transaction may be done in the currencies stated in Appendix 4.
During the term of this Agreement, subject to the terms and conditions of this Agreement, PF agrees to perform certain services, on behalf of the MERCHANT in order to allow MERCHANT to accept and process Transactions. PF shall provide MERCHANT with the Services indicated in Annex 1, which can be amended from time to time by PF, subject to the terms and conditions of this Agreement. In the performance of its duties hereunder, PF shall be an independent contractor, and not an employee of PF-ACQUIRER.
PF agrees to provide MERCHANT with the Services indicated in Annex 1, as amended from time to time by PF, subject to the terms and conditions of this Agreement. MERCHANT agrees to participate in the card processing services program established by PF. PF may acquire transactions from merchants listed in Annex 5
Merchant Operating Account. Prior to accepting any Cards, MERCHANT shall establish a demand deposit account (“Operating Account”) through which fees, charges and credits due in accordance with this Agreement may be processed.
Rolling Reserve Account. Upon, or at any time after, execution of this Agreement, PF may establish a Rolling Reserve Account at any financial institution designated for the MERCHANT but the property of PF (“ Rolling Reserve Account”), for all future indebtedness of MERCHANT to PF that may arise out of or relate to the obligations of MERCHANT under this Agreement, including, but not limited to, Chargebacks, fees, and Card Associations’ fines and penalties, in such amount as PF from time to time may determine in its sole discretion. The Rolling Reserve is subject to a possessory lien on Collateral Agreement. MERCHANT shall be able to check the status of Rolling Reserve Account through an on-line facility. PF may fund the Rolling Reserve Account by deduction from payments due to MERCHANT or a charge against MERCHANT’s Operating Account or against any of MERCHANT’s accounts at PF. The Rolling Reserve Account will be maintained for a minimum of 6 months after the date on which this Agreement terminates or until such time as PF determines that the release of the funds to MERCHANT is prudent, in the best interest of PF, and commercially reasonable, and that MERCHANT’s account with PF is fully resolved. Upon expiration of this 6-month period or when PF determines that the release of the fund is prudent, in the best interest of PF and commercially reasonable, any balance remaining in the Rolling Reserve Account will be paid to MERCHANT. PF will inform MERCHANT in writing of any charges debited to the Rolling Reserve Account during this period. The calculation of the Rolling Reserve Account shall be as described in Annex 3. If during the terms of this Agreement PF agrees to a lower Rolling reserve rate, due to Merchant’s good practise or for other reasons, then PF may raise the rolling reserve rate to what was initially negotiated (Annex 3) upon 5 days warning, if PF considers in its absolute discretion that the precondition for the lower rate has changed.
MERCHANT hereby agrees that PF may appoint a trustee, on its own discretion, to manage the Rolling Reserve Account with accordance to the terms specified in this agreement with regard to the Rolling Reserve Account.
MERCHANT shall pay PF all fees specified on Annex 2, as amended by PF, from time to time. For each Transaction, PF will charge MERCHANT for the following :
- An amount equal to a specified percentage of the total cash price of each Transaction (“ Merchant Discount Rate”);
- A specified amount per Transaction (“Transaction Fee”);
- A specified amount per Other Fees (“Other Fees”).
The Merchant Discount Rate, Authorisation Fees and Transaction Fees are set forth in Annex 2. The Merchant Discount Rates are based on sales, not net sales. Different Merchant Discount rates may apply to Qualified and Non-Qualified Transactions, as shown on Annex 2. MERCHANT agrees that PF will deduct Merchant Discount rates from funds payable to MERCHANT or Rolling Reserve Account on a daily basis. MERCHANT also agrees to pay PF the amount of any fees, charges, fines or penalties assessed against PF-ACQUIRER by any Card Association or Issuer for MERCHANT’s violation of the by-laws, rules, regulations, guidelines, policy statements or threshold requirements of such parties. MERCHANT shall pay PF for any other services provided to MERCHANT by PF and for all other fees, including, but not limited to monthly service fees, Chargebacks and set-up fees provided for in this Agreement, as shown in Annex 2.
All amounts MERCHANT owes PF may be charged against funds payable by PF to MERCHANT or to Rolling Reserve Account, recouped by adjustment to any credits due to MERCHANT, or set off against any account or property PF holds for, or on behalf of, MERCHANT.
General Control Procedures. For a Card Not Present Transaction to be approved by PF the MERCHANT is obliged to perform the control procedures described in this section. MERCHANT will accept valid Cards as payment in connection with the sale of goods/services when the Card is not present and must perform the following checks in connection with such sales:
- That the Card Account Number is a valid VISA or MasterCard card number;
- That the expiration date on the Card has not expired;
- That the Card is not recorded on any black list that MERCHANT, PF-ACQUIRER or PF maintains or registered on the VISA Card Recovery Bulletin or in any MasterCard File;
- That the Card has a valid CVC2/CVV2 code.
When VISA International’s security standard Verified By VISA for online Transactions becomes mandatory for Acquirers and when MasterCard’s security standard MasterCard Secure Code becomes mandatory for Acquirers, MERCHANT will be obliged to conduct Verified By VISA security or MasterCard Secure Code Transactions in association with all VISA and MasterCard Card Settlements in connection with the sales of goods/services on the Internet.
For a Card Present Transaction to be approved by PF the MERCHANT is obliged to perform the control procedures described in this section and shall without exception use the electronic IPOS terminal.
a. When a Credit Card equipped with a microchip is presented at a sales venue, the MERCHANT shall always ensure that the Transaction is carried out in a manner where the IPOS terminal reads the microchip instead of using the Card’s magnetic strip.
The MERCHANT further undertakes, subject to liability, to carefully check the following safety factors:
- That the expiration date of the Card has not expired;
- That the Card is not recorded on any black list that MERCHANT maintains or is registered on the VISA Card Recovery Bulletin or in any MasterCard File;
- That the photograph on the back of the Card (if present) is the Cardholder’s;
- That the Card does not show any signs of having been tampered with;
- The MERCHANT shall not return the Card to the Cardholder until upon completion of these factors.
b. If the microchip of a Card is read by the IPOS terminal, the MERCHANT shall first enter the amount of payment, whereas the Cardholder places the Card in a special slot in the IPOS and enters the relevant PIN to confirm the payment.
