General
Terms and Conditions of Use of the LinkCy Services
1.
General
provisions
The present
Agreement is concluded between LinkCy and the Client.
2.
Purpose:
The purpose of these General Terms and
Conditions of Use is to define, on the one hand, the terms and conditions under
which LinkCy the LinkCy
Services available on the Application to its Users and, on the other hand, the
terms and conditions of use of the Services.
They are accessible and printable at any
time, by means of a link located on the Application, enabling them to be
displayed on a standalone web page.
They may be supplemented, where applicable,
by terms of use specific to certain Services, which supplement these General
Terms and Conditions of Use and, in the event of contradiction, prevail over
the latter.
All terms and expressions appearing
hereafter are defined in article 3 of these General Terms and Conditions of
Use.
The
Services are operated by the Company LinkCy SAS
(hereafter “LinkCy”) with a capital of 13 089 €,
having its registered office at 42 Rue Boursault,
75017 Paris, France registered in the Trade and Companies Register of Paris
under the number 852295732.
LinkCy operates as an Agent for the provision of
Payment Services by Paynovate SA/NV (“PAYNOVATE”) is
a limited partnership incorporated since 11/12/2014 under Belgian law.
Its registered office is located at 47 Cantersteen 1000 Brussels, Belgium. PAYNOVATE is registered
with the Belgian Crossroad Bank for Enterprises under number 0506.763.929.
PAYNOVATE qualifies as a Belgian electronic
money institution (“EMI”) under the Law of 11 March 2018 relating to the status
and control of payment institutions and electronic money institutions, to the
access to payment service provider activity and electronic money issuing
activity and to the access to payment system, It is
supervised in this capacity by the National Bank of Belgium (“NBB”) since
26/03/2019.
In its capacity as an Agent, LinkCy is authorized and registered with the National Bank
of Belgium under number 852295732.
Thus, the Payment Services are provided and
marketed by LinkCy on behalf of and for Paynovate SA.
The Payments Services are provided to the
customers of a LinkCy’s Partner, who become LinkCy customers.
LinkCy’s Partner customer service can be consulted :
●
By
email at the following address: contact@slide-money.com
LinkCy customer service can be consulted by email at the
following address : support@linkcy.io
4.
Definitions:
●
Agreement: means the Agreement
between the Client and LinkCy, which includes the
present Terms and conditions for provision of payment Accounts for clients, and
any other conditions and documents (supplements, agreements, rules,
declarations, etc.).
● Agent: means a natural or legal person who acts on behalf of a Payment
Services Provider in providing Payment Services. In this case, this
concept refers to LinkCy.
● Application:
means the free mobile or Web application
provided by the Partner, available or downloadable on the User's Terminal
enabling them to access the LinkCy Services, once the
User has subscribed to the Service.
● Account: means to the screen pages assigned to the User from which he can access
to the LinkCy Services.
● Account Holder: means any natural or legal person with a Payment Account.
● Account
Holder’s representative: means any natural person holding powers to manage the Payment Account
in the name and on behalf of the Account Holder
●
Business Day: means a day when Paynovate provides its services, set by Paynovate.
Paynovate can set different business days for
different services.
● Card:
refers to a payment card issued by Paynovate SA and associated with the Payment Account.
●
Cardholder: means a natural
person who has received the card and is authorized to use the card as provided
for in the GTCU.
●
Client/Customer/User: means a legal person or a natural person who has concluded the
Agreement on LinkCy services.
●
Client’s Representative: means the
executive manager of the Client, or the Client’s other representative, who is
authorized to represent the Client in cooperation with Paynovate
under legal acts and/or activity documents of the legal person.
●
Client Identification: means
verification of the identity of the Client and/or their beneficial owners under
the procedure laid down in the System.
●
Commission Fee: means a fee charged by Paynovate for a
Payment Transaction and/or related services.
●
Consent: means consent of
the Payer to perform a Payment Transaction submitted under the procedure set
forth by Article 8 of the Agreement.
●
Electronic Money: means the Client’s
money charged or transferred to and held in a Paynovate
Account, designated for Payment Transactions via the System.
●
Framework Contract: means a payment service contract which governs the future execution of
individual and successive payment transactions and
which may contain the obligation and conditions for setting up a payment
account.
●
LinkCy: refers to the Company “LinkCy SAS”
●
Party: means LinkCy or the Client.
●
Partner: means a
third-party company with its own customer base and with which LinkCy has entered into a partnership agreement for the
provision of the Services detailed in these GTCU. The Partner hereby acts
solely as a business contributor and is responsible for first level customer service, but does not provide Payment Services under any
circumstances.
●
Password (Passwords): means any
code created by the Client in the system, a code created by the Client and used
for Strong Client Authentication, or a code provided to the Client for access
to the Profile and/or the Paynovate Account, or for
the initiation, confirmation, and management of separate services of Paynovate, and/or initiation, authorization,
implementation, confirmation, and reception of a Payment Transaction.
●
Payment Transfer: means a payment
transaction wherein funds are transferred to a payment account of the Recipient
under the initiative of the Payer.
●
Payment Order: means an order
(payment transfer) from the Payer or the Recipient to the Provider of Payment
Services to execute a Payment Transaction.
●
Payment Transaction: means a
money transfer or cash-in/out operation initiated by the Payer, in the Payer’s
name, or by the Recipient.
●
Payment Service: means services,
during the provision of which conditions to deposit to and withdraw cash from
the payment account are created, as well as all transactions related to the
management of the payment account; payment transactions, including transfer of
money held on the payment account opened in Paynovate
of the payment service provider of the User of payment services, or in another
payment institution; payment transactions when money is given to the User of
payment services under a credit line: payment transactions using a payment card
or a similar instrument and/or credit transfers, including periodic transfers;
issuance and/or acceptance of payment instruments; money remittances; payment
initiation services; account information services.
●
Payment Instrument: means any
payment instrument which the System allows to link
to the Paynovate Account and use it to
perform Payment Transfers.
●
Payer: means a natural
(private) or legal person, or other organization or its branch, that has a
payment account and allows to execute a payment order from this account, or, in
the absence of a payment account, submits a Payment Order.
●
Paynovate: means Paynovate SA company and other legal
persons who may be hired for the purpose of service provision. Paynovate is a Belgian E-Money Institution under the
prudential Authority of the National Bank of Belgium, incorporated under the
laws of Belgium and registered at the Belgian Crossroads Bank of enterprises
under the number 0506.763.929.
●
Paynovate Account or Account: means an account
opened in the System in the name of the Client and used to make payments and
other Payment Transactions. An Account is opened only upon identification of
the Client. Paynovate Application (also mentioned
below as “System” or “App”): means a mobile/software application for Paynovate account management, installed on mobile devices
and used for the provision of Paynovate services.
●
Pin: means a four-digit personal identification
number for use with the Card.
●
Personal Data: means any
information related to the natural (private) person whose identity is known or
can be directly or indirectly determined by using a personal code (national ID
number) and one or more physical, physiological, psychological, economic,
cultural, or social features specific to the individual.
●
Pricing: means prices for Paynovate services and transactions confirmed by Paynovate in accordance with the established regulations.
●
Profile: means the result
of registration in the computer system, during which personal data of the
registered person is saved, a login name is created, and their rights in the
system are defined.
●
Recipient: means a natural or
legal person, or another organization or its branch, specified in the Payment
Order as a recipient of the funds of the Payment transaction.
●
SEPA Mandate: means the specific form of Mandate required to be used in order to
effect Credit or Direct Debits in SEPA.
●
Services: means the service
of issuance and redemption of electronic money and other services provided by Paynovate included providing IBAN accounts, the possibility
of making SEPA and direct debit transfers ; a payment
service provided by Paynovate, also any other service
provided by Paynovate.
●
Strong Client Authentication: means the procedure of verification of the identity of a natural or
legal person based on the use of two or more elements categorized as knowledge
(e.g. static password, code, personal identification number), possession (e.g.
token, smart card, mobile phone) and inherence (e.g. biometric characteristics,
such as a fingerprint). This procedure is applied when the Client is logging in
to their payment account online or through other means of remote access,
initiates an electronic payment transaction and, through the means of remote
access, carries out any action that might be related to the risk of fraud in
carrying out a payment or any other types of misuse.
●
Terminal: means the terminals
under iOs or Android compatible with the use of the
Application.
●
Unique Identifier: means a
combination of letters, numbers, or symbols which Paynovate,
as a provider of payment services, provides to the User of payments services,
and which is used to identify the User of payment services participating in the
Payment Transaction, and/or the account of the User used in the Payment
Transaction.
5.
Acceptance:
These GTCU must be accepted by any User wishing to access the Services
throughout the Application. The mere use of the Services by the User implies
full and complete acceptance of these GTCU, who henceforth undertakes to comply
with them.
Nevertheless, when using the Services via the registration form, each
User expressly accepts these GTCU by ticking the box preceding the following
text: "By ticking this box, I acknowledge that I have read and understood
the General Terms and Conditions of Use and accept them". The fact of
ticking the box will be deemed to have the same value as a handwritten
signature on the part of the User.
Thus, the Services are accessible:
● To any natural person with full legal capacity to engage under the
present GTCU. A natural person who does not have full legal capacity may only
access the Application and the Services with the consent of his legal
representative (Account Holder Representative);
● To any legal entity (company, association, foundation) acting through a
natural person having the legal capacity to contract in the name and on behalf
of the legal entity (Account Holder Representative).
When the User subscribes to these GTCU for the needs of third parties
(including legal entities), he certifies on his honor that he is authorized and
has all the necessary powers and authorizations to subscribe to the Contract
and authorize LinkCy to provide him with the
Services.
Consequently, the User fully guarantees LinkCy
against all the consequences of any claims from third parties concerned
(including legal entities) relating to this authorization and/or in the event
of fraud by the User.
6.1 Payment Services
The Application allows the User to access
some or all of the following Payment Services
(depending on the services that the Partner has integrated).
●
The
opening of a Payment Account;
●
Carrying
out the following operations:
o
Withdrawal
o
Transfers
(in/out)
o
Direct
debits (in / out)
o
Payment
transactions through a Card;
●
Issuing
of a Card, associated with the Payment Account;
●
Card
acquiring
Payment Account
The Payment Account is opened by Paynovate SA in the name of an Account Holder. To each
Payment Account, is attached a unique number (IBAN).
The account is a personal Payment Account
in euros:
●
Euros
may be credited and/or debited subject to any limitations provided by LinkCy (see Annex 4).
●
Funds
may be used by the User.
The balance of the Payment Account is the
difference between credit and debit transactions, and it must always be in
credit. Indeed, Payment Account does not allow overdrafts.
It is up to the User to ensure that his
Payment Account is sufficiently funded. Thus, the User expressly acknowledges
and accepts that:
●
Any
payment order having the effect of making his Payment Account debtor will be
automatically blocked;
●
LinkCy reserves the right to block a User's
payment orders if it appears that his Payment Account is not sufficiently
funded for the price of the Services to be paid.
Payment Transactions
From his Payment Account, the User can
benefit from the following Payment Services, subject to any limitations
provided by LinkCy (see Annex 4):
●
the
receipt of Payment Transactions by transfer or direct debit and the acquisition
of Payment Orders by card credited to the Payment Account;
●
the
execution of Payment Transactions by transfer or direct debit and the execution
of Payment Orders by card debited from the Payment Account;
Card
The Card is a MASTERCARD Card, issued by Paynovate SA.
The Card allows its Cardholder, subject to
any limitations provided by LinkCy (see Annex 4):
●
To
make cash withdrawals from ATMs displaying one of the Payment Card Network's
brands on the Card;
●
To
pay for purchases of goods or services directly at merchants and service
providers equipped with a card acceptance point displaying one of the Payment
Card Network's brands on the Card, or remotely.
The
Card is a personal card, which cannot be lent by its Cardholder. Its use
requires the prior signature of the Cardholder on the back and its activation
via the Application.
The
Card operates by means of a 4-digit PIN code that will be transmitted to the
Cardholder via the Application and after the Card has been activated. If the
PIN code or cryptogram is entered incorrectly three times, the Card is
automatically deactivated. It can be reactivated by contacting the customer
service department of LinkCy or its Partner.
The Card has a validity period beyond which
it will become inactive. A new Card will be sent to the Cardholder prior to its
expiry.
At
any time, the Cardholder may block the Card by means of the Application or by
contacting the customer service department of LinkCy’s
Partner.
In the event of theft or loss of the Card,
any Cardholders is required to deactivate his Card via the Application and to
file an opposition as soon as possible.
6.2 Other Services
The Application also allows the User access
to the following others Services:
●
Consulting
the balance of the Payment Account;
●
Consulting
the history of transactions carried out through the Payment Account;
●
Registering
beneficiary accounts;
●
Setting
up notifications and alerts;
●
Management
of the Card (and in particular, any opposition to it);
●
Printing
of the Bank Identity Account Statement;
●
Updating
personal information;
LinkCy reserves the right to offer any other
service it deems useful, in a form and according to the functionalities and
technical means that it deems most appropriate for providing said services.
To benefit from access to the Application
and, if subscribing to the Services, Users must have a compatible Terminal
connected to the Internet. It is up to the User to check this compatibility.
It is up to the User to carry out software
updates on his Terminal to ensure the proper functioning of the Application
and, if he subscribes to the latter, of the Services.
All costs necessary for access to the
Application and the Services (Terminal, software, Internet connection, etc.)
are the responsibility of the User.
No technical assistance is provided by LinkCy for the User, whether by electronic or telephone
means.
To access the Services, the User must
register under the following conditions.
8.1 Access to the
Application
The User may register by any means that
Partner makes available to him, in particular via the
Application downloaded from his Terminal (connection costs due
to download vary according to the mobile offer) from one of the download
platforms that distributes it, this download being subject to the conditions of
use specific to each of these platforms.
LinkCy cannot under any circumstances be held
responsible for difficulties in downloading the Application.
8.2 Access to the
Services
To access to the Services, the User
undertake to:
●
Complete
the information requested by the Application;
●
Transmit
all the information and documents requested by LinkCy
for the purpose of validating and checking the identity of the User;
●
Carry
out the ultimate verification through GetID, a SAAS
software publisher, expert in highly secure online identity verification in
order to avoid any attempt at fraud and/or identity theft;
●
Expressly
accept the General Terms and Conditions (see article 4);
●
Sign
any documents that may be requested, in particular by Paynovate SA.
At the end of the application process, the
application form will then be processed and analyzed by LinkCy.
If the application form is accepted and
validated by LinkCy, the Payment Account will then be
created and activated and the Card ordered and sent to the address provided by
the User.
Once the Payment Account has been created
and activated, the User will have the option to fund the Payment Account by
bank transfer or card payment.
In the event that the information requested when creating
the Payment Account is modified in whole or in part, the User must update this
information as soon as possible via the Application or the website Partner.
LinkCy reserves the right to request
and additional information deemed necessary to enhance customer knowledge and
to validate the registration file.
LinkCy and Paynovate
SA/NV may accept or refuse to open a Payment Account without any refusal diving
rise to compensation or motivation.
Only one Account can be created per User. LinkCy reserves the right to delete any additional accounts
created for the same User.
The User therefore agrees to use the
Services personally, and not to allow any third party to use them in his place
or for his own account, unless he bears full responsibility for doing so.
The User is responsible for maintaining the
confidentiality of his password and security code and expressly acknowledges
that any use of the Services from his Account will be deemed to have been
carried out by himself.
When the Account is opened by a legal
entity, the latter recognizes that its Account may be operated by one or more
authorized persons, using its login details. In this case, the legal entity
undertakes to ensure that the latter respects the strictest confidentiality of
its login details.
The User must immediately contact LinkCy’s Partner if he notices that his Account has been
used without his knowledge. He acknowledges that LinkCy
has the right to take all appropriate measures in such a case.
In the same way, in the event of loss or
theft of the Terminal, the User must immediately notify LinkCy’s
Partner for blocking purposes.
Without prejudice to the other obligations
provided for herein, Users undertake to comply with the following obligations.
Users are solely responsible for their use
of the Services.
They undertake, in their use of the
Services, to comply with the laws and regulations in force and not to infringe
the rights of third parties or public order.
In particular, they undertake to comply with the regulations
applicable to the fight against money laundering and terrorist financing. To
this end, they undertake to cooperate with LinkCy’s
Partner, LinkCy and, where applicable, with Paynovate SA as part of the "Know Your Customer"
process.
They also undertake not to damage the
Application and/or Services in any way whatsoever and not to use it in a way
that is not in accordance with its purpose.
Users further undertake to fulfill their
obligations under the Paynovate SA Framework
Contract.
Users acknowledge that in the Application
they have taken note of the characteristics and constraints, in particular
technical constraints, of all the Services.
Within the framework of the Services, Users
undertake to provide Partner and LinkCy only with
information or data of any kind which is accurate, up-to-date and sincere and
that is not misleading or likely to mislead. They undertake to update this
information so that it always corresponds to the aforementioned
criteria.
They undertake to provide LinkCy with all the information necessary for the proper
performance of the Services and, more generally, to cooperate actively with LinkCy for the proper performance of these GTCU.
Users guarantee to LinkCy
that they have all the rights and authorizations necessary for the distribution
of content of any kind (editorial, graphic or other, including the name) within
the framework of the Services.
They thus undertake in
particular to ensure that such content:
●
are
not infringing or detrimental to the image of a third party;
●
are
in no way misleading or likely to mislead Users.
The Users guarantee LinkCy
against any complaints, claims, actions and/or demands whatsoever that LinkCy may suffer as a result of
Users breaching any of their obligations or warranties under the terms of these
GTCU.
They undertake to indemnify LinkCy for any prejudice it may suffer and to pay LinkCy all costs, charges and/or sentences it may have to
bear as a result.
LinkCy undertakes to provide state of the art
Services, it being specified that it has an obligation of means, to the
exclusion of any obligation of result, which the Users expressly recognize and
accept.
LinkCy cannot be held responsible for the
non-functioning, impossibility of access or malfunctioning of the Application
or the Services due to unsuitable equipment, malfunctioning of the services of
the User's access provider or those of the Internet network. The same shall
apply for all other reasons outside LinkCy.
Specifically, LinkCy
holds no responsibility and damages to you or others
caused by the following scenarios:
(a) your access or use of the Services inconsistent with the Documentation;
(b) any unauthorized access of servers,
infrastructure, or Data used in connection with
the Services;
(c) interruptions to or cessation of the Services;
(d) any bugs, viruses, or other harmful
code that may be transmitted to or through the
Services;
(e) any errors, inaccuracies, omissions, or
losses in or to any Data provided to us;
(f) third-party content provided by you; or
(g) the defamatory, offensive, or illegal
conduct of others.
In addition, the User acknowledges that the
characteristics and constraints of the Internet network do not guarantee the
availability and proper functioning of the Application and Services.
Consequently, LinkCy does not guarantee that the
Application and the Services will function without interruption, defects and/or
errors.
As such, it is specified that:
●
The
Application and the Services are accessible 24 hours a day, 7 days a week,
except in cases of force majeure or events beyond the control of LinkCy;
●
LinkCy undertakes to carry out regular checks in order to verify the functioning and accessibility of the
Services. Thus, access to the Application and the Services may be interrupted
or suspended by LinkCy without prior notice or
justification for maintenance reasons necessary for the proper functioning of
the Application and the Services and without this giving any right to
compensation by LinkCy.
LinkCy undertakes to use its best efforts to
ensure the security of the User Account. It guarantees its exclusivity and
refrains from communicating its content to any third party.
It undertakes to inform the Users of any
foreseeable difficulty, in particular with regard to
the implementation of the Services.
However, LinkCy
cannot be held liable in the event of malicious introduction on this Account,
since it is not demonstrated that the security measures it has implemented were
seriously defective.
In addition, LinkCy
cannot be held responsible for any lack of vigilance on the part of Users in
maintaining the confidentiality of their logins, passwords and security code;
LinkCy does not guarantee to the User that the
Services, being standard and in no way proposed solely for the benefit of a
given User according to his own personal constraints, will specifically meet
his needs and expectations.
LinkCy undertakes to use the documents, elements,
data and information provided to it by the User only for the purposes of
carrying out the Services and not to communicate them to any third party,
except at its Partner and except at the express request of the User and/or if
this communication is required by the legal authorities or results from the
legal obligations incumbent on LinkCy, in particular
in its capacity as Agent of Payment Service Provider.
LinkCy undertakes to implement all necessary
means to preserve the confidentiality and security of the data transmitted by
the User.
