PayCheckout Acquiring Services

Terms and Conditions

IMPORTANT NOTE: THESE ARE THE STANDARD TERMS AND CONDITIONS PURSUANT TO WHICH WE WILL PROVIDE THE ACQUIRING SERVICES TO YOU AND ON WHICH WE INTEND TO RELY. BY REQUESTING OR ACCEPTING THE ACQUIRING SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND, AGREE AND SHALL COMPLY WITH THE TERMS OF: (i) THESE TERMS AND CONDITIONS; (ii) THE APPLICATION; (iii) THE PRICING PLAN; AND (iv) THE PRIVACY POLICY (TOGETHER “THE CONTRACT”) AND YOU HAVE BEEN GIVEN AN OPPORTUNITY TO RAISE ANY QUESTIONS YOU MAY HAVE ON THEM.

THESE TERMS AND CONDITIONS are entered into between PayCheckout B.V., using the tradename Cashflows, here and after Cashflows, a company incorporated in the Netherlands whose registered office is at Noorderhof 24, 5804 BV Venray, Netherlands registered with the Dutch chamber of commerce under number 59750111 ("PCO", "we", "our", "us"), the Foundation, and you the merchant ("you", "merchant") and become legally binding on the Operative DatePCO tradename Cashflows is a payment institution authorised and regulated by De Nederlandsche Bank N.V. for the provision of merchant acquiring and other related payment services (firm reference number: [R12887).

1. 1. DEFINITIONS AND INTERPRETATION
      1. In these Terms and Conditions, the following terms shall (unless the context otherwise requires) have the following meanings:

1. 1. 2. Contract (unless the context otherwise requires):
         1. references to the Contract and any other agreement, contract or document (including the Rules) shall be construed as a reference to it or them as varied, supplemented or novated from time to time;
         2. words importing the singular shall include the plural and vice versa;
         3. the headings in these Terms and Conditions are for convenience only and shall not affect their construction or interpretation.
      3. In the event of a conflict between the documents comprising the Contract, the following order of priority will apply, only to the extent of such conflict: (i) these Terms and Conditions; (ii) the Application; and (iii) the Pricing Plan.
      4. The Foundation is not a provider of the Acquiring Services, but may be used by PCO to receive payments for the benefit of Merchant in order to keep such funds separate from the assets of PCO and to pay Remittances to the Merchant. The Foundation is only entering into this Agreement to acknowledge its obligation to pay Remittance by it to the Merchant, as per the terms of this Agreement. The Foundation is not responsible or liable for the Acquiring Service in any way. PCO will be responsible and liable for any act or omission of the Foundation as if acts or omissions of the Foundation are the own acts or omissions of PCO under the terms of the Agreement. The Foundation is entitled to invoke any and all remedies we have in relation to this Contract towards you as its own. This means that, amongst others, if we have a right to terminate, suspend obligations, deduct sums, withhold payments, etc, the Foundation holds the same rights in relation to any of its obligations towards you and its legal relationship with you. Furthermore, wherever is referred to "PCO", "we", "our" and/or "us" in the Contract, this also means the Foundation if and to the extent that, at the Foundations option and in its sole discretion  (i) this is in any way beneficial to the Foundation in accordance with its purpose, (ii) (therefore cumulatively) the Foundation informs you accordingly, prior to invoking this clause or afterwards.   
   2. ACQUIRING SERVICES
      1. Notwithstanding the submission of an Application, we shall not be obliged to provide the Acquiring Service unless and until we notify you in writing that: (i) you have met our onboarding requirements and we have accepted your Application; (ii) we have successfully carried out and you have met, our due diligence checks on you; and (iii) you have agreed to the terms of the Contract (“Conditions”).  We may agree to provisionally provide you with the Acquiring Services while processing your Application. We are entitled to immediately suspend or terminate (either by cancellation (opzegging) or rescission (ontbinding)) the provision of the Acquiring Services , in whole or in part, if you subsequently fail to meet the Conditions.  For the avoidance of doubt where we have agreed to provisionally provide the Acquiring Service in accordance with this clause 2.1 prior to accepting your Application, the provision of the Acquiring Services shall be in accordance with the terms of this Contract.
      2. In consideration of the Fees, Cashflows shall provide the Acquiring Services with reasonable skill and care, and in accordance with Applicable Laws, the Rules, and the provisions of the Contract.
      3. You may request that we also provide you with the Gateway Services, and if we agree to do so, you shall pay the Gateway Services Fee in accordance with the Pricing Plan.
      4. You shall not use any third party to provide Gateway Services without our prior written consent. Where such consent is provided, you shall ensure that the third party is fully compliant with the Applicable Laws, the Rules, the PCI DSS and, where relevant any Operating Instructions.
      5. Unless otherwise agreed by us in writing, you acknowledge and agree that you shall (at your own cost) be solely responsible throughout the duration of the Contract for all equipment, software, systems and telecommunications facilities (including Gateway Services) which are supplied by you or by third parties and that are required to enable you to use the Acquiring Services. We are not liable for any disruption to the Acquiring Services that is attributable or in any way related to the provision of Gateway Services provided by a third party.
   3. REMITTANCE
      1. Remittances may be paid through your Remittance Scheduler or directly to your Bank Account(s) (in either case referred to this section as your "Remittance Account(s)") as agreed by us in writing. We or the the Foundation shall not be obliged to make a Remittance to any account other than the Remittance Account(s) nominated by you either under the Application or via the Online Portal. Remittances due to you may , at your request, subject to such conditions as we may reasonably consider appropriate, be paid (in whole or in part) to an account held by any of your group companies acting on your behalf, provided always that any such payment shall be deemed to discharge the obligation to pay the Remittance (or the relevant part thereof) to you and that such group company shall not thereby or in any way gain any right or entitlement to any sums representing any Transaction nor any right or remedy against us or the Foundation under the Contract.  We may immediately suspend or withdraw any such facility at our discretion at any time.
      2. Subject to our rights to defer and/or deduct sums from Remittances in accordance with this clause 3, your Remittance Account shall be credited with the relevant Remittance amounts.
      3. You may specify when you wish Remittances to occur and/or apply certain pre-conditions (such as Remittance value) to a Remittance. Such specifications may be notified to us via the Online Portal by the Primary User and will always be subject to our prior consent. For the purposes of the PSD2 we will be deemed to have received your order to make a Remittance on the date on which you have specified Remittance to occur.
      4. Remittance shall not fall due until the occurrence of the later of the following:
         1. the next date on which you have specified Remittance to occur following the relevant Transactions; and
         2. the expiry of any period of deferment which we are entitled to impose in accordance with this clause 3.
      5. Subject to our rights and/or the rights of the Foundation under the Contract to deduct sums from, set-off or defer Remittances, Remittance Accounts located within the European Economic Area will be credited within the timescales set out in the PSD2.
      6. We (and the Foundation) shall be entitled to deduct any or all of the following sums from any Remittance;
         1. any Fees that are due and payable;
         2. any Interchange Fees and Scheme Fees that are due and payable;
         3. any Refunds processed by us;
         4. any Chargebacks and Assessments;
         5. any amounts required by us or the Foundation to cover any:
            1. potential or reasonably expected Refunds, Chargebacks, Disputes, Void Transactions or Assessments or any liability or potential liability relating to any Transaction, Refund, Chargeback, Void Transaction or Assessment;
            2. any liability or potential liability of yours under the Contract; and
               1. any other charges or amounts due from you to us or to the Foundation under the Contract. In the event that the value of the sums owed by you to us and to the Foundation exceeds the aggregate value of the Remittance which would otherwise be due to you, we (and subsequently, the Foundation) may elect not to pay any relevant Remittance and the resulting shortfall may be held over by us and/or the Foundation for deduction (together with interest in accordance with clause 6) against the following (and any subsequent) Remittance. Both us and the Foundation  are at any time entitled to require payment in full of all or part of such shortfall (together with interest) forthwith.
   1. 3. 7. In the event that we do not deduct any of the sums set out in clause 3.6 from your Remittances, you agree to pay all such amounts to us or to the Foundation in accordance with our instructions, or, at our option, we may debit the Remittance Account (where relevant) for such amounts due and payable. 
         8. Throughout the term of the Contract and after its termination for any reason, we (and subsequently the Foundation) shall, in addition and without prejudice to the rights and remedies above and any rights and remedies we may have under the Contract and by law (i.a. 6:52 DCC and 6:262 DCC),  be entitled to defer payment of any Remittance, in the event that:
            1. we become aware of any Chargebacks or Assessments, any claims or action in connection with the Contract, any liability of yours to us including any liability of yours relating to any Transactions, Chargeback, Chargeback Costs or Assessment (in each case whether actual or potential) or any third-party liability arising from the Contract; or
            2. we have a reasonable suspicion that the Remittance relates to a Transaction or series of Transactions that may be fraudulent or involves other criminal activity; 
            3. we have reasonable grounds to believe that you have breached the Contract;
            4. the information you provided in your Application has changed or is incorrect;
            5. you are an Excessive Fraud and/or Chargeback Merchant;
            6. the level of fraud of chargebacks on your account materially changes; and/or
            7. as a material change in our ongoing risk assessment of your account.
         9. We (and the Foundation) may defer making any Remittance (including the Security Reserve) for such period as we shall in our reasonable discretion consider appropriate, or, if earlier until either:
            1. the relevant liability is incurred (when we shall pay to you the balance of the amount of such sums, if any, after deducting the amount of such liability); or
            2. any breach has been ascertained or the risk of any breach passed; or
            3. we are, acting reasonably, satisfied that no such liability will be incurred or that no fraud or other criminal activity is involved.
         10. You shall not be entitled to any interest or any other compensation whatsoever in respect of any sums held to being Remitted to you for any period for which payment may be deferred or otherwise withheld.
         11. You have no right or entitlement to or any interest in any sums representing any Transaction until 60 days after Remittance is due in accordance with the Contract. We are never obliged to pay an interest rate higher than 0.5% anually.
         12. We will notify you as soon as possible upon exercising any of our rights under this clause 3 which is, however, no prerequisite for us to exercise these rights.
         13. We shall not be liable to you for any Remittance where the Remittance Account unique identifier information provided by you was incorrect. Such transactions shall be deemed to be correctly executed. If requested, we will make reasonable efforts to recover the funds involved in the Remittance and you agree that we may charge you for our actual costs in attempting such recovery.
         14. We shall send you an email each month (to the email address you have registered with us) reminding you to view your transaction history via the Online Portal. You will also have the ability to download/print a copy for your records. In the event you have ended this Contract, you can request a copy of your transaction history for the 6-year period prior to its closure by contacting Customer Service and satisfying the necessary security and identification checks.
      4. FEES AND CHARGES
         1. In return for us providing the Acquiring Services you agree to pay the Fees set out in the Pricing Plan (plus any VAT that may apply).
         2. Unless otherwise agreed we will charge our Fees on an "interchange ++" basis. This means that in addition to our Fees, you will pay the Interchange Fees, Scheme Fees and any other fees as may be introduced or varied by the Card Schemes or Card Issuers that are levied on us or you in relation to the Services from time to time. However, you have the option for us to charge our Fees on a “blended cost” basis.  This means that the Fees are based on our costs plus a margin applied by us.
         3. You agree that, unless otherwise stated: (i) all Fees, Interchange Fees and Scheme Fees will be due and payable by you at the earlier of, the time Transaction sums are settled to us and/or the Foundation by the Card Scheme or, when the related Services are rendered to you; and (ii) any related Chargebacks, Refunds, Assessments or similar fines, fees penalties or charges levied by Card Schemes or other third parties including any liabilities arising in relation to the aforementioned will be due and payable by you when we receive notice thereof from the Card Schemes or otherwise (in which case a notification to the Foundation is considered to be a notification to us). When opting for your Fees on an interchange ++ basis, the Interchange Fee and Scheme Fee are subject to change and any changes to the Interchange Fee and/or Scheme Fees will be applied to your Fee immediately and without prior notice to you. As a guide, we have set out in the Pricing Plan, the Interchange Fee and Scheme Fees that apply to Transactions and that are in force at the date we prepare your Pricing Plan on an interchange ++ basis.
         4. When opting for your Fees on a blended basis, we will not pass through any changes to the Interchange Fee and Scheme Fee. As a guide, we have set out in Schedule 1, Appendix B the Fees that apply to Transactions and that are in force at the date we prepare your pricing on a blended basis.  In the event you elect blended pricing, you must sign and date Pricing Plan in confirmation.
         5. Unless stated otherwise, all Fees, charges and other payments to be made by you under the Agreement are exclusive of VAT and any other relevant taxes and in addition to paying such Fees, charges or other payments you shall also pay any relevant taxes.
      5. EXCHANGE RATES
         1. The FX Mark-Up is applied by us to arrive at the rate we use to provide cross-currency settlement to you.
         2. Unless a particular rate is required by law, Cashflows will apply the exchange rate published by Oanda (the rate is available at www.oanda.com/currency/live-exchange-rates/) on the business day prior to the relevant date plus the FX Mark-up. The relevant Oanda exchange rate plus the FX Mark-up shall also apply to any other currency exchange undertaken by us under the Contract. Oanda published its exchange rates daily. Any change in the relevant Oanda exchange rate will be applied immediately and without notice to you.
         3. If Oanda ceases to publish exchange rates at all or as regards any specific currency, Cashflows may select and use an alternative third-party exchange rate provider.
      6. INTEREST

