TERMS AND CONDITIONS – MERCHANT (FRAMEWORK TERMS) FOR MOTO
1. DEFINITIONS AND INTERPRETATION
1.1 In this Contract:-
"Acceptable Use Policy" means the Nochex Acceptable Use Policy as may be amended from time to time and published on the Nochex website;
"Account" means a Nochex Emoney stored value account and "Account Holder" shall be construed accordingly;
"Acquirer" means the financial institution to which the Company will route transaction data for authorisation, clearing and settlement purposes;
"Associated Company" means in respect of the Company, any and all companies which are subsidiaries or holding companies of the Company (as appropriate) or any subsidiary of such holding company from time to time and "subsidiary" and "holding company" shall have the same meanings as set out in section 736 of the Companies Act 1985 as amended by section 144 of the Companies Act 1989;
"Authorisation" means the methodology whereby the Card Issuer confirms that there are sufficient funds on the account to support the Card Transaction and that the Card has not been reported as lost or stolen;
“Autosweep” is an automated Withdrawal setting available to eligible Merchants;
"Available Balance" has the meaning set out in Paragraph 9;
"Card" means a current debit or credit card that the Company may accept for processing, as advised to the Merchant from time to time and "Cardholder" means the legitimate and rightful holder of the Card;
"Card Issuer" means a financial institution that issues Cards to Cardholders;
"Card Transaction" means a Transaction undertaken by the Merchant with a Cardholder;
"Chargeback" means a disputed Card Transaction that is or may be charged to the Company by the Card Issuer/Acquirer on behalf of the Cardholder;
"Company" means Nochex Limited (Co. No. 03940921), Cornelius House , Gelderd Close , Leeds , LS12 6DS or any Associated Company;
"Consumer" means each and any Cardholder entering into a Transaction;
“Consumer Email” means the valid email address of the legitimate Cardholder that authorises a Transaction;
"Contract" means the Term Sheet together with these terms and conditions as each may be varied from time to time in accordance with the terms set out below;
"Disputed Transaction" means a Card Transaction which is disputed by a Cardholder or Card Issuer either by notification from the Cardholder to the Company or the Card Issuer to the Company;
"Emoney" means monetary value denominated in GBP Sterling, as represented by a claim which is stored on an electronic device, issued on receipt of funds and accepted as a means of payment by persons other than the issuer;
"Fees" mean those non-refundable charges specified in Paragraph 11 and/or the Term Sheet;
"Fines" mean any fine or amount which may be imposed on the Company for excessive Chargebacks or any fine or amount charged to the Company by any party as a result of any activity related directly or indirectly to the Merchant;
"Merchant Account" means an Emoney account opened by the Company in the name of the Merchant for the purpose of providing the Merchant Service in respect of Transactions;
"Merchant Service" means the MOTO payment facilitation service provided by the Company to the Merchant allowing Consumers to pay for goods and services from the Merchant;
"Merchant" means the person or partnership (and for the avoidance of doubt person is the legal definition) as specified on the Account and / or in the Term Sheet. In the context of this definition “Merchant” is a term used to describe a vendor and applies to Merchant Accounts;
“MOTO” means Mail Order Telephone Order and “MOTO Merchant Account” is construed accordingly;
“PCI DSS Card Data Compromise” means the loss or compromise of Sensitive Card Data collected from Cardholders by the Merchant;
"Refund" means either a reversal of a Card Transaction in order to credit the Cardholder;
“Recurring Payment” means an automatic Transaction setup and agreed by a Consumer to pay a Merchant on a regular basis in accordance with a pre-agreed schedule, comprising an initial MOTO Transaction followed by subsequent Transactions made in accordance with the Consumer’s pre-agreed schedule;
"Registered Account" means the Merchant's registered bank account as notified and approved by the Company from time to time;
“Registered URL” means the Merchant’s trading website address that has been notified to and been accepted by the Company;
“Sensitive Card Data” means Primary Account Number (commonly known as Card number or PAN), Card Expiry Date and Card Security Number (commonly known as CVV or CV2)
"Term Sheet" means the term sheet accepted by the Merchant and the Company and as may be amended by the Company from time to time, forming an integral part of the contractual terms and setting out the details of the initial commercial terms applied by the Company to the Merchant Account;
"Transaction" means a MOTO Card Transaction; where a Cardholder provides their card details to the Merchant in order to facilitate the purchase of goods or services from the Merchant. Such purchase can be either a single purchase or form part of a scheduled Recurring Payment ;
"Withdrawal" means converting part or all of the Available Balance held in the Merchant Account to GBP Sterling and transferring those funds to the Registered Account;
2. Merchant Service
2.1 The Company will:-
2.1.1 provide the Merchant with the Merchant Service to process Transactions in accordance with this Contract;
2.1.2 pay to the Registered Account any Withdrawal due in respect of the Merchant Service, subject to the provisions of this Contract; and
2.1.3 make available to the Merchant through the Company's Merchant management system statements showing the value of all Transactions.
3. Authorisation of Transactions
3.1 Subject to Paragraph 8.5:-
3.1.1 Authorisation of Card Transactions shall not in any way be binding on the Company as to the validity of any Transaction or Transaction receipts;
3.1.2 the Company gives the Merchant no assurances that any given Transaction will be honoured; and
3.1.3 notwithstanding Authorisation, the Company reserves the right to exercise Chargeback or other rights of reduction or set-off under this Contract, including without limitation rights in accordance with Paragraph 10.