LinkCy certifies that it holds an insurance
policy covering its professional civil liability. It undertakes to keep this
insurance policy in force for the duration of the Services.
The User, a natural person acting for
purposes that do not fall within the scope of his professional activity, has a
withdrawal period of fourteen (14) calendar days to exercise his right of
withdrawal, without having to justify his reasons or bear any penalties, which
runs from the day of his acceptance of these GTCU.
The User must notify his decision to
withdrawal by e-mail to the following address support@linkcy.io
Any use of the withdrawal period by the
User automatically entails termination of these GTCU, with immediate effect.
The start of performance does not deprive
the User of the right of withdrawal. Any request for withdrawal must be
accompanied by the communication of a bank identity statement to enable LinkCy to transfer the balance of the Payment Account, less
any advantage that the User would have benefited from.
The present GTCU are concluded for an
indefinite period of time as from their acceptance by
the User.
14.1 Termination by Any User
Any
User has the right to terminate it and, more generally, to end the Services
upon simple request made by email to the LinkCy’s
Partner customer service department at the following address : contact@slide-money.com
In this event, LinkCy
will take note of the termination within five (5) working days following
receipt of any email or letter to this effect.
The credit balance of the Payment Account
will be returned by LinkCy to the User, after a
maximum period of thirty (30) working days following receipt of the email
and/or letter, by bank transfer to the bank account whose details will be
communicated by the User to LinkCy. In the absence of
communication of the details of the bank account receiving the funds, LinkCy will keep the sums while they obtain the said
details.
Closing of the Account will automatically
and by right, without any additional formality, result in the Card being
inactive.
14.2 Suspension or Termination by LinkCy
LinkCy also has the right to suspend, delete or
prevent access to the User's Services with sixty (60) days' notice, without
reasons, without charge and by simple notification by email.
However, LinkCy
is exempted from the notice period and may immediately suspend, delete or
prevent access to the User’s Services in the event of seriously reprehensible
behavior by the User, in particular, in the event of refusal by the User to
provide information, provision of false documents, observe irregular operations
on the Payment Account (fraud, repeated non-payment, money laundering, etc.) or
non-compliance with these GTCU or in the event of closure of the Account by Paynovate SA.
The choice between termination and
suspension is at LinkCy's discretion.
In the event of termination, LinkCy will invite the User to transmit the details of
another bank account in order to transfer the credit balance of the Payment
Account, which will be returned to the User at the end of a maximum period of
thirty (30) working days following receipt of the User's reply, by bank
transfer, after deduction of any fees relating to the Services. The Payment
Account will then be closed, resulting in the deactivation of the Services.
The closure of the Account is irrevocable
and prevents the User from opening another Payment Account at least for a
period of 1 year or definitively in the event of violation of these GTCU or in
the event of legally reprehensible acts.
The amount of the fees invoiced by LinkCy for the termination, in the context of improper use,
is indicated in Annex 4.
In the event of suspension, the Account may
be reactivated at the request of the User within a period of fifteen (15) days
following the suspension, provided that the cause behind the suspension has
been lifted.
Any death of a User automatically entails
the immediate suspension of the Card and the Payment Account as soon as LinkCy is informed of it, and its closure within thirty
(30) days following the transfer of the balance to the notary in charge of the
succession.
In the event of breach of any of the
provisions of these GTCU, or more generally, of violation of laws and
regulations by Users, LinkCy also reserves the right
to:
●
delete
any content related to the breach or infringement in question, in whole or in part;
●
take
all appropriate measures and take any legal action;
●
if
necessary, notify the competent authorities, cooperate with them and provide
them with all relevant information for the investigation and suppression of
illegal or unlawful activities.
All intellectual property rights belonging
to LinkCy or Paynovate SA
remain their exclusive property.
Indeed, the systems, software, structures,
infrastructures, databases and content of any kind (texts, images, visuals,
music, logos, brands, in particular) used by LinkCy
within the Application are original works and constitute protected intellectual
property rights which are and remain the full and exclusive property of LinkCy.
Furthermore, these GCTU do not confer on
the User any property right over the Services, the Application and its content.
Any disassembly, decompilation,
decryption, extraction, reuse, copy and more generally, any act of
reproduction, representation, distribution and use of any of these elements, in
whole or in part, without the authorization of LinkCy
is strictly prohibited and may be subject to legal proceedings.
The processing of personal data complies
with Regulation (EU) 2016/679 of 27 April 2016 (the "General Data
Protection Regulation" or "GDPR").
LinkCy undertakes to process all
of the Personal Data of any User to which it has access in the context
of the execution hereof in accordance with the Regulation cited above.
In this context, LinkCy
undertakes to:
●
process
the Personal Data solely for the purposes of the execution of these GTCU, to
the exclusion of any other purpose;
●
implement
the appropriate technical and organizational measures to protect the Data in a
permanent and documented manner, against accidental or illegal destruction,
accidental loss, alteration, dissemination or unauthorized access, and to
ensure its security, integrity and confidentiality;
●
ensure
that the persons authorized to process Personal Data under these GTCU, in particular, its employees:
o
undertake
to respect confidentiality or are subject to an appropriate obligation of
confidentiality; and
o
receive
the necessary training in the protection of Personal Data.
●
not
communicate the Personal Data to any third party whatsoever, except for third
parties to whom it would be strictly necessary to transmit such data for the
purposes of the execution of these GTCU;
●
take
into account, with regard to its tools, products, applications or services, the
principles of data protection by design sand of data protection by default;
●
inform
the User, on simple request, of the location of the places where Personal Data
of any kind are processed (hosting, backup, maintenance, administration,
helpdesk, etc.);
●
inform any User, within a
maximum period of 24 hours, of any violation of his Personal Data.
Any User is informed by LinkCy
that he has, with regard to Personal Data, the rights provided for by the
legislation, in particular, the right to access, rectify, delete, oppose, limit
processing, the right to the portability of Personal Data and the right not to
be subject to an individual automated decision by sending a written
communication to the following e-mail address: [...] specifying the reference
“Personal Data / Exercise of Rights". The applicant must also provide
proof of identity by attaching a copy of any national identity document or an
equivalent document (passport).
The conditions for the implementation of
these processing operations are described in the Personal Data Protection
Policy (see Annex 5).
In its capacity as Agent of a Payment Service
Provider, LinkCy is bound by professional secrecy and
undertakes not to disclose any banking information belonging to the User that
it may receive in the context of the execution of these GTCU.
The User expressly authorizes Paynovate
SA to transmit to LinkCy any information on the
Payment Account and the Card, without any limitation, and notwithstanding the
legal provisions on banking secrecy that the User expressly waives with regard to LinkCy and its
agents (legal representatives and employees), and this for the sole purpose of
executing these GTCU.
Notwithstanding the first paragraph, LinkCy is authorized to transmit any information to (i) any service provider and subcontractors contractually
linked to it, for the purposes of the proper execution of the GTCU and/or the
provision of the Services or any new service that it would develops, as well as
(ii) any administrative or judicial authority having a right of access to this
information in application of the applicable legal and regulatory provisions.
The User also authorizes LinkCy
to analyze any information obtained via the Application and/or the Services, in
an anonymous manner, for the purposes of developing new services.
The responsibility of LinkCy
and the User in the execution of its obligations arising from these GTCU cannot
be engaged in case of force majeure (external, unforeseeable and irresistible
event).
In the event that LinkCy would
consider invoking a case of force majeure, it must inform any User in advance,
in writing, at the latest within five (5) calendar days following the
occurrence of the invoked event.
In any event, in the event of a case of
force majeure, each party shall do everything in its power to minimize the
effects of the said case of force majeure.
Neither party will be liable for any delays
in processing or other nonperformance caused by telecommunications, utility,
failures, or equipment failures, labor strife, riots, war or terrorists
attacks, pandemic context, nonperformance of our vendors or suppliers, fires or
acts of nature, or any other event over which the respective party has no
reasonable control.
However, nothing in this section will
affect or excuse your liabilities or your obligation to pay fees, fines,
disputes, refunds, reversals or returns under this agreement.
These GTCU cannot be transferred in whole
or in part by the User. The User may be held liable in the event of failure to
comply with this provision and LinkCy may terminate
the GTCU without delay.
LinkCy reserves the right to modify these GTCU at
any time and without notice in order to adapt them to
changes in the Application and/or its operation and the Services.
Users will be informed of these
modifications by any useful means.
Users who do not accept the amended GTCU
must unsubscribe from the Services in accordance with the terms set out in
Article 15.
Any User who uses the Services after the
amended GTCU comes into force is deemed to have accepted these modifications.
The nullity, illegality or inapplicability
of any clause of these GTCU shall not entail the nullity, illegality or
inapplicability of the other clauses.
In the event of the nullity, illegality or
inapplicability of a clause, LinkCy will replace it
with new valid, lawful or applicable stipulations which will have an effect as
close as possible to that of the null, unlawful or inapplicable clause.
Users may not claim damages due to such
nullity, illegality or unenforceability of any clause hereof.
The language used for drafting contractual
documents and subsequent communications between the Parties shall be English.
In the event of a translation of these GTCU
into one or more languages, the language of interpretation shall be English in
the event of any contradiction or dispute as to the meaning of a term or
provision.
The User ensures that the e-mail address
entered in his Account is correct and that it is indeed his own e-mail address,
insofar as correspondence and content provided under the Services will be
accessible through this email address.
The User consequently releases LinkCy from all liability and guarantees LinkCy from all consequences resulting directly or
indirectly from an error in the email address.
For any question, difficulty or complaint
related to the Use of the Services, the User may contact the LinkCy’s Partner customer service department as a priority
at the following email address: contact@slide-money.com
LinkCy can also be contacted at the following
email address: support@linkcy.io
In the event of failure to make a claim to LinkCy or its Partner or in the absence of a response
within two months, the User may submit the dispute relating to these GTCU to
the European Commission’s online dispute resolution (“ODR”) who will attempt,
with complete independence and impartiality, to bring the parties together with
a view to reaching an amicable solution. The ODR platform can be found at:
https://ec.europa.eu/consumers/odr/main/?event=main.adr.show
The Parties to the contract remain free to accept
or refuse recourse to mediation and, in the event of recourse to mediation, to
accept or refuse the solution proposed by the mediator.
These GTCU are governed and interpreted in
accordance with French law, without regard to the principles of conflict of
laws.
In the event of any dispute regarding the
validity, interpretation and/or execution of these GTCU, and after the failure
of any attempt to find an amicable solution, express jurisdiction is assigned
to the competent court of Paris.
Any dispute arising out of or in connection with the Agreement which
shall not be amicably settled by the Parties through good faith negotiation
within three (3) months after notification in writing by any of the parties
shall belong to the exclusive jurisdiction of the Courts of Paris (France),
even in case of side claim or counterclaim.
This Agreement and all policies and procedures that are incorporated by
reference constitute the entire agreement between you and LinkCy
for provision and use of the Services. Except where expressly stated otherwise
in a writing executed between you and LinkCy, this
Agreement will prevail over any conflicting policy or agreement for the
provision or use of the Services. This Agreement sets forth your exclusive
remedies with respect to the Services. If any provision or portion of this
Agreement is held to be invalid or unenforceable under Law, then it will be
reformed and interpreted to accomplish the objectives of such provision to the
greatest extent possible, and all remaining provisions will continue in full
force and effect.
The contractual relationship between you and LinkCy
shall commence immediately after you have been successfully registered as a
Customer.
LinkCy is entitled to
unilaterally amend the provisions of these General Terms and Conditions. The
Client shall be informed of any changes to the General Terms and Conditions by
means of a notification on the App and a copy of the new General Terms and
Conditions shall be sent to the Client on a durable medium, at his request.
Unless otherwise agreed, any changes to these General Terms and
Conditions or other agreements shall take effect at the earliest within two (2)
weeks from the date of their notification to the Customer.
The Client shall be deemed to have accepted amendments and additions to
the Agreement unless it notifies LinkCy that it does
not accept them before the expiry of the notice period, which shall result in
the automatic termination of the Agreement. Immediate or no notice shall be
given in case LinkCy amends in any way or adds any
provision to the Agreement where the amendment or addition is required in the
event of any changes imposed on LinkCy by any
Competent Authority or any applicable law.
Annex
1 : Framework Annex for provisions of payment accounts
PAYNOVATE
TERMS
SA “PAYNOVATE”
TERMS AND CONDITIONS
ELECTRONIC MONEY ACCOUNTS
1. General provisions
The present Agreement is
concluded between Paynovate and the Client.
1.1 Object of the Agreement:
The present Agreement
determines the main terms and conditions between the Client and Paynovate when the Client opens an Account at Paynovate by registering in its System and uses other
services provided by Paynovate. Conditions of
separate services provided by Paynovate are set under
the Supplements to the Agreement, other agreements and rules which are an
integral part of the present Agreement.
These conditions apply to
the Client after the Client becomes acquainted with the terms of the agreement
and starts using the respective services. In addition to the present Agreement,
the relationship between Paynovate and the Client
related to provision of Services is also governed by legal acts applicable to
the Client, agreements concluded with the Client, other agreements, rules and
principles of reasonableness, justice, and fairness.
Paynovate shall keep under secrecy any data that have
become known to it from its relations with the Client, included data about the
Client, their Account, and payment transactions (hereinafter the Client’s data
subject to banking secrecy) for an unspecified term. Paynovate
may disclose the Client’s data subject to banking secrecy to a third party if
it arises from the legislation or from the general terms and conditions of Paynovate.
1.2 Definitions:
●
Agreement: means the Agreement between the Client and Paynovate, which includes the present Terms and conditions
for provision of payment Accounts for clients, and any other conditions and
documents (supplements, agreements, rules, declarations, etc.).
●
Business Day: means a day when Paynovate
provides its services, set by Paynovate. Paynovate can set different business days for different
services.
●
Client / Customer: means a legal person or a natural person who has concluded the
Agreement on Paynovate services.
●
Client’s Representative: means the executive
manager of the Client, or the Client’s other representative, who is authorized
to represent the Client in cooperation with Paynovate
under legal acts and/or activity documents of the legal person.
●
Client Identification: means verification of
the identity of the Client and/or their beneficial owners under the procedure
laid down in the System.
●
Commission Fee: means
a fee charged by Paynovate for a Payment Transaction
and/or related services.
●
Consent: means consent of the Payer to perform a
Payment Transaction submitted under the procedure set forth by Article 8 of the
Agreement.
●
Electronic Money: means the Client’s money charged or
transferred to and held in a Paynovate Account,
designated for Payment Transactions via the System.
●
Party: means Paynovate or
the Client.
●
Password (Passwords): means any code created
by the Client in the system, a code created by the Client and used for Strong
Client Authentication, or a code provided to the Client for access to the
Profile and/or the Paynovate Account, or for the
initiation, confirmation, and management of separate services of Paynovate, and/or initiation, authorization,
implementation, confirmation, and reception of a Payment Transaction.
●
Payment Transfer: means a payment transaction wherein funds
are transferred to a payment account of the Recipient under the initiative of
the Payer.
●
Payment Order: means an order (payment transfer) from the
Payer or the Recipient to the Provider of Payment Services to execute a Payment
Transaction.
●
Payment Transaction: means a money transfer
or cash-in/out operation initiated by the Payer, in the Payer’s name, or by the
Recipient.
●
Payment Service: means services, during the provision of which
conditions to deposit to and withdraw cash from the payment account are
created, as well as all transactions related to the management of the payment
account; payment transactions, including transfer of money held on the payment
account opened in Paynovate of the payment service
provider of the User of payment services, or in another payment institution;
payment transactions when money is given to the User of payment services under
a
●
Credit line: payment transactions using a payment card or
a similar instrument and/or credit transfers, including periodic transfers;
issuance and/or acceptance of payment instruments; money remittances; payment
initiation services; account information services.
●
Payment Instrument: means any payment
instrument which the System allows to link to the Paynovate
Account and use it to perform Payment Transfers.
●
Payer: means a natural (private) or legal person, or
other organization or its branch, that has a payment account and allows to
execute a payment order from this account, or, in the absence of a payment
account, submits a Payment Order.
●
Paynovate: means Paynovate
company and other legal persons who may be hired for the purpose of service
provision. Paynovate is a Belgian E-Money Institution
under the prudential Authority of the National Bank of Belgium, incorporated
under the laws of Belgium and registered at the Belgian Crossroads Bank of
enterprises under the number 0506.763.929.
●
Paynovate Account or Account: means an account opened in the System in the name of the Client and
used to make payments and other Payment Transactions. An Account is opened only
upon identification of the Client.
●
Paynovate Application (also mentioned below as “System” or “App”): means a mobile/software application for Paynovate
account management, installed on mobile devices and used for the provision of Paynovate services.
●
Personal Data: means any information related to the natural
(private) person whose identity is known or can be directly or indirectly
determined by using a personal code (national ID number) and one or more
physical, physiological, psychological, economic, cultural, or social features
specific to the individual.
●
Pricing: means prices for Paynovate
services and transactions confirmed by Paynovate in
accordance with the established regulations.
●
Profile: means the result of registration in the
computer system, during which personal data of the registered person is saved,
a login name is created, and their rights in the system are defined.
●
Recipient: means a natural or legal person, or another
organization or its branch, specified in the Payment Order as a recipient of
the funds of the Payment transaction.
●
SEPA Mandate: means
the specific form of Mandate required to be used in order to effect Credit or
Direct Debits in SEPA.
●
Services: means the service of issuance and redemption
of electronic money and other services provided by Paynovate
included providing IBAN accounts, the possibility of making SEPA and direct
debit transfers; a payment service provided by Paynovate,
also any other service provided by Paynovate.
●
Strong Client Authentication: means
the procedure of verification of the identity of a natural or legal person
based on the use of two or more elements categorized as knowledge (e.g. static
password, code, personal identification number), possession (e.g. token, smart
card, mobile phone) and inherence (e.g. biometric characteristics, such as a
fingerprint). This procedure is applied when the Client is logging in to their
payment account online or through other means of remote access, initiates an
electronic payment transaction and, through the means of remote access, carries
out any action that might be related to the risk of fraud in carrying out a
payment or any other types of misuse.
●
Unique Identifier: means a combination of letters, numbers, or
symbols which Paynovate, as a provider of payment
services, provides to the User of payments services, and which is used to
identify the User of payment services participating in the Payment Transaction,
and/or the account of the User used in the Payment Transaction.
1.3 Registration in the System:
To start using Paynovate Services, the Client has to
register in the System. The use of the Paynovate
Application is described in the Terms of Use available in the system. Paynovate has the right to refuse to register the new
Client without indicating the reasons, however, Paynovate
assures that the refusal to register will always be based on significant
reasons which Paynovate does not have to or does not
have the right to reveal.
The Account for the
Client can be opened by the Client’s Representative. By registering the Client
in the System, the Client’s Representative confirms that they are duly elected
or appointed to represent the Client, also that the legal entity represented by
them is properly established and operates lawfully. The Client’s Representative
must provide the documents specified in the System in order
to be duly verified under the procedures laid down in the System.
If the onboarding
procedure is successfully completed and Paynovate is
satisfied with the identification and verification of the identity of the
Customer concerned, the Bank shall confirm the acceptance of the Customer, Paynovate shall confirm the Customer's acceptance and the
contractual relationship between the Customer and Paynovate
shall take effect in accordance with these General Terms and Conditions.
The Agreement comes into
force after the client’s Representative has registered the Client in the
System, learned the terms and conditions of the present Agreement and every
related document, and electronically expressed their consent to comply with
them.
The Agreement is valid
for an unlimited period of time. By registering in the
System, the Client confirms that they agree to the terms of the Agreement and
undertakes to observe them. The Client confirms that they have provided the
correct data when registering in the System and, if there is a need to change
or add data, the Client will submit correct data only. The Client shall bear
any losses that may occur due to the submission of invalid data. In order for Paynovate to start or
continue the provision of Services, the Client and/or the Client’s
Representative shall confirm the profile, the provision of a new Service or a
part of a Service and perform the Client identification procedure under the
circumstances and procedures set out in the Agreement or in the System. The
Client identification procedure, confirmation of the Profile, and provision of
new Services is performed in order to ensure the
protection of the interests of the Client and Paynovate.
Paynovate has the right to demand data and/or documents
that would help Paynovate identify the Client and/or
receive significant information necessary for proper provision of Paynovate Services to the Client. Specific data and/or
documents to be submitted shall be indicated in the message to the Client about
the necessity to perform Client identification or other verification
procedures.
For the purpose of performing Client
identification, Paynovate has the right demand the
Client to perform the following actions:
- Provide originals of
the documents required by Paynovate and/or their
copies of documents approved by a notary, or another person authorized by the
state.