If it proves necessary to have the IPOS terminal read the magnetic strip of the Card, the MERCHANT undertakes, subject to liability, to carefully check the following safety factors:
- That the expiration date of the Card has not expired;
- That the Card is not recorded on any black list that MERCHANT maintains or registered on the VISA Card Recovery Bulletin or in any MasterCard File;
- That the signature on the back of the Card conforms to the signature on the Transaction Receipt;
- That the photograph on the back of the Card is the Cardholder’s;
- That the Card does not show any signs of having been tampered with;
- The MERCHANT shall not return the Card to the Cardholder until upon completion of these factors;
- The MERCHANT is obligated and liable for fully carrying out the instructions that appear on the IPOS screen and/or on the printed slip from the IPOS printer;
- If there exists doubt regarding the rightful holder of a Card, the MERCHANT shall demand other personal identification for comparison and shall register the numbers stated therein, for example, in a passport or a driver’s license. This obligation is also held by MERCHANT´s even though the microchip of a Card is to be used in order to facilitate registering a Transaction in a IPOS terminal;
- If the signature line on the back of the Card has not been filled out, the MERCHANT shall demand that the holder of the Card presents other personal identification proving that he is the rightful Cardholder. If the Cardholder cannot, the MERCHANT shall seize the card.
Charges permitted without these procedures will be at MERCHANT’s own account and PF may subsequently require the Transaction to be corrected or cancelled, including by deducting it from MERCHANT’s next Settlement.
Issuing more than one Transaction Receipt for individual Transactions for the purpose of evading the Floor Limit is prohibited. Risk management is different depending on the nature of business and is programmed in the IPOS terminal used at any location. Due to the risk management in Card Transactions, PF reserves the right to review the Floor Limit if deemed necessary, and to carry out necessary control to ensure that everything is correctly carried out. The MERCHANT is obligated to abide by the rules and other instructions of PF regarding the Floor Limit and the necessary control.
A MERCHANT must not ask Cardholder to record a Card Number or other account information on the exterior of any order form or other similar device designed to be mailed.
The MERCHANT is obligated to seize a presented Card in the following instances:
- Instructions are received to this effect when requesting authorization over the telephone;
- Message to this effect appears on the IPOS screen and/or on the printed slip from the IPOS printer when electronically requesting authorization;
- The photograph on the Card or other factors indicate that the person presenting the Card is other than the Cardholder;
- The Card is recorded on the VISA Card Recovery Bulletin or in any MasterCard File.
If the MERCHANT does not take the Card away from the bearer of the Card in circumstances described above, the MERCHANT is deemed as having forfeited its right to receive payment for Transactions made with the MERCHANT through the Card, then or later. When the Card has been seized the MERCHANT shall cut it in two such that further use of the Card is not possible and send it to PF. If the Credit Card has a microchip an effort shall be made to avoid damaging it. The MERCHANT shall immediately notify PF that a Card has been seized from a Cardholder or the bearer of the Card. The same applies if there is reason to take the Card from a party presenting it or in the instance of justified suspicion arising that such was the case but seizing the Card was not successful. If a message appears on the IPOS screen of the MERCHANT to remove the Card from the Cardholder, the relevant printout from the IPOS terminal shall be sent to PF.
The MERCHANT is not authorised to hand over money against the presentation of a Credit Card.
MERCHANT acknowledges that when importing an existing database on existing customers that includes monthly recurring billing, PF can, in its absolute discretion, make limited exceptions to the CVC2/CVV2 and Verified by Visa/MasterCard Secure Code requirements under, among other, the following conditions:
- MERCHANT will mark the existing recurring billing Transactions and provide them to PF for a review in a batch;
- The batch will contain all fields of data that MERCHANT maintains including the billing date;
- MERCHANT must verify acceptable processing history on this recurring data;
- When the batch has been reviewed and if approved for waiver of CVC2/CVV2 and Verified by Visa/MasterCard Secure Code, the waiver will apply only to the Transaction records identified in that batch. MERCHANT will be allowed to charge those marked Transactions without CVC2/CVV2 and/or Verified by Visa/MasterCard Secure Code. PF can at any time withdraw his approval in his absolute discretion.
New Control Procedures and Credit and Fraud Risk Policy. PF may amend or introduce new control procedures, which MERCHANT agrees to undertake as quickly as possible and use its best efforts to implement to new procedures. In order to accomplish the task MERCHANT will work in close co-operation with PF and follow PF’s instructions. MERCHANT undertakes to familiarise himself with all material PF provides him with under this agreement and participate in PF training, on-line or otherwise. MERCHANT undertakes to abide by PF’s Credit and Fraud Risk Policy in Appendix 6.
Changes. The MERCHANT shall notify PF of any changes in the nature of its activities from that stated in the application at least one week before such changes are scheduled to take place. The notification duty equally applies if the MERCHANT offers new categories of items for sale, new service or ceases selling items or service, opens or closes a MERCHANT Outlet or website. Changes in the nature of MERCHANT’s activities that are not notified render PF the right to amend the agreement’s item on remuneration, and considerable changes authorise PF to terminate the Agreement. The MERCHANT shall furthermore inform PF about a new managing director, as well as any changes made in the MERCHANT’s granting of the power of procuration. If PF discovers that the MERCHANT is selling illegal merchandise by receiving a warning thereof from the Card Associations or other Risk Control contracting party, PF may either terminate this agreement or fine the MERCHANT in accordance with Annex 6.
In processing Transactions, MERCHANT shall use software programs that is suitable for the processing Services and includes fraud scrubbing for authorisation and transactions. The MERCHANT can use software programs from the PF or own software with an approval from the PF.
MERCHANT shall provide the information required by the PF – MERCHANT Fraud Detection Tools form provided to MERCHANT by PF and shall promptly notify PF of any changes in this information;
PF warrants that the software he has approved contains aggressive fraud scrubbing tools both for the processing and gateway.