3.2 The Company shall seek on-line Authorisation from the Acquirer for all Card Transactions.
4. Recurring Payments
4.1 Where the Merchant has Recurring Payments enabled the Merchant has the following obligations:
4.1.1 to explicitly agree with the Consumer the amount, frequency and duration of the Recurring Payments;
4.1.2 provide a schedule of Recurring Payments to the Consumer. Where there is no end date this should be clearly specified on the schedule;
4.1.3 provide a simple, easy to use and effective online cancellation procedure for the Consumer, this process must be available for a Consumer to cancel a Recurring Payment schedule at any time;
4.1.4 allow the Consumer to cancel their Recurring Payment schedule up to twenty four hours in advance of the next scheduled payment;
4.1.5 once a Recurring Payment schedule is cancelled by a Consumer the Merchant must ensure the Recurring Payment schedule is cancelled with the Company immediately. The Company’s Merchant management system should be used for cancellations.
4.1.6 following successful cancellation of a Recurring Payment schedule a Merchant must not process any further payments from that schedule. Where the Merchant and Consumer agree to reinstate a payment schedule a new Recurring Payment schedule must be setup.
4.2 Where a Consumer contacts the Company directly to cancel a Recurring Payment schedule the Merchant agrees and acknowledges the rights of the Company to make such cancellation. The Company will endeavour to contact the Merchant within twenty four working hours to acknowledge the Consumer’s cancellation request.
5. Trading Limits
5.1 The Term Sheet may set out the Merchant's Trading Limit for aggregate Transaction and/or Withdrawal values in any one calendar month (the "Trading Limit"). The Merchant shall not exceed the Trading Limit without the Company's prior written approval.
5.2 Transactions and/or Withdrawals above the Trading Limit may be refused by the Company;
5.3 The Merchant agrees not to split payment of an order into multiple Transactions in order to seek to circumvent the Transaction limits set on the Account.
6. Transaction Confirmations
6.1 As an integral part of each Transaction that the Merchant submits to the Company, the Merchant undertakes to include the Consumer Email address associated with each such Transaction that they submit.
6.2 When the Merchant processes a live Transaction the Company shall issue an email Transaction confirmation both to the Merchant and to the Consumer. Both parties acknowledge that the Transaction confirmation is not absolute proof that payment has been credited to the Merchant Account. It is recommended the Merchant always checks their Merchant Account transaction history as proof the Transaction has concluded successfully.
6.3 From time to time the Merchant may place their Account in test mode or may instruct the Company to place their Account in test mode. Whilst in test mode any test transactions processed will be confirmed by a test email confirmation to both the Merchant and the Consumer. These are clearly marked as ‘test’ and should not be construed as anything other than test transactions. It is the Merchants responsibility to ensure their account is setup correctly in either the ‘live’ or ‘test’ mode.
7. Refunds
7.1 Where the Merchant wishes to make a Refund to a Consumer, the Merchant shall advise the Company by such automated systems as the Company shall make available to the Merchant from time to time.
7.2 Refunds will only be made to the Card to which the original Transaction was debited and not by any other method.
7.3 The Company shall only process Refunds to the extent of the Merchant's Available Balance. Where the Available Balance is less than the full amount of the requested Refund, the Refund will not be processed. However when an appropriate Available Balance is available on the Merchant Account, the Merchant may process a Refund.
7.4 Refund(s) can only be processed up to the value of the original Transaction.
7.5 The Company reserves the right to initiate a refund on behalf of the Merchant where the Company at its sole discretion reasonably believes there is a heightened risk of Chargeback.
8. Chargebacks and Disputed Transactions
8.1 Subject to clause 8.5, in the event of any Chargeback arising in respect of any Transaction the Company shall immediately be entitled to recover from the Merchant, in addition to any recovery in accordance with Paragraph 10:-
8.1.1 the amount paid by the Company in respect of the relevant Chargeback and/or Transaction;
8.1.2 a Chargeback administration fee;
8.1.3 an excessive Chargeback administration fee where applicable
8.1.4 any other costs and expenses the Company may incur as a result of or in connection with a Chargeback or Disputed Transaction.
8.2 The Card Issuer’s decision shall be conclusive as to the determination of any Chargeback; it is important to understand the Company is not party to the decision of the outcome of a Chargeback and has no control over this. Wherever practicable, notice to the Merchant of a Chargeback will be accompanied by an explanation of the reason for it. Where the Company is notified of any invalid or Disputed Transactions the Company will notify the Merchant of the same by email, fax or letter accompanied by an explanation of the reason for it. The Company will identify the Transaction as Disputed and shall have the right to debit it back to the Merchant along with associated fees. The Transaction shall be credited back to the Merchant if it becomes no longer a Disputed Transaction.
8.3 The Merchant shall:-
8.3.1 fully, promptly and properly investigate Disputed Transactions;
8.3.2 take all reasonable steps to resolve disputes with Cardholders in a timely manner; and
8.3.3 follow any procedures for handling Disputed Transactions and Chargebacks which the Company advises from time to time.
8.4 The Company has the right in respect of any Transaction to suspend the processing of such Transaction and/or withhold the amount of such Transaction until the satisfactory completion of any investigation.