- Paynovate,
in performing the obligation to identify the beneficiary, has the right to
require the Client to submit a valid list of participants of their legal
entity. When submitting this list, the Client must confirm that it is relevant
and accurate and that the listed persons control the shares of the legal person
in their own name and not in the name of third parties. If the shares of the
legal entity are controlled in the name of third persons, the Client must
indicate these circumstances in addition, also specifying the third parties who
are managing the shares. Paynovate has the right to
refuse to provide Services if it turns out that it is not possible to identify
the beneficiaries of the legal entity.
The Parties agree that
the Client can confirm -or sign- documents (e.g., agreements, consents, etc.)
by electronic means.
Paynovate has the right to demand additional
information and/or documents related to the Client or transactions executed by
them and has the right to suspend a transaction of the Client until the Client
provides additional information and/or documents related to the suspended
transaction. Paynovate has also the right to request
the Client to fill in and periodically update the Client’s questionnaire. If
the Client does not provide additional information and/or documents within a
reasonable time period set by Paynovate,
Paynovate has the right to suspend the provision of all
or a part of the Services to the Client.
2 How the Payment Account works
In the event of
acceptance of the opening of the Payment Account, an email of confirmation will
be sent by Paynovate to the Client. The payment
account number (IBAN number) opened in the name of the Client is available in
its Personal Area.
The Client can then send
funds to their Payment Account, via SEPA transfer, by a first incoming transfer
from an account opened in their name with a payment service provider located in
the European Union, the European Area or a third countries imposing equivalent
obligations in the fight against money laundering and the financing of
terrorism. Notwithstanding the foregoing, the Client may not make any Payment
Transactions until Paynovate has proceeded activation of all Services. The
Client can manage the Account via the Internet by logging in to the personal
Profile of the Client with the login and password and carrying out additional
authentication (Strong Customer Authentication).
2.1 Designation of Users
The opening of the
Account is made through the Owner who has the rights to represent and engage
the Client. The Owner may be a corporate officer or a natural person other than
the corporate officer expressly mandated by the Client. In the event of loss by
the Owner of his/her rights to the Account (for example, change of the
corporate officer or revocation of the Power of attorney of the authorized
person), the Client undertakes to inform Paynovate
without delay. In the absence of notification or in the event of late
notification, the liability of PAYNOVATE cannot be engaged.
Moreover, the Client may
give Power of attorney to Administrators or Members authorized to use the
Services on their behalf and for their account, and under their entire
responsibility. The Power of attorney form is available in the Personal Area of
the Account’s Owner or Administrator. The power of attorney will only take
effect upon receipt by Paynovate of the duly
completed form and the required supporting documents.
The power of attorney
ceases automatically upon the death of the Owner or the Administrator who has
issued it. The power of attorney may be revoked by the Client at any time by
informing Paynovate through their Personal Area
without undue delay. If the notification is not made or is made late, the Power
of attorney remains valid and
PAYNOVATE cannot be held
liable. The Client expressly discloses the obligation of professional secrecy
relating to the Payment Account data in respect of Users. The Client determines
for each User the scope of the rights he/she has on the Payment Account. Each
User is assigned Personalized Security Data of his/her own, in
order to access his/her Personal Area. The Personal Area of each User is
personalized according to the rights granted to him/her by the Client. The
different Users profiles are: Owner, Administrator,
and Member.
2.2 Personalized security data
The Client must take all
reasonable steps to maintain the confidentiality and security of its
Personalized Security Data. It also undertakes to make users aware of the
preservation of the confidentiality and security of their own personalized
security data. The Client (and each User) undertakes not to communicate their
Personalized Security Data to third parties. Exceptionally, the Client may
communicate them to an Access Service Provider for the purpose of providing the
account information service or the payment initiation service. In this case,
and having expressly consented to access their Account, the Client must ensure
that the said Provider is approved or registered for the aforementioned
services, and that they enter their Personalized Security Data in a
secure environment.
Paynovate reserves the right to refuse access to the
Payment Account to such a Provider if it suspects that access to the Account is
not authorized or fraudulent. Paynovate will inform
the Client by any means of the refusal of access to the Payment Account and the
reasons for such refusal, unless this information is not available for
objectively justified security reasons or under a relevant provision of
national or European Union regulation.
2.3 Statements
The Client is informed by
Paynovate of any provision of information on a
durable medium within the meaning of the law and case law. Paynovate
provides the Client with a statement of the Payment Transactions on their
Account. This statement is available in their Personal Area.
The Client undertakes to
check the contents of the Statement of Operations and to keep it for a minimum
of five (5) years. The statement is a legal record of all Payment Transactions
made on the Payment Account.
2.4 Balance of the payment account
As the Client's Payment
Account balance cannot be in any way negative, the Client undertakes to
maintain a sufficient balance on their Payment Account to ensure the execution
of the Payment Transactions. In the case of an insufficient balance, Paynovate shall reject the Transactions concerned.
Exceptionally, and
without any obligation of payment facility, Paynovate
may be required to pay one or more Transactions, the amount of which would be
greater than the balance of the Client's Payment Account (in particular in the
case of an Operation by card without prior
authorization, or issuance of unpaid card or a direct debit).
In this situation, the
Client undertakes to send funds to their Payment Account without delay in order to restore a positive or zero balance. In case of
non-compliance with these obligations, Paynovate
reserves the right to suspend or close the Payment Account and to use all means
to recover the amounts due.
2.5 Inactive account
The Client's Payment
Account is considered inactive when, after a period of twelve (12) months, it
has not been the subject of any transaction (excluding management fees) on the
initiative of the Client (or any User) and that the latter has not made any representations
to Paynovate in any form whatsoever.
When the Account is
considered inactive, Paynovate informs the Client by
any means. In the absence of a response from the Client or any new transaction
on the Account and in the case where the balance is positive, the Account will
be closed at the end of a period of ten (10) years from the last transaction on
the account. The Client will be informed by any means six (6) months before the
effective closing of the Account.
The balance will be
deposited with the authorized Institution and the sums may be claimed by the
Client or his beneficiaries for twenty (20) years from their deposit. Paynovate may debit an inactive account management fee each
year, to the extent permitted by law.
2.6 Anti Money laundering and terrorist financing
As a Payment Service
Provider, Paynovate is subject to the legal and
regulatory provisions relating to the fight against money laundering and the
financing of terrorism. For this purpose, Paynovate
must carry out all the necessary procedures relating to the identification of
the Client and, when applicable, the ultimate beneficial owner, as well as to
the verification of the identity of the latter. Throughout the duration of the
Contract, the Client undertakes to keep Paynovate
informed about any changes without delay concerning, in
particular, their activity, the identification of their corporate
officers and beneficial owners, including a change of control.
In addition, Paynovate must inquire about the origin of the Payment
Transactions, their purpose and the destination of the funds. From an
operational point of view, Paynovate is required to
set up a system for monitoring and detecting atypical payment transactions.
The Client undertakes to
comply with obligations to combat money laundering and terrorist financing by
providing information to Paynovate about any unusual
Payment Transactions detected by Paynovate. Paynovate reserves the right to request any other document
or additional information if deemed necessary to meet its vigilance obligations
in the sense of the fight against money laundering and the financing of
terrorism. As such, Paynovate could postpone the
opening of the Payment Account or temporarily block and even close it in case
of persistent suspicion.
The Client ensures that:
- Incoming funds in their
Paynovate Account are not obtained as
a result of criminal activity
- The Client will not use
services provided by Paynovate for any illegal
purposes, including actions and transactions in order to
legalize funds derived from criminal or other illegal activities
3 Execution of payment transactions
3.1 Payment transaction
A Payment Transaction is
independent of the underlying civil or commercial obligation between the Client
and the Payment Recipient. Paynovate therefore
remains foreign to any civil or commercial dispute that may arise between the
Client and the Beneficiary.
A Payment Transaction may
be initiated by the Client who gives a Payment Order (transfer) directly, by
the Client who gives a Payment Order through the Beneficiary (card) or by the
Beneficiary (direct debit).
3.2 Security of payment instruments
The Client will take
reasonable steps to maintain the security of their Custom Security Data. Upon
knowledge of loss, theft, misappropriation or any unauthorized use of a payment
instrument or related data, the Client shall promptly inform Paynovate for the purpose of blocking (or opposition) of
the instrument, by email: support@paynovate.com. The Client can also claim a
direct opposition from their Personal Area.
This request must be
confirmed by letter with acknowledgment of receipt sent to the following
address: Paynovate SA – Cantersteen
47, 1000 Brussels. Paynovate reserves the right to
subsequently request a receipt or a copy of the complaint following the theft
or fraudulent use of its Account. The Client undertakes to respond to Paynovate's request as soon as possible.
Paynovate executes the request for opposition as soon
as it receives it. The event will be recorded and timestamped. An opposition
number with timestamp will be communicated to the Client. A written
confirmation of this opposition will be sent to the concerned Client by email.
In case of blocking (or
opposition), Paynovate provides the Client, at their
request and for eighteen (18) months from the blocking (or opposition), the
elements allowing them to prove that they have successfully blocked (or
opposed).
Any misrepresentation by
the Client or Users may result in legal action.
3.3 Strong Client Authentication
In accordance with the
law, Paynovate applies Strong Client Authentication
when it:
● accesses the Client’s
Online Payment Account;
● initiates an Electronic
Payment Transaction;
● executes an Operation through a means of remote communication, which may
involve a risk of fraud in payment or other fraudulent use.
Strong Authentication is
performed by the input of a 2-factor authentication code received by SMS on the
phone number associated with the User, in the dedicated field of the
Application.
4 Execution of payment orders by transfer
4.1 General description
The Client may issue, via
a User who has the necessary rights (Owner or Administrator) a payment Order by
transfer from their Payment Account to an account opened in the books of
another payment service provider.
The Client may initiate
Transfer Orders in Euros only. The list of currencies covered is indicated in
the Personal Area of the authorized User.
To initiate a Transfer
Order, the User who has the necessary rights connects to his/her Personal Area
using his/her Identification Data, entering:
● The amount of the
Payment Transaction (the User must ensure that the Account has a balance sufficient
to cover the amount of the Payment Transaction and any associated costs);
● The identity of the
Beneficiary of the transfer as well as his/her bank details (IBAN);
● The execution date (in
the absence of indication of date, the Transfer Order occurs immediately);
● The reason for payment;
● Currency.
The User is invited to
check all of this information before validating the
Transfer Order. In case the Payer indicates incorrect data of the Recipient,
and the Payment Order is executed according to the data provided by the Payer,
it shall be considered that Paynovate has fulfilled
its obligations properly and shall not repay the transferred amount to the
Payer. Paynovate commits to take all necessary
actions to track the payment transaction and will seek to return the funds of
the payment transaction, however, in the event of failure to do so, the Payer
shall directly contact the person who has received the transfer, on the issue
of returning the money.
The consent of the User
to the Transfer Order is collected according to the procedure indicated in the
Personal Area. The User must follow any strong authentication procedure
requested by Paynovate. The Transfer Order is
irrevocable once it has been definitively validated by the User from his/her
Personal Area. Paynovate will not accept any request
for cancellation of a transfer beyond its date of irrevocability.
Transfer Orders are time
stamped and kept for the applicable legal period. When the consent is given
through a Service Provider providing a payment initiation service, the form of
this consent is determined by the Client and the said Provider, under the conditions
agreed between them. Paynovate is not a party to
these conditions and does not have to verify the Client's consent.
When the Transfer Order
is initiated, at the request of the Client, by a service provider providing a
payment initiation service, the Client may not revoke the Order after granting
consent.
4.2 transfers denominated in Euros
The Transfer Order must
comply with SEPA rules set forth in the “SEPA Credit Transfer Rulebook.” The
User has the option of issuing instant or standard Transfer Orders, one-time,
or recurring Transfer Orders.
For instant Transfer
Orders, the Transfer Order is deemed received by Paynovate
once the User has definitively given his/her consent to the Order, according to
the procedure indicated in the Personal Area ("Date of receipt"). It
is expressly agreed that the Orders for Instant Transfers will be executed by Paynovate not later than the end of the Business Day
following the Date of receipt of the Order by Paynovate.
If the Date of receipt is not a Business Day, the Payment Order is determined
to be received on the next Business Day. The Parties also agree that any
Payment Order validated on a Business Day after 16:45 shall be received on the
next Business Day.
With respect to standard
Transfer Orders, they will be executed at the latest at the end of the day
indicated by the Client. If it is not a Business Day, Paynovate
will execute the Transfer Order on the next Business Day.
4.3 Refusal of execution
Paynovate may refuse to execute any incomplete or
incorrect Transfer Order. The Client will then be asked to re-issue the Order
to edit missing or incomplete information.
In addition, Paynovate may suspend a Transfer Order in the event of
serious doubt of fraudulent use of the Account, unauthorized use of the
Account, breach of security of the Account, suspicion of money laundering /
financing of terrorism, or in the event of an assets-freeze order issued by an
administrative authority.
In case of refusal of
execution or blocking of a Transfer Order, Paynovate
will inform the Client by any means as soon as possible, and at the latest by
the end of the first Business Day following the Date of receipt. If possible, Paynovate will indicate the reasons for the refusal or
blocking to the Client, unless prohibited by a relevant provision of national
or European Union law. The Client is informed that such notification may be
subject to the charges indicated in the Pricing if the refusal is objectively
motivated.
4.4 Contestations concerning Payment orders by transfer
If the Client wishes to
contest an allegedly unauthorized or incorrectly executed Transfer, they must
contact Paynovate's Client service by phone call or
email as soon as possible after becoming aware of the discrepancy and no later
than four (4) weeks following the registration of the Payment Transaction in
the Account.
Unless Paynovate has reasonable grounds to suspect fraud by the
Client or gross negligence on the part of the Client, Paynovate
shall reimburse the Client for the amount of the
payment Transaction immediately after receiving the contestation, and in any
event not later than the end of the following Business Day. Paynovate
restores the Account to the state in which it would have been if the
Unauthorized Payment Transaction had not taken place. Paynovate
reimburses the Client under the same conditions when the Payment Transaction
was initiated by a payment initiation service provider.
Fees and Pricing
Conditions may be levied in the event of an unjustified contestation of a
Payment Transaction. Paynovate cannot be held liable
when the incorrect execution of the payment Transaction is the result of an
error by the Client on the Unique Beneficiary Identifier (IBAN). Paynovate will endeavor to recover funds committed to the
payment Transaction.
If Paynovate
is unable to recover funds, the Client may request Paynovate
to provide any relevant information it has in order to
document its legal recourse to recover the funds.
4.5 Receiving transfers
Under the terms hereof,
the Client expressly mandates Paynovate to receive
SEPA Transfer Orders in Euros from an account opened in the books of a payment
service provider located in the SEPA zone in their name and on their behalf. Paynovate credits the Client's Payment Account not later
than the end of the Business Day on which their own account has been credited
with the funds. As soon as the transaction is credited to the Client's Payment
Account, Paynovate shall make a summary of the
transaction including the following information available in the Personal Area:
amount, date and time, Payment Transaction number, name of the Payer, debited
account, and reason of the Transaction (if applicable).
The Client having noticed
that money has been credited to or deducted from their Paynovate
Account by mistake or in other ways that have no legal basis, is obliged to
notify Paynovate about it. The Client has no right to
dispose of money that does not belong to them. In such cases, Paynovate has the right, and the Client gives an
irrevocable consent to deduct the money from their Paynovate
Account without the Client’s order. If the amount of money in the Paynovate client’s Account is insufficient to debit money
credited to or deducted from their Paynovate Account
to their other accounts by mistake, the Client unconditionally commits to repay
Paynovate the money credited to or deducted from the Paynovate Account to their other accounts by mistake in 3
(three) business days from the receipt of such request from Paynovate.
5 Direct debits
5.1 SEPA core and direct debits
The Client has the option
of paying by SEPA direct debit for persons with whom they have a business
relationship (the "Creditors"). For the purpose of
this article, the term "Maturity Date" means the date of interbank
settlement, i.e. the date of debiting the Client's Account.
5.2 Direct debit mandate (“Mandate”)
The Client who accepts
the SEPA Direct Debit as a method of payment must complete the Mandate
delivered by their Creditor and return it to them accompanied by a Bank
Statement of Identity on which his BIC and IBAN appear. The physical person
signing the SEPA Direct Debit Mandate must be a person authorized by the Client
for this transaction.
The Client undertakes to
inform the Establishment of the signature of any Collection Order.
By signing the Direct
Debit Mandate, the Client expressly waives the right to reimbursement of
authorized and correctly executed transactions.
The Client may at any
time revoke the Collection Order from their Creditor. In this case, they
undertake to inform Paynovate immediately. Paynovate cannot be held responsible for a poorly executed
operation due to a lack of information from the Client (for example: bank
account number missing or bank details incomplete).
The Client undertakes to
inform Paynovate immediately of any change to the
Terms of Reference. Paynovate cannot be held
responsible for a poorly executed operation due to a lack of information from
the Client.
The Client may also
revoke the Mandate at any time within their Personal Area or by contacting Paynovate. For this purpose, they shall communicate the
unique Reference of the Mandate to Paynovate. The
revocation must be requested by the Client at the latest before the end of the
Business Day preceding the Expiration Date of the next withdrawal operation
provided for by the Mandate.
The revocation entails
the definitive withdrawal of the Client's consent to the execution of the
Mandate. Paynovate will refuse all the Orders of
Samples presented after the revocation of the Mandate by the Client.
A Money Order for which
no SEPA Direct Debit Order has been submitted for a period of thirty-six (36)
months becomes null and void. In this case, the Client must enter and validate
a new mandate.
5.3 Direct debit orders
The Client is informed
that their Creditor is required to provide them with advance notice of at least
fourteen (14) calendar days before the SEPA Direct Debit Due Date, unless there
is a specific Contract between the Client and the Creditor in the Mandate.
Upon receipt of this
notification, the Client has the opportunity to verify
compliance with their relationship with the Creditor. The Client must ensure
that they has sufficient funds in their Account on the
Due Date.
In the event of
disagreement, the Client is invited to immediately address their Creditor so
that the latter suspends the transmission of the Collection Order or issue an
instruction for the revocation of the original Direct Debit Order.
Paynovate receives the Direct Debit Orders transmitted
by the Creditor's payment service provider no later than the day before the Due
Date. For a first recurring charge or for an one-off
charge, Paynovate will verify the existence of the
Client's consent and the validity of the Mandate. In case of inconsistency or
incomplete data, Paynovate may reject the relevant
Direct Debit Operation.
For the following
recurring Direct Debits, Paynovate verifies the
consistency of the mandate data with the data already recorded and the data of
the Transactions. In case of inconsistency, Paynovate
will contact the Client.
Paynovate debits the Client's Payment Account of the
amount of the Transaction when no event is against it and provided that the
Payment Account has a sufficient provision. The Client will receive a
notification in their Personal Area to inform them of the amount debited from
their Account.
5.4 direct debit orders dispute
It is specified that the
Client has no right to reimbursement if the mandate does not indicate the exact
amount of the debit transaction and the amount of the transaction exceeds the
amount to which the Client could reasonably expect.
The Client may request
the refund of an unauthorized deduction within thirteen (13) months from the
date of debiting their account, under penalty of foreclosure. This period shall
be reduced to seventy (70) days if the Beneficiary's payment service provider is located in a State that is not a member of the European
Union or the European Economic Area.
6. Force majeure
Neither party will be
liable for any delays in processing or other nonperformance caused by
telecommunications, utility, failures, or equipment failures, labor strife,
riots, war or terrorists attacks, pandemic context, nonperformance of our
vendors or suppliers, fires or acts of nature, or any other event over which
the respective party has no reasonable control.
However, nothing in this
section will affect or excuse your liabilities or your obligation to pay fees,
fines, disputes, refunds, reversals or returns under this agreement.
7. Warranties
By accepting the terms of
this Agreement, you represent and warrant that: (a) you are eligible to
register and use the Services and have the authority to execute and perform the
obligations required by this Agreement; (b) any information you provide us about
your business, products, or services is accurate and complete; (c) any Charges
represent a Transaction for permitted products, services, or donations, and any
related information accurately describes the Transaction; (d) you will fulfil
all of your obligations to Customers and will resolve all Disputes with them;
(e) you will comply with all Laws applicable to your business and use of the
Services; (f) your employees, contractors and agents will at all times act
consistently with the terms of this Agreement; (g) you will not use Payment
Processing Services for personal, family or household purposes, for
peer-to-peer money transmission, or (except in the normal course of business)
intercompany Transactions; and (h) you will not use the Services, directly or
indirectly, for any fraudulent or illegal undertaking, or in any manner that
interferes with the normal operation of the Services.