Documenting Transactions. MERCHANT shall submit the following information to PF upon request:
- The DBA (“Doing Business As”) name of MERCHANT, name of MERCHANT and MERCHANT’s address;
- MERCHANT’s customer service telephone number if the Transaction is a mail, telephone or Internet Transaction;
- MERCHANT’s Internet address and e-commerce indicator;
- The MERCHANT Number assigned to MERCHANT by PF;
- The Card account number, validation date and/or expiration date of the Card, if one appears on the Card;
- The Name, address and telephone number of Cardholder and Visa CVV2 or MasterCard CVC2 number if the Transaction is a mail, telephone or Internet Transaction;
- Such additional information as may from time to time be required by PF and/or the relevant Issuer and/or Card Association.
MERCHANT shall not submit a Transaction to PF (electronically or otherwise) until MERCHANT has performed its obligations to the Cardholder in connection with the Transaction or obtained Cardholder’s consent for a Pre-Authorised Recurring Order Transaction. MERCHANT shall not transmit any Transaction to PF-ACQUIRER that MERCHANT knows or should have known to be fraudulent or not authorised by the Cardholder. MERCHANT is responsible for its employees’ actions. MERCHANT may transmit a Transaction that effects a prepayment of services or full prepayment of custom-ordered merchandise, manufactured to a Cardholder’s specifications, if MERCHANT advises Cardholder of the immediate billing at the time of the Transaction and within time limits established by the Card Associations.
Authorisation for Card Not Present Transactions. MERCHANT shall obtain Authorisation of Transactions as follows:
- All Card Not Present Transactions are at MERCHANT’s risk. As to each Card Not Present Transaction, MERCHANT warrants to PF that the person whose name is submitted to PF as Cardholder made the purchase. Upon breach of this warranty, PF may charge back the Transaction to MERCHANT. If PF charges back the Transaction to MERCHANT: (i) MERCHANT shall pay PF the amount of the Transaction, any Chargeback fee on Annex 2, plus any Card Association fine or assessment; and (ii) PF may charge all such amounts to to funds payable by PF to MERCHANT or Rolling Reserve Account without prior notice to MERCHANT;
- All Card Not Present Transactions must be electronically authorized via Software application and, in addition to the information required by this Agreement, each such request for Authorization also shall include: (i) an Authorization code, if required; (ii) the Cardholder’s address and Address Verification results; and (iii) in lieu of the Cardholder’s signature, a notation of (A) mail order (MO), (B) telephone order (TO), (C) e-commerce order (EO), or (D) pre-authorized order (PO) on the signature line;
- If MERCHANT accepts a Pre-Authorized Recurring Order Transaction, the Cardholder shall execute and deliver to MERCHANT a written request for this pre-authorization or make online acceptance. The written request or online approval shall be maintained by MERCHANT and made available upon request to PF. All annual billings must be reaffirmed at least once each year. MERCHANT shall not deliver goods or perform services covered by a pre‑authorization order after receiving notification from the Cardholder that the pre-authorization is canceled or from PF-ACQUIRER that the Card covering the pre-authorization is not to be honored; and
- MERCHANT shall verify Cardholder’s address with the Card Association network for countries where it is possible. For telephone or mail order sales, MERCHANT shall transmit a ticket/invoice number and shall perform address verification, where it is possible, in order to qualify for the Qualified Merchant Discount Rate.
MERCHANT shall not do any of the following with respect to any Transaction:
- Impose a surcharge on a Cardholder who elects to use a Card in lieu of payment by cash, check or other mode of payment;
- Charge a Cardholder more than the amount the Cardholder would pay if payment were made by cash or check;
- Establish a minimum or maximum Transaction amount;
- Obtain multiple Authorisations for amounts less than the total sale amount;
- Obtain Authorisation for purposes of setting aside Cardholder’s credit line for use in future sales;
- Extend credit for or defer the time of payment of the total cash price in any Transaction;
- Honour a Card except in a Transaction where a total cash price is due and payable;
- Make any special charge to or extract any special agreement or security from any Cardholder in connection with any Transaction;
- Transmit or accept for payment any Transaction that was not originated directly between MERCHANT and a Cardholder for the sale or lease of goods or the performance of services of the type indicated in MERCHANT’s application for card processing services initially submitted to and approved by PF-ACQUIRER;
- Honour or accept a Card as payment for any legal services or expenses arising out of or related to: (i) the defence of any crime other than a traffic violation; (ii) any domestic relations matter where such services or expenses are furnished to a person whose name is not embossed on a Card; or (iii) any bankruptcy, insolvency, compromise, composition or other process affecting Cardholder’s creditors;
- Use MERCHANT’s own Card, or one to which MERCHANT has access, to process a Transaction for the purpose of obtaining credit for MERCHANT’s own benefit;
- Redeposit a previously charged Transaction, regardless of whether the Cardholder consents;
- Initiate a Transaction credit without a balance in the Operating Account equal to the credit;
- Use the Software or any data received thereon for any other purpose other than for determining whether or not MERCHANT should accept checks or Cards in connection with a current sale or lease of goods or services;
- Use the Software or any data received thereon for credit inquiry purposes or any other purpose not authorised by this Agreement;
- Draw or convey any inference concerning a person’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living when any Card or check is processed as non-accepted;
- Disclose any information obtained through the Software to any person except for necessary disclosures to affected Cardholders, PF-ACQUIRER and/or the Issuer;
- Add any tax to Transactions unless applicable law expressly requires that MERCHANT be permitted to impose a tax. Any tax, if allowed, must be included in the Transaction amount and not collected separately;
- Disburse funds in the form of travellers checks, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from MERCHANT;
- Disburse funds in the form of cash;
- Accept a Card to collect or refinance an existing debt;
- Issue a transaction credit for returned goods or services acquired in a cash transaction;
- Make any cash refund to a Cardholder who has made a purchase with a Card. All transaction credits will be issued to the same Card account number as the sale; or
- Accept a card for sales by third parties.
Except otherwise provided, PF reserves the right to reject credit card sales transaction submitted by the MERCHANT under the following circumstances:
- if submitted after fifteen (15) days counting from the date of such transaction;
- if card is honored after the expiry date indicated thereon;
- if card is honored in spite of instructions indicated when card was verified through IPOS terminal;
- if amount of the sale transaction is altered, erased, or alleged to have been drawn improperly without the cardholder’s authority or corresponding counter signature;
- if cardholder or any representative of cardholder disputes the sale or transaction by any means whatsoever including but not limited to, telephonically, or by e-mail either to PF-ACQUIRER or PF or any supplier of support services to PF-ACQUIRER or PF.