   We shall be entitled to charge you interest at the statutory rates as determined in accordance with section 6:119a of the Dutch Civil  Code on all amounts due in accordance with the terms of the Contract for the period they remain payable but unpaid. If we charge you interest, we will notify you in the relevant statement of fees that will be provided by us to you from time to time via the Online Portal

   1. 7. AUTHORISATION AND CHARGEBACKS
         1. Unless we have agreed otherwise in writing, you must not process a Transaction unless and until you have obtained notification from us (in line with the Card Scheme requirements) that the Transaction has been Authorised by the Card Issuer (save for Contactless Transactions), in particular:

   (i)      you may need Authorisation where a Transaction value is below the Floor Limit and/or for a Contactless Transaction where the chip technology on the Card requires Authorisation;

   (ii)     you must not complete a Transaction where Authorisation is required and not received, and you must not re-submit a Transaction where Authorisation has been declined save as set out under the Rules;

   (iii)    where you do process a Transaction without Authorisation, you shall be liable for and shall indemnify us and the Foundation against any Losses (including Chargebacks or other losses) relating to that Transaction;

   (iv)    you must cancel any Authorisation where you or the Cardholder decide not to complete the Transaction;

   (v)     you must not request an Authorisation to validate a Card, a validation must be processed as an account status check; and/or

   (vi)    you must not split Transactions in order to obtain Authorisation

   1. 1. 2. You acknowledge and accept that Authorisation and acceptance of any Transaction for processing shall not be taken as an indication by us , the Foundation or the Card Scheme that the Transaction is valid (and not an Illegal Transaction) nor does it guarantee that Remittance will be made in respect of that Transaction and this does not prevent us and/or the Foundation from recovering a Chargeback or other amounts in relation to the Transaction.
         3. You may receive a Chargeback from a Cardholder or Card Scheme for a number of reasons (including Illegal Transactions) under the Rules and you will be required to reimburse us or the Foundation in accordance with our instructions for all Chargebacks that relate to Transactions you have submitted to us for processing. To the extent permitted by law, we shall notify you of Chargebacks in your account summary available via the Online Portal.
         4. Where a Chargeback or Assessment occurs, we (and the Foundation) shall immediately be entitled, at our discretion, to deduct the sum(s) from any pending or future Remittance, debit your Bank Account and/or invoice you to recover the full amount of the Chargeback or Assessment plus any other reasonable costs, expenses, liabilities which we or the Foundation may incur as a result of or in connection with such Chargeback ("Chargeback Costs") on an indemnity basis. Where, in relation to a Transaction that is subject to a Chargeback, you have not been provided with a Remittance, there will be no Remittance for that Transaction and we (and the Foundation) shall be entitled to deduct or invoice you for any relevant Chargeback Costs.
         5. Chargebacks may arise under the following circumstances (this is not an exhaustive list):

   (i)      where there is no genuine evidence that the Cardholder Authorised the Transaction or the Cardholder denies Authorising a Transaction;

   (ii)     if a Transaction is processed contrary to the terms of this Contract;

   (iii)    where we or the Foundation receive a claim (from a Cardholder or Card Issuer) connected to a Transaction processed by you, relating to the Approved Products being faulty or not as described, not receiving the Approved Products, or where the Transaction was subsequently cancelled;

   (iv)    for Card Present Transactions, you fail to obtain the Cardholder’s signature where you are required to manually enter the transaction as a result of the Card being unable to be read;

   (v)     where the Transaction relates to a non-Approved Product or an Illegal Transaction;

   (vi)    where you fail to obtain Authorisation for the Transaction in accordance with terms of this Contract;

   (vii)   a Transaction is processed for someone other than the Cardholder;

   (viii)  where we treat you as an Excessive Chargeback/Fraud Merchant; and

   (ix)    where set out in the Procedure Guide.