You affirm that Paynovate does not control the products or services that
you offer or sell or that your customers purchase using the payment processing
services. You understand that we can’t guarantee and
we disclaim any knowledge, that your customers possess the authority to make,
or will complete, any transaction. Paynovate
disclaims any knowledge of, and do not guarantee:
- The accuracy,
reliability, or correctness of any data provided through the services;
- That the services will
meet your specific business needs or requirements;
- That the services will
be available at any particular time or location, or will function in an
uninterrupted manner or be secure;
- That Paynovate will correct any defects or errors in the
service, API, documentations, or data and;
- That the services are
free or viruses or other harmful code.
Use of data you access
through the services is done at your own risk. You are solely responsible for
any damage to your property, loss of data, or any other loss that results from
such access. You understand that Paynovate make no
guarantees to you regarding transaction processing times or payout schedules.
Nothing in this agreement operates to exclude, restrict or modify the
application of any implied condition, warranty or guarantee, or the exercise of
any right or remedy, or the imposition of any liability under law where to do
so would contravene that law or cause any term of this agreement to be void.
8. Liability
Under no circumstances
will Paynovate be responsible or liable to you for
any indirect, punitive, incidental, special, consequential, or exemplary
damages resulting from your use or inability to use the Services or for the
unavailability of the Services, for lost profits, personal injury, or property
damage, or for any other damages arising out of, in connection with, or
relating to this Agreement or your use of the Services, even if such damages
are foreseeable, and whether or not you or Paynovate
have been advised of the possibility of such damages.
Paynovate is not liable, and deny responsibility for,
any damages, harm, or losses to you arising from or relating to hacking,
tampering, or other unauthorized access or use of the Services, your Paynovate Account, or Data, or your failure to use or
implement anti-fraud measures, Security Controls, or any other data security
measure. Paynovate further deny responsibility for
all liability and damages to you or others caused by
(a) your access or use of
the Services inconsistent with the Documentation;
(b) any unauthorized
access of servers, infrastructure, or Data used in connection with the Services;
(c) interruptions to or
cessation of the Services;
(d) any bugs, viruses, or
other harmful code that may be transmitted to or through the Services;
(e) any errors,
inaccuracies, omissions, or losses in or to any Data provided to us;
(f) third-party content
provided by you; or
(g) the defamatory,
offensive, or illegal conduct of others.
9. Dispute resolution
This Agreement and the
rights of the parties hereunder shall be governed and construed in accordance
with the laws of Belgium, exclusive of conflict or choice of law rules.
Nothing in this section
will preclude the parties from seeking provisional remedies in aid of
arbitration from a court of appropriate jurisdiction.
Each party hereby
irrevocably and unconditionally consents to service of process through personal
service at their corporate headquarters, registered address, or primary address
(for individuals or sole proprietors). Nothing in this Agreement will affect
the right of any party to serve process in any other manner permitted by Law.
10. Entire Agreement
This Agreement and all
policies and procedures that are incorporated by reference constitute the
entire agreement between you and Paynovate for
provision and use of the Services. Except where expressly stated otherwise in a
writing executed between you and Paynovate, this
Agreement will prevail over any conflicting policy or agreement for the
provision or use of the Services. This Agreement sets forth your exclusive
remedies with respect to the Services. If any provision or portion of this
Agreement is held to be invalid or unenforceable under Law, then it will be
reformed and interpreted to accomplish the objectives of such provision to the
greatest extent possible, and all remaining provisions will continue in full
force and effect.
11. Duration, Suspension and Termination
The Agreement is of
unlimited duration. Paynovate, at its own discretion,
and taking into consideration a specific situation, giving preference to
execution of legal acts applied to the activity of Paynovate,
and interests of the Client, has the right to unilaterally and without a prior
notice apply one or several of the following measures:
- To suspend execution of
one or several Payment transfers
- To suspend the
provision of all or part of Services to the Client
- To detain the client’s
funds that are matter of dispute
- To block the Account
(i.e. fully or partially suspend Payment Transactions on the Account)
- To refuse to provide
Services
- To return arrested
funds from the Account of the Client to the primary sender funds
The aforementioned
measures may be applied only in the following exceptional cases
:
- If the Client
essentially violates the Agreement or its Supplements
- If the activities of
the client using a Paynovate Account have the
potential to harm Paynovate’s business reputation
- If the Client fails to
complete the necessary identification procedures, or submit information
required by Paynovate, or the Client provides
information that does not conform to the requirements stipulated by legislation
or Paynovate
- If Paynovate
receives substantiated information about the Client’s liquidation or bankruptcy
case
- In cases specified by
legislation
- In other cases stated in the Agreement or its Supplements.
You may terminate the
Agreement and close your account by giving thirty (30) days written notice (by
any medium). The closure commences on the day a party issues the written
notice. Once the closure has come into effect the Client can no longer give
instructions concerning accounts, and Paynovate may
reject any such instructions. Once the closure is effective Paynovate
stops all related services. Any funds remaining after the closure of the online
account will be transferred to any other external business bank account as
indicated in the closure notice.
Paynovate has the right to terminate the Agreement
giving at least two (2) months’ notice to the Client by post or email, at the
last communication address declared by the Client or by another durable medium.
Without prejudice to all
other available rights of Paynovate under the
applicable laws or this Agreement, and unless otherwise provided in the
Specific Terms and Conditions, the Agreement may be terminated by Paynovate with immediate effect and without compensation
fee if one of the following events occurs:
- the Client acts in
contravention of generally accepted business practice;
- the Client violates the
legal regulations (inter alia international regulations against money
laundering) or violates the interests of Paynovate;
- the Client fails to
respect this Agreement, for example, by not paying the services fees in due
time (during two or more consecutive months)
- in case of any
insolvency event concerning the Client or seizure procedures against the Client
- in case Paynovate or the client is denied or withdrawn any license,
registration or approval by any Competent Authority or the Payment Scheme
necessary to perform the Services.
12. Confidentiality and Data Protection
The Parties undertake to
keep the technical and commercial information of each other secret, except for
publicly available information which has become known to them while executing
the present Agreement, and not transfer it to third
parties without written consent from the other Party or its legal
representatives.
The Client agrees for Paynovate to manage their Personal Data with an aim to
provide services to the Client and execute other responsibilities under the
present Agreement.
The Parties guarantee the
security of Personal Data received while executing the present Agreement. The
above-mentioned Personal Data cannot be disclosed to third Parties without
consent from the subject of this data, except for cases stated by the law or
the present Agreement.
The data retention and
protection issues are governed by the Supplement to the Agreement Privacy
Policy, which the client read and commits to adhere it.
The Client undertakes to
protect and not to disclose any Passwords, created by them or provided to them
under the present Agreement. If the client has not complied with this
obligation and/or could, but has not prevented it
and/or performed such actions on purpose or due to own negligence, the Client
fully assumes the losses and undertakes to reimburse the losses of the persons
incurred due to the indicated actions of the Client or their failure to act.
In the event of loss of
an Account Password or other Passwords by the Client or the Password(s) are
disclosed not due to the fault of the Client or Paynovate,
or in case a real threat has occurred or may occur to the Profile of the
Client, the Client undertakes to change the Passwords immediately or, if the
client does not have the possibility to do that, notify Paynovate
thereof immediately. Paynovate shall not be liable
for the consequences originating due to the notification failure.
After Paynovate
receives the notification from the Client, Paynovate
shall immediately suspend access to the Profile of the Client and the provision
of Paynovate services until a new password or created
for the Client.
Paynovate has the right to transmit all collected
important information about the Client and their activity to other law
enforcement institutions, public authorities and other financial institutions,
it such is determined by the legislation, and in order to
identify whether this Agreement and relevant legislation have not been or will
not be violated. Under the client’s request, the Client’s data may also be
transmitted to payment initiation or account information service institutions. Paynovate may refuse to provide an account information
service provider or a payment initiation service provider with access to the
Client’s Account based on objective and duly reasoned grounds relating to
unauthorized or unfair access to the Account, gained by that account information
service provider or payment initiation service provider, including unauthorized
or unfair payment transaction initiation.
13. Complaints
If you have a complaint
with the Payment Services we provide, please contact complaints@paynovate.com.
If your complaint is unresolved, you may be entitled to refer to the Financial
Ombudsman Service (https://www.ombudsfin.be/fr/particuliers/home).
14. Amendments
The contractual
relationship between you and Paynovate shall commence
immediately after you have been successfully registered as a Customer. Paynovate is entitled to unilaterally amend the provisions
of these General Terms and Conditions. The Client shall be informed of any
changes to the General Terms and Conditions by means of a notification on the
App and a copy of the new General Terms and Conditions shall be sent to the
Client on a durable medium, at his request.
Unless otherwise agreed,
any changes to these General Terms and Conditions or other agreements shall
take effect at the earliest within two (2) weeks from the date of their
notification to the Customer. notification to the Customer. The Client shall be
deemed to have accepted amendments and additions to the Agreement unless it
notifies Paynovate that it does not accept them
before the expiry of the notice period, which shall result in the automatic
termination of the Agreement.
Immediate or no notice
shall be given in case Paynovate amends in any way or
adds any provision to the Agreement where the amendment or addition is required
in the event of any changes imposed on Paynovate by
any Competent Authority or any applicable law.
15. Laws and jurisdiction
The Agreement is governed
and shall be construed in accordance with the laws of Belgium.
Any dispute arising out
of or in connection with the Agreement which shall not be amicably settled by
the Parties through good faith negotiation within three (3) months after
notification in writing by any of the parties shall belong to the exclusive jurisdiction
of the Courts of Brussels (Belgium), even in case of side claim or
counterclaim.
Annex 2 : Paynovate’s Card Terms Consumers (If Applicable)
Consumer Terms and Conditions for Consumer
Mastercard Debit Cards issued by SA/NV “PAYNOVATE”.
These terms and conditions apply to your consumer debit card. You
accept these terms and conditions by activating your debit card.
These Terms shall be carefully read before activating your Debit Card.
In these terms and conditions “you” means :
a) the Consumer.
These
terms shall apply to You as referred in the clauses below.
“We”,
“us” or “our” means SA/NV “PAYNOVATE”.
1.
These Terms
1.1.
What these Terms cover. These are the terms and conditions which govern the use of the Card,
which you have been issued with or will be issued with.
1.2.
Why you should read them. Please read these Terms carefully before you
use your Card, as they apply to the services provided by us. These Terms tell
you who we are, who we work with, how you can use your Card and the steps you
need to take to protect yourself from unauthorised
use of the Card and how you and we may change or end the contract, what to do
if there is a problem and other important information. If there are any terms
that you do not understand or do not wish to agree to, or you think that there
is a mistake in these Terms, please contact us to discuss.
1.3.
Interpreting these Terms. In
order to easily understand these Terms, please first
refer to clause 3 which, amongst other things, sets out the meaning of capitalised terms used in these Terms.
1.4.
How can you agree to these Terms? You can agree to these
Terms [by checking the box online confirming that you agree to same, by signing
same (using a PDF signer, wet ink or otherwise)] [this can be changed to say
whatever is the preferred method of the customer] or by otherwise confirming
your agreement to same or availing of the Card.
1.5.
When will you become a client of ours? You
will be bound by these Terms once you have agreed to it as set out above and
these Terms shall remain in force until terminated in accordance with its
conditions.
2.
Information about us and how to contact us
2.1.
Who we are. Paynovate SA/NV
(“PAYNOVATE”) is a limited partnership incorporated since 11/12/2014 under
Belgian law. Its registered office is located at 47 Cantersteen
1000 Brussels, Belgium. PAYNOVATE is registered with the Belgian Crossroad Bank
for Enterprises under number 0506.763.929.
PAYNOVATE qualifies as a Belgian electronic money institution (“EMI”) under the
Law of 11 March 2018 relating to the status and control of payment institutions
and electronic money institutions, to the access to payment service provider
activity and electronic money issuing activity and to the access to payment
system,
It is supervised in this capacity by the
National Bank of Belgium (“NBB”) since 26/03/2019.
2.2.
Who we work with when providing you with services relating to the Card. Although we are the sole issuer of the Card, we work with LinkCy SAS as our Card Distributor. You can find out more
information on the Card Distributor Website.
2.3.
The Card Distributor, after the Partner, will be your first point of contact in
relation to these Terms, for example if you:
2.3.1.
wish to cancel the Card or complain about the service you have been
provided with pursuant to these Terms;
2.3.2.
let us know that the Card has been or potentially has been lost,
stolen or misappropriated; and
2.3.3.
report an unauthorised Transactions relating
to your Card.
2.4. The services provided by the Card Distributor and the Partner are
governed by a separate set of terms and conditions.
2.5. We also provide you with the E-money Account where the funds, which
can be spent using the Card, are held. Our company details are set out in
section 2.1. The services provided by Paynovate SA
for the Account are governed by a separate set of terms and conditions between
you and us. The E-money Account is associated with your Card. After having
received funds from you, we issue E-Money at par value. Please note that
E-money held in the Account shall not be interpreted as a deposit or other
repayable funds and will not earn any interest to you.
2.6. We ensure that once we have received the funds they are deposited in a
secure account, specifically for the purpose of redeeming Transactions made by
the Card. In the event that we become insolvent, funds
against which we have already issued E-Money are protected against the claims
made by creditors.
2.7. At your request, part or all of the E-Money
held on the Card will be redeemed at their par value at any time, except if
otherwise established under these Terms or legal acts. You can choose the
amount of redeemed E-Money. Where redemption of E-Money is requested by you on
or up to one year after the date of the termination of these Terms, the total
monetary value of the E-money held by you will be redeemed.
2.8. How to contact us.
You
can contact us, via the Card Distributor, by email : support@linkcy.io
2.9.
How we may contact you. If we have to contact
you we will do so by email address or postal address you provided to us or the
Card Distributor. Any changes to your telephone number, email address or postal
address or other personal data we hold about you must be notified by you
immediately and in writing in accordance with section 2.8.
3.
Interpretation
3.1.
The definitions set out in this clause apply in these Terms as follows:
●
“Account” means E-Money account associated with the
Card.
●
“AISP” means account information service provider.
●
“ATM” means automatic teller machine.
●
“Business Day” means a day when the clearing banks in Vilnius
are open for business, excluding Saturdays, Sundays and public holidays in
Belgium.
●
“Card” means the personal, non-transferable card
scheme branded debit card which you have been issued with or will be issued
with by us.
●
“Card Partner” means Slide (Digital Flow Technologies OÜ), a
third-party company with its own customer base and with which LinkCy has entered into a partnership agreement for the
provision of the Services detailed in these GTCU. The Partner hereby acts
solely as a business contributor and is responsible for first level customer service, but does not provide Payment Services under any
circumstances.
●
“Card Partner’s App” means the Card Partner’s
mobile application, relating to the Account and the Card.
● “Card Partner’s Website” means https://slide-money.com
● “Card Distributor’s Website” means https://linkcy.io/, being the website belonging to the Card Distributor;
● “Card Distributor” means LinkCy SAS;
●
“Consumer” means an individual who, in accepting these
Terms, is acting for a purpose other than a trade, business or profession.
●
“Durable Medium” means an instrument which enables you to store
information addressed personally to you in a way accessible for future
reference for a period of time adequate for the
purposes of the information and which allows the unchanged reproduction of the
information stored.
●
“E-Money” means electronic money, i.e. electronically
stored monetary value as represented by a claim against us.
●
“E-statement” means information provided in Durable Medium
on the available balance in your Account and the details of any Transactions
you have entered into.
●
“Electronic Money Institution” means
licensed electronic money institution, authorized to issue E-Money and provide
payment services (as defined in the Law on Electronic Money and Electronic
Money Institutions of Belgium and the Law on Payment Institutions of Belgium).
●
“Expiry Date” means the expiry date printed on the Card.
●
“PAN” means primary account number, i.e., the Card
number on the Card.
●
“Provider” means any of our banking providers and any
other business partners.
●
“PIN” means secret personal identification number
associated with a Card which can be used as one method of authorising
Transactions.
●
“PISP” means payment initiation service provider.
●
“Physical Card” means a “physical” Card,
which will have the details of the PAN, the Expiry Date of the Card and the CVV
code printed on it.
●
“Table” means Fee Table set out in Annex A attached to
these Terms.
●
“Terms” means these terms and conditions which govern
the use of the Card which you have been issued with or will be issued with.
●
“Transactions” means transactions referred to in clause 6.1
of these Terms.
●
“Virtual Card” means “virtual” Card, in which case you will not receive a Physical Card but will
receive details of the PAN, the Expiry Date and the CVV2 code.
●
“Website” means our website from time to time, currently
https://www.paynovate.com/ .
3.2. Sub-clause, clause and paragraph headings shall not affect the
interpretation of these Terms and references to sub-clauses, clauses and
paragraphs are to the sub-clauses, clauses and paragraphs of these Terms.
3.3. Any words following the terms including, include,
in particular, for example or any similar expression shall be construed
as illustrative and shall not limit the sense of the words, description,
definition, phrase or term preceding those terms.
3.4. Unless the context otherwise requires, words in the singular shall
include the plural, and in the plural shall include the singular.
3.5. A reference to a statute or statutory provision is a reference to it
as amended, extended or re-enacted from time to time and reference to a statute
or statutory provision shall include all subordinate legislation made from time
to time.
4.
Commencement and expiry of these Terms
4.1. You shall be deemed to accept these Terms as set out above. The Card
shall remain our property and will be delivered by us, or on our behalf, by the
Card Distributor.
4.2. The Terms, excluding Section 8.3, will terminate on the Expiry Date
unless the Card is auto-renewed, in which case you
will be issued with a new Card before the existing one expires. In this
instance these Terms will remain valid until the existing Card expires or is
otherwise as set out in these Terms.
5.
Issuance and activation of the Card
5.1. You may be issued with:
5.1.1.
a Physical Card; or
5.1.2. a Virtual Card.
5.2. In order to start using the Card, you may be
required to activate it in accordance with instructions given to you by the
Partner. You must keep your Physical Card and the details of the Virtual Card
(as applicable) in a safe place and protect it against unauthorised
access or use by third parties.
5.3.
If you are issued with a Physical Card:
5.3.1.
you must sign the Physical Card as soon as you receive it;
5.3.2.
you may also receive a PIN separately by post or you may be able to
retrieve it electronically via the Card Partner’s Website or the Card Partner’s
App.
5.4. You should memorize your PIN when you receive it. If you need to keep
the written version of the PIN or separately write the PIN down for future
reference, you must never keep it with the Card. You must never disclose your
PIN to any other person, not even us. If you have not protected your PIN and
your Card is used without your knowledge using the correct PIN, this may be
classed as negligence for the purposes of Section 9.
5.5. You can manage the Card on your secure area of the Card Partner’s
Website and on the Card Partner’s App.
5.6. The Card shall remain valid until the Expiry Date. If you require a
replacement Card, please contact the Partner. Please note that an additional
fee may be charged for a replacement Card - please see the fees section 12 for
more information.
5.7. The Card is an E-money product and as such it is not covered by the
Deposit Insurance Scheme of Belgium or a comparable guarantee
scheme in any other country. You may only use the Card for lawful Transactions.
6.
Transactions
6.1. Should the relevant card scheme and/or programme
allow, you may use your Card to enter into the
following Transactions:
6.1.1.
purchasing goods and/or services from merchants affiliated with the
card scheme on your Card;
6.1.2.
withdrawing cash from authorised banks worldwide;
6.1.3. receiving cash back from merchants (merchant dependent);
6.1.4.
making cash withdrawals from ATMs.
6.2.
You can authorise a Transaction by:
6.2.1.
allowing a merchant to swipe the magnetic strip of the Card and the
corresponding sales slip being signed; or
6.2.2.
inserting the Card into a chip & PIN device and the correct PIN
being entered;
6.2.3. providing relevant information to the merchant that allows the
merchant to process the Transaction, for example, providing the merchant with
the PAN, the Expiry Date and the CVV2 in the case of an internet or other
non-face-to-face Transaction;
6.2.4. relevant information being provided to the payment initiation service
provider that allows the payment initiation service provider to process the Transaction;
6.2.5. the Card is tapped against a “contactless” enabled reader and
accepted by such reader.
6.3. If any of the methods of authorisation set
out in section 6.2 are used, we shall be entitled to assume that you have authorised a Transaction unless we were informed that the
relevant details of the Card have been lost, stolen or misappropriated prior
the Transaction taking place.