- if there has been negligence, fraud or dishonesty on the part of the MERCHANT or any of its employees which should in any way affect or violate the terms and conditions of this AGREEMENT;
- if a sales transaction was written on two or more separate sales slips which indicates a multiple purchases or split sale to avoid calling for authorization;
- if charge sales slips are illegible, incomplete or unsigned;
- if there are clear indications that a party other than the genuine cardholder made the purchase.
PF-ACQUIRER and PF agree to disallow the MERCHANT from submitting approved transactions when only part of the amount due is indicated on a single transaction except under the following circumstance:
- when the balance of the amount of sales is paid by the cardholder by another method (cash, check, e-check, another card type) confirmed by the MERCHANT at the time of transaction;
- in a delayed delivery transaction whereby the goods, merchandise and/or services are to be delivered or performed at a later date and one transaction represents a “deposit” and the transaction represents the “balance” of the purchase price, the latter transaction being conditioned upon delivery of merchandise and/or completion of service. The transaction representing the balance shall not be presented to PF until the merchandise is delivered or the services performed. Separate authorizations are required on “deposit” and parts of the transaction and transactions will reflect “deposit” or “balance” according to association rules and regulations. No authorization with respect to “deposit” transaction shall bind or obligate PF to thereafter authorize the “balance” portion.
Prohibition of Furnishing Account Information. MERCHANT shall not, without the Cardholder’s consent, sell, purchase, provide or exchange Card account number information in the form of Transaction documents, mailing lists, tapes, journal rolls or other media obtained by reason of a Card to any third party.
Under no circumstances may the MERCHANT store in any system or in any manner, discretionary card-read data, CVV, CVC2/CVV2 data, iCVV, PIN, address verification service data, or any other prohibited information as set forth in the Card Scheme Rules, except during the authorisation process for a Transaction, that is, from the time an authorisation request message is transmitted and up to the time the authorisation request response message is received. The MERCHANT shall acknowledge that it is only allowed to store the Card Account Number, expiration date, Cardholder name, and service code, in a secure environment to which access is limited, and then only to the extent that this data is required for bona fide purposes and only for the length of time that the data is required for such purposes. If an account compromise occurs, the MERCHANT must notify PF immediately.
MERCHANT shall undertake to comply with and maintain strict security procedures to protect the Card Account Number and the Cardholder. These procedures include: storing the Card Number and any other information transferred from the Card in such a way that it does not fall into the hands of third parties. Today these procedures are PCI/DSS but MERCHANT undertakes to introduce, comply with and maintain new procedures as they may from time to time be referred to on www.visa.com/secured and www.mastercard.com/. PF will notify MERCHANT when new procedures are first introduced and specify time-limit for compliance.
The acceptance by PF of any Transaction processed in accordance with the terms of this Agreement shall be without recourse to MERCHANT, except for: (i) Card Not Present Transactions; (ii) as otherwise indicated in this Agreement; and (iii) as follows:
- No specific prior Authorisation for the Transaction was obtained from the Authorisation Center, the approval number does not appear in the electronic transmittal that is maintained by PF, or the Transaction was submitted to PF-ACQUIRER or PF thirty (30) days or more after the date on which the goods and/or services to which the Transaction relates were purchased or leased by the relevant Cardholder;
- The Transaction was based on a pre-authorisation form and the Card on which the Authorisation was based has been canceled and MERCHANT was so notified prior to the Transaction;
- The Card giving rise to the Transaction was cancelled and prior to, or at the time of, the Transaction, MERCHANT received notice of the cancellation through the electronic terminal, in writing or otherwise;
- The Card expired prior to the date of the Transaction or the date of Transaction was prior to the validation date;
- The information required in Sections 14 and 15 above was not submitted to PF;
- PF or Issuer has received a complaint from or on behalf of a Cardholder stating that there is an unresolved dispute or defence to a charge (whether or not valid) between MERCHANT and Cardholder;
- The Cardholder makes a written complaint to PF or Issuer that the Cardholder did not make or authorise the Transaction;
- A setoff or counterclaim of any kind exists in favour of any Cardholder against MERCHANT that may be asserted in defence of an action to enforce payment against the Cardholder in a Transaction;
- The Transaction was made at or by a MERCHANT other than MERCHANT named in this Agreement;
- The Transaction otherwise violates the terms of this Agreement or any other Association or Issuer bylaw, rule, regulation, policy or guideline;
- A Transaction is charged back by an Issuer;
- Any representation or warranty made by MERCHANT in connection with the Transaction is false or inaccurate in any respect.
In any such case, PF shall not be obligated to accept a Transaction for credit to the Operating Account or Rolling Reserve Account. If PF has credited the Operating Account for such a Transaction, PF may return the Transaction to the MERCHANT, and MERCHANT shall pay PF the amount of the Transaction. MERCHANT agrees that PF, without prior notice to MERCHANT, may (i) charge the amount of the Transaction to the Operating Account or Rolling Reserve Account; (ii) recoup the amount of the Transaction by adjustment of the credits due to MERCHANT; or (iii) set off the amount of the Transaction against any account or property PF holds for or on behalf of MERCHANT. If MERCHANT disagrees with PF’s decision to charge back a Transaction, MERCHANT must so notify PF in writing within 7 days of the Chargeback, and provide documentation that the dispute has been resolved to Cardholder’s satisfaction or proof that a credit has been issued.
MERCHANT undertakes to respond to PF’s copy request and provide required documents within 7 days.
Without limiting the generality of any other provision of this Agreement, if PF, take legal actions against MERCHANT for any Chargebacks or any amounts due to PF-ACQUIRER or PF hereunder, MERCHANT shall pay the costs and attorneys’ fees incurred by PF-ACQUIRER and/or PF, whether suit is commenced or not.
Maintenance of Chargeback Rates. MERCHANT undertakes to use all reasonable efforts to maintain Chargeback rates of MasterCard and VISA within the card associations’ limits as they may change from time to time. PF will inform MERCHANT of such changes when they occur by e-mail.