   1. 7. 6. Where we consider you to be an Excessive Fraud/Chargeback Merchant: (i) we may require you to provide detailed reasons for the number of Chargebacks and/or Fraud relating to Transactions and any mitigating actions you are taking to reduce the same; (ii) we may provide you with instructions on how to reduce your levels of Chargebacks and Fraud; where you have issued a credit to a Cardholder to avoid being captured as an Excessive Chargeback/Fraud Merchant, we will consider such credit as a Chargeback.
         7. We shall not be obliged to investigate the validity of any Chargeback by any Card Issuer or Card Scheme, whose decision shall be final and binding in respect of any Chargeback.
         8. As Chargebacks may arise after the date of the relevant Transaction, you acknowledge and agree that we shall remain entitled to recover Chargebacks and Chargeback Costs that relate to Transactions processed under the Contract after the termination of the Contract or that relate to Transactions generally. The provisions of this clause 7.8 shall survive termination.  
         9. You agree that it is your responsibility to prove to our reasonable satisfaction (or that of the relevant Card Issuer) that the debit of a Cardholder's account was authorised by such Cardholder.
      8. YOUR REPRESENTATIONS AND WARRANTIES
         1. You represent and warrant to us throughout the term of the Contract the following:
            1. All the information provided to us by you in the Application and any other information provided by you prior to the Operative Date or during the term of the Contract, including but not limited to information on the Approved Products, is true, accurate and complete as of the date originally given, properly reflects your business, financial condition and principals, owners or officers and that all changes to such information have been properly notified to us in accordance with clause 9.31;
            2. You, the merchant, and the individual signing or accepting the Contract on your behalf is duly authorised to bind you to all provisions of the Contract contained herein and that your acceptance and performance of the Contract will not violate any Applicable Laws or any other agreement to which you are subject;
            3. You are obtaining and using the  Acquiring Services for legitimate business purposes only and to facilitate lawful business Transactions between you and your customers and your business and the manner in which you conduct it comply with all Applicable Laws as well as the laws of the jurisdiction in which you and the Cardholder are based; and
            4. You are duly authorised and/or licensed to provide Approved Products and/or services to Cardholders, in the jurisdiction of sale (where you are based) and in the jurisdiction of purchase (where the Cardholder is based).
      9. YOUR OBLIGATIONS

   Compliance

   1. 1. 1. You shall at all times comply with, and, where relevant, you shall ensure that your agents, sub-contractors or any third parties used by you (including third party providers of Gateway Services) shall comply with:
            1. the terms of the Contract;
            2. all Applicable Laws;
            3. the Rules;
            4. the Operating Instructions;
            5. the PCI DSS: and
            6. your obligations relating to the provision of goods and/or services by you to Cardholders.
         2. You shall be solely responsible for ensuring that all Approved Products comply with all Applicable Laws in both the jurisdiction of sale (where you are based) and the jurisdiction of purchase (where the Cardholder is based).
         3. You must not process any Transaction which is connected to any person or country that is affected by economic sanctions imposed by the United Kingdom, the European Economic Area, the United States of America or the United Nations.
         4. We may ask you to retain Cards, which you shall do in accordance with the Procedure Guide, unless you believe there is a real risk of harm to you. Where you do retain a Card, you must not suggest you are acting on our behalf.
         5. You must display at each of your Retail Locations, the Material and you must comply with our reasonable instructions relating to the Materials.
         6. If you do not accept all Cards in accordance with the provisions of this clause 9, you shall: (i) for Card Present Transactions, display this information prominently at the entrance of each Retail Location; and (ii) for Card Not Present Transactions, ensure this information is prominently displayed on your Website and provided prior to a Cardholder completing a Transaction.
         7. You must provide us with all reasonable help we may require to detect, prevent, and investigate fraud or a Dispute. In addition, if there is a material change in the way you operate your business, (for example, the number of Transactions you undertake is materially different to the number set out in your Application) we may determine this as fraudulent activity. In order to prevent the termination or suspension of the Acquiring Services, you must notify us without undue delay if there is a material change in the nature or size of your business.

   PCI DSS and Storing Data

   1. 1. 8. Without prejudice to the generality of the above clause, you shall ensure that your payment systems and related infrastructure complies in all respects with the PCI standards and you shall submit to us on request (which shall be at least annually) your most recent certification of PCI DSS compliance in accordance with the requirements set out by the Payment Card Industry Security Standards Council and in such a form as is acceptable to us. More information about how to become PCI DSS compliant can be found on our website at   http://support.cashflows.com/support/pcidss.
         9. We are entitled to audit your information security controls against the most recent version of the PCI DSS at the time of your most recent certification in order to validate the accuracy of your PCI DSS self-assessment.
         10. You shall notify us immediately if you become aware of or suspect any security breach relating to Data (whether or not you have complied with the PCI DSS). You shall immediately identify and resolve the cause of the security breach and act on any reasonable instructions or directions we may give including but not limited to the engagement of third parties to analyse your systems and provide forensic reports. Any action that we direct you to take in relation to a Data breach under this clause shall be at your own cost.
         11. We are also responsible for the security of cardholder data that we possess or otherwise store, process, or transmit on your behalf, or to the extent that we could impact the security of your cardholder data environment (CDE).  This is limited to cardholder data that has entered applications / systems owned by us or in connection with the provision of the Acquiring Services by us.  In order to meet our obligations, we are a PCI DSS level 1 certified service provider and as such, we maintain and are assessed against all mandatory PCI DSS requirements on an annual basis.
         12. Where you use a third-party to manage your PCI obligations (PCI Agent) (including data-processing, storing/transmitting services) you must ensure such third-party PCI Agent is registered with the Card Schemes and listed on the Card Scheme website.
         13. You must keep the original receipts and copies relating to Transactions (Transaction Data) in a safe and accessible place in accordance with the timeframes set out in the Procedure Guide as you may need to evidence a Cardholder authority to debit their account.
         14. You must ensure all Transaction Data is kept in a safe and secure manner in order to prevent unauthorised access, loss, theft, or disclosure to any unauthorised third-parties. We may from time to time, provide you with reasonable instructions in order to keep Transaction Data safe, where you fail to do so, we shall be entitled to terminate this Contract with immediate effect (either by cancellation (opzegging) or rescission (ontbinding)), in whole or in part.

   Audit

   1. 1. 15. We or an agent on our behalf, may carry out an audit or inspection of your business to ensure your compliance with the terms of this Contract or to check the security measures you have implemented to meet your responsibilities.  You agree to provide us with access to your Retail Locations (including your offices) and any records, data, facilities, equipment and systems (including any hardware and software) used to provide goods and services, to carry out the audit
         16. We will provide as much notice as we can prior to any audit and will also ensure we minimise any disruption to your business.