8.5 In the event that the Company reasonably considers that there is a heightened risk of Chargeback the Company shall be entitled to retain funds from any proposed Withdrawal to cover the potential or actual amount of such Chargeback(s) and associated Chargeback fees and/or recover from the Merchant such additional funds as the Company may reasonably specify to cover Chargebacks, potential Chargebacks and associated Chargeback fees.
8.6 (Unlike Ecommerce Card Transactions), Transactions are not eligible to be authenticated using either Verified by Visa or MasterCard Secure Code, American Express Safekey or other similar Card scheme security validation. As such, the Merchant acknowledges that there is a higher potential for Transactions to be disputed and or claimed to be fraudulent and or Chargedback, either by Cardholders or by their Issuing Bank. The Merchant undertakes to have in place sufficient precautionary measures in order to mitigate such risk.
9. Withdrawals and Retentions
9.1 "Account Balance" shall comprise all Transactions undertaken to the Merchant's order less all Withdrawals made after deducting:-
9.1.1 all Refunds processed;
9.1.2 the Fees;
9.1.3 Chargebacks, associated fees and any Fines to the Company passed on by the Acquirer in respect of Transactions;
9.1.4 Disputed Transactions and any amounts reasonably required to cover potential or expected Refunds, Chargebacks plus any associated fees or Disputed Transactions; and
9.1.5 any other charges or amounts due to the Company under this Contract.
9.2 "Available Balance" is the value of the Emoney in the Merchant Account that is available for Withdrawal (and for the avoidance of doubt excludes the Retained Balance, Rolling Reserve and any other form of surety held by the Company in respect of the Merchant Account).
9.3 "Retained Balance" and “Rolling Reserve” is the value (if any) of the Emoney that the Company requires the Merchant to hold in the Merchant Account in accordance with Paragraphs 9.10 to 9.11 of this Contract.
9.4 Settlement of the Available Balance to the Registered Account will be automatically undertaken by the Company employing Autosweep Withdrawal. This will be scheduled to occur on a weekly basis as detailed in the Term Sheet.
9.5 Unless otherwise agreed by the Company in writing each Withdrawal will be transferred by BACS to the Registered Account.
9.6 The Company may withhold from the Withdrawal:-
9.6.1 any amounts reasonably required to cover potential or expected Refunds, Chargebacks and any associated fees or Disputed Transactions; and/or
9.6.2 the amount of any excess trading over the agreed Trading Limit if a Trading Limit is set out in the Term Sheet.
9.7 In the event that the Account Balance is negative (i.e. the value of all items listed in Paragraph 9.1 exceeds the value of the Transactions made), the Merchant needs to immediately deposit funds with the Company to eliminate any such negative Account Balance.
9.8 Notwithstanding Paragraph 9.8, the Company reserves the right at any time to recover from the Merchant all or part of such negative balance.
9.9 The Company may require the Merchant to hold a Retained Balance, Rolling Reserve and/or other form of surety in the Merchant Account at all times during the term of this Contract, in the amount, rate and form as specified from time to time in the Term Sheet.
9.10 The Company reserves the right at its absolute discretion to amend the amount and rate of the Retained Balance and/or Rolling Reserve or any other such security at any time.
10. Recovery of Sums
10.1 The Company shall be entitled to set-off, deduct or withhold without notice to the Merchant any sums due to the Company from the Merchant against any amounts payable to the Merchant by the Company. For the avoidance of doubt this includes multiple Accounts held by the Merchant with the Company. The Merchant shall not be entitled to set-off any sums owed by the Company to the Merchant from any sums due to the Company from the Merchant under this Contract or otherwise.
10.2 Where any sum is due to the Company or recoverable from the Merchant under the terms of this Contract or by operation of law and notwithstanding any other provision in this Contract, the Merchant unconditionally and irrevocably authorises the Company to deduct such sums from the Merchant Account and/or the Registered Account. As an alternative, the Company may request payment from the Merchant and such payment shall be made electronically (quoting the Merchant's account number) to the Company within twenty four hours of receipt of such request.
10.3 The Company requires the Merchant to have in place for the duration of this Contract, Direct Debit instruction(s) against the Merchant’s Registered Account, as this may change from time to time. Where a Direct Debit instruction has been setup the Merchant authorises the Company to use the Direct Debit instruction(s) to recover any sums due to the Company under this Contract.
11. Fees
11.1 In consideration for the Company providing the Merchant with the Merchant Service, the Merchant agrees to pay the Company the Fees as follows and as further detailed in the Term Sheet:-
11.1.1 A one-time (non-refundable) account setup fee payable prior to account activation (the "Set-up Fee");
11.1.2 A percentage charge (the “Transaction Percentage”) shall apply as detailed in the Term Sheet in respect of Transactions arising from Visa (Credit or Debit cards), MasterCard (Credit or Debit cards), Maestro (Debit cards), Amex cards, or Corporate Business or Premium cards issued by Visa or MasterCard; and
11.1.3 A fixed charge for all Transactions (the "Transaction Fee");
11.1.4 Where the Merchant is eligible to register multiple URLs a one-time (non-refundable) £5.00 registration fee applies for each additional Registered URL;
11.1.5 An inactivity charge at the rate of no more than £8.00 per month may be applied retrospectively in the event that the account receives no Transactions for a period greater than six consecutive months;
11.1.6 In addition to the Transaction Percentage detailed in Paragraph 11.1.2 there shall be a supplemental charge of 0.5% for Transactions arising from Cards issued within Europe, but outside the UK, and a supplemental charge of 1.0% for Transactions arising from Cards issued outside Europe.