6.4. You acknowledge the correctness of the amount of each Transaction
which you authorise.
6.5. Once you have authorised a Transaction, the
Transaction cannot be stopped or revoked. You may in certain circumstances be
entitled to a refund in accordance with these Terms.
6.6. On receipt of notification of your authorisation
of a Transaction and the Transaction payment order from the merchant and/or authorised bank, normally we will deduct the value of the
Transaction, plus any applicable fees and charges, from the available funds in
the Account. We will execute the Transaction by crediting the account of the
merchant’s or ATM operator’s or bank’s (as applicable) payment service provider
by the end of the next Business Day following the notification. If the
notification is received on a non-Business Day or after 4:30 pm on a Business
Day, it will be deemed received on the next Business Day.
6.7. We are not liable if, for any reason, the affiliated merchants or authorised banks do not accept the Card, or accept it only
partly, nor are we liable in the case of late delivery of, or failure to
deliver, goods or services. In the event of disputes or complaints of any kind
concerning goods or services, or the exercise of any right in this connection,
you should contact the affiliated merchant and/or authorised
ban and/or ATM operator.
6.8. It is your responsibility to ensure that there are available funds in
your Account to cover any spend, allowing for any foreign exchange fees and
other applicable fees under these Terms. Should the Account at any time and for
any reason have a negative balance, you shall repay the excess amount
immediately and in full.
6.9. For Card usage conducted in other currencies (other than the currency
of the Card), you shall accept the exchange rate used by Mastercard, which can
be found on Mastercard’s website. Any changes in exchange rates may be applied
immediately and without notice. The exchange rate, where applicable to a
Transaction, will be shown in the E-statement. Different exchange rates may
apply when reserving or debiting funds. Please be careful when opting to use a
merchant’s, bank’s or ATM operators exchange rates as
they are often less competitive that the card scheme’s exchange rate.
6.10. The maximum amount you may withdraw in cash shall be subject to a
daily limit, irrespective of the available funds in the Account. We may charge
a fee for withdrawal of cash. Some ATMs may charge an additional fee, which is
not included in the Table, however, will apply on top of the fees set out in
the Table. ATM withdrawals may also be subject to foreign exchange rates,
maximum withdrawal limits, rules and regulations of the relevant ATM operator
or bank. It is your responsibility to check whether any such additional fees
apply, as they cannot be refunded once the cash has been withdrawn.
6.11. We and the Card Distributor have the right to review and change the
spending limits on the Card at any time. You will be notified of any such
changes via the Card Partner’s Website and/or the Partner’s App.
7.
Non-execution of a Transaction
7.1. In certain circumstances we may refuse to execute a Transaction that
you have authorised.
These
circumstances include:
7.1.1.
if we have reasonable concerns about the security of the Card or
suspect the Card is being used in a fraudulent or unauthorised
manner;
7.1.2.
if there are insufficient funds available to cover the Transaction and
all associated fees at the time that we receive notification of the Transaction
or if there is an outstanding shortfall on the balance of the Account;
7.1.3.
if we have reasonable grounds to believe you are acting in breach of
these Terms;
7.1.4.
if there are errors, failures (mechanical or otherwise) or refusals by
merchants, payment processors or payment schemes processing Transactions, or
7.1.5. if we are required to do so by law.
7.2. Unless it would be unlawful for us to do so, where we refuse to
complete a Transaction, we will notify you as soon as reasonably practicable
that it has been refused and the reasons for the refusal, together, where
relevant, with the procedure for correcting any factual errors that led to the
refusal. Where the refusal is reasonably justified, we may charge you a fee
when we notify you that your payment request has been refused.
7.3. You may also claim a refund for a Transaction that you authorised provided that your authorisation
did not specify the exact amount when you consented to the Transaction, and the
amount of the Transaction exceeded the amount that you could reasonably have
expected it to be taking into account your previous spending pattern on the
Card, these Terms and the relevant circumstances.
7.4. Such a refund must be requested from us within 8 weeks of the amount
being deducted from the Card. We may require you to provide us with evidence to
substantiate your claim. Any refund or justification for refusing a refund will
be provided within 10 Business Days of receiving your refund request or, where
applicable, within 10 Business Days of receiving any further evidence requested
by us. Any refund shall be equal to the amount of the Transaction. Any such
refund will not be subject to any fee.
8.
Access to information on Transactions and available funds in the Account
8.1. The Card Distributor has set up a secure area on the Card Partner’s
Website and on the Card Partner’s App where you can view the available balance
in your Account and view the details of any Transactions you have entered into. You can gain access to this by following the
instructions on the Card Partner’s Website or the Card Partner’s App. You must
keep the credentials to obtain access to the secure areas safe and not disclose
them to anyone.
8.2.
We can, upon request, send you monthly E-statement by email setting out:
8.2.1. a reference enabling you to identify each Transaction, the
payer/payee, as well as other details transferred together with the Transaction;
8.2.2.
the amount of each Transaction;
8.2.3. the currency in which the Card is debited/credited;
8.2.4.
the amount of any Transaction charges including their break down,
where applicable;
8.2.5.
the exchange rate used in the Transaction by us and the amount of the
Transaction after the currency conversion, where applicable; and
8.2.6.
the Transaction debit/credit value date.
If you would like us to provide you with the
E-statement more often than monthly or not by email (or if agreed differently
under this section 8, more often than agreed or in a different manner than
agreed) then we may charge you a reasonable administration fee to cover our
costs of providing the information more often or in a different manner.
8.3. If for any reason you have some available funds left in your Account
following the termination of these Terms, you may redeem them by contacting us
using the contact details set out in clause 2.8.
9.
Loss of the Card / Transaction refunds
9.1. As soon as you become aware of any loss, theft, misappropriation or unauthorised use of the Card, PIN or other security
details, you must immediately notify us using the contact details set out in
section 2.8.
9.2. In the event of theft, you should consider reporting the theft to the
police.
9.3. If we believe you did not authorise a
particular Transaction or that a Transaction was incorrectly carried out, in
order to get a refund you must contact us as soon as you notice the problem
using the contact details set out in section 2.8 and in any case no later than
13 months after the amount of the Transaction has been deducted from your
Account.
9.4. We will refund any unauthorized Transaction and any associated
Transaction fees and charges payable under these Terms subject to the rest of
this section 9.
9.5. This refund shall be made as soon as practicable and
in any event no later than the end of the Business Day following the day
on which we become aware of the unauthorised
Transaction, unless we have reasonable grounds to suspect fraudulent behavior
and notify the appropriate authorities. If we become aware of the unauthorised Transaction on a non-Business Day or after
4:30 pm on a Business Day, we will be deemed to have only become aware of the unauthorised Transaction at the beginning of the next Business
Day.
9.6. If we are liable for an incorrectly executed Transaction, we will
immediately refund you the amount of the incorrectly executed Transaction
together with any associated Transaction fees and charges payable under these
Terms. Depending on the circumstances, we may require you to complete a dispute
declaration form relating to the incorrectly executed Transaction. We may conduct an investigation either before or after any refund
has been determined or made. We will let you know as soon as possible the outcome
of any such investigation.
9.7. If a Transaction initiated by a merchant (for example, this happens
when you use the Card in a shop) has been incorrectly executed and we receive
proof from the merchant’s payment service provider that we are liable for the
incorrectly executed Transaction, we will refund as appropriate and immediately
the Transaction and any associated Transaction fees and charges payable under
these Terms, as well as interest accruing to you as a result of non-execution
or improper execution of Transaction, if any.
9.8. We are not liable for any incorrectly executed Transactions if we can
show that the payment was actually received by the
merchant’s payment service provider, in which case they will be liable.
9.9. If you receive a late payment from another payment service provider
(e.g. a refund from a retailer’s bank) via us, we will credit the Account with
the relevant amount of any associated fees and charges so that you will not be
at a loss.
9.10. We will limit your liability to EUR 50 for any losses incurred in
respect of unauthorised Transactions subject to the
following:
9.10.1.
you will be liable for all losses incurred in respect of an unauthorised Transaction if you have acted fraudulently, or
have intentionally or with gross negligence failed to:
(a) look after and use the Card in accordance with these Terms; or
(b) notify us of the problem in accordance
with this section 9;
9.10.2.
except where you have acted fraudulently, you will not be liable for any
losses:
(a) incurred in respect of an unauthorised
Transaction which arises after your notification to us of the loss, theft or
misappropriation of the Card;
(b) arising where you have used the Card in a distance contract, for
example, for an online purchase;
(c) arising where the loss, theft or misappropriation of the Card was not
detectable by you before the unauthorised Transaction
took place;
(d) where we have failed to provide you with the appropriate means of notification;
(e) arising where we are required by law to apply Strong Customer
Authentication (as defined in section 9.11) but fail to do so;
(f) the losses were caused by an act or omission of any employee, agent
or branch of ours or any entity which carries out activities on our behalf.
9.11. “Strong Customer Authentication” means authentication based on the use
of two or more elements that are independent, in that the breach of one element
does not compromise the reliability of any other element, and designed in such
a way as to protect the confidentiality of the authentication data, with the
elements falling into two or more of the following categories:
(a) something known only by you (“knowledge”),
(b) something held only by you (“possession”);
(c) something inherent to you (“inherence”).
Strong Customer Authentication is used to make
Transactions more secure.
9.12.
We are required to provide Strong Customer Authentication when:
9.12.1.
you view the available balance on your Account either through the Card
Partner’s Website or the Card Partner’s App and/or through an AISP;
9.12.2.
when you initiate an electronic Transaction, directly or when you
initiate a remote electronic Transaction through a PISP; or
9.12.3.
when you carry out any action through a remote channel which may imply
a risk of payment fraud or other abuses.
9.13. If our investigations show that any disputed Transaction was authorised by you or you may have acted fraudulently or
with gross negligence, we may reverse any refund made and you will be liable
for all losses we suffer in connection with the Transaction including but not
limited to the cost of any investigation carried out by us in relation to the
Transaction. We will give you reasonable notice of any reverse refund.
10.
Blocking of the Card
We may block the Card, in which case you will
not be able to execute any further Transactions, if we have reasonable concerns
about the security of the Card or suspect the Card is being used in a
fraudulent or unauthorised manner. We will notify you
of any such blocking in advance, or immediately after if this is not possible,
and of the reasons for the suspension unless to do so would compromise
reasonable security measures or otherwise be unlawful. We will unblock the Card
and, where appropriate, issue a new Card, PIN and other security features free
of charge as soon as practicable once the reasons for the suspension cease to
exist.
11.
Data Protection
11.1. You agree that we can use your personal data in accordance with these
Terms and our privacy policy, which is set out on https://www.paynovate.com/privacy-policy . This privacy policy includes details of the personal information
that we collect, how it will be used, and who we pass it to. You can tell us if
you do not want to receive any marketing materials from us. For the avoidance
of doubt, we will share your personal data with the Card Distributor.
11.2. To comply with applicable
know-your-client-rules and anti-money laundering regulations (such as the Law
on the Prevention of Money Laundering and Terrorist Financing of Belgium No
VIII-275 of 19 June 1997 (as amended), we and/or the Card Distributor and/or
each Provider shall be entitled to carry out all necessary verifications of
your identity. The above mentioned Provider and the
Card Distributor may use a recognised agency for this
verification purposes (details of the agency used will be provided to you on
request). Such verifications will not affect your credit score but may leave a
‘soft footprint’ on your credit history.
12.
Fees and spending limits
12.1. You are liable for paying all fees arising from your use of the Card
and subject to all spending limits placed on the Card by us.
12.2.
The fees and spending limits on the Card are
set out:
12.2.1. in the Table set out in Annex A attached hereto;
12.2.2.
on the secure area of the Card Partner’s Website; and/or
12.2.3.
on the Card Partner’s App.
13.
Complaints
13.1. If you would like to make a complaint relating to these Terms, please
contact us using the contact details of the Card Distributor in section 2 so we
can resolve the issue. If the Card Distributor does not deal with your
complaint adequately, please contact us via email to complaints@paynovate.be.
We have internal procedures for handling complaints fairly and promptly in
accordance with the National Bank of Belgium requirements. We will promptly
send you a complaint acknowledgement and a copy of our complaints
procedure.
13.2. Please note that you may request a copy of our complaints
procedure at any time. Details of our complaints
procedure can also be found on our Website. You agree to cooperate with us and
provide the necessary information for us to investigate and resolve the
complaint as quickly as possible.
13.3. We will respond to your complaint in writing or using another Durable
Medium within 15 (fifteen) Business Days after the receipt of complaint. In
exceptional cases, due to reasons which are beyond our control, we may send you
a preliminary response by indicating reasons for delay and the term by which
you will receive our final response. In any case the term for provision of
final response will not exceed 35 (thirty-five) Business Days after the receipt
of complaint. Handling of complaints is free of charge. The claims shall be
submitted, handled and responded to in English, unless use of another language
is agreed between you and us.
13.4. The European Commission’s online dispute resolution (“ODR”) platform
can be found at https://ec.europa.eu/consumers/odr/main/?event=main.adr.show.
The ODR platform can be used to resolve disputes between us and consumers.
14.
Third Party Payment Service Providers
14.1. This section 14 applies when you use the services of an AISP or a
PISP.
14.2. We may deny an AISP or PISP access to the Account for reasonably
justified and duly evidenced reasons relating to unauthorised
or fraudulent access to the Account by that AISP or PISP, including the unauthorised or fraudulent initiation of a Transaction. If
we do deny access in this way, we will notify you of the denial and the reason
for the denial in advance if possible, or immediately after the denial of
access, unless to do so would compromise reasonably justified security reasons
or would be unlawful. We will allow AISP or PISP access to the Account once the
reasons for denying access no longer apply.
15.
Cooling off period
15.1. If you purchased the Card online or by some other remote means, for
example via telephone, you are entitled to a 14-day “cooling off” period from
the date you received your original Card during which you may cancel the Card.
Should you wish to cancel the Card and these Terms during the “cooling off”
period, please return the Card to [insert where/how to return the Card]
unsigned and unused within 14 days of issue and a full refund of any fees paid
to date will be made to you. If you have used the Card, you will not be
entitled to a refund of any funds that have been spent, including any
associated fees, but we will refund any unspent available funds free of charge.
16.
Other important terms
16.1. The Terms and all communications will be in the official language
(English) or, by agreement between you and us, in another language agreed. We
shall communicate in the official language in English, or by agreement, in
another language agreed between you and us. You may request a copy of these
Terms free of charge at any time during the contractual relationship. If we
need to contact you in the event of suspected or actual fraud or security
threats, we will first send you an SMS or email prompting you to contact our
customer services team using the contact information we have been supplied
with.
16.2. We may transfer this agreement to someone else. We may transfer our
rights and obligations under these Terms to another organisation.
We will always tell you in writing if this happens and we will ensure that the
transfer will not affect your rights under the contract.
16.3. You need our consent to transfer your rights to someone else. You may
only transfer your rights or your obligations under these Terms to another
person if we agree to this in writing.
16.4.Nobody else has any rights under this contract. This contract is between you
and us. No other person shall have any rights to enforce any of its terms.
16.5. Changes to these Terms / Termination. We reserve the right to amend
these Terms for any reason by giving you two-months’ notice by e-mail. You will
be deemed to have accepted the changes if you raise no objection prior to the
expiry of the period set out in the notice. If you do not wish to accept the
changes, you may terminate these Terms immediately and without charge by
proving us with notice at any time prior to the expiry of the notice period. At
all other times you may terminate these Terms at any time by giving us one
months’ notice in accordance with section 2.8 and we may terminate these Terms
by giving you two months’ notice in accordance with section 2.9.
16.6. If a court finds part of this contract illegal, the rest will continue
in force. Each of the sections and sub-sections of these Terms operate
separately. If any court or relevant authority decides that any of them are
unlawful, the remaining paragraphs will remain in full force and effect.
16.7. Even if we delay in enforcing this contract, we can still enforce it
later. If we do not insist immediately that you do anything you are required to
do under these Terms, or if we delay in taking steps against you in respect of
your breaking this contract, that will not mean that you do not have to do
those things and it will not prevent us taking steps against you at a later
date. For example, if you do not pay us on time and we do not chase you but we continue to provide the services, we can still require
you to make the payment at a later date.
16.8. Which laws apply to this contract and where you may bring legal
proceedings. These Terms are governed by Belgian law
and you can bring legal proceedings in respect of these Terms in the Belgian
Courts
Annex 3 : Framework Paynovate Acquiring Terms
“PAYNOVATE SA”
1.
General information and the relationship to
the purchase order
The Services are operated by the Company LinkCy SAS (hereafter “LinkCy”)
with a capital of 13 089 €, having its registered office at 42 Rue Boursault, 75017, Paris, France registered in the Trade and
Companies Register of Paris under the number 852295732.
These Terms and Conditions govern the
offering of the Services by Paynovate SA (hereinafter
"Paynovate"), registered with the National
Bank of Belgium as a financial institution "Paynovate"),
registered with the National Bank of Belgium as an electronic money institution
and whose registered office is located at Rue des Colonies 18, 1000 Brussels
(ECB BCE 0506.763.929), to you (the "Merchant"), Paynovate
and the Merchant being hereinafter collectively referred to as the collectively
referred to as the "Parties".
These Terms and Conditions shall be
interpreted together with the Order Form, to which they are attached. These
Terms and Conditions and the Order Form are hereinafter collectively referred
to as the "Agreement". Hereinafter collectively referred to as the
"Merchant Agreement".
By signing the Order Form, you confirm that
you have read, understood and accepted these Terms and Conditions. In the event
of a conflict, the Purchase Order shall supersede all Terms and Conditions and
any terms and conditions and any document /guideline
/information notified by Paynovate to the Merchant
under the Merchant Agreement from time to time, except as otherwise provided
herein and to the extent permitted by applicable law.
Merchant acknowledges that it is not a
consumer as defined in and used for the purposes of the PSD Policy. The Parties
agree that the PSD Regulations shall not apply to the Merchant Agreement, to
the extent permitted by the PSD Regulations, in particular by Chapter 2 of
Title 3 (Payment Services) as well as articles VII.30, § 1, VII.32, § 3,
VII.33, VII.42, VII.42, VII.44, VII.46, VII.50, VII.55/3 to VII.55/7 of Book
VII of the Belgian Code of Economic Law, and that the relevant duration for the
purposes of relevant for the purposes of Article VII.41 of Book VII of the
Belgian Code of Economic Law is three (3) months.
2.
Definitions:
The following definitions shall apply to
the Merchant Agreement Purchase Order (the "Purchase Order") and
these General Terms and Conditions, except as otherwise specifically defined
herein:
●
Anti-Money Laundering Law: means all commonly accepted laws, regulations and international
standards related to the prevention of money laundering and the financing of
financing of terrorism.
●
Authorization: the process by
which the Customer or the Merchant on behalf of the Customer requests the
execution of a Payment Transaction using a particular Payment Instrument to
purchase a Product, goods and/or services offered by the Merchant. The
Authorization only confirms the availability of the Customer's funds at the
time of the Authorization, that the Payment Instrument used to pay for the
Payment Transaction has not been blocked for any reason or listed as lost or
stolen or as having had its security compromised, but makes no warranty of any
kind as to the identity of the person presenting the Payment Instrument, or the
validity of the Payment Transaction or as to the actual settlement of the
Payment Transaction.
●
Business Day: means a day on
which Paynovate and the Purchaser - if different from
Paynovate - are open for business, as required for
business, as required for the execution of a Payment Transaction, starting at
midnight (CET) and ending 24 hours later. Excluding a public holiday in Belgium
and in the country where the Buyer is located.
●
Calendar Day: means any day of
the month, including business days, weekends and holidays, beginning at
midnight (Purchaser's time) and ending 24 hours later.
●
Chargeback: means a procedure
in which the Issuer charges back to Paynovate all or
part of the amount of a Payment Transaction.
●
Chargeback Amount: means the amount
charged back by the Issuer to Paynovate in connection
with a Chargeback.
●
Customer: means the legal or
natural person who, pursuant to a contract with an Issuer has the right to use
one or more Payment Methods to execute Payment Transactions and, where
applicable, to access other services related to such Payment Methods.
●
Competent Authority: means an
agency, authority, department, inspectorate, minister, ministerial officer at
the local, national or supranational level or a public or other entity or
person (whether autonomous or not) of a government or country, including the the European Commission and the European Court of Justice,
and having jurisdiction over Paynovate or the
Merchant.