Currently the chargeback rate of VISA shall stay below 2.0% and no more than 20 chargeback Transactions per month. If both parameters are broken, fines can be expected. Fines will be charged as a sum amount, calculated in accordance with Visa rules from a fixed fee per chargeback in accordance with Annex 2 of this agreement.
Currently the chargeback rate of MasterCard shall stay below 1,0 % (calculated from sales transactions in the preceding month) and no more than 5 chargeback Transactions per calendar month. If both parameters are broken for two consecutive calendar months, fines can be expected. Fines will be charged as a sum amount, calculated in accordance with MasterCard rules from the excessive chargeback ratio and a fixed fee per chargeback in accordance with Annex 2 of this agreement.
MERCHANT shall also immediately notify PF when it is foreseeable that chargeback Transactions will be more than 0,5% and more than 5 transaction during a calendar month.
A reporting fee according to Annex 2 of this agreement will be charged to MERCHANT for each Chargeback-Monitored Merchant (CMM) Report and/or Excessive Chargeback Merchant (ECM) Report that PF will need to sent to MasterCard on behalf of the MERCHANT according to MasterCard rules.
PF will use reasonable efforts to maintain efficient chargeback management services, both by supporting rationale representments and by given advice on how to avoid chargeback.
Reconciliation of Transactions.
Settlement Currency: PF will be settled with by the Card Associations in the respective currency of an account setup for each MERCHANT and PF. PF’s payment to the MERCHANT (and the AGENT) shall be in the same currency as the settlement by the Card Associations. Furthermore, should PF’S Settlement bank account be credited on a holiday/non-working day in Iceland, PF shall pay the MERCHANT the following working/banking day
Electronically Transmitted Transactions: Transactions will be settled in accordance with Annex 2. PF shall deliver payment to MERCHANT by a credit to the Operating Account equal to the reconciled summary Transaction total of all of MERCHANT’s total summary Transactions since the previous credit. This credit will be reduced, if necessary, by: (i) the sum of all Cardholder charges denied, refused or charged back; (ii) all refunds processed on account of Cardholders during said time period; (iii) the fees and charges, including Chargebacks, MERCHANT owes PF-ACQUIRER or PF hereunder; (iv) all taxes, penalties, fines, charges and other items incurred by PF-ACQUIRER that are reimbursable pursuant to this Agreement; and (v) all rates, fees and charges described on Annex 2.
Reconciliation of Transactions: MERCHANT shall reconcile each settled Transaction within fifteen (15) days after the date on which such Transaction is submitted to PF for payment, and shall notify PF immediately of any discrepancies or errors MERCHANT notes as a result of such reconciliation. Neither PF-ACQUIRER nor PF shall have any responsibility or liability for Transaction-related errors or omissions that are brought to their attention more than thirty (30) days after the date on which the Transaction to which such error or omission relates is first presented to PF for settlement.
Provisional Credit: Any credits to the Operating Account are provisional only and subject to revocation by PF until such time that the Transaction is final and no longer subject to Chargeback by the Issuer, Cardholder or Associations. PF may withhold payment for a Transaction to MERCHANT, for any reason, for a period of time not to exceed seven Business Days from the processing date of a Transaction.
With regards to items a., b., and c., above, PF pays to MERCHANT, as long as funds to be transferred, exceed a minimum amount of USD 100 or equivalent amount in the event of another currency. Where the amount payable to MERCHANT is lower than the mimum amount the amount payable is deferred until the total amount reaches the minimum limit.
Adjustments and Returns. MERCHANT will maintain a fair exchange and return policy and make adjustments with respect to goods and services sold and/or leased to its customers whenever appropriate. If goods are returned, or services are terminated or canceled, or any price is adjusted, MERCHANT will prepare and transmit a credit or refund Transaction, electronically, for the amount of the adjustment as a deduction from the total amount of Transactions transmitted that day. If the amount of credit or refund Transactions exceeds the amount of sales Transactions, MERCHANT shall pay PF the excess. MERCHANT shall make no cash refunds on Transactions and shall handle all credit adjustments as provided in this Section. PF will receive and accept refund transaction for 60 days. However, where the Agreement has been terminated PF will receive and accept refund transaction for 30 days. If no refund will be given, Cardholder must be advised in writing that the sale is a “final sale” and “no returns” are permitted at the time of the Transaction. Cardholder also must be advised in writing of any policy of MERCHANT that provides for no-cash refunds and in-store credit only. MERCHANT shall follow Card Association reservation/no-show policies. MERCHANT shall notify Cardholders in writing of this policy on all advance reservations. MERCHANT also shall notify Cardholders at the time of the reservation of the exact number of days required for reservation deposit refunds.
Any complaints about the Services shall be settled by MERCHANT and the Cardholder. PF is not liable for any claims arising from such complaints or the business relationship between MERCHANT and the Cardholder and it does not undertake any intercession under the circumstances that such claims arise. MERCHANT shall treat any complaints from Cardholders in the same way as complaints from any other customers.
Retention of Original Sales Information. MERCHANT is responsible for safeguarding the originals of Transaction Receipt in an organized manner for 7 years from the date of the Transaction according to Icelantic and English law. At the request of PF-ACQUIRER, MERCHANT shall provide such information to PF-ACQUIRER or PF, as directed by PF, within five (5) days of receipt of a request from PF. Failure to meet such time frame or non-delivery of any item or delivery of an illegible copy of an item requested by an Issuer shall constitute a waiver by MERCHANT of any claims and may result in an irrevocable Chargeback for the full amount of the Transaction.
Customer Complaints. MERCHANT shall respond promptly to inquiries from Cardholders and shall resolve any disputes amicably. If unresolved disputes occur with a frequency unacceptable to PF, PF may terminate this Agreement. PF reserves the right to charge MERCHANT reasonable fees and reimbursement on account of excessive Cardholder inquiries, refunds or Chargebacks. MERCHANT agrees to maintain the following information in writing with respect to each claim or defense asserted by a Cardholder for which MERCHANT has received notice:
- The Cardholder’s name;
- The Card account number;
- The date and time the Cardholder asserted the claim or defence;
- The nature of the claim or defence; and
- The action that MERCHANT took in an attempt to resolve the dispute.