   Cardholder Transactions

   1. 1. 17. You shall:
             1. only process Transactions that represent payment or Refund in respect of Approved Products which you supply directly;
             2. not submit any Transaction for processing where you know or should reasonably have known that the Transaction, or the goods or services to which the Transaction relates, was illegal with respect to any relevant law;
             3. not process Transactions made by your directors or employees except for legitimate purchases of Approved Products;
             4. not allow any third-party to process or accept Transactions; and
             5. only process Transactions in accordance with the Trading Limit, Floor Limit or any other limits set by us under the Contract.
         18. Subject to the provisions herein you shall honour all valid and current Cards by supplying to the Cardholder without imposing any financial limit (save where we have agreed to you setting limits in your Application) the full range of Approved Products offered by you at the cash price for such Approved Products. Where a Cardholder presents a Card for a Transaction supported by two (or more) Card Schemes, the Cardholder will decide which Card Scheme shall process the Transaction.
         19. You should not directly or indirectly levy a surcharge for payments made by Cards unless you disclose the surcharge to the Cardholder in advance of payment and do so in full compliance with Applicable Laws and the Rules.
         20. Where you have requested, and we have agreed, to make Credit Transactions on your behalf, you are required to establish and maintain a Cashflows Business Account. You must ensure there are sufficient funds to cover the amount of such Credit Transactions. We will use funds held by us or the Foundation pending Remittance to you and/or funds in your Cashflows Business Account to make the Credit Transaction. You hereby authorise us to make payments of Credit Transactions from funds held by us or the Foundation pending Remittance to you and/or from funds held in your Cashflows Business Account. In the event there are insufficient funds we are entitled to defer the payment of any Credit Transactions. Credit Transactions must be requested via the Online Portal by, and with the consent of, your Primary User (or the appointed delegate(s) of the Primary User). We will make Credit Transactions based on the information provided to us and we shall not be liable for any Credit Transactions made where the information you have provided us with is incorrect. 
         21. When processing a Transaction and where we have approved the provision of CashBack services as part of your Application, you are permitted to provide Cash-Back to a Cardholder or customer as part of the Transaction, subject to any conditions or limits set by us;
         22. You must only process Transaction for deposits and/or pre-payments where we have approved the same as part of your Application [and subject to our written approval].
         23. Where you accept Contactless Transactions exceeding the Contactless Transaction Limit, you will be liable and shall indemnify us against any Losses we may suffer as a result.
         24. We will not authorise a Transaction unless the Security Code is provided (save where the Card Scheme does not support a Security Code). You must not record, copy, take or reveal a Security Code, other than for the purposes of processing a Transaction.

   Card Present Transactions

   1. 1. 25. You must only process Transactions using POS Terminals approved by us and you must not modify, substitute or tamper with the POS Terminals (save where authorised by us).
         26. We may need to provide maintenance of POS Terminals and software updates from time to time using a telephone link. You must ensure that you maintain a telephone link to the POS Terminal at all times. You will be responsible for any costs relating to the charges or maintenance of the telephone link.
         27. Where you receive a new POS Terminal, you must immediately carry out the security changes set out in the Procedure Guide and you will be responsible for any Losses we, the Foundation you or any third-party may suffer as a result of your failure to do so.
         28. You must provide us reasonable evidence (including documentation) confirming you are complying with the obligations relating to POS Terminals and Card Present Transactions.

   Provision and Disclosure of Information

   1. 1. 29. You shall at all times throughout the term of the Contract (and for such period as may be necessary thereafter) within the timescales that we may specify (which could mean immediately):
             1. disclose to us such information and Data as we reasonably require relating to the performance of the Contract or otherwise, which may also mean that you must give us documents, including any information: (i) required to satisfy our obligations to any governmental or regulatory authority or Card Scheme or otherwise; (ii) relating to any aspect of the processing of Data by you or on your behalf; (iii) required to enable us to deal with any Chargeback, Dispute or Fraud Report, such information to include (but not be limited to) information required in any Copy Request or (iv) to enable us to review any potential risk to our business including any financial information on your business we may reasonable require to assess any insolvency risk;
             2. take all reasonable steps to assist us in handling any claim or query raised by a Cardholder, a Card Issuer, a Card Scheme, or any other third party in relation to the Acquiring Services; and
             3. give us reasonable assistance on request for the prevention and detection of fraud or other criminal activity in respect of the Acquiring Services.
         30. To enable us to assess your financial position throughout the term of the Contract, you shall on request and within the timescales set out in any such request:
             1. provide us or our duly authorised representatives with any financial or other information we may require; and
             2. permit us or our duly authorised representatives to have access to any premises where your business trades or where any of its records are kept, to examine such records and those of any other business which we consider is or may be connected to yours, and to take and retain copies of all or any such records and further to provide to us or procure that we are provided with honest and comprehensive answers to any enquiries we may make.
         31. You shall notify us immediately in writing of any:
             1. act, omission or error which does or may cause material loss or damage to us or to the Foundation (including damage to our reputation, which for the avoidance of doubt shall be deemed to be material in every instance in which it occurs);
             2. act, omission or error which does or may adversely affect your ability to perform your obligations under the Contract;
             3. actual or suspected violation or compromise of the security or integrity of any Data or any Confidential Information at any time obtained or held by you;
             4. material change to the information provided to us in your Application, including but not limited to the nature of your business or in the goods and/or services supplied to your customers or of any additional business commenced by you or of your cessation of business or you stop or are planning to stop your business or plan to sell your business, you change your name, you become or are likely to become insolvent, the legal status of your business changes, or you become aware of or suspect fraud;
             5. other agreement that you enter into concerning your acceptance of Transactions; or
             6. change of your Control, or any proposed or reasonably anticipated change of your Control.
             7. any incident of a personal data breach which must be reported to us without undue delay and, where feasible, not later than 72 hours after you become aware of it.

   It shall be your responsibility to ensure all Data provided by you is complete and accurate. If you do not provide the information or Data we require, we may withhold the payment of Remittance to you in accordance with clause 14 until such time as we are satisfied there is no risk and you can meet your obligations under this Contract.

   Websites (Online Transactions)

   1. 1. 32. You are responsible for all material on your website. All material on the website must comply with the Rules and all Applicable Laws in both the jurisdiction of sale (where you are based) and the jurisdiction of purchase (where the Cardholder is based) and you shall ensure that you have all necessary licences and permissions (including those from owners of copyrights, performing rights and any other relevant Intellectual Property Rights).
         33. You must include clearly on your website: (i) your contact details (including e-mail address and postal address); (ii) a consumer data privacy policy; (iii) your security capabilities and policy for transmission of Card details; (iv) your returned goods and refund policy and (v) any other disclosures required under Applicable Laws or the Rules.
         34. On or before the Operative Date, we grant you a limited, revocable, and non-exclusive right to create a hyperlink to our "welcome page" as long as the link does not portray us, our other customers, or their products or services in a false, misleading, derogatory, or otherwise offensive manner. You may not use any of our logos or other proprietary graphics or trademarks as part of the link without our express written consent.
         35. You agree to display the Card Schemes' names, symbols, marks or logos on your website. Your use of such must comply with the requirements of each marks owner.  Your use of Card Scheme marks or promotional materials will not give you an ownership or interest in any such marks or materials.
         36. Where you process an Online Transactions, you must ensure your website has the appropriate 3D Secure software fully installed and updated.

   Refunds and Void Transactions

   1. 1. 37. You will only process Refunds and Void Transactions where there is a corresponding Transaction and then only up to the value of that Transaction and no more.
         38. Where you wish to process a Refund or a Void Transaction you shall advise us via the Online Portal or by such procedure as we may specify from time to time.
         39. Refunds will only be made to the Card upon which the original Transaction was debited and not to any other Card and shall be processed in the original payment currency.
         40. You agree that we shall be entitled in our reasonable discretion to accept, dispute, compromise or otherwise deal with any Dispute. Specifically, you agree that we shall in our reasonable discretion be entitled to settle any Dispute between a Cardholder and you or between a Cardholder and us by initiating a Refund to a Cardholder's account and you irrevocably authorise us to take such action in this regard as we deem appropriate.

   Online Portal

   1. 1. 41. You must keep your Security Details safe and you undertake not to disclose your Security Details, or allow your Security Details to be used by anyone other than the Primary User (or the appointed delegate(s) of the Primary User).
         42. You must notify us immediately by @ if you become aware of the misappropriation of your Security Details or any unauthorised use of the Online Portal. 
         43. You must ensure that the Primary User provides their valid consent to any changes made to your Online Portal preferences where required.
         44. You must notify us in good time if you wish to change the Primary User and any delegate(s) of the Primary User. As long as you have not provided any such notification, we and the Foundation may assume that you wish the authority continues to remain unchanged. You may not assume that we or the Foundation have learned that the power of attorney has changed or does not exist or no longer exists, for example, through public registers.
         45. You must check the Online Portal regularly (at least once in 7 days) for updates, statements, notifications and account history including Remittances received and Fees, Chargebacks and other deductions applied in accordance with the Contract. It is your responsibility to ensure that you are able to access the Online Portal and that the device(s) used to access the Online Portal are operational. If you notice a mistake or error in any of the statements provided to you via the Online Portal, you must notify us immediately. Subject to the provisions of clause 17.2, we shall not be responsible for rectifying errors that you do not bring to our attention within a period of 90 days from the date the relevant statement was provided to you.  
         46. All rules that apply to you in your relationship with us also apply to the Primary User and any delegate(s) of the Primary User. You are responsible for ensuring that the Primary User and any delegate(s) of the Primary User adheres to these rules. You and the Primary User and any delegate(s) of the Primary User must constantly inform each other fully about everything that may be relevant in your relationship with us and/or with the Foundation.