11.1.7 A monthly account fee for the amount specified in the Terms Sheet
11.1.8 A fixed charge for all Transactions which are Refund transactions, whether partial Refunds or full Refunds.
11.2 Without prejudice to its other rights, the Company may withdraw or suspend the Merchant Service if Fees or other sums payable to the Company are not paid when due.
11.3 The Merchant shall pay and the Company shall be entitled to recover from the Merchant all reasonable costs incurred by the Company in dealing with Consumer disputes, Refunds, Chargebacks, Disputed Transactions, PCI DSS Card Data compromises or other miscellaneous administration relating to Transactions or the operation of the Merchant Account.
11.4 Where the Merchant receives an excessive number of Chargebacks (typically greater than 1% of the number of sales Transactions) the Company reserves the right to charge an excessive Chargeback fee of £30 per Chargeback in addition to the standard Chargeback fee set out in your Term Sheet.
11.5 The Company reserves the right to increase the Fees in respect of individual Card Transactions if such Transactions cause an increase in the Company's costs.
11.6 Under no circumstances is the Merchant Account to be used for the processing of payments associated with illegal activities or other activities which may be prohibited by the Acceptable Use Policy. Where the Merchant Account is closed for such reasons the Company reserves the right to apply a reasonable Account closure administration charge of up to £500.
11.7 From time to time we may agree to provide you with a managed service in respect of your Nochex account. Where this is the case we shall agree a bespoke fee in writing with you for such managed service.
12. Term and Termination
12.1 This Contract shall commence on the earliest occurrence of any of the following,:
12.1.1 acceptance of the Term Sheet by the Merchant as issued by the Company;
12.1.2 the Merchant logging into their account for the first time;
12.1.3 the first time a transaction is processed to the Merchant Account no matter whether the transaction is a live or test Transaction.
12.2 The Contract, subject to termination pursuant to Paragraph 12.3, will continue in force until terminated at the earlier of one party giving to the other not less than thirty days valid notice or where a period of six months has elapsed since the last Transaction.
12.3 The Company will be entitled to suspend the Merchant Service and/or terminate the Contract with immediate effect by notice to the Merchant in the event of any of the following:-
12.3.1 the Merchant fails to pay any amounts due to the Company by the due date;
12.3.2 the Merchant breaches any warranty or other term of this Contract or if any claim described in Paragraph 15 occurs;
12.3.3 the Merchant fails to notify the Company in writing of any change in the nature of the Merchant's business or the goods and/or services supplied;
12.3.4 anything happens to the Merchant or a matter is brought to the Company's attention which in the Company's opinion may affect the Merchant's ability or willingness to comply with all or any of its obligations or liabilities under this Contract;
12.3.5 anything happens in relation to the Merchant or any matter is brought to the Company's attention which in the Company's opinion could damage the Company's reputation or the reputation of the Card Acquirer or Card schemes, or could prove detrimental to its business or may give rise to fraud or suspicion of fraud or other criminal activity including, without limitation, where the Company determines that the level of Chargebacks or invalid Transactions or Refunds undertaken by the Merchant is excessive or unreasonable;
12.3.6 where the Company is instructed to do so by the Card Acquirer or Card schemes;
12.3.7 the Company is unable to process Card Transactions for any reason;
12.3.8 the Merchant does not receive a Transaction for a period greater than six consecutive months;
12.3.9 the Merchant becomes insolvent or in the Company's opinion there is any material adverse change in the Merchant's financial condition, business or assets.
12.4 Upon termination of this Contract:-
12.4.1 the Merchant will immediately discontinue the use of all Merchant Services provided by the Company;
12.4.2 the Merchant shall not be relieved from its obligation to pay any outstanding Fees or other sums that are owed or may become due to the Company;
12.4.3 the Available Balance, Rolling Reserve and any other surety held by the company shall be adjusted to take account of all sums due to the Company;
12.4.4 the Company shall be entitled to recover from the Merchant all sums due to the Company under this Contract;
12.4.5 providing the Merchant has adhered to the Acceptable Use Policy at all times and the account is in good standing the Retained Balance, Rolling Reserve Balance and any other such Balance that may be owing to the Merchant shall be available for release one hundred and eighty days after the date of termination of this Contract;
12.4.6 expiry or termination of this Contract shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party;
12.4.7 expiry or termination of this Agreement shall not prejudice or affect any right or obligation which expressly or by implication is intended to survive expiry or termination including obligations of confidentiality and any indemnities given to the Company by the Merchant; and
12.4.8 the Merchant grants the Company sole control over the Retained Balance, Rolling Reserve Balance and any other such Balances and the Company may exercise its rights under this agreement to collect any amounts due to the Company from these balances including without limitation rights of set-off. For the avoidance of doubt this includes rights of set-off where the Merchant becomes insolvent or bankrupt or enters into an agreement with creditors or suffers any similar action regarding any debts.
12.4.9 all Registered URLs will be de-registered;
12.4.10 the Merchant has the right to redeem any Emoney held in their Available Balance for a period of up to six years following date of termination.