●
Confidential Information: means any
information of a confidential and/or proprietary nature or that could
reasonably be considered as such, disclosed by one Party (the "Disclosing
Party") to the other Party (the "Receiving Party") or of which
either Party becomes aware through or as a result of:
(i) its
relationship with the Disclosing Party;
(ii) access to the Disclosing Party's
premises; or
(iii) communication with the Disclosing
Party's employees or contractors of the Disclosing Party, whether in written,
verbal, graphic, electromagnetic, encoded digital or other tangible form or in
any other form, and relating to business, technologies, products, services,
customers, marketing, research, or activities of the Disclosing Party and and Payment Transactions processed under the Merchant
Agreement.
●
Data Protection Law: means all
commonly accepted laws, regulations and international standards related to the
protection of privacy and/or the processing of personal data.
●
Effective Date: means the date on
which the Merchant Agreement becomes effective.
●
Eligible Payment Service Providers: means any Payment Service Provider notified by Paynovate
to the Merchant.
●
EUR: means the official currency of the
Eurozone or any other official currency of the jurisdiction of Paynovate as applicable from time to time.
●
Force Majeure: has the meaning
set forth in Article 10.1 of the General Conditions.
●
General Terms and Conditions: means these general terms and conditions attached to the Merchant
Agreement, as amended from time to time in accordance with their terms.
●
Issuer: means an entity
whose activities include the provision of one or more Payment Methods and the
services enabling the Customer - where applicable - to access other services
related to such Payment Method(s).
●
Loss: means any loss, liability, cost, claim,
damage, fee, taxes and expenses, including all legal and other professional
fees and disbursements.
●
Merchant Agreement: means the
agreement signed between the Merchant and Paynovate,
including its annexes.
●
Merchant Application Form: means the document containing information about the Merchant provided
by the Merchant and attached to the Purchase Order.
●
Merchant Identification Number: means the number issued and notified by Paynovate
to Merchant that digitally identifies Merchant to Paynovate
for accounting, billing, customer service and other related purposes in
connection with the Services.
●
Merchant Settlement Account: means the account opened on Paynovate's
books in the name of the Merchant for settlement purposes of under the Merchant
Agreement.
●
Payment: means a transfer
of funds completing a Payment Transaction (settlement). Payment Card Industry
Data Security Standard ("PCI" or "PCI DSS"): means the
security standards for the transfer, storage and processing of Payment Security
Standard ("PCI" or "PCI DSS"): means the security standards
for the transfer, processing or storage of sensitive cardholder and
authentication data, as updated from time to and published by the Payment Card
Industry Security Standards Council at http://www.pcisecuritystandards.org.
●
Payment Instrument: means a set
of procedures and processes agreed upon between the the
Issuer and the Customer, including - where applicable - any related payment
device, pursuant to which Payment Transactions will be initiated and/or the
Customer may, where applicable, access other services related to such Payment Instrument or the account related to such Payment
Instrument.
●
Payment Service Provider: means any
Payment Service Provider such as Visa, MasterCard, Bancontact,
etc. available in the EEA.
●
Payment Service Provider(s) Brand: means all names, logos, trade names, logos, trade designations and
other designations, symbols and marks that the Payment Service Provider and/or
its affiliates own, manage, license or otherwise control, now or in the future,
anywhere in the world, whether registered or unregistered.
●
Payment Service Provider Rules: means the rules, regulations, operational instructions and/or
guidelines issued by certain Payment Service Providers, as they may be amended
and updated from time to time.
●
Payment Transaction: means the
act of placing, transferring or withdrawing funds.
●
POI (Point of Interaction): means any location where a Customer is
authorized to use a Payment Instrument to purchase the services or goods of a
Merchant, including - in the case of the website provided by the Merchant for
the Customer to make purchase transactions.
●
PSD Regulation: means Book VII of
the Belgian Code of Economic Law and the Act of 11 March 2018 on the status and
supervision of payment institutions and electronic money institutions, on the the access to the activity of payment service provider,
implementing both Directive (EU) 2015/2366 of November 25, 2015 on payment
services and the the internal market, Directive
2015/2366 itself and all other applicable laws or regulations (Belgian or
foreign) implementing Directive 2015/2366 or any subsequent legislation
thereof.
●
Reserve Amount: the amount
retained by Paynovate from funds received from the
Payment Service Provider as security for Chargebacks, assessments or refunds
(or any other amount referred to in the Deductions), and fees owed to Paynovate, and held in the Merchant Settlement Account.
●
Reserve Rate: percentage of
daily gross sales volume processed by Paynovate,
which will be subtracted from the daily settlements collected by Paynovate from the Payment Service Providers and held in
the Merchant Settlement Account. The applicable Reserve Rate shall be set forth
in the Purchase Order.
●
Services: means the services
to be performed by Paynovate under the Merchant
Agreement and described in the applicable Schedule to the Purchase Order, as
may be amended from time to time by mutual agreement between Merchant and Paynovate.
●
Purchase Order: means the specific terms of the relationship between Merchant and Paynovate as set forth in the Merchant Agreement Purchase
Order, including any attachments.
●
Terminal: means a device
located at a PI that allows the initiation of Payment Transactions.
●
Termination Date: means the date on
which the Merchant Agreement is terminated in accordance with the Terms and
Conditions.
●
Terminal Lease Agreement: means the
agreement between the Merchant and a Terminal provider. Terminal means the
contract between the Merchant and a Terminal provider for the rental by the
Terminal provider of one or more Terminals to the Merchant for the purpose of
the Services.
3.
ACCEPTANCE OF
PAYMENT INSTRUMENT(S)
3.1 Acceptance of Payment Instruments and submission of Payment
Transactions
As payment for all goods and/or services
offered by the Merchant in the ordinary course of business, the Merchant shall
accept all Payment Instruments issued under any of the eligible Payment Service
Providers when presented for payment, and agrees to comply fully with the Terms
and Conditions set forth below and all rules/guidelines of the applicable
Payment Service Provider regarding processes and procedures for authorization
requirements for such Payment Instruments and/or instructions specified by the
relevant Issuer.
3.2 Prohibition of cardless transactions
The merchant will never submit to Paynovate a Payment Transaction initiated in the absence of
the holder of the Payment Instrument or the Payment Instrument (e.g. telephone
or mail orders, e-commerce, mobile commerce) unless Paynovate
explicitly authorizes, as set forth in the Purchase Order, or any subsequent
document.
In such case, the merchant shall comply
with all specific requirements for cardless transactions as communicated by Paynovate from time to time.
3.3 Display of the Brand of the Payment Service Provider(s)
The merchant agrees at
all times to post its acceptance of the Payment Instruments it accepts,
which will be clearly visible to all IPs operated by Merchant (physical IPs or
websites). The display of the Payment Service Provider Mark shall be subject to
this Agreement as well as the Payment Service Provider Rules and branding
guidelines.
The merchant acknowledges that Payment
Service Provider or its licensors have the sole and exclusive ownership, right,
title and interest, including all proprietary rights, in and to the Payment
Service Provider's Brand and agrees that all proprietary rights shall remain
with the Payment Service Provider or its licensors both during the term of the
Agreement and after termination of the Agreement. The Merchant shall not
contest the ownership of the Payment Service Provider's Brand for any reason
whatsoever.
The merchant shall use the Payment Service
Provider Brand and all related promotional materials solely for the purposes of
this Agreement.
The merchant shall cease all display of the
Payment Service Provider Brand at the first request of Paynovate
and/or the applicable Payment Service Provider, and upon termination of this
Agreement.
4.
OBLIGATIONS OF THE
MERCHANT
4.1 General obligations of the merchant
The merchant:
- Shall comply with (i)
these Terms and Conditions, (ii) the instructions and procedures present in
these Terms and Conditions as communicated by Paynovate
from time to time (including any operational rules or manuals), (iii) the PSD
Regulations, Data Protection Laws, Anti-Money Laundering Laws or any other
applicable, (iv) the Payment Service Provider Rules, including in particular
the rules for the purposes of Authorization and Authentication as defined in
the in the PSD Regulation, and
- Shall comply with the Rules of the
relevant Payment Service Provider, as amended from time to time. In the event
of any inconsistency between any provision of these and the Payment Service
Provider Rules, the Payment Service Provider Rules shall prevail. Payment
Service Providers have the right to enforce any provision of the Payment
Service Provider Rules and prohibit the Merchant from engaging in any conduct
that the Payment Service Providers deems harmful or deemed by the Payment
Service Providers to be detrimental or likely to create a risk of harm to the
Payment Service Providers, including reputational damage, or which could
adversely affect the integrity of the interchange system, Payment Service
Providers' Confidential Information as defined in the Payment Service Provider
Rules, or both. The Merchant shall not take any action that would interfere
with the exercise of this right by Payment Service Providers or prevent the
exercise of this right; and
- Shall submit Payment Transactions only in respect of goods and/or services
sold or provided by the Merchant; and
- Shall not submit a Payment Transaction
that it knows or ought to know is unlawful; and
- Will not submit for processing Payment Transactions on behalf of third
parties other than those agreed upon between Paynovate
and the Merchant; and
- Will not pursue any illegal activity; and
- Will only enter into
transactions in good faith that result in a Payment Transaction and the
Merchant is not aware of any dispute regarding the validity of the Payment
Transaction or any matter that may affect the validity of the Payment
Transaction; and
- Shall only submit a Payment Transaction
for goods and/or services that is within the scope of the Merchant's business
as identified by Paynovate and in accordance with the
Merchant Category Code (categorization of Commercial Payment Service Provider
Rules); and
- Will only submit Payment Transactions for which all statements contained in
the Payment Transaction data are true, accurate and complete; and
- Will not impose minimum or maximum values
for Payment Transactions; and
- Will not split a Payment Transaction into multiple Payment Transactions; and
- Will not submit or withdraw a Payment Transaction that has been subject to a
Chargeback unless authorized under the Rules of the relevant Payment Service
Provider.
4.2 Returns, refunds & price adjustments
To the extent applicable, the merchant
shall disclose to the Customer, at the time of the Payment Transaction, in
accordance with all applicable laws, any limitations it imposes on the
acceptance of payment transactions.
This will be done in accordance with all
applicable laws, any limitations it imposes on the acceptance of returned
goods, provided that, while the granting of a refund shall be at the discretion
of the merchant, the merchant will offer refunds in each of its POI.
The merchant may only issue a refund to the
Customer's account that was debited for the Payment Transaction for which the
refund was requested and will provide a copy of the of the receipt to the
Customer. Paynovate shall debit the Merchant
Settlement Account for the total amount due, plus applicable fees. Unless
otherwise agreed, Paynovate shall have no obligation
to process process returns, refunds or price
adjustments for payment transactions not processed at the time of the Payment
Transactions and not originally processed by Paynovate.
The merchant shall not submit credit transaction that exceeds the amount of the
original Payment Transaction. Paynovate may, in its
sole discretion, refuse to process a credit transaction.
Subject to the provisions of these Terms and Conditions and the Purchase Order,
the value of any refund will be credited to the Customer's account that was
debited for the Payment Transaction no later than the end of the Business Day
after the Merchant submits the refund request, unless the merchant submits the
refund request after 11:00 a.m. (CET), at which time the refund request will be
deemed to have been submitted on the next Business Day. The time limits
mentioned in this provision shall not apply where the Customer's Payment Service
Provider is located outside the EEA.
4.3 Client(s)’ disputes
The merchant shall be responsible for
settling any dispute with a Customer in connection with a Payment Transaction.
The merchant acknowledges that Paynovate has no
responsibility for such disputes, other than its role in making Chargebacks
under the Merchant Agreement.
Upon notification of a dispute regarding a Payment Transaction,
Merchant shall:
●
Shall promptly
notify Paynovate of such dispute (and in any event
within twenty-four [24] hours)
●
Will settle it
directly with the Client
4.4 Documents storage
The Merchant shall keep receipts and all
other documents relating to the Payment Transaction securely for a minimum of
five (5) years from the date of the Payment Transaction, or until a dispute
relating to the Payment Transaction is resolved, based on the last due date.
Within the retention period, the merchant shall provide Paynovate
a copy of any document upon first request.
4.5 Protection of Customer and Payment Transaction Data
The merchant will store, handle and dispose
of all Customer's account information and Payment Transactions, whether in
paper or electronic form, in a secure manner to prevent access or use by, or
disclosure to, any person other than authorized Merchant personnel and in
accordance with applicable data protection requirements and laws.
The Merchant shall keep confidential all
data relating to Payment Transactions initiated by the Customers. Such data
shall be governed by point 11 of these Terms and Conditions (Confidentiality
Obligations).
The merchant shall cooperate with Paynovate with respect to any matter arising from a breach
or potential breach of security in connection with the holding of Confidential
Data.
4.6 Termination
The merchant shall ensure that the Terminal
or Terminals used by the merchant comply with requirements as notified by Paynovate to the Merchant from time to time and the
Terminal provider rules as set forth in the Terminal Rental Agreement and all
standards and all relevant Payment Service Providers' standards and
requirements relating to standards, functional requirements and interoperability.
In the event of a malfunction of the
Terminal or Terminals, the merchant shall contact Paynovate
and the supplier of the Terminals for technical support. If no solution is
accepted and approved by Paynovate and/or the
Terminal provider is not found for the problem, he must not accept the Payment
Instrument. The operational standards and security parameters for the Terminal
are defined and introduced by Paynovate and/or the
Terminal provider. Neither the merchant nor any third parties acting on behalf
of a party other than Paynovate and/or the Terminal
provider may not make any changes to these operational standards and security
parameters. The merchant agrees to leave the Payment Terminal switched on at all times and to inform Paynovate
without delay in case of a power failure. Paynovate
reserves the right to make changes or improvements to the programs and
operating procedures as it may deem appropriate for the development and
protection of the Payment Service Provider. The merchant agrees to accept any
such changes or enhancements and to facilitate its application to Terminals
issued to it. The merchant agrees to use the Terminal only at the agreed IP.
The merchant may not move the Terminal without notifying Paynovate
in writing.
4.7 Information to the Client
The merchant shall promptly and
unequivocally inform a Customer of (i) the identity
of the merchant at all IP, so that Customers can readily distinguish the
merchant from any other third party, such as a supplier of products or services
to the Merchant and (ii) where applicable (Online Payment Transactions), the
merchant's location (physical address), which must be clearly identifiable on
the merchant's website to enable Customers to determine whether the Payment
Transaction will be a domestic or cross-border Payment Transaction.
4.8 Recovery requests
The merchant shall respond to a request for
information received from Paynovate in connection
with a specific Payment Transaction (retrieval request) by providing Paynovate with a legible copy of the Payment Transaction
receipt and any other relevant information as determined by Paynovate
within the time period specified in such request.
If the merchant fails to respond within the
time period specified, the merchant acknowledges that
it will not be able to dispute the Chargeback for the Payment Transaction.
4.9 Chargebacks
The merchant shall be fully liable to Paynovate for all Chargeback Amounts, regardless of the
instance of the Chargeback.
The merchant agrees to cooperate fully with
Paynovate in connection with Chargebacks. The
merchant shall pay any Chargeback Amount to Paynovate
upon request, as well as any Chargeback to the Purchase Order, and hereby
authorizes Paynovate to debit any Chargeback Amount
to the merchant Settlement Account of any Chargeback Amounts and to offset any
amounts due to the merchant with a Chargeback Amount.
4.10 Connection to Paynovate and the
Merchant's IT infrastructure
The merchant will at all
times provide the appropriate connection to Paynovate
and, among other things develop, configure and integrate interfaces between Paynovate's computer systems and merchant's computer
systems to ensure interoperability between merchant's systems and Paynovate's systems necessary for the provision of the
Services by Paynovate. The Interfaces shall be
developed, configured and integrated in accordance with specifications and
guidelines issued by Paynovate from time to time.
The merchant acknowledges and agrees that
it is solely responsible for the implementation, maintenance, integrity and
security of the Merchant's sites, computer infrastructure and equipment used at
the POI for the Services, communication lines, power services and all other
facilities and infrastructure.
The merchant shall take all steps to
professionally and adequately protect all elements of the IT infrastructure
against virus infection, malfunction and fraudulent use.
The merchant shall ensure that it has all
necessary intellectual property rights in connection with the execution of the
Merchant Agreement. It has all necessary licenses, approvals and consents from Paynovate to use the IT infrastructure.
Upon Paynovate's
first request, the merchant will take all necessary steps to improve the
security and integrity of the IT infrastructure it owns or uses.
4.11 PCI DSS Compliance
The merchant will comply and maintain
compliance with PCI, the Account Information Security Program, the MasterCard
Site Data Protection Program and any other similar programs as set forth by the
Payment Service Providers and any changes to such programs and standards that
may occur from time to time. The merchant will notify Paynovate
immediately in the event of a threatened or potential data breach.
The merchant acknowledges and accepts:
●
That Payment
Service Providers require Merchant to comply with these obligations and
maintain such PCI compliance;
●
That the merchant's
failure to comply with PCI may result in fines imposed by
●
Payment Service Providers;
●
That any fines Paynovate may incur as a result of
the merchant's failure to comply with this obligation and the Payment Service
Provider requirements for PCI will be passed on to the merchant and the
merchant will be fully liable for payment of such fines; and
●
That to achieve and
maintain PCI compliance, the merchant shall provide Paynovate
with a designated point of contact responsible for liaising with Paynovate with respect to progress in achieving and
maintaining PCI compliance.
●
If th Merchant believes that it will not be able to meet the
requirements set forth in this section, the merchant shall notify Paynovate of this fact in this section, therefore the
merchant will promptly notify Paynovate.
●
Details of PCI and
compliance requirements can be found at the following website at
http://www.pcisecuritystandards.org or at another website as notified by Paynovate to the merchant from time to time.
5.
THE SERVICES
In consideration of the representations,
warranties, covenants and/or promises set forth in
these Terms and Conditions, including the payment of fees by the merchant to Paynovate, Paynovate shall use
its best efforts to perform, in connection with Payment Transactions initiated
through the Eligible Payment Instruments, the following services (the
"Services"):
●
(i) the transfer of Payment Transaction authorization
requests submitted to it by the Merchant to the relevant Payment Service
Provider/Issuer and the transfer of the response received from the Issuer to
the merchant; and
●
(ii) subject to all
terms and conditions of the Contract, the transfer of the amount of the to the
merchant of the Payment Transaction amount received from the Issuer, minus all
fees and other deductions made under the Contract; and
●
(iii) related
services as described in the Purchase Order.
Paynovate shall have the right to suspend the Services and withhold any amounts
due to Merchant under this Agreement (i) in the event
of one or more of the termination events listed in Section 13.1; (ii) for
security reasons; (iii) in the event of fraud or suspected fraud; or (iv) not
to accept a Payment Transaction that it knows is unlawful.
Paynovate shall have the right to make such system upgrades as it deems
appropriate or necessary to enable the performance of its Services or the
availability of its support service.
The merchant shall pay Paynovate upon first demand
any or all costs associated with the upgrade, provided that the merchant has
given prior written consent, which shall not be unreasonably withheld.
The merchant hereby acknowledges and agrees
that Paynovate may at any time elect to apply limits
to authorized Payment Transactions (maximum amount of Payment Transactions or
limits to on specific payment transactions), as notified by Paynovate
to the merchant from time.
6.
PAYNOVATE'S
SUPERVISORY RIGHTS AND THE MERCHANT'S INFORMATION OBLIGATIONS
Paynovate and the Payment Service Providers, and any third party acting on their
behalf, shall have the right to monitor the merchant's activities to ensure the
merchant's continued compliance with the obligations under the Merchant
Agreement and/or the Payment Service Provider Rules, including, but not limited
to:
●
Ensuring that all
Transactions and Refunds are subject to in accordance with this Agreement, the
Payment Service Provider Rules and all applicable all applicable Laws;
●
ensure compliance
with the Payment Service Provider Rules;
●
detect and deter
any unusual, fraudulent or unwarranted activity and/or any activity that is
detrimental to Clients or the Payment Service Provider Brands; and
●
Fully mitigate the
risks and risk exposure of all relevant parties.
The right of oversight will include a right
of on-site audit, a right to request information (including financial
information), a right of access to the premises and personnel of the merchant
upon reasonable notice during relevant business hours, and a right to inspect
the merchant's records at any time and to be promptly provided with information
deemed necessary by Paynovate.
The merchant shall provide Paynovate with all information Paynovate
requests for the purpose of: (i) the performance of
the Merchant Agreement; (ii) its monitoring rights; and (iii) compliance with
applicable laws, including any anti-money laundering law or program.