   Mobile payment transactions

   1. 1. 47. You must accept Mobile Payment Transactions (subject to your POS Terminal configuration) subject to limits set by you, the Card Issuer or the POS Terminal.

   No right of suspension

   1. 9. 48. You are not entitled to suspend performance (opschorten) of any obligations you have under this Contract or otherwise in relation to us.
      10. TERM AND TERMINATION
          1. The Contract shall commence upon the Operative Date and, subject to earlier termination in accordance with this clause 10 or any other clause under this Contract shall continue in force until terminated (by cancellation (opzegging)) by you with one month's written notice or by us with two months' written notice.
          2. If you do not submit any Transactions to us for processing within 30 days of us accepting your Application, we will be entitled to terminate (either by cancellation (opzegging) or rescission (ontbinding))  the Contract, in whole or in part, with immediate effect. We will contact you before we exercise this right to terminate and you may indicate whether you wish to continue with the Contract. It shall be at our sole discretion whether or not we agree to proceed with the Contract in these circumstances.
          3. We shall be entitled to terminate the Contract (either by cancellation (opzegging) or rescission (ontbinding)), in whole or in part: (i) with two months’ notice in the event that you do not submit any Transactions to us for processing for a period of 30 consecutive days, if you receive such a notice and would like to continue with the Contract, you must notify us within 7 days, however termination of the Contract shall be at our sole discretion; and (ii) by giving you 2 months’ notice by email to the address you have provided or otherwise in any other way in writing.  
          4. We shall be entitled to terminate the Contract (either by cancellation (opzegging) or rescission (ontbinding)), in whole or in part, at any time with immediate effect by providing written notice to you as a result of any of the following events ("Events of Default"):
             1. you breach the provisions of the Contract and either:
                1. that breach is incapable of remedy; or
                2. you fail to remedy the breach or non-compliance within 21 days of the date of our notice requiring you to do so;
             2. you fail to pay any amount due under the Contract within 30 days of us providing notice to you that payment is due;
             3. we become aware of or reasonably suspect that you are or have been processing Illegal Transactions or providing goods and services other than Approved Products or goods and services which may damage our reputation;
             4. we consider (in our reasonable discretion) that the total value of Refunds and/or Chargebacks are likely to breach Card Scheme limits and/or we consider that you are persistently engaged in actions or omissions that are reasonably likely to attract Assessments;
             5. you fail to comply with the Rules, the Operating Instructions, the Applicable Laws, the PCI DSS or the Conditions;
             6. you become, or we reasonably believe that you will become, insolvent or you propose similar arrangements with your creditors or any step is taken for your liquidation, winding-up, bankruptcy, receivership, administration or dissolution , you have been granted suspension of payments, you have entered into a debt rescheduling arrangement or entered into any insolvency arrangement or if any of the aforementioned has been applied for (or anything analogous to the foregoing occurs in any jurisdiction), or if a creditor levies a (prejudgment) attachment at us or at the Foundation against you.
             7. Anything happens to you or comes to our attention in relation to you or the conduct of your business or you engage in any trading practices or individual activity which we consider in our reasonable discretion:
                1. may affect your ability or willingness to meet your obligations under the Contract;
                2. may or does give rise to fraud or any other criminal activity;
                3. may damage the reputation or be detrimental to the business of the Card Schemes or us;
                4. may or do give rise to increased risk of liability or loss for us and/or the Foundation;  
             8. we are required or requested to do so by any Card Scheme or competent regulatory authority or by reason of the Rules or any Applicable Laws that apply to us or you, or if a Card Scheme or any other third-party ceases to provide us with any service that we require in order to provide the Acquiring Services to you;
             1. any security or Direct Debit authority granted to us by you in connection with the Contract ceases to be enforceable or is withdrawn, or you fail to grant us with such security or Direct Debit authority within the timescales requested by us;
             10. we reasonably consider that any act or omission of yours falls within a Reason Code;
             11. we discover that you have provided false or misleading information in documents or data submitted to us in connection with the Contract including, but not limited to, the Application;
             50. you breach any Trading Limit or Floor Limit;
             1000. you fail to obtain our prior written consent or fail to provide notification or information to us where required under the Contract;
             14. we are unable to provide Acquiring Services because you do not consent to the appointment of a sub-contractor in accordance with clause 19.8.;
             15. a Force Majeure Event occurs as defined in clause 18;
             16. we become aware of or suspect fraud by you;
             17. you become an Excessive Fraud/Chargeback Merchant;
          5. You shall be entitled to terminate (ontbinden) the Contract with immediate effect, but without any right to compensation of losses due to a termination, by written notice to us if we are in material breach of any of the provisions of the Contract which material breach, given its impact, justifies a termination  and its legal effects and either:
             1. that breach is permanently incapable of remedy; or
             2. we fail to remedy the breach within 21 days of the date of your notice to us stating the existence and nature of the breach.
      11. CONSEQUENCES OF TERMINATION
          1. Upon termination of the Contract all rights and obligations of either Party shall cease to have effect immediately, save that:
             1. termination shall not affect accrued rights and obligations under the Contract as at the date of termination, including for the avoidance of doubt, your obligations in relation to Transactions submitted to us prior to termination and shall therefore, also for the avoidance of doubt, not lead to a repayment of any amounts settled by you to us or to the Foundation or (otherwise) to an obligation of us or the Foundation to undo any performances;
             2. any security, including any guarantee, will remain in place until such time as we are satisfied that all liabilities and sums due from you to us under the Contract have been discharged; and
             3. clauses 1.14, 3.4 – 3.13 (inclusive) (Remittances), 7 (Authorisation and Chargebacks), 9.48, 14 (Set Off), 11 Consequences of Termination), 16 (Your Liability), 17 (Our Liability) 19 (Data and Information Sharing), 22- 33 (inclusive) and any other clauses contained in the Contract that by their sense and context are intended to survive termination of the Contract, shall continue in force notwithstanding such termination.
          2. Upon termination of the Contract, you must:
             1. cease to accept Card payments for processing by us under the Contract (we shall not be obliged to acquire or pay Remittances to you in relation to Transactions completed after termination); and
             2. continue to present Refunds to us in respect of Transactions that occurred prior to termination. The amount of any such Refunds will remain due and owing by you to us notwithstanding the termination of the Contract.
          3. On termination of the Contract, your right to use or display Card Scheme or our logos or marks shall terminate automatically and you shall remove any reference to the Card Scheme or us from your promotional materials or literature, agreements or on any websites.
          4. Although we do not charge you any Application or set up fee when you apply for the Acquiring Services, if, however, for any reason you decide to close your account before it has been open for 6 months, or if we close it during the same period because you have breached the terms of the Contract, then we may charge you a fee to cover our costs in approving your Application. Such costs shall reasonably correspond to the actual cost to us in processing your Application and ending the Contract.
          5. On termination of this Contract, you will continue to be liable to us for your obligations which arose prior to the date of termination.
      12. SUSPENSION OF THE ACQUIRING SERVICES BY US
          1. In addition to the remedies above and any rights we may have under the Contract, we may suspend any or all of the Acquiring Services with immediate effect upon an occurrence of an Event of Default (as defined in clause 10 above).
          2. We may also suspend any or all of the Acquiring Services where: (i) we suspect fraud; (ii) you breach any of the material terms of this Contract; and/or (iii) you have failed to pay any Fees or Assessments due to us more than once in any six month period.
          3. Unless we are not permitted by law to do so, we will give you prior notice either by email to the address you have provided us or in writing  or via the Online Portal, as soon as practicable if we decide to suspend any of the Acquiring Services under clause 12.2.
          4. Any exercise of our rights under this clause 12 (or any other clause) shall be without prejudice to any other rights or remedies available to us under the Contract, by law (i.a. 6:52 DCC and 6:262 DCC) or otherwise.
      13. VARIATIONS
          1. We may amend the Contract at any time and will give you at least two months' prior written notice of any changes, unless the changes are required due to a change in Applicable Laws and we are prevented from giving you two months’ written notice, in those circumstances we will give you as much written notice as possible. You will be deemed to have accepted such changes if you do not notify us to the contrary before the conclusion of the 2-month notice period. If you do not agree to the changes, you can terminate (by cancellation (opzegging)) the Contract with effect at any time before the expiry of the 2-month notice period by notifying us in writing.
          2. We may amend the Contract with immediate effect in the event that it is necessary to do so in order to comply with Applicable Laws, the Rules and/or any currency restrictions from local and/or central banks.
          3. We are entitled to immediately and without notice apply changes in:
             1. Interchange Fees and Scheme Fees where we charge our Fees on an "interchange ++" basis; and
             2. exchange rates and interest rates where these are based on changes to the reference interest rate (clause 6) and exchange rates (clause 5) used by us to calculate interest rate and exchange rates accordingly.
          4. We may from time to time adjust the application content and interfaces we use to provide the Acquiring Services. If such adjustments lead to a change in software, interfaces, or amendments to our Operating Instructions we shall notify you as soon as reasonably practicable prior to the implementation of such adjustments. In certain exceptional circumstances such as where we have a reasonable belief that fraud is likely to or has occurred we may implement such changes prior to notification to you.
      14. SET OFF
          1. In addition to any other rights to set-off that we have under this Contract or by law, we and the Foundation may at any time and without notice offset any and all claims you have against us or that you have against the Foundation against any and all claims we or the Foundation have against you. For the avoidance of doubt: this means, for example, that the Foundation is entitled to set off amounts that the Foundation owes you with amounts that you owe us. In addition, we and the Foundation may offset amounts without notice if: (i) the amount you owe us or that you owe the Foundation is not due and payable (ii) the amount we or the Foundation owe you is not due and payable (iii) the amounts to be offset are not in the same currency and/or (iv) the amount you owe us or that you owe the Foundation is conditional.
          2. You hereby authorise us and the Foundation from time to time without notice and both before and after demand to set-off (keep any amounts we or the Foundation owe to you) by whatever means the whole or any part of your liabilities to us or to the Foundation under the Contract (whether such liabilities are present, future, actual or contingent or potential, liquidated or unliquidated and irrespective of the currency of its denomination and including without limitation any negative balance on any prepaid or other Card product of yours of which we are the Card Issuer) against any sums (whether or not a Remittance and whether or not related to any Transaction that may have given rise to the liability) held by us or by the Foundation which are in your name, including but not limited to sums held on your behalf or we may hold in our capacity as an Issuer of an account held by you with us. Any credit balance with us will not be repayable, or capable of being disposed of, charged or dealt with by you until your liabilities to us have been met. Our allowing you to make withdrawals or payments from any account you hold with us will not waive this restriction. We will notify you as soon as possible upon exercising our rights under this clause.
          3. We are entitled to set-off against any Illegal Transactions processed by you if we become aware of or reasonably suspect that you have processed Illegal Transactions.
          4. We may withhold Remittance (or part thereof) to you in the event that: (i) we reasonably believe there is an exposure or liability to us or to the Foundation based on your actions, in-actions or the information you provide us; (ii) we terminate ((either by cancellation (opzegging) or rescission (ontbinding)), and either in whole or in part,  the Contract due to a breach by you of your obligations; (iii) the value of any Refund exceeds any Remittance; (iv) you become or are likely to become insolvent or fail to provide goods or services; (v) you fail to provide any information we request and we are unable to assess your risk profile; (vi) we become aware of or suspect fraud by you, your employees, agents, sub-contractors or third-parties acting on your behalf; (vii) failure to maintain direct debit. 
          5. You are not entitled to set-off any amounts we and/or the Foundation owe you , under the Contract or otherwise (whether such claims are present, future, actual, contingent or potential) against any amounts due to us and/or the Foundation from you.
          6. Any exercise of our rights under this clause 14 (or any other clause) shall be without prejudice to any other rights or remedies available to us under the Contract, by law or otherwise.
      15. SECURITY
          1. We may at any time require you to procure that a Person or Persons satisfactory to us, provide us with a guarantee and/or indemnity in respect of your obligations (including contingent or potential obligations) from time to time under the Contract.
          2. We may at any time require you to grant to us or procure the granting to us of security in such form and over such assets as we deem appropriate in order to secure to our satisfaction the performance of your obligations (including contingent or potential obligations) under the Contract.
          3. We are entitled, at our sole discretion, to determine that it is necessary to have some security from you to meet your obligations under this Contract (“Security Reserve”). The Security Reserve will be calculated by us based on a number of factors including: (i) the sector in which you operate; and/or (ii) any additional risk/exposure to us in providing the Acquiring Services. The Security Reserve shall be considered a debt and shall either be offset against Remittances or required as an up-front payment. We shall notify you in advance of applying or changing the Security Reserve either in writing/email or via the Online Portal and you will be able to confirm the amount being held as a Security Reserve at any time via the Online Portal. The Security Reserve shall be held in a segregated account or held with the Card Schemes and shall be repaid to you in accordance with clause 3.9.
          4. We may exercise our rights under this clause 15 either to require additional security or to require the replacement of a previous security which has been withdrawn or which we for any reason require to be replaced.
      16. YOUR LIABILITY
          1. You agree to indemnify (which means you will make good the full amount of the Losses we and/or the Foundation incur) and keep indemnified, defend and hold harmless Cashflows and the Foundation from and against all actions, proceedings, costs, claims, demands, charges, expenses (including legal expenses), liabilities, fines (including Assessments), levies, losses and damages, whether arising in tort, contract or any law, which we and/or the Foundation may suffer or incur in relation to, arising out of or in consequence of or in connection with:
             1. Your (including your employees, agents, sub-contractors or third-parties acting on your behalf) failure to do or not to do any actions in non-compliance or breach of the Contract, the Rules, the Operating Instructions, the PCI DSS, Applicable Laws or Procedure Guide;
             2. the Gateway Services where such Gateway Services are provided by a third party;
             3. any Transaction and/or any Dispute relating to a Transaction whether or not previously Remitted by us to you;
             4. any other claim brought against us or against the Foundation arising from any aspect of our relationship with you (including in connection with any security breach, compromise, theft of Data held by you or on your behalf irrespective of whether such security breach, compromise or theft of Data was within or outside your control);
             5. any product or service (whether or not an Approved Product) sold or offered for sale by you and/or any other arrangements between you and your customer whether or not relating to a Transaction;
             6. the enforcement or attempted enforcement of the Contract by us (which includes the recovery or attempted recovery of any sum owing to us under the Contract) including the protection of our interests in connection with any aspect of our relationship with you (including the cost of any third parties nominated by us or instructed by us for this purpose); or
             7. any Event of Default or fraud by you or your employees, agents, sub-contractors and/or third-parties acting on your behalf),