Upon request, MERCHANT shall furnish PF with this information in writing within 7 days.
MERCHANT shall treat all information received in connection with this Agreement as confidential. MERCHANT shall prevent the disclosure of this information except if required so by this Agreement or by law, and not before PF are notified of the disclosure.
Compliance with Card Association rules. MERCHANT agrees to comply with the bylaws, rules, regulations, policy statements and guidelines of the Card Associations.
This Agreement shall become effective when signed by all parties and, unless sooner terminated, shall remain in effect for a term of three (3) years. This Agreement shall renew automatically for a successive terms of three (3) years each, unless any party provides written notice of termination to the other parties at least 90 days prior to the end of the then-current term. All existing obligations, warranties, indemnities and agreements with respect to Transactions entered into before such termination shall remain in full force and effect, and MERCHANT shall remain liable for all obligations to Cardholders and PF incurred while this Agreement was in effect.
Card Associations’ and Issuers’ Requirements. MERCHANT shall comply with all bylaws, rules, regulations, policies and guidelines of the Card Associations and any Issuer whose Cards are used to process Transactions in accordance with this Agreement. MERCHANT will display prominently at its place of business Card emblems and other promotional material and literature provided by/through PF. Subject to the prior written consent of PF and upon such conditions as authorized by PF, MERCHANT may use Card service marks or design marks in its own advertisement and promotional materials.
Compliance with Applicable Law. MERCHANT represents and warrants that it has obtained all necessary regulatory approvals, certificates and licenses to sell any product or provide any service it intends to offer. MERCHANT shall comply with all present and future federal, state and local laws and regulations.
MERCHANT undertakes to label its MERCHANT Outlets and/or the home page/main page and payment page in a way that shows that MERCHANT accepts VISA and/or MasterCard as a means of payment and in compliance with the card associations’ rules governing the display of such label. This label shall be placed in a prominent position and shall be at least as prominent as other card labels/logos appearing on MERCHANT’s place of business and/or website.
MERCHANT may only use logos/designs approved by VISA and MasterCard. For VISA Cards logos shall only be according to site http://www.usa.visa.com/business/MERCHANTs/flags_and_specifications.html. For MasterCard Cards logos shall only be according to site http://www.mastercardbrandcenter.com/mcbrand/us/home.do.
The MERCHANT use of PF, VISA and/or MasterCard trademarks, whether registered or not, does not entail any transfer of ownership rights or copyrights. PF does not pay for the publication of the trademarks, neither at the venue of sale nor in advertisements.
For Card Not Present Transactions the MERCHANT undertakes to display the following on the MERCHANT’s website:
- Terms of trade.
- Security Capabilities and policy for transmission of payment card details;
- The address of its Permanent Establishment.
- Contact details.
- VISA and MasterCard logos.
Warranties. MERCHANT warrants to PF that all credit card sales transactions submitted to PF:
- represent bona fide sale of merchandise and/or services in the ordinary course of business for the total price;
- involve no advance of cash and no transaction other than the regular sale of goods/services for which MERCHANT is primarily engaged;
- will not be defective, illegal or otherwise, as may impair enforceability of collection thereof from the named cardholder;
- pertain to sale of merchandise and/or service. MERCHANT assumes full responsibility on any such merchandise and/or service returned and/or questioned by the cardholder. MERCHANT shall indemnify and hold PF free and harmless from any claim relating to any transaction paid to the MERCHANT as may be made by way of defense, dispute, offset, counterclaim or affirmative action of cardholder.
- will not damage the goodwill of the Card Schemes or reflect negatively on the respective brand;
- is not a sale that is not in compliance with the Card Scheme Rules or the operating instructions or with local laws that are applicable to the respective sale;
- Transactions that arises from the acceptance of Credit Cards at terminals that dispense scrip.
- MERCHANT warrants that he is not in breach of local laws or is engaged in the supply of material that is not generally accepted by the public in the jurisdictions MERCHANT operates in, and local law, e.g., material which is patently offensive and lacks serious artistic value (such as, by way of example and not limitation, images of nonconsensual sexual behaviour, sexual exploitation of a minor, child pornography, nonconsensual mutilation of a person or body part and bestiality);
- MERCHANT warrants that he is not engaged in money laundering, including the laundering of sales Transaction Receipts;
- MERCHANT warrants that he will not present to PF transactions in the event of MERCHANT having actual knowledge of any information that would indicate in any manner that the enforceability or collectability of any indebtedness is subject to any dispute, claim, offset or other defence of the Cardholder, or is otherwise impaired.
- MERCHANT warrants that all information supplied by MERCHANT or any person on its behalf to PF-ACQUIRER in connection with this agreement was and remains true and complete in all respects and there is no other material affairs of MERCHANT that have not been disclosed to PF.
If MERCHANT becomes aware of any information that indicates that any representation or warranty set forth in this agreement is or may be false, MERCHANT will immediately make PF aware of such information.
Each party hereto shall report its income and pay its own taxes to any applicable jurisdiction. If PF-ACQUIRER or PF are required to pay any taxes, interests, fines or penalties owed by MERCHANT, said amount shall become immediately due and payable by MERCHANT to PF-ACQUIRER or PF. If excise, sale or use taxes are imposed on the Transactions, MERCHANT shall be responsible for the collection and payment thereof. PF shall be entitled to recover any of said taxes paid by it on behalf of MERCHANT from MERCHANT immediately after payment.
Limitation of Liability. In addition to all other limitations on the liability of PF-ACQUIRER and PF contained in this Agreement, neither PF-ACQUIRER nor PF shall be liable to MERCHANT or MERCHANT’s customers or any other person for any of the following:
- Any loss or liability resulting from the denial of credit to any person or MERCHANT’s retention of any Card or any attempt to do so;
- Any loss caused by a Transaction downgrade resulting from defective or faulty Software regardless if owned by PF-ACQUIRER, PF or MERCHANT;
- The unavailability of Services caused by the termination of contracts with computer hardware vendors, processors or installers, whether terminated by PF-ACQUIRER, PF or any other person for any reason; or
- Interruption or termination of any Services caused by any reason except for failure of PF to repair or replace Software or to use due care in selecting computer hardware installers; and in such cases, any liability shall be solely that of PF and the liability of PF shall be limited to a waiver of terminal or software fees due under this Agreement.