13. Merchant Obligations
13.1 The Merchant warrants that:-
13.1.1 all information provided to the Company including any information provided as part of the application process by the Merchant is complete, accurate and not misleading;
13.1.2 no information has been withheld which, if provided, could have materially affected the Company's decision to enter into this Contract;
13.1.3 the Registered Account is lawfully owned by the Merchant;
13.1.4 any and all Registered URLs are owned by and operated by the Merchant;
13.1.5 the Merchant will use all reasonable endeavours to maintain the value and reputation of the Company and shall refrain from doing anything which may adversely affect the reputation of the Company; and
13.1.6 the Merchant will conduct its business affairs in a legal and proper fashion and in accordance with the terms and intent of this Contract, and in compliance with all applicable government legislations and regulations.
13.2 The Merchant will:-
13.2.1 provide the Company in a timely manner with accurate information regarding the financial standing and any other information reasonably requested by the Company;
13.2.2 advise the Company in writing of any errors in the Merchant Service;
13.2.3 not permit or authorise any other person to use the Merchant Service nor use the Merchant Service as agent of or otherwise for the benefit of any other supplier of goods or services;
13.2.4 not process a Transaction in order to give the Consumer cash;
13.2.5 fully comply with any rules imposed by the Card schemes, Card Issuers and Card Acquirers including but not limited to non-discrimination against any Card schemes or Card types in any way;
13.2.6 not engage in conduct that could injure or create a risk of injury to the Company or Card schemes including, but not limited to, injury to reputation, systems and confidential information;
13.2.7 agree not to take any action that could prevent or interfere with the rights of the Company or the Card schemes to take action or to remedy this clause 13;
13.2.8 offer for sale through the Merchant Service, only products and services that are reasonably within the ordinary scope of the Merchant's business as notified to the Company during the application process and as notified to the Company from time to time (and as varied in accordance with this Contract);
13.2.9 provide the Company with up to date information regarding the Merchant’s business for example any changes to legal name, trading name (otherwise known as ‘Doing Business As’ or ‘DBA’ name), address(es), proprietor(s), director(s), controller(s) including changes to the structure of the Merchant’s business;
13.2.10 provide the Company with up to date information regarding products and services being sold and/or previously sold through the Merchant’s business;
13.2.11 provide the Company with up to date URL information and in particular notify the Company whenever a previously Registered URL becomes inactive, parked, no longer used, down for maintenance, sold or otherwise made obsolete;
13.2.12 offer products or services for sale only if the Merchant has legitimate rights to market and sell such products or services;
13.2.13 offer products or services for sale only if they are in compliance with the Acceptable Use Policy, and in all other respects act in compliance with the Acceptable Use Policy;
13.2.14 display on its website(s) and any other promotional material, in such manner as the Company may require, such promotional signs or other material which may be provided by the Company and use of names or designs approved by the Company solely to indicate that the Company accepts Card payments for goods and services that the Merchant supplies, and are processed by the Company. The Merchant shall not use any other material referring to the Company without the Company's prior written approval. The Merchant shall display the brand name and logo of any Card scheme which the Company notifies the Merchant is applicable.
13.2.15 remove from use any Card scheme logos or trademarks that the Company or Card schemes may prohibit the Merchant to use from time to time. The Merchant acknowledges the Card schemes are the sole owners of the Card scheme trademarks and agree not to contest ownership of the Card scheme trademarks;
13.2.16 not use the Merchant Services in any manner, or in furtherance of any activity which may constitute a violation of any law or regulation or for any improper purpose or which may cause damage to the Company's reputation or subject the Company to investigation, prosecution or legal action;
13.2.17 co-operate with the Company, the Company’s Card Acquirers and Card schemes in respect of any issues arising out of a breach or potential breach of confidential information held by the Merchant;
13.2.18 immediately notify the Company in accordance with Paragraph 25.1 if:-
(a) there is any material change in the nature of the product or services offered on the Merchant's website(s); or
(b) any technical alterations are made to the Merchant's website(s) which might interfere with or affect its integration with the Company's payment page;
13.2.19 be responsible for the statements, instructions, acts or omissions of any person who reasonably appears to have authority to act on its behalf;
13.2.20 provide the Company with any information reasonably required to assess creditworthiness and advise the Company as soon as the Merchant becomes aware of a material adverse change in its financial standing or an intention to close down its on-line or off-line business or transfer to another processor or Acquirer;
13.2.21 advise the Company as soon as the Merchant becomes aware of major or multiple product defects or logistical problems which could give rise to Chargebacks or refunds;
13.2.22 act in a reasonable manner to resolve Cardholder Disputes or potential disputes;
13.2.23 describe accurately on its website(s), including a full description of its trading name, legal name, address, telephone number and URL, what goods and services are being offered for sale, the price, the action which must be taken to make a purchase, the point at which a sale is completed, and details of delivery, shipping, returns and refund policies and comply at all times with any laws governing consumer and/or internet transactions;
13.2.24 comply with any code of best practice that the Company may provide to the Merchant including security to ensure Transactions are transmitted in an encrypted form using such protocol notified by the Company to the Merchant from time to time; and
13.2.25 comply with Payment Card Industry Data Security Standards (henceforth “PCI DSS”) at all times and shall allow the Company and its third party agents to carry out periodic audits of the Merchant’s processes and systems to ensure compliance. To clarify, Nochex takes responsibility for cardholder data while the data is being stored, processed or transmitted by Nochex.