   except, in each case, if and to the extent caused by or contributed to by our negligence or any material breach of the Contract by us.

   1. 16. 2. For the avoidance of doubt, if a claim is brought against us by a Cardholder, Card Issuer, or any other third party, we shall be entitled to settle or otherwise deal with it at our sole discretion, .
          3. If you are a partnership or otherwise are more than two (legal) persons, each partner /(legal) person shall be jointly and severally liable under the Contract.
      17. OUR LIABILITY
          1. We shall only have liability for any proven direct losses which you suffer or incur as a direct result of a breach of our obligations under the Contract regarding which we are in default, save and to the extent that such breach is caused or contributed by you, subject to the clauses of this Contract and without prejudice to any of our rights and remedies by Contract or by law. 
          2. If you believe that a Remittance has been made to an account without your proper authorisation in accordance with the provisions of clause 3.1, we will refund the amount of the unauthorised Remittance provided that you notify us without undue delay. We will not be obliged to refund the unauthorised Remittance if you notify us more than 13 months from the date that we made the relevant Remittance. We shall be entitled to investigate your claim that the Remittance was unauthorised and, if we can establish that it was, in fact authorised by you, we may take steps to recover the amount refunded under this clause. We shall not be liable for any Losses incurred in respect of an unauthorised Remittance where you have acted fraudulently or with gross negligence have failed to maintain the security of your systems or your Security Credentials. 
          3. We shall not be liable for any delay or failure to carry out any of our obligations under the Contract if and to the extent that such failure is due to a Force Majeure Event or our obligations under Applicable Law.
          4. Subject to clause  17.8, we, our directors, officers, employees or affiliates, shall not be liable to you  whether contractually or non-contractually or otherwise for:
             1. any loss of business, business interruption, loss of reputation, loss of goodwill, loss or corruption of data, and loss of opportunity including loss of profits/revenue; or
             2. any indirect, special or consequential loss or damage,

   howsoever caused arising out of, or in connection with, any supply, failure to supply or delay in supplying the Acquiring Services or otherwise in connection with the Contract.