NEITHER PF-ACQUIRER NOR PF SHALL BE LIABLE FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES TO MERCHANT OR TO ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE SERVICES TO BE PERFORMED BY PF-ACQUIRER OR PF PURSUANT TO THIS AGREEMENT.
MERCHANT ACKNOWLEDGES THAT PF HAS PROVIDED NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY SOFTWARE INSTALLED OR PROVIDED BY PF AND THAT PF HAS NO LIABILITY WITH RESPECT TO ANY SOFTWARE. PF MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES IT PROVIDES HEREUNDER. SHOULD THERE BE ERRORS, OMISSIONS, INTERRUPTIONS OR DELAYS RESULTING FROM PF-ACQUIRER’S OR PF’S PERFORMANCE OR FAILURE TO PERFORM OF ANY KIND, PF-ACQUIRER’S AND PF’S LIABILITY SHALL BE LIMITED TO CORRECTING SUCH ERRORS IF COMMERCIALLY REASONABLE OR SUPPLYING SUCH OMISSIONS IN THE WORK PRODUCT IN WHICH THEY HAVE OCCURRED.
Limitation on Damages. In no case shall MERCHANT be entitled to recover damages from PF or PF-ACQUIRER that exceed the fees retained by PF pursuant to this Agreement during the one month period immediately prior to the event giving rise to the claim for damages.
MERCHANT agrees to indemnify and hold PF harmless from any and all losses, claims, damages, liabilities and expenses, including attorneys’ fees and costs (whether or not an attorney is an employee of PF-ACQUIRER or PF’s affiliates, PF or affiliates of PF) arising out of any of the following:
- MERCHANT’s failure to comply with this Agreement;
- Any act or omission of MERCHANT;
- MERCHANT’s failure to comply with any bylaw, rule, regulation, guideline or policy of any Association or Issuer;
- MERCHANT’s failure to comply with any applicable law, rule or regulation;
- Fees and fines levied against PF as the result of MERCHANT exceeding one or more Association thresholds or standards. If any such fee or fine is imposed on PF as a result of the activities of more than one MERCHANT, such fee or fine will be assessed to MERCHANT proportionately, as determined by PF.
- Any dispute concerning the quality, condition or delivery of any merchandise or the quality of performance of any service;
- The fraud or dishonesty of MERCHANT or MERCHANT’s employees, licensees, successors, agents and/or assigns;
- MERCHANT’s selection of an Internet service provider or other telecommunication services provider;
- The theft of or damage or destruction to any Software; or
- Card Not Present Transactions, unauthorized Transactions and prohibited Transactions.
Any release, payment or discharge between PF and MERCHANT shall be conditional upon no security or payment made or given to PF being avoided, reduced, set aside or rendered unenforceable by virtue of any provision or enactment now or hereafter in force relating to bankruptcy, insolvency or liquidation. If any such security or payment shall be avoided, reduced, set aside or rendered unenforceable PF shall be entitled to recover the full amount or value or any such security or payment from MERCHANT and otherwise to enforce this section as if such release, payment or discharge had not taken place.
Termination of Agreement by PF. PF may terminate this Agreement upon 30 days’ prior written notice to the other parties. In addition, PF may terminate this Agreement without notice to MERCHANT under any of the below listed circumstances. Any such notice of termination by PF is effective upon mailing.
Any information concerning MERCHANT obtained by PF is unsatisfactory to PF in PF’s sole discretion;
Any act of fraud or dishonesty is committed by MERCHANT, its employees and/or agents, or PF believes in good faith that MERCHANT, its employees and/or agents have committed, are committing or are planning to commit any acts of fraud or misrepresentation;
- Chargebacks are excessive in the opinion of PF;
- Breach of this Agreement by MERCHANT;
- Any representation or warranty made by MERCHANT in this Agreement is not true and correct;
- MERCHANT files a petition under any bankruptcy or insolvency law;
- MERCHANT fails to maintain sufficient funds in the Operating Account to cover the amounts due to PF hereunder;
- MERCHANT’s percentage of error Transactions or retrieval requests is excessive in the opinion of PF;
- Any insurance policy obtained by PF or MERCHANT relating to Transactions and/or Chargebacks is cancelled or terminated for any reason;
- MERCHANT fails to provide financial statements suitable to PF on request; or
- PF does not or cannot perform its duties under this Agreement and PF determines that it is not feasible to provide to MERCHANT the Services contemplated by this Agreement. PF is not obligated to provide replacement of Services if PF does not or cannot perform;
- The MERCHANT ceases to conduct the business in the same way as it was operated at the time of conclusion of this Agreement;
- The MERCHANT acts in contravention of generally accepted business practice;
- There is a significant change in MERCHANT turnover or number of transactions without prior approval from PF;
- MERCHANT’s business practices cause, in PF’s absolute discretion, a risk of loss or any other event or series of events whether related or not (including, without limitation, any material adverse change in the business assets or financial condition of the MERCHANT) occurs which in the opinion of PF may affect the ability or willingness of the MERCHANT to comply with all or any of its obligations or meet all or any of its possible liabilities under this agreement;
- MERCHANT has not started processing within two months after PF has issued the MERCHANT ID number;
- If new management or new owners of MERCHANT have previously been in default of an agreement regarding Credit Cards, subjected to its termination, the company is authorized the immediate termination of the agreement;
- If anything happens to the MERCHANT or in relation to the MERCHANT or arising from or incidental to the MERCHANT’s business or the conduct of the MERCHANT’s business (including trading practices and individual activities) that PF in his absolute discretion considers disreputable or capable of damaging PF’s reputation or that of any of the Card Schemes, detrimental to PF’s business or that of any of the Card Associations, or that may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity.
- Card Association require PF to terminate the Agreement either towards MERCHANT or PF.
- In the event of the discharge of the agreement, MERCHANT shall cease charging Cards forthwith and shall remove physical or electronic information indicating association with the Cards without delay. MERCHANT also undertakes to return all electronic information and equipment received from PF. If this has not been returned within one month PF has the right to levy reasonable periodical fines until its return.