13.3 Notwithstanding paragraph 13.2.25 relating to Transactions, by signing this Contract, the Merchant declares that in connection with all Transactions, you are solely using the Nochex MOTO (Virtual Terminal) service in conjunction with the Nochex Gateway; and that the Merchant is thereby fully compliant with the PCI DSS and accepts all liability for losses resulting from compromised card data arising from failures to adhere to the PCI DSS.
13.4 Breach of this Paragraph 13 shall entitle the Company to:-
13.4.1 re-assess the Merchant and immediately revise the Term Sheet or any term(s) contained therein to the extent that the Company believes necessary to allow the Merchant to continue to receive the Merchant Service; or
13.4.2 immediately terminate this Contract.
13.5 In the event of the Merchant experiences or suspects a security breach, the Merchant undertakes to immediately inform the Company. The Merchant is to provide the Company with a list of the compromised cards within 24 hours and an incident report within four business days of the reported compromise.
14. Merchant Data Security Requirements – PCI DSS
14.1 Merchants handling, transmitting or storing cardholder data must ensure that they are in compliance with the 12 requirements of the PCI DSS ‘control objectives’ outlined in detail on the PCI council website which can be located at: https://www.pcisecuritystandards.org/.
The Merchant is required to provide validation of PCI DSS compliance in accordance with the PCI DSS Council requirements.
14.2 In order to reduce the risk of data compromises, the Merchant explicitly warrants that they will not record Sensitive Card Data provided by Cardholders, rather this will be entered by the Merchant directly onto the secure Nochex MOTO module and thus transmitted to the Company for Authentication.
15. Indemnities
15.1 The Merchant shall indemnify and keep indemnified the Company against all losses, costs, expenses, damages and liabilities incurred by the Company as a result of any claim brought against the Company by any Cardholder, Card Issuer or other third party as a result of:-
15.1.1 breach of this Contract by the Merchant; and/or
15.1.2 wilful or negligent acts of omissions of the Merchant, its employees, agents or representatives.
15.2 The Merchant agrees that as between the Merchant and the Company it is the Merchant's responsibility to prove to the Company's satisfaction that the debit of a Card was fully and properly authorised by the Cardholder.
15.3 If a claim is brought against the Merchant or against the Company as a result of the activities or actions of the Merchant, by a Cardholder, a Card Issuer, a Card Acquirer, a Card scheme or other third party the Company will be entitled to settle or otherwise deal with it at its absolute discretion, including taking such steps as are reasonable to mitigate any potential loss the Company may incur and the Company shall be entitled to recover all costs of such actions in accordance with Paragraph 15.1.
16. Compliance
16.1 The Merchant shall ensure compliance with all applicable local laws in the execution and performance of this Contract and without prejudice to the Company's rights shall immediately bring to the Company's attention in writing any circumstances that prevent compliance with this Contract.
17. Processing Currency
17.1 All Transactions are denominated in GBP Sterling and Withdrawals shall be made in GBP Sterling.
18. Merchant’s Website(s)
18.1 The Merchant agrees to display on the home page and the payment page of its website(s) a logo and link provided by the Company indicating that the Merchant is a client of the Company.
18.2 The Merchant hereby agrees to the Company referring to the Merchant as a Nochex Merchant and using the Merchant’s name, website address, logo and trademark in the Company's promotional material and that of its partners’ promotional material should the Company so wish and in accordance with policies as provided to the Merchant from time to time.
18.3 The Company may issue a policy in relation to the Merchant's obligations under this Paragraph 17. The Merchant shall comply with such policy as if set out herein.
19. Limitation of Liability
19.1 Except in respect of death or personal injury resulting from its negligence, and subject to Paragraph 19.2, the Company's cumulative liability for any loss or damage arising with respect to any given Transaction shall be limited to the value of that Transaction less the applicable processing fees payable to the Company under this Contract in respect of that Transaction.
19.2 In no circumstances whatsoever shall the Company be liable, in contract, tort (including negligence), or otherwise for:-
19.2.1 losses special to the particular circumstances of the buyer;
19.2.2 indirect or consequential losses;
19.2.3 recall costs and business disruption or interruption costs;
19.2.4 cost incurred in connection with the removal, disposal or storage of defective goods;
19.2.5 damage to goodwill or reputation;
19.2.6 loss of profits or contribution;
19.2.7 wasted expenditure;
19.2.8 damage to property; or
19.2.9 losses arising from third party claims, resulting from any act or omissions on the Company's part or any other person authorised by the Company.
19.3 Each of the sub-conditions in Paragraph 19.2 are to be regarded as separate and severable Paragraphs. If any sub-condition shall be or become void or unenforceable in whole or in part, the other provisions shall remain valid and enforceable.
19.4 The Company's Fees are compiled assuming that the limits of liability set out in this Paragraph 19 are observed. Accepting greater levels of potential liability would render the supplies concerned of an unacceptably high level of risk compared to the associated return anticipated by the Company. The Merchant therefore fully acknowledges and accepts the limits on liability in this Paragraph 19.
19.5 The Company shall have no liability for any failure or delay caused by the Merchant's acts or omissions or resulting from actions taken by the Merchant in good faith to avoid violating a law, rule or regulation of any governmental authority or which is caused by circumstances beyond the Company's control whether foreseeable or not, including (without limit) breakdown or failure in transmission links or any third party equipment, strike or industrial dispute.