   1. 17. 5. Subject to clause 17.8, our total liability to you for our failure to perform our obligations under the Contract (whether contractually or non-contractually) or as otherwise in connection with or related to the Contract shall be limited to:
             1. the Transaction Fees paid to us (which for the avoidance of doubt shall not include Interchange Fees or Scheme Fees) in the twelve months prior to the date of the first event giving rise to any relevant liability; or
             2. where the date of the first event giving rise to any relevant claim arises during the period of 12 months commencing on the Operative Date, the total amount of Transaction Fees which have been paid in such period together with an amount equal to the Transaction Fees which would be reasonably likely to be payable (having regard to matters such as the amount of Transaction Fees which has been paid or are payable, market conditions and general patterns of trading and assuming that the Contract would remain in full force and effect) for the remainder of such 12 month period.
          6. Without prejudice to either Party's rights to terminate the Contract, your sole remedy at law, in equity or otherwise in respect of any claim against us shall be limited to damages (vermogensschade), to the extend permitted by applicable law.
          7. You acknowledge and agree that, given the nature of the Acquiring Services, the availability to you of suitable alternative services (including payment methods for your customers) and your ability to choose other providers of similar services before entering into the Contract, the limitations on liability contained in this clause 17 are reasonable in all the circumstances and that the Fees have been calculated taking into account such limitations (which would be higher but for such limitations) and accordingly you have accepted the risk of any Losses which you may suffer because of the limitation on our liability under this clause.
          8. Nothing in the Contract shall operate to exclude or restrict our liability in case of intent or gross negligence.
          9. We shall have no liability to you in relation to any decision of any regulator, Card Issuer or Card Scheme, save if and to the extent that such decision is made as a direct result of any breach of the Contract regarding which we are in default by us, subject to the clauses of this Contract and without prejudice to any of our rights and remedies by Contract or by law.  Any claims against us under this Contract must be made in writing (including full details of the claim and alleged losses) to us and within 12 months of you becoming aware or should have become aware of your claim.  You will also provide us with any reasonable information we may require in order to address the claim as soon as possible.  We will have no liability to you where you fail to meet the conditions set out under this clause.
          10. In no event will the Foundation incur any liability towards you for any damage or loss incurred by you in connection with this Contract and/or the Acquiring Services and/or due to any act or omission by the Foundation or PCO, except in case of intent or gross negligence of the Foundation. Cashflows and not the Foundation is responsible for providing the Acquiring Serviceses to you.
      18. FORCE MAJEURE
          1. A party shall not be in breach of this Contract, nor liable for any failure or delay in performance of any obligations under the Contract arising from or attributable to acts, events, omissions or accidents beyond its reasonable control, or where relevant, the reasonable control of Cashflows' agents and sub-contractors ("Force Majeure Event").
          2. The corresponding obligations of the other party will be suspended to the same extent as those of the party first affected by the Force Majeure Event.
          3. Any party that is subject to a Force Majeure Event shall not be in breach of the Contract provided that it promptly notifies the other parties in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance and it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
          4. If the Force Majeure Event prevails for a continuous period of more than two months, any party may terminate (by cancellation opzegging) the Contract by giving 14 days' written notice to the other. On the expiry of this notice period, the Contract will terminate. The consequences of such termination shall be in accordance with clause 11.
      19. DATA AND INFORMATION SHARING
          1. We and you shall at all times perform our respective obligations under the Contract in such a manner as not to cause the other in any way to breach the Data Protection Laws.
          2. You shall act as the Data Controller of Transaction Personal Data.  We acknowledge and agree that we shall act as Data Processor in providing the Acquiring Services relating to Transaction Personal Data supplied to us by you under this Contract. 
          3. You acknowledge and agree that Cashflows will be a Data Controller in relation to Transaction Personal Data and other Personal Data we may gather and use where we determine the purposes and manner of the Processing, including for the purposes of:
   1. 1. 1. risk management including fraud monitoring, prevention, detection and prosecution, as well as authentication and authorisation management, and risk mitigation strategies;
         2. regulatory compliance activity including anti-money laundering, financial crime compliance, identity screening and Rules compliance; and
         3. our compliance with any other Applicable Law or Rules.
   1. 1. 4. You shall ensure that:
            1. you have complied with and shall comply at all times with the Data Protection Laws and all other Applicable Laws;
            2. in respect of all Transaction Personal Data which you provide to us, all necessary fair processing notices have been provided to the Data Subjects;
            3. you are authorised to transfer Personal Data to us; and
            4. where required by the Data Protection Laws you shall obtain all necessary consents in order to: (i) disclose Personal Data to us; and (ii) allow us to Process Personal Data for the purposes of providing the Acquiring Services under this Contract.
   1. 1. 5. You have appointed us to Process the Transaction Personal Data on your behalf as is necessary to provide the Acquiring Services.  We undertake, in respect of all Transaction Personal Data that we Process as Data Processor on your behalf, that we shall:
            1. Process the Transaction Personal Data only on your documented instructions (in particular the Data Processing Register under the Appendix 1), except to the extent that any Processing of Transaction Personal Data is required by Applicable Laws;
            2. where Processing of Transaction Personal Data by us is required by Applicable Laws, we shall inform you of the relevant legal requirement before processing, unless such law prohibits us from doing so;
            3. notify you where we reasonably believe any documented instructions from you in respect of the Processing of Transaction Personal Data infringe any Data Protection Laws or any other Applicable Laws;
            4. ensure that our personnel who are authorised to Process the Transaction Personal Data have committed themselves to confidentiality;
            5. implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of Processing;
            6. taking into account the nature of the Processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject's rights under Data Protection Laws;
            7. notify you without undue delay after becoming aware of: (i) any unauthorised loss, corruption, damage, destruction, alteration, disclosure or access to any Transaction Personal Data; (ii) any unauthorised or unlawful Processing of Transaction Personal Data; or (iii) any breach of Data Protection Law;
            8. assist you in your compliance with your obligations under Data Protection Laws in respect of notifying Data Breaches to the relevant regulatory authority (including but not limited to the Information Commissioner's Office) and affected Data Subjects, insofar as we are able taking into account the nature of the Processing and the information available to us;
            1. ensure that where Transaction Personal Data is transferred out of the European Economic Area ("EEA") we shall do so in a manner which demonstrates compliance with Data Protection Laws and may include taking the following steps, and You hereby authorise Cashflows to take any of the following steps: (i) the transferee entering into a data export agreement with Cashflows CashFlows in the form of standard and/or model clauses (which are approved by the European Commission as offering adequate safeguards under the Data Protection Laws); (ii) the transferee being an entity that maintains Privacy Shield certifications under the EU-US Privacy Shield Framework Principles, including the Supplemental Principles, issued by the United States Department of Commerce; or (iii) equivalent protections being in place, or as otherwise allowed or required under the applicable Data Protection Laws;
            10. provide reasonable assistance to you with any data protection impact assessment and any prior consultations required with the relevant regulatory authority (including but not limited to the Information Commissioner’s Office) which you may reasonably consider to be necessary;
            11. at your discretion, delete or return to you all of the Transaction Personal Data Processed under and delete any copies of such Transaction Personal Data unless any Applicable Laws require that copies are kept; and
            50. make available to you all information reasonably necessary to demonstrate compliance with our obligations in this clause 19.
         6. In order to provide the Acquiring Services under this Contract, we may use and share information (including information about Transactions and Personal Data) with certain third parties including, without limitation, our Group Companies, Card Issuers, Card Schemes, credit reference agencies, fraud prevention agencies and online monitoring tools to help us and/or them (on an ongoing basis):
            1. assess financial, fraud and insurance risks;
            2. recover debt;
            3. develop customer relationships, services and systems; and
            4. prevent and detect crime.