- PF may selectively terminate one or more of MERCHANT’s approved locations without terminating this entire Agreement. In the event of termination, all obligations of MERCHANT incurred or existing under this Agreement prior to termination shall survive the termination. MERCHANT’s obligations with respect to any Transaction shall be deemed incurred and existing on the transaction date of such Transaction.
In addition to any other legal or equitable remedy available to it in accordance with this Agreement or by law, PF may set off any amounts due to PF under this Agreement against any property of MERCHANT in the possession or control of PF.
Credit Investigation and PF Auditing. PF may audit, from time to time, MERCHANT’s compliance with the terms of this Agreement. MERCHANT shall provide all information requested by PF to complete PF’s audit. MERCHANT authorises parties contacted by PF to release the credit information requested by PF, and MERCHANT agrees to provide PF a separate authorisation for release of credit information, if requested. MERCHANT shall deliver to PF such information as PF may reasonably request from time to time, including without limitation, financial statements and information pertaining to MERCHANT’s financial condition. Such information shall be true, complete and accurate. Upon request by PF, MERCHANT shall provide to PF its balance sheet and income statements not less frequently than every three calendar months during the term of this Agreement
Amendments to this Agreement. From time to time PF-ACQUIRER may amend this Agreement as follows:
Amendment to Cards and/or Services. PF may amend or delete Cards or Services listed in Annex 1 by notifying MERCHANT in writing of any amendment. All provisions of this Agreement shall apply to Cards or Services added to this Agreement. PF shall notify MERCHANT of the fees to be for processing the additional Cards and Services. Acceptance by MERCHANT of a new approved Card as payment for a Transaction or use of a new Service after PF has sent MERCHANT notice of an amendment shall constitute MERCHANT’s agreement to the amendment and the fees or charges related to these additions.
Amendment to Fees and Charges. From time to time, PF may change all rates, fees and charges set forth on Annex 2. PF will provide written notice to MERCHANT of all amendments. PF may change the rates, fees and charges without prior written notice for due cause, such as MERCHANT’s sales volume or average Transaction amount not meeting MERCHANT’s projections as contained in MERCHANT’s application for card processing services. If notice is required, PF will give written notice All new rates, fees and charges will become effective for the month immediately following the month in which a notice was sent unless MERCHANT terminates this Agreement in accordance with Section 36.
Amendments to all other Provisions. PF may amend this Agreement in any manner other than as described in Section 41(a) or 41(b) above simply by providing written notice of such amendment to MERCHANT, and such amendment shall become effective on the latter of: (i) the date on which such written notice is received by MERCHANT; or (ii) a date specified by PF in such written notice.
Assignment. This Agreement may not be assigned by MERCHANT without the prior written consent of PF. PF may assign this Agreement without limitation. Assignment of this Agreement by PF shall relieve PF of any further obligations under this Agreement.
In the instance of a Change in ownership of MERCHANT a notification shall be sent to PF. PF can in its absolute discretion decide whether this agreement shall continue in effect or terminates and shall notify MERCHANT of its decision within one month after the receipt of notification.
PF reserves the right to fulfil any of its duties and powers under this agreement by the use of agents and sub-contractors as long as such practice is in compliance with the Card Association Rules.
Financial Accommodations. PF and MERCHANT intend this Agreement to be construed as a contract to extend financial accommodations for the benefit of MERCHANT.
To the extent that MERCHANT becomes a debtor under any law regarding liquidation and/or bankruptcy, and such event does not result in the termination of this Agreement, MERCHANT hereby unconditionally and absolutely waives any right or ability that MERCHANT may otherwise have had to oppose, defend against or otherwise challenge any motion filed by PF for relief from any automatic stay granted by law, to enforce any of PF’s rights or claims under this Agreement.
In their dealings with one another, each party agrees to act reasonably and in good faith and to fully cooperate with each other in order to facilitate and accomplish the transactions contemplated hereby.
Entire Agreement. This Agreement, together with the Annexes attached hereto, supersedes any other agreement, whether written or oral, that may have been made or entered into by any party (or by any officer or officers of any party) relating to the matters covered herein and constitutes the entire agreement of the parties hereto. Notwithstanding, an agreement between PF-ACQUIRER and PF or between PF and MERCHANT that explicitly provides otherwise shall prevail.
Force Majeure. The parties shall be excused from performing any of their respective obligations under this Agreement which are prevented or delayed by any occurrence not within their respective control including but not limited to strikes or other labor matters, destruction of or damage to any building, natural disasters, accidents, riots or any regulation, rule, law, ordinance or order of any federal, state or local government authority.
If any provisions of this Agreement shall be held, or deemed to be, or shall in fact be, inoperative or unenforceable as applied in any particular situation, such circumstance shall not have the effect of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses or sections herein contained shall not affect the remaining portions of this Agreement or any part hereof.
All notices, requests, demands or other instruments which may or are required to be given by any party hereunder shall be in writing and each shall be deemed to have been properly given when (i) served personally on an officer of the party to whom such notice is to be given, (ii) upon expiration of a period of three (3) Business Days from and after the date of mailing thereof when mailed postage prepaid by registered or certified mail, requesting return receipt, or (iii) upon delivery by a nationally recognised overnight delivery service, addressed as follows:
|If to PF:
|If to MERCHANT:
|With A Copy To:
Any party may change the address to which subsequent notices are to be sent by notice to the others given as aforesaid.
Governing Law. This Agreement shall be governed and construed in accordance with the laws of Englan, without regard to internal principles of conflict of laws.
Captions in this Agreement are for convenience of reference only and are not to be considered as defining or limiting in any way the scope or intent of the provisions of this Agreement.
No Waiver. Any delay, waiver or omission by PF to exercise any right or power arising from any breach or default of the other party in any of the terms, provisions or covenants of this Agreement shall not be construed to be a waiver of any subsequent breach or default of the same or any other terms, provisions or covenants on the part of the other party. All remedies afforded by this Agreement for a breach hereof shall be cumulative.
By signing below, the parties agree to the terms of this Agreement. If MERCHANT is a corporation, its proper corporate officers sign. This Agreement may be signed in one or more counterparts and all signed agreements shall be considered as one.
Agreed to and accepted on: ___Electronic Contract______________.