20. Confidentiality and Record Keeping
20.1 The Merchant shall not disclose in any way any lists of Card Holders or Card numbers, or any other information hereunder or any information in relation to the Company's business, to any party, except where:-
20.1.1 the information was lawfully in the possession of the Merchant prior to the term of this Contract;
20.1.2 the information is or becomes public knowledge through no fault or action of the Merchant;
20.1.3 the information is lawfully acquired by the Merchant from a third party independently of this Contract; or
20.1.4 the Merchant is required to disclose the information by any governmental agency lawfully requesting the same or by any court of competent jurisdiction acting pursuant to its powers or otherwise as required by any law.
20.2 Notwithstanding the requirements of clause 20.1 the Merchant explicitly undertakes that during the term of this Agreement they shall not record nor retain any or all of:-
20.2.1 Card numbers;
20.2.2 Card expiry dates; or
20.2.3 Card security numbers (CVV)
20.3 The Merchant shall ensure that Consumers are notified where any information relating to them will be passed to any third party in accordance with the provisions of this Paragraph 20 or otherwise.
20.4 The Merchant acknowledges that Consumers shall authorise the Company to release Transaction receipts and any data or information relating to Transactions or Cards or Cardholders to any party (including without limitation the Acquirer) as is reasonably necessary for the purpose of fulfilling the Company's payment processing obligations, or for the purposes of the detection and/or reduction of fraud, other criminal detection or as required by law.
20.5 The Merchant agrees that the Company may disclose information concerning the Merchant to the Company's Acquirer and the Card Issuers and other third parties for the purpose of assisting in identifying suppliers or others involved in amongst other things, fraud or suspected fraud, or who are or were suspected to be insolvent, or for use in any complaint, Cardholder query or information systems on which the Company's Acquirer may operate, or similar.
21. Variation
21.1 Subject to the remainder of this Paragraph 21, these terms and conditions may be varied by the Company from time to time upon giving the Merchant not less than two months’ notice in writing from and including the date of notification.
21.2 The terms contained in the Term Sheet may be varied by the Company from time to time in writing by giving the Merchant not less than two months’ notice from and including the date of notification unless otherwise mutually agreed by both parties or where the terms allow immediate variation.
21.3 The Company may at its absolute discretion amend the Fees (detailed in Paragraph 11 and the Term Sheet) by way of notice served to the Merchant in accordance with Paragraph 25.1 of this Contract. Any such amendment will take effect not less than two months from and including the date of notification.
21.4 For the purposes of this Paragraph, notification to a Merchant upon logging onto the Company's system shall constitute valid written notification.
21.5 Notwithstanding the other provisions of Paragraph 21, the Company reserves the right to modify as it feels fit and reasonable any or all limits applying to the Merchant’s account in order to comply with legal requirements and/or commercial considerations relating to the management and conduct of the account.
21.6 Where the Merchant requests a change to the limits applying to their account the Company will consider such requests and where agreeable will endeavour to make such changes within forty eight working hours.
22. Assignment
22.1 The Contract is entered into between the Company and the Merchant as principals and the Merchant shall not be entitled to assign the benefit or burden of it or of any interest in it without the prior written consent of the Company. The Company shall be entitled to sub-contract the whole or part of its obligations under the Contract and to assign its interest in the Contract.
23. Retention of Records
23.1 With the specific exception of the Card data referred to in paragraph 20.2, the Merchant shall retain in the form of electronic data, copies of all Transaction receipts relating to purchases of goods and services associated with Transaction, submitted and any subsequent Refunds made by the Company pursuant to this Contract for a period of three years.
23.2 The Merchant will provide copies of Transaction receipts to the Company within five working days of any request to do so being issued to the Merchant by the Company.
24. Entire Agreement
24.1 The Contract sets out the entire Contract between the Merchant and the Company, and no representations, warranties or assurances, written or oral, which are not specifically set out herein shall be implied as terms of this Contract. This shall not exclude or limit the liability of either party for fraudulent misrepresentation.
25. General Provisions
25.1 Any written notice may be delivered in person or sent by email, post, or by fax to the last known registered address or through the messaging service of the Company's Merchant management system.
25.2 Notice shall be deemed duly given forty eight hours after posting by first class post (72 hours if second class), or immediately if delivered in person, or if by email or fax at the time of transmission if within normal working hours failing which the start of the next working day or if delivered by way of the Company's Merchant management system.
25.3 The Merchant agrees that the Company may act on email notices or instructions which reasonably appear to emanate from the Merchant or an authorised employee or agent.
25.4 Any messages that originate from the Merchant's server or the server of a third party designated by the Merchant and are received in the same form as sent will be deemed to be authorised by the Merchant and the Company shall not be liable for any consequence of processing such messages. The Company is not responsible for the security of data residing on a server of the Merchant's or a third party designated by the Merchant.
25.5 This Contract shall supersede any previous agreement, whether written or oral, or any other understanding between the Merchant and the Company relating to its subject matter.
25.6 The Merchant may not assign this Contract or any rights hereunder, directly or by operation of law, without the prior written consent of the Company which consent may be withheld for any reason at the Company's absolute discretion.
25.7 The Merchant is not the Company's agent and is not entitled to contract on the Merchant's behalf in any way with the Company's Merchants, Cardholders or other third parties.
25.8 Subject to the right of any Associated Company to enforce any term of this Contract, the Company and the Merchant are the only parties who may rely on or enforce this Contract and for this reason the Contract (Rights of Third Parties) Act 1999 is excluded.