   For further information on how we use your information, please see our Privacy Policy.

   1. 19. 7. Subject to clause 19.6, clause 20 and clause 21, we do not and will not disclose your information (including Personal Data and Transaction Personal Data) to anyone other than as expressly provided in the Contract except:
             1. where we have your specific permission;
             2. where we are required or permitted to do so by law or regulation (including, without limitation, statutory or regulatory reporting obligations);
             3. to other companies who provide a service to us or you relating to the Acquiring Services in accordance with clause 19.8 below;
             4. to other companies who provide a service to us provided that such information is anonymised and does not include information about identifiable individuals; or
             5. where we may assign, sub-contract or transfer rights and obligations under the Contract.
          8. You hereby grant us a general written authorisation for the engagement of sub-contractors, under the condition that we have entered into an agreement that imposes obligations on the sub-contractor that are no less restrictive than the obligations as set out in clause 19.5. We will inform you in writing of any intended changes concerning the addition or replacement of any sub-contractors Processing Transaction Personal Data on our behalf under this Contract. Within fourteen (14) days of receiving such notice, you may object to any new engaged sub-processor by providing written notice to us alleging objective justifiable grounds related to the inability of such sub-contractor to comply with the Data Protection Laws. The sub-contractors set out in the Approved Sub-Contractors List are hereby approved by you. If you do object to the appointment of a sub-contractor:
             1. we may, at our sole option and without any liability to you, terminate (by cancellation (opzegging) or by rescission (ontbinding)) this Contract, in whole or in part, with immediate effect or immediately suspend the Service;
             2. if we do not exercise our right to terminate this Contract pursuant to clause 19.8(a) above, you acknowledge that you may be unable to obtain the full benefit of the Acquiring Services.
          9. You shall indemnify and keep us, our Group Companies, our directors, officers, employees and agents indemnified in full against all Losses, liabilities, damages, claims, costs (including reasonable legal costs) and expenses which we may incur or suffer by reason of any default of you whether under this clause 19 or any breach of the Data Protection Laws attributable to or caused by you, your employees or agents or sub-contractors.
          10. From time to time we may change the way we use information from the manner which is set out in this Contract.  In such instances we shall write to you using the details provided by you to us. If you do not object to the change within 14 days and continue to use the Acquiring Services, you will be taken to have consented to that change.
      20. CREDIT REFERENCE CHECKS
          1. You accept that during our initial assessment of you or any re-assessment during the term of the Contract, we may use the services of credit reference agencies to confirm (amongst other things) the home addresses of your directors, shareholders and owners (who together, for the remainder of this clause 20, shall be known as your "principals") and to calculate their personal credit scores. Information held by the credit reference agencies is used by us and others to help verify the identity of customers and to assess their ability to meet financial commitments. Checks by these credit reference agencies may leave an identity footprint on your and/or your principals' credit file as a record. This process enables accounts to be opened quickly and reduces the need to obtain third-party references.
          2. To enable us to form an accurate view of the existing financial commitments of you and your principals', credit reference agencies may link the records of "financial associates" (such as spouses, family members, or cohabiters) who have entered into joint financial obligations with you or your principals. Once linked, this association means that each of the records will be taken into account in all future applications for credit by either financial associate and will continue until one of them successfully files a "disassociation" with the credit reference agencies by establishing that this financial link no longer exists.
          3. Information held about you by the credit reference agencies may already be linked to records relating to one or more of your "financial associates". If so, for the purposes of any Application you or your principals may be treated as financially linked and if so your application will be assessed with reference to any associated records. Further details about financial "association", "disassociation" and credit reference agencies are available by contacting the credit reference agencies directly.
          4. We may make periodic searches of our Group Companies' records, credit reference agencies, and fraud prevention agencies to manage your account, and to take decisions regarding your account and the terms under which we have opened it, including whether or not to confirm or extend the Acquiring Services to you. These searches will not be seen or used by companies outside of our Group Companies.
          5. Your principals have the right of access to their personal records held by credit reference and fraud prevention agencies. We will supply the names and addresses of the agencies we use upon request.
          6. By proceeding with the Application, your authorised representatives are confirming that as at the date of the Application they have read the foregoing and agreed on behalf of you and your principals to us obtaining the aforementioned information during our assessment of your application for the Acquiring Services and any subsequent reassessment.
      21. CARD SCHEME DATABASES

   You acknowledge that if you breach the Contract or the Rules we may be required to provide information to the Card Schemes or the Persons nominated by them on the nature of the breach (including where relevant the Reason Code), your business, your conduct relating to the Contract and your principals or officers. You further acknowledge that the Card Schemes may retain and store this information in a database for use by the Card Schemes or related third parties to assist in identifying merchants involved in, amongst other things, fraud or suspected fraud, insolvency, or breaches of a merchant services agreement. You agree and consent to such reporting by us in the event of your breach and you agree that where we have acted in good faith we shall have no liability to you in relation to any of the information we provide to any third parties pursuant to this clause 21. 

   1. 22. INTELLECTUAL PROPERTY
          1. This Contract does not transfer, and is not intended to transfer, to you any of the Intellectual Property Rights that we own at the date of the commencement of the Contract or any Intellectual Property Rights that we create, acquire or develop during the term of the Contract.
          2. You must obtain our written consent prior to using or referring to any of our trademarks, logos, copyrighted materials, business names or other similar protected intellectual property in any of your promotional materials or literature, agreements or on any website.
          3. We own, and will continue to own all right, title and interest in Intellectual Property Rights, that we owned prior to this Contract.
      23. CONFIDENTIAL INFORMATION
          1. Except as otherwise specified in this clause 23, each party shall treat as confidential all Confidential Information and will not, without the prior written consent of the other, disclose or use such Confidential Information except for the purposes of the Contract.
          2. Each party may disclose Confidential Information to its professional advisers, employees, officers, sub-contractors and agents ("Personnel") who need to know it for the purpose of performing its obligations under the Contract and only where such Personnel agree to act in compliance with the confidentiality requirements of this clause.
          3. For the avoidance of doubt, the obligation in clause 23.1 shall not apply if and to the extent that any Confidential Information is required to be disclosed to any governmental or other regulatory authority, by any order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or taxation authority of competent jurisdiction, by the rules of a recognised stock exchange on which a party's shares are listed or by law.
          4. On termination of the Contract for whatever reason, each party shall forthwith cease to use any Confidential Information of the other and shall return on demand, or at the request of the other, destroy or permanently erase all copies of that Confidential Information in its possession or control, save that either Party will be permitted to retain one copy of such part of the Confidential Information for the purposes of and for so long as required by any law or by judicial or administrative process or its legitimate internal compliance issues.
      24. ASSIGNMENT AND SUBCONTRACTING
          1. The Contract is personal to you and you can not assign it or transfer it or transfer or pledge any of your rights ensuing from the Contract. This clause has effect under Dutch property law. We and/or the Foundation may, at your request, agree to derogate from this provision, in which respect our cooperation will not to be unreasonably withheld or delayed. If you are an individual, the Contract shall be binding upon your personal representatives.
          2. You may only use an agent or subcontractor in relation to the performance of your obligations under the Contract (including your obligations relating to the supply of goods and/or services which are the subject of Transactions) with our prior written consent and we may withdraw that consent at any time. If you do use an agent or subcontractor for such purposes, you shall remain responsible for complying with the Contract as though you were not using such agent or sub-contractor.
          3. We shall be entitled and you agree to cooperate in advance for us to assign, novate or otherwise transfer, either in whole or in part, the Contract and/or to sub-contract our obligations or any one of them under the Contract to any Person at any time. You agree to enter into any documents as we may require in order to evidence such assignment, novation or other transfer. 
      25. WAIVER
          1. Neither the failure nor the delay to exercise by a party, in whole or in part, any of its rights or remedies provided under the Contract or under any Applicable Law shall be construed as a waiver or release of that right or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. A waiver of any breach of any provisions of the Contract shall not constitute a waiver of any other breach and shall not affect the other provisions of the Contract.
          2. Our rights and remedies under the Contract are cumulative and not exclusive of each other or any rights or remedies provided by law.
      26. COMMUNICATION AND NOTICES
          1. Unless agreed otherwise all communications in connection with the Contract will be in English.
          2. You may request a copy of these Terms and