The Merchant shall promptly and
spontaneously inform Paynovate:
●
in the event of an
event or likelihood of an event in which the performance of its activities
would or is likely to be considered illegal under any applicable law;
●
if it cannot or may
not be able to pay its debts in full when due;
●
in the case of an
event that has or may have an adverse effect on its obligations under the
Merchant Agreement or Paynovate's rights under the
Merchant Agreement.
In order to keep the information current, true, complete and accurate at all
times, the merchant shall immediately notify Paynovate
of any changes to the information provided under the Merchant Agreement,
including under the Purchase Order, and in accordance with applicable
Anti-Money Laundering Law. The merchant acknowledges that Paynovate
shall have no liability for any loss caused by any delay in payment to the
Merchant due to and/or upon such change.
7.
PAYMENT SECURITY
AND BILLING
7.1 Merchant settlement Account
Paynovate shall settle the Payment Transactions it has acquired under the
Merchant Agreement in accordance with these Terms and Conditions and the
Purchase Order.
Paynovate shall maintain, during the term of the
Merchant Agreement, a Merchant Settlement Account. The credit value date for
funds credited to the Merchant Settlement Account shall be no later than the
Business Day on which the amount of the Payment Transaction is credited to Paynovate.
The merchant irrevocably authorizes Paynovate to initiate debit/credit entries to the Merchant
Settlement Account for the purpose of settling all Payment Transactions and
Chargeback Amounts, and for the payment of any fees or taxes due under the
Merchant Agreement.
Paynovate shall transfer the balance in the Merchant Settlement Account to the
account in the Merchant's name, the details of which have been provided to Paynovate in the Application Form within the timeframe
agreed in the Purchase Order. The balance of the Merchant Settlement Account
shall be paid on a net basis, i.e. after deduction of all amounts due under the
Merchant Contract on the day of transfer, including all amounts due for
settlement of all Payment Transactions (including fees, amounts due as Chargebacks
and the Rebates and the Reserve Amount as described in Article 7.2 (Reserve) of
these General Conditions and the Purchase Order.
The merchant shall execute all documents
and take all actions as requested by Paynovate or the
financial institution with which the Merchant Settlement Account is opened for
the purpose of implementing this Section (Merchant Settlement Account),
including the execution of all bank account mandates and/or collateral
agreements, if any.
Paynovate shall not perform the Services until the documents implementing the
authorization granted, including bank account mandates and/or collateral
agreements, if any, as provided herein.
Paynovate shall have the right to suspend all payments to Merchant and withhold
credit from the Merchant Settlement Account and amounts otherwise due to the
Merchant in settlement of Payment Transactions:
●
upon suspicion that
the Merchant's activities or a Payment Transaction processed under the Merchant
Agreement violate any applicable law or the Merchant Agreement or an
instruction of an Authority Having Jurisdiction
●
such funds shall be
used to offset future fraudulent loss or additional fines or fees imposed by
the Merchant Service Provider and be released if no Chargeback occurs; and/or;
●
if the number
and/or volume of Payment Transactions is significantly higher than
●
expected; and/or
●
if the Payment
Transactions were not in the ordinary course of the Merchant's business; and/or
●
Paynovate believes, in its
sole discretion, that there is a risk that the Merchant may be unable or
unwilling to comply with its obligations under the Merchant Agreement; and/or
●
in the event of a
breach or suspected breach of one or more of Merchant's obligations under the
Merchant Agreement.
All Payments made to the merchant are
subject to verification and adjustment by Paynovate
for inaccuracies or errors, chargebacks until the expiration of the chargeback
period and any other claims and expenses, including in the
event that the Payment Transaction is subject to the Payment Transaction
was subject to a Chargeback by the Issuer.
7.2 Reserve
The merchant agrees that a percentage of
the daily gross sales volume processed by Paynovate
(the "Reserve Rate") will be subtracted from the daily settlements
received by Paynovate ("Reserve Amount"), and will be retained by Paynovate
to cover unpaid charges, deductions such as Chargebacks, assessments and
refunds, or other obligations under these Terms and Conditions. The Reserve
Rate shall be set forth in the Purchase Order [POI] or other relevant
operational document. The Reserve Amount may be capped or converted to a fixed
Reserve Amount after a certain period of time, which
must be held in the merchant Settlement Account, as determined in the Purchase
Order.
Paynovate may, in its sole discretion, increase the Reserve Rate or the total
amount of the Reserve Amount for reasonable reasons, including (without
limitation): (i) Merchant's payment processing
history (increase in Chargebacks); (ii) Merchant's breach of the Agreement; or
(iii) termination of the Agreement, upon notice to Merchant. The merchant
agrees that it shall not be entitled to any interest on funds credited toward
the Reserve Amount, that it shall not have any right to the funds credited
toward the Reserve Amount, and that it shall not be entitled to any interest on
the funds credited toward the Reserve Amount, and that it cannot and will not
assign or grant a security interest in such funds or permit any encumbrance on
the funds contained in such account.
In the event of the merchant's insolvency,
the Reserve Amount held in the Merchant Settlement Account shall be available
for insolvency administration only after one hundred and eighty (180) days to
the extent permitted by law, and subject to further liability of the merchant’s
additional liability to Paynovate under these Terms
and Conditions occurring between the time of Merchant's insolvency event and
the expiration of the one hundred eighty (180) day period.
7.3 Reports to the merchant
The reports will be made available to the
merchant showing, among other things, for the immediately preceding calendar
month, the total Payment Transactions that Paynovate
has processed for the Merchant under the Merchant Agreement, the amount
credited to the Merchant, amounts reserved as a Reserve Amount and all fees and
Chargebacks, to the extent possible. The frequency and terms of reporting are
further described in the Purchase Order.
The merchant shall immediately align the
reports for processed Payment Transactions, received from Paynovate
with its own records of Payment Transactions for the same period.
To be valid, any error notification must be notified to Paynovate
within ten (10) business days of the date of receipt of the error referred to
in Section 7.3 and include, with the merchant's name and Merchant ID number,
the mistaken amount and a description of the error. The merchant shall be
deemed to have irrevocably accepted reports of processed Payment Transactions
received from Paynovate after the notification period
mentioned above.
7.4 Security arrangements
Without prejudice to Section 7.2, Paynovate may require the merchant to provide any type of
security or to enhance any created security deemed necessary by Paynovate to cover all claims (present, future and
contingent) arising under the Merchant Agreement against the merchant,
including where the amounts of future Payment Transactions are unlikely to
cover anticipated Chargebacks and fees or other amounts payable by the merchant
under the Merchant Agreement, as reasonably determined by Paynovate,
provided that the method used to calculate Paynovate's
financial exposure shall be at Paynovate's sole.
Paynovate may also request the creation or
enhancement of security if Chargebacks exceed a certain percentage of the total
value of Payment Transactions processed in a calendar month and/or returns, as
determined in the Purchase Order.
In addition to the provisions of this
Section and notwithstanding any insolvency proceedings, Paynovate
shall have the right to set off any amount due from Merchant under this
Agreement (including a Chargeback or an amount unpaid by Issuer) from an amount
owed by Paynovate to the merchant under the Merchant
Agreement at that time.
The Merchant shall execute all documents,
do all acts and perform all actions that Paynovate,
acting reasonably, may require to create the security arrangements referred to
in this Section of the General Conditions.
All costs, including legal fees, and
expenses incurred by the merchant in complying with this Section shall be borne
by the merchant.
The security arrangements to be provided
pursuant to this Article shall survive termination of the merchant Contract and
shall be enforceable until all payment obligations of the Merchant under the
Merchant Agreement have been duly and fully satisfied, as notified to the
merchant by Paynovate.
8.
DATA PROTECTION
With respect to the processing of personal
data related to the Payment Transactions governed by the Merchant Agreement,
the Parties shall at all times comply with any
applicable Data Protection laws.
The merchant shall also comply with the
obligations prescribed by any applicable Data Protection Law with respect to
any processing of personal data outside of the scope of this Agreement.
Paynovate shall not be liable for any failure by
Merchant to comply with applicable Data Protection Law.
For the purposes of the applicable Data
Protection Act, Paynovate shall be considered a
"data controller" with respect to any processing of personal data
related to Payment Transactions in connection with the Payment Transactions
governed by the Merchant Agreement. The merchant shall not use or process data relating
to holders of Payment Instruments or Payment Transactions in any way for any
other than the exercise of its rights and performance of its obligations under
the Contract. The merchant shall ensure that all data relating to Payment
Transactions and holders of Payment Instruments are stored securely and shall
prevent unauthorized access to such data.
In addition to processing personal data
related to the Payment Transactions governed by the Merchant Agreement, Paynovate shall have the right to collect personal data
relating to the merchant and persons working for or on behalf of the merchant,
including contact persons and representatives, and shall process such data in the course of managing its relationship with the
merchant.
Paynovate will process personal data relating to the Merchant and/or persons
working on the Merchant's behalf
(i) to comply
with its obligations or exercise its rights under the Merchant Agreement
(i) fulfilling its obligations or exercising its
rights under the Merchant Agreement; (ii) providing its Services; (iii)
monitoring for fraud; (iv) informing the Merchant about Paynovate
and the Services; and exchange of information with the merchant, including
publishing and sharing with the merchant a directory and any merchant reporting
obligations.
Personal Data will not be retained by Paynovate longer than is necessary to fulfill the the purposes for which it was collected and subsequently
processed. Subject to applicable Data Protection Act, Paynovate
shall have the right to share personal data with any personal data with any
entity affiliated with Paynovate for the purposes set
forth above. The aforementioned provision is set forth
as disclosure is necessary to comply with Paynovate's
legal obligations or to enforce the Merchant Agreement.
Paynovate shall have the right to use third party processors to process the
personal data referred to above. For this purpose, the personal data may be
transferred to countries outside the European Union. In case of transfer of
personal data to a country outside the European Union that does not provide an
adequate level of protection under the applicable Data Protection Act, Paynovate hereby undertakes to sign within ten (10)
Business Days of the decision to undertake such transfer (and in any event
prior to any transfer) with the third party processor the standard contractual
clauses attached to the European Commission's Decision on standard contractual
clauses for the transfer of personal data to the processors established in
third countries, unless another valid protection mechanism under the Data
Protection Laws is in place.
The merchant hereby undertakes to ensure
that before any personal data is provided by the merchant or on behalf of the
merchant to Paynovate, each relevant data subject is
provided with the information required under the Data Protection Laws.
9.
FEES, COSTS AND
TAXES
9.1 Principle
In consideration of the Services, the
merchant agrees to pay Paynovate: (i) the fees set forth in the Order Form, including an early
termination fee if applicable; and (ii) additional fees charged to the merchant
to cover reasonable additional costs that Paynovate
may incur from time to time in connection with the Merchant Agreement.
Paynovate may, in its sole discretion, modify the fees set forth in the Merchant
Agreement from time to time, including by providing any escalation thereof. Paynovate will notify the merchant promptly after the fee
is changed and shall indicate the date on which the changed fee will apply.
Such date to be not less than two (2) months after notification of the change.
In the event the merchant does not agree to the amended charges, the merchant
may terminate the Merchant Agreement in accordance with the General Terms and
Conditions, provided that the fees applicable prior to the change shall remain
applicable during the notice period for termination.
In the event that the Merchant Agreement
sets forth a fee in an amount determined by reference to a specific
commitment/promise of the Merchant set forth in the Purchase Order, Paynovate shall have the right to apply default charges to
the Merchant without prior notice, i.e. charges that are otherwise not
applicable to the merchant for the provision of similar services by Paynovate to the merchant, from the time the
commitment/promise has not been fulfilled in whole or in part, even to cover Paynovate's past performance of the Services.
All fees and other taxes or costs mentioned
in the Merchant Agreement are exclusive of any type of applicable taxes in any
jurisdiction. To the extent that any taxes, other than that the corporate
income tax payable by Paynovate in its country of
incorporation or in any country in which it operates a permanent establishment
recognized as such under the laws of its country of incorporation, are due on
the fees, taxes or costs referred to in the Agreement.
Such taxes shall be immediately paid in
full (or, if applicable, refunded in full to Paynovate),
and borne by the merchant so that Paynovate
effectively receives the full amount agreed under the Merchant Agreement.
9.2 Payments of fees, costs and taxes
The fee will be deducted from the amount
payable by Paynovate to the Merchant, to the extent
possible.
The amount of fees due under this Agreement
shall be communicated to the Merchant either by invoice or in the reports
provided to the merchant under this Agreement, as agreed upon by the Parties in
the Purchase Order or other document. If applicable, the merchant hereby
acknowledges and agrees to receive electronic invoices from Paynovate.
Any fees or costs not deducted by Paynovate from amounts due to the merchant shall be
deducted from the Reserve Amount in the Merchant Settlement Account. Any amount
not deducted as described above shall be paid immediately and no later than the
end of the month following the date of the relevant report. At Paynovate's first request, the merchant shall enter into a
direct debit agreement with Paynovate, whereby the
merchant authorizes Paynovate to debit the merchant's
bank account listed in the Purchase Order (or any bank account used by the
merchant, in the course of its business, as notified
by the Merchant). The merchant agrees to execute all documents that Paynovate may request the merchant to execute for this
purpose.
Each invoice shall become final to the
extent that it has not been disputed in writing within ten (10) Business Days
after receipt, it being understood that receipt shall be deemed to have
occurred four (4) days following the sending of the paper invoice and one (1)
day following the sending of the electronic invoice.
All payments of fees and other costs or
taxes shall be made in Euros.
Without prejudice to Paynovate's other rights and
remedies, interest shall automatically apply to any overdue amount at the rate
mentioned in the law of August 2, 2002 concerning the
fight against late payment in commercial transactions, increased by 200 basis
points (2.00%). In addition, a fee of ten percent (10.00%) of the amount due,
with a minimum of fifty (50.00) EUR, shall be due within seven (7) Calendar
Days of a breach notification given by Paynovate.
10.
LIABILITIES AND
INDEMNIFICATIONS
10.1 Force majeure
Paynovate shall not be liable for any loss resulting from any delay or failure
by Paynovate to provide one or more of the Services
due, in whole or in part, to an event of Force Majeure, as defined in this
section.
In the event that Paynovate
is prevented or delayed, in whole or in part, from fulfilling any of its
obligations under the Merchant Agreement due to Force Majeure, Paynovate's obligations under the Merchant Agreement shall
be suspended for as long as the Force Majeure continues and the duration of Paynovate's inability or delay to perform
such obligations.
If such Force Majeure continues for more
than fifteen (15) Calendar Days, the Parties agree to negotiate in good faith
to agree upon alternative contractual terms to restore as much as possible the
original balance of the Merchant Agreement. If the Force Majeure continues and
no agreement can be reached by the Parties in good faith after a reasonable period of time, both Parties shall have the right to
terminate the Merchant Contract immediately after the expiration of such a
reasonable period of time.
For purposes of the Terms and Conditions,
Force Majeure shall include, but not be limited to, any of the following events
(i) an act of God, including floods and storms; (ii)
the outbreak or escalation of hostilities (whether or not war has been
declared) or any other unlawful act against public order or authority; (iii) a
strike or other labor dispute (iv) government restrictions; (v) power failures
or disruption of communications; (vi) terrorism or vandalism; (vii) computer
virus and hacking, or any other unintended fraudulent access to IT and computer
systems; or (viii) any other unforeseen event beyond the reasonable control of
a Party or which cannot reasonably be avoided and which prevents or delays the
performance by that Party of any of its obligations under the Merchant (ix) the
withdrawal, termination or suspension of the license to operate.
10.2 Parties’ liabilities
Paynovate's duties and responsibilities under the Merchant Agreement shall be
limited to those expressly set forth and undertaken herein. Paynovate
hereby disclaims all warranties (express or implied) other than the warranties
expressly set forth in the Merchant Agreement.
Paynovate shall not be liable to any person and shall disclaim all liability for
the acts or omissions of the merchant, a Customer or any other third party or
the consequences of such acts or omissions. The merchant is responsible for and
shall bear all consequences of any fraudulent event or abuse committed by any
person to any of its IP.
Without limiting the foregoing, in no event
shall Paynovate be liable to any person for:
●
an indirect,
incidental or consequential Loss, including a Loss in connection with business
reputation, contracts, business data/information and Loss due to disruption or
system downtime, loss of use, past or future revenues, profit or business
opportunities, damage to records or data or claims of third parties, caused by
the Merchant Agreement, relating to the Merchant Agreement, even if Paynovate was aware of, knew of or had the knowledge or
should have had knowledge of the possibility of such Losses, and regardless of
whether the cause of action is in contract or tort (including negligence) or
otherwise; and
●
a Loss attributable
to or arising out of general and administrative costs and expenses of the
merchant and/or a third party;
●
a direct Loss due
to any other than exclusively caused by the gross negligence or willful
misconduct of Paynovate;
●
a Loss arising from
the negligent, unlawful, unethical, fraudulent or criminal acts or omissions of
the merchant and/or any third party; fraud, hacking and/or the spread of
computer viruses, bugs or any other malware, malfunction or error caused by
anyone other than Paynovate.
Paynovate shall not be liable to Merchant or any third party where the failure
to perform Services is (directly or indirectly) caused by any act or omission
of the Merchant or any event, act or omission beyond the reasonable control of Paynovate, including the merchant's failure to maintain
stable operating conditions of its IT infrastructure, thereby preventing or
hindering Paynovate from performing its obligations
under the Merchant Agreement.
The burden of proof in connection with a
liability claim against Paynovate shall in no event
rest within Paynovate.
Notwithstanding anything to the contrary
contained in the Merchant Agreement, and without prejudice to the obligations
of Paynovate under the Merchant Agreement, Paynovate's aggregate liability under the Merchant
Agreement for all Losses suffered or incurred by the merchant, regardless of
the form of action employed - whether in contract, tort (including negligence)
or otherwise - shall not exceed the lesser of (i) the
amount of fees paid by Merchant (if any) to Paynovate
in the year preceding the year of the occurrence of such event; or (ii) one
thousand euros (€1,000).
10.3 Compensation
The merchant shall indemnify and hold
harmless Paynovate and each of its directors,
officers, employees and other agents from and against any and all losses,
liabilities, costs, and expenses (including all reasonable legal fees and other
professional fees and disbursements) whether arising during the term of the
Agreement or thereafter, which Paynovate may suffer,
incur or be subjected to, arising out of or relating to: (i)
a claim by a third party that its rights are being violated or infringed
because Paynovate or a party on Paynovate's
behalf is using the merchant's IT infrastructure; or (ii) an act or omission,
or Payment Transaction by the merchant or any person associated with the
merchant (including the merchant's directors, officers, employees and agents)
relating to the merchant Agreement.
The merchant shall be liable for, and shall
reimburse Paynovate for, any fines, fees or
non-compliance penalties levied against Paynovate in
connection with the Payment Transactions processed under the Merchant
Agreement, provided, however, that the merchant shall not be liable for such
penalties to the extent that: (i) Paynovate
required the merchant to take the actions specifically and directly resulting
from the noncompliant activity giving rise to the sanctions; or (ii) the
merchant took all necessary steps to ensure that the Payment Transaction
complied with all applicable laws, and the noncompliance giving rise to the
sanctions resulted directly and exclusively from Paynovate's
processing error.
11.
CONFIDENTIALITY
Each Party agrees to keep strictly
confidential all Confidential Information made available under the merchant
Agreement by the other Party concerned, including the financial terms set forth
in the Purchase Order, not to use any Confidential Information for any purpose
other than this Agreement or to the detriment of the disclosing Party, and not
to make such Confidential Information available to any third party, except to
its personnel, accountants, auditors or subcontractors on a "need-to-know"
basis and provided that the receiving Parties have similar confidentiality
obligations and except where the consent of the relevant Party has been
obtained prior to disclosure.
Confidential Information shall not include
information that:
●
is or becomes in
the public domain (other than in breach of the merchant Agreement); or
●
is disclosed by a
third party in breach of any confidentiality obligation; or
●
were known to the
Receiving Party prior to such Confidential Information being disclosed by the
disclosing Party, as evidenced by its records; or
●
was independently
developed by the Receiving Party without any use of or reference to
Confidential Information.
The confidentiality obligations set forth
in the Terms and Conditions will not be deemed breached if the Confidential
Information:
●
is required to be
disclosed pursuant to applicable law or pursuant to a final order of a court of
competent jurisdiction, provided that confidential treatment is requested and,
to the extent practicable, the Receiving Party notifies the Disclosing Party of
the request for disclosure in sufficient time to seek such legal protection as
may be available with respect to the confidentiality of the Confidential
Information; or
●
is disclosed in
connection with an arbitration or court proceeding by a Party for the purpose
of enforcing its rights under the Merchant Agreement.