25.9 If any provision of this Contract is held invalid or unenforceable by any court of law, it is the intention of the parties that all other provisions of this Contract be construed to remain fully valid.
25.10 This Contract shall be governed by and construed in accordance with English law and both the Merchant and the Company agree to submit to the sole jurisdiction of the English courts.
25.11 No failure or delay by the Company in exercising its rights under the Contract shall be construed as a waiver or release of that right unless otherwise agreed by the Company in writing.
25.12 Where the due date for payment is not specified in this Contract or otherwise specified by the Company in a request for payment, the due date for payment shall be twenty four hours from the sum falling due or the request being notified to the Merchant. Where the Merchant fails to pay any sum by its due date, the Company may charge interest at the rate of 3% per month above the NatWest Bank base rate from time to time, compounded monthly whether before or after judgement on any sum which the Merchant fails to pay. Interest accrued may be applied to the Merchant Account.
25.13 The Merchant shall quote its account number on all correspondence with or notices to the Company.
25.14 Any use of the Merchant Account by the Merchant shall constitute acceptance of the Contract.
25.15 The Merchant agrees that the Company may, from time to time, display marketing or promotional material to the Cardholder during the Transaction process and thereafter via other electronic methods.
25.16 In order to open and continue operating an Account, on the application date the Merchant must be:-
(a) An individual of at least 18 years of age; or
(b) A partnership whereby at least one partner is at least 18 years of age; or
(c) A body corporate (including without limitation private limited companies and public limited companies) where at least one Director is at least 18 years of age; and
(d) A business or organisation which is able to enter into a legally binding contract.
25.17 The Merchant agrees, understands and acknowledges this contract is a commercial contract and as such falls outside of the scope of the Unfair Terms in Consumer Contracts Regulations 1999.
25.18 The Company is registered with the Financial Conduct Authority as a small e-money issuer (registered number 900045).
As a financial services company we have an obligation by law to ensure we meet with industry requirements to combat crime and prevent money laundering. One of these obligations is to ensure we satisfactorily identify our Merchants and other users of our service.
To comply with these obligations the Company may, from time to time, request certain information from the Merchant (and associated persons). This includes information provided at the time of application and may include the request to provide proofs of identification along with other documentation. The identification process may involve checking the details supplied by the Merchant with databases operated and accessed by identity management companies, credit reference agencies, fraud prevention agencies and other relevant agencies.
The Company uses scoring methods to verify your identity. A record of this search will be retained by the Company and may be used to help other companies to verify your identity. We may also pass information to financial and other organisations involved in fraud prevention to protect ourselves and our service users from theft and fraud. If you give false or inaccurate information and we suspect fraud, we may record this and share this information with other organisations. By accepting these Terms and Conditions you grant the Company authority to undertake such identity checks as are required from time to time and to forward these details on to other organisations as detailed above.
Failure to provide acceptable proofs of identity may lead to the suspension or closure of the Account and freezing of all balances therein.
From time to time the Company will perform a commercial risk assessment of the Merchant and this may necessitate the need to carry out further reviews including financial reviews and credit checks on the Merchant and/or associated persons.
Where reasonably requested to do so the Merchant agrees to provide the Company with information regarding their organisation, such information may include a request to provide financial information and merchant processing statements from other payment providers.
The Merchant agrees to provide this information and to having credit checks being performed. Where you send us any details about yourself or others, we will ensure that we hold this information in accordance with the Data Protection Act 1998.
25.19 The Merchant acknowledges that for the purposes of the Payment Services Directive, you are neither a consumer nor micro-enterprise, and accordingly the parties agree to disapply or apply differently (as set out in this Agreement) the following provisions of the Directive and corresponding provisions of applicable national law: Articles 32-33, 41-45, 48, 52(1), 58 (time period only), 59(1), 66 and 75
25.20 In the event of any inconsistency between any provision of this agreement and the Card scheme rules, the Card scheme rules will take precedence.
26. Interpretation
In this Contract:-
26.1 the subject headings of the paragraphs and sub paragraphs of this Contract are included for convenience only, and shall not affect the construction or interpretation of any of its provisions;
26.2 reference to “this Contract” includes any amendments to these terms and conditions and the Term Sheet and any variation thereto;
26.3 any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it as from time to time amended, consolidated or re-enacted;
26.4 any phrase introduced by the terms "including", "include", "in particular" or any similar expression will be construed as illustrative and the words following any of those terms will not limit the sense of the words preceding those terms;
26.5 the words "in writing" and "written" shall be interpreted to include any document which is recorded in manuscript, typescript and any electronic communication (as defined in Section 15 of the Electronic Communications Act 2000);
26.6 the words "day" and "month" mean calendar day and calendar month unless otherwise stated;
26.7 the words "working days" shall mean Monday through to Friday, excluding bank and public holidays;
26.8 the words "working hours" shall mean 9:00am through to 5:30pm on a working day;
26.9 the word "partnership" shall mean an entity comprising more than one person, where all such persons shall be jointly and severally liable for the performance of the Merchant's obligations notwithstanding the signatories to this Contract; and
26.10 except as otherwise expressly provided in this Contract, all remedies available to either party under this Contract are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall not exclude the exercise of any other remedy.
E&OE
Nochex Limited (Company Number 03940921), whose registered address is Cornelius House , Gelderd Close , Leeds , LS12 6DS, UK
26th September 2016
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