Paynovate may disclose to Payment Service Providers all information relating to
Payment Transactions as well as all Confidential Information disclosed to Paynovate by the merchant, as may be requested by such
Payment Service Providers or the Buyer.
The confidentiality undertaking set forth
in the Terms and Conditions shall be effective as of the Effective Date, and shall survive and remain in full force and effect
after the date of termination, regardless of the cause thereof, for five (5)
years.
12.
DURATION AND
TERMINATION
The Merchant Agreement shall come into
effect on the date of signing the Merchant Agreement or, in case of a later
date, on the date on which Paynovate has notified the
merchant of a Merchant Identification Number.
The Merchant Agreement is entered into for
the term set forth in the Purchase Order, until termination, subject - if
applicable - to the expiration of a notice period under the General Terms and
Conditions.
Without prejudice to any other rights
available to the Parties under applicable law or the Merchant Agreement, and
unless otherwise provided in the Purchase Order, the Merchant Agreement may be
terminated by either Party in one of the following ways, depending on the
circumstances:
●
by notice to the
other Party sent by registered mail or delivered by a reputable carrier, at
least two (2) months in advance, with early termination charges, if any,
applicable. Termination shall be effective on the first Calendar Day of the
month following the notice period, or such later date as specified in the notice;
●
if the other Party
has breached, in any respect, any of its obligations under the Merchant
Agreement, by notice to such Party promptly after becoming aware of such
breach, together with a reasonably detailed description of the alleged breach,
sent by registered mail or delivered by a reputable carrier
- if such breach cannot be cured, the other
Party shall have fifteen (15) Calendar Days to cure such breach;
- if it is possible to remedy such breach,
but such breach has not been remedied within such fifteen (15) calendar day
period, the Party giving notice shall have the right, by giving further notice
to the Party in breach of its obligation under the Merchant Agreement within
thirty (30) calendar days after the expiration of such fifteen (15) day period,
to terminate the Merchant Agreement with immediate effect from the date of
receipt of such further notice;
- if such breach cannot be remedied, the
Party shall have the right to terminate the Merchant Agreement by giving notice
of termination to the other Party with immediate effect from the date of
receipt of the first notice;
●
by notice to the
other Party sent by registered mail or delivered by a reputable carrier, with
immediate effect from the date of receipt of the notice, in the event of Force
Majeure not resolved by the Parties in accordance with the General Conditions.
Without prejudice to any other rights
available to Paynovate under applicable law or the
Merchant Agreement, and except as otherwise provided in the Special Terms, the
Merchant Agreement may be terminated by Paynovate
with immediate effect and without compensation in any of the following cases:
●
the chargeback
and/or fraud or the percentage of erroneous Payment Transactions or retrieval
requests made by the merchant are excessive in Paynovate's
reasonable opinion;
●
The merchant acts
in violation of generally accepted business practice;
●
in the event of
insolvency involving the merchant, including bankruptcy or liquidation
proceedings against or by the Merchant; an order or resolution passed for the
winding up of the Merchant or any dissolution of the Merchant; the appointment
of a receiver for the Merchant; the Merchant's involvement in negotiations with
one or more of its creditors for the general readjustment or rescheduling of
its debts or the general assignment, arrangement or composition with or for the
benefit of one or more of its creditors.
●
in the event that Paynovate or the Merchant is denied or has any license,
registration or approval withdrawn by any Competent Authority or the Payment
Service Provider necessary to perform the Services;
●
if the Merchant
does not submit any Payment Transactions for six months.
After termination of the Merchant
Agreement, the merchant agrees to promptly pay, upon Paynovate's
request, all fees in connection with the Services provided after the
Termination Date, if any.
The Reserve Amount held in the Merchant
Settlement Account shall remain in the Merchant Settlement Account for one
hundred and eighty (180) days following the Termination Date, as described in
these Terms and Conditions or in the Merchant's last Payment Transaction
submitted to Paynovate, provided, however, that the
Merchant shall remain liable to Paynovate for all
liabilities arising beyond such one hundred and eighty (180) day period.
Termination of the Merchant Agreement shall
not constitute a termination or waiver of any rights of either Party against
the other Party accruing or arising prior to the time of such termination.
The expiration, termination or cancellation
of this Agreement by law or pursuant to the terms of this Agreement shall be
without prejudice to the rights and liabilities of each Party acquired prior to
the date of termination by law or under the Agreement, and shall not affect the
effectiveness or continued effectiveness of the provisions of this Agreement
which are, including, but not limited to, the provisions of the Articles, if
any, permitted definitions, confidentiality obligation, data protection, liability,
and applicable law and jurisdiction. All such provisions shall be deemed to
survive the expiration or termination of this Agreement for as long as
necessary to fulfill their purposes.
13.
AMENDMENTS:
Without prejudice to Article 9 (Fees, Costs
and Taxes) of the General Terms and Conditions, Paynovate
reserves the right to modify in any way or add any provision to the merchant
Agreement by giving the merchant two (2) months notice.
The merchant will be deemed to have
accepted changes and additions to the merchant Agreement unless it notifies Paynovate that it does not accept them prior to the
expiration of the notice period, which will result in automatic termination of
the Merchant Agreement.
Immediate notice or no notice will be given
if Paynovate makes any modification or addition to
the Merchant Agreement where the modification or addition is required as a result of a change imposed on Paynovate
by a Competent Authority or applicable law.
14.
TRANSFER OF THE
MERCHANT’S CONTRACT
The Merchant Agreement may not be assigned,
transferred or otherwise encumbered by the merchant, even by virtue of a
universal transfer, and the merchant may not delegate its rights, obligations
and/or duties hereunder in whole or in part, without Paynovate's
prior written consent, which consent may be granted or withheld at Paynovate's sole discretion.
Paynovate shall have the right - without the merchant's consent - to assign,
transfer or otherwise encumber the Merchant Agreement, or all or any part of
its rights, obligations and/or duties under the Merchant Agreement, to: (i) one of its affiliates (within the meaning of the Belgian
Companies Code); (ii) a successor in interest; or to (iii) a successor in
interest to a transaction in which it transfers all or substantially all of its
assets (or the assets of the business unit to which this Agreement principally
relates), together with related liabilities. Such assignment or transfer shall
become effective with respect to the merchant upon the merchant's notification
of such transfer or assignment, except as otherwise provided by law.
15.
MISCELLANEOUS
The Merchant Agreement constitutes the
entire agreement between the Parties with respect to the transactions
contemplated hereby and supersedes all prior agreements, written or oral,
between the Parties with respect to the subject matter of the Merchant Agreement.
Except as specifically set forth in the Merchant Agreement, no representation,
warranty, inducement, promise, agreement or condition not set forth in the
merchant Agreement has been made or was incumbent upon any Party at the time of
entering into the Merchant Agreement. Nothing in the Merchant Agreement,
express or implied, is intended to confer upon any person, other than the
Parties hereto or their respective successors, any rights, remedies,
obligations or liabilities.
The invalidity or unenforceability of any
provision of the Merchant Agreement shall not affect the validity or
enforceability of any other provision of the Merchant Agreement. An invalid or
unenforceable provision shall be replaced or deemed to be replaced by a
provision that is deemed valid and enforceable and that most closely
approximates the intent of the invalid or unenforceable provision.
Any provision of the Merchant Agreement may
be waived, but only if the waiver is in writing and signed by the Party that
would have benefited from the provision. To be effective, any consent required
under the Merchant Agreement must be in writing and signed by the Party giving
the consent.
Except as otherwise provided herein, each
Party shall bear all expenses incurred by it in connection with the Merchant
Agreement and the performance of its obligations hereunder.
The Parties agree that data and documents
provided by means other than paper shall have the same legal value when
submitted as evidence in a legal proceeding.
Paynovate shall have the right to provide the merchant with documents in any
form it deems appropriate, including the Internet. The Parties shall not
challenge the admissibility of data/documents merely because they have been
provided in electronic format.
16.
GOVERNING LAW AND
JURISDICTION
The Merchant Agreement shall be governed by
and construed in accordance with Belgian law.
Any dispute arising out of or relating to
the Merchant Agreement that is not amicably resolved by the Parties through
good faith negotiation within three (3) months of the date of the Courts of
Brussels (Belgium) shall have exclusive jurisdiction over the dispute, even in
the event of a secondary claim or counterclaim.
17.
NOTIFICATIONS AND
OTHER COMMUNICATIONS:
All notices, requests and other
communications under the Merchant Agreement shall be in writing in the English
language and at the addresses provided in the Purchase Order, unless otherwise
specified from time to time by the party concerned: either (i)
by personal delivery where specifically stated, by registered mail or by a
nationally recognized carrier, return receipt requested; or, in all other
cases, (ii) by e-mail.
Unless otherwise specified in the Merchant
Agreement, all notices, requests and other communications under the Merchant
Agreement shall be deemed received :
●
in the case of
e-mail, on the same day;
●
on the date stated
on the acknowledgement of receipt;
●
in the case of hand
delivery, on the date stated on the acknowledgement of receipt or on the date
of an attempted delivery, as evidenced by the standard documentation issued by
the carrier or post office.
Annex 4 : Fee Policies
Partner’s
Fee Schedule is
available on the Card Partner’s Website or Card Partner’s App https://www.slide-money.com
LinkCy’s Fee
schedule is available on the LinkCy’s Website :
(https://linkcy.io/content/uploads/2025/02/LinkCy-TC-Appendix-Applicable-Pricing-Endusers.pdf)
Annex 5 : Privacy Policy
Introduction
LinkCy SAS regards as of paramount importance the
protection and security of Personal Data.
The
Privacy Policy for Personal Data collected via LinkCy
SAS within the framework of the activities for which it acts as an Agent of a
Payment Service Provider (Paynovate SA) is detailed
below, which sets out:
● How
LinkCy SAS collects and processes your Personal Data;
● The
security measures that LinkCy SAS implements to
guarantee the confidentiality and integrity of your Personal Data;
● The rights you have to control them throughout
your use of the Services. This policy is effective as of 24/04/2021.
This Privacy Policy may be modified or
supplemented at any time by LinkCy SAS, in particular with a view to complying with any legislative,
regulatory, jurisprudential or technological developments. To check for updates
to this Policy, you should regularly consult this page.
If the changes affect the processing activities carried out on the basis of the User's consent, LinkCy
SAS must obtain your consent again.
We encourage you to read this policy carefully. If
you do not agree with or you are not comfortable with
any aspect of this Privacy Policy, please do not use the Application and
Services or do not provide your Personal Data for the use of Services.
Who is the Data controller?
We – LinkCy, a SAS
registered with the Paris Trade and Companies Register under number 852295732,
with a capital of 13 089 € whose registered office is located 42 Rue Boursault, 75017 Paris, France – are the controller of your
Personal Data collected throughout the Site, as provided by the Applicable Laws
(as defined below).
In accordance with Article 37 of the GDPR, the
institution has appointed a Data Protection Officer (hereinafter DPO), whose
contact details are as follows: nicolas.dupouy@linkcy.io
What are the Applicable Laws ?
The
processing of your Personal Data is carried out in accordance with the General
Data Protection Regulation (GDPR) (Regulation (EU) 2016/679 of the European
Parliament and of the Council of 27 April 2016), as well as in compliance with
French legislation governing the protection of personal data and privacy in
electronic communications, notably the French Data Protection Act (amended on
20 June 2018 to enhance personal data protection). This legislation also
includes European directives and national laws relating to privacy protection
in electronic communications, notably the "ePrivacy"
Directive 2002/58/EC (collectively referred to as the "Applicable
Laws").
The
competent authorities for data protection in France are the National Commission
on Informatics and Liberty (CNIL) for national compliance oversight, and the
European Court of Justice (ECJ) for matters involving European Union law.
What personal data is collected? How are they collected?
Personal
Data means any information relating to an identified or identifiable natural
person.
An identifiable natural person is one who can be identified, directly
or indirectly, in particular by reference to an
identifier such as a name, an identification number, location data, an online
identifier or to one or more factors specific to the physical, physiological,
genetic, mental, economic, cultural or social identity of that natural person.
As part of the provision of the Services, as defined in the General
Terms and Conditions of Use, we may collect the following Personal Data
directly through the Application, as defined in the General Terms and
Conditions of Use:
● Identity: surname, first name, maiden name, marital date and place of
birth, proof of identity;
● Personal life: personal email address,
personal telephone number, personal postal address and proof of address;
● Professional life: employer, professional email address, professional
telephone number, professional postal address, position, employment contract
and pay slip;
● Economic data: Bank details, IBAN, Card details, account statement, LinkCy account balance, transaction(s), tax notice and
proof of income;
● Connection data: identification and
authentication data linked to the use of Services (username, password, other
registration information), details of device used for connection.
Personal data is collected either directly from the data subjects or
indirectly from third parties or from public available sources.
The processing
operations concern the personal data of Users, Customers or Prospects.
Why is personal data collected?
The main purpose of collecting Personal
data through the Application is to allow us to: ● Carry out all the Services offered by our
company, as defined in the General Terms and Conditions of Use;
● Conclude
or execute any contract with you and to respond to any request for services; ● Answer and satisfy your requests and
eventual queries;
● Manage of customer account;
● Carry out customer loyalty operations;
● Carry out commercial prospecting operations;
● Development of statistics;
● Build
up a file of registered members, users, customers and prospects; ● Verify the use and functionality of our Services;
● Develop
our services (launch new products or services, improve the application, etc.); ● Protect our operations or those of others
third parties and our rights and security or those of third parties;
● Ensure compliance with legal and regulatory
obligation (fight against fraud, money laundering and terrorist financing), the
General Terms and Conditions of Use and this Data Protection Policy;
● Resolve any disputes that we may have withs its Users and enforce
contracts with third parties.
Furthermore, we may collect Personal Data for
other purposes, taking care to comply with the legislation on the protection of
Personal Data.
What legal ground(s) do we rely on?
Personal
Data processing is necessary for:
● the execution of a contract for the
provision of services to which the User is a party or the execution of
pre-contractual measures taken at the User's request in accordance with Article
6(1)(b) of the GDPR
● compliance with legal and regulatory obligations in accordance with
Article 6(1)(c) of the GDPR, such as the fight against money laundering and
terrorist financing, the fight against tax fraud, the legislation on internal
sanctions and embargoes, the banking and financial regulations;
● the purposes of the legitimate interests pursued by the data controller
in accordance with Article 6(1)(f) of the GDPR, such as risk management,
carrying out prospecting operations, improving our Services, etc.
Data processing may also be based on the prior consent of the data
subjects in accordance with Article 6(1)(a) of the GDPR, in
particular during prospecting operations.
How long do we keep your information?
We will keep your personal data in a secure
environment for a maximum period of eight (8) years from the termination of the
business relationship (closing of the payment account).
However, we may be required to retain certain
Personal Data for a longer period of time, taking into
account factors such as:
● legal
obligation(s) under applicable law to retain the personal data for a certain period of time (for example, for compliance with tax and
accounting requirements); ● the establishment, exercise or defense of legal proceedings (for
example, for the purposes of potential litigation).
While we continue to process your Personal Data, we will ensure that it
is treated in accordance with this Privacy Policy. If not, we will securely
delete or anonymize your Personal Data as soon as it is no longer required.
If you wish to know how long we keep your Personal
Data for a particular purpose, you can contact us by writing to us at support@linkcy.io
Who may we share your information with?
As your Personal Data is confidential, only persons duly authorized by
us due to their functions can access your Personal Data, without prejudice to
their possible transmission to the extent required by the applicable
regulations. All persons for which we are responsible for access to your
Personal Data are bound by a confidentiality agreement.
We can also share your Personal Data with our
subcontractors, within the framework of the contracts governing the business
relationship with us, and in particular:
● Our subsidiary company
● Our Payments Services Provider
● Our others
Services Providers
● Our Partners, as defined in the General
Terms and Conditions of Use
These
subcontractors only have access to the data that is strictly necessary for the
execution of the contracts established with LinkCy
SAS.
We guarantee that the different subcontractors
implement the necessary and adequate security measures to ensure the security,
confidentiality and integrity of personal data processed on behalf of LinkCy SAS.
In certain circumstances and only where required by Applicable Laws, we
may disclose some of your Personal Data to competent administrative or judicial
authorities or any other authorized third party.
Is my Personal Data transferred outside the European Union?
The processing and hosting of the Personal Data
are established on the territory of the European Union.
Nevertheless, if we transfer Personal Data outside the territory of the
European Union, we guarantee that these transfers are executed to States, which
are subject to an adequacy decision by the European Commission, justifying an
adequate level of protection, within the meaning of Article 45 of the European
General Regulation 2016/679 of 27 April 2016 on the protection of personal
data.
In the absence of an adequacy decision, we may transfer Personal Data
outside the European Union to Subcontractors, under the conditions provided for
in Article 46 of the European General Regulation 2016/679 of 27 April 2016 on
the protection of personal data, in particular through
the development of standard subcontracting clauses approved by the Commission).
How do we secure personal data?
We implement the appropriate measures in order to guarantee the protection and confidentiality of
your Personal Data, and specifically, to prevent its destruction, loss,
alteration, unauthorized disclosure of data, or unauthorized access of this
data.
These measures
include:
● Training to relevant staff to ensure they are aware of our privacy
obligations when handling personal information;
● Careful selection of subcontractors;
● administrative and technical controls to restrict access to Personal
Data on a “need to know” basis;
● technological security measures, including
firewalls, encryption and anti-virus software, authentication devices;
Although we use appropriate security measures once we have received
your Personal Data, the transmission of data over the internet (including by
e-mail) is never completely secure. We endeavor to protect Personal Data, but
we cannot guarantee the security of data transmitted to us or by us.
We will inform you promptly in the event of a
violation of your Personal Data which could expose you to a serious risk.
What are your rights regarding your personal data?
You have rights to the Personal Data that concerns
you and that is processed by LinkCy SAS:
● The right to be informed: you have the right to receive clear,
transparent and easily understandable information about how we use your
Personal Data. That is why we provide you with the information contained in
this Privacy Policy.
● The right of access: you have the right to
obtain confirmation from us as to whether or not your
Personal Data is processed by us, as well as certain other information about
how it is used. You also have the right to access your Personal Data by
requesting a copy of your Personal Data. We may refuse to provide information
where this would reveal Personal Data about another person or adversely affect
the rights of another person.
● The right of rectification: you may ask us
to take action to correct your Personal Data if it is inaccurate or incomplete
(for example, if we have the wrong name or address).
● The right to forget:
this right allows you, in simple terms, to request the deletion or removal of
your Personal Data where, for example, there is no compelling reason for us to
continue to use them or their use is illegal. However, this is not a general
right to deletion and there are some exceptions, for example when we need to
use the information to defend a legal claim or to be able to comply with a
legal obligation.
● The right to limit processing: you have the
right to "block" or prevent further use of your Personal Data when we
assess a request for rectification or as an alternative to deletion. Where
processing is limited, we may still retain your Personal Data, but we may not
use it further.
● The right to data portability: you have the right to obtain and re-use
certain Personal Data for your own purposes in different companies (which are
separate data controllers). This only applies to Personal Data that you have
provided to us, which we process with your consent. In this case, we will
provide you with a copy of your data in a structured, commonly used,
machine-readable format or (where technically possible) we can transmit your
data directly to another Data controller.
● The right to object: you have the right to
object to certain types of processing, for reasons relating to your particular
circumstances, at any time. We will be allowed to continue processing Personal
Data if we can demonstrate that the processing is justified by compelling and
legitimate reasons overriding your interests, rights and freedoms or if we need
it for the establishment, exercise or defense of legal claims.
● The right to withdraw your consent: where we process your Personal Data
on the basis of your consent, you have the right to
withdraw your consent at any time. However, such withdrawal does not affect the
lawfulness of the processing that took place prior to such withdrawal.
● The right to provide us with instructions
on the use of your Personal Data after your death - you have the right to
provide us with instructions on the management (e.g., retention, deletion and
disclosure) of your data after your death. You may change or revoke your
instructions at any time.
How to contact us?
If you wish to access, correct, modify or delete the Personal Data we
have about you, object to their processing, exercise your right to portability,
file a complaint, exercise any of the above-mentioned rights or simply obtain
more information about the use of your Personal Data, please contact support@linkcy.io
We will endeavor to
find a satisfactory solution to ensure compliance with the Applicable Laws.
In the absence of a response from us or if you are
not satisfied by our response or proposal or at any moment, you have the ability to lodge a complaint before the CNIL (the
French data protection authority) or with the supervisory authority of the
Member State of the European Union of your country of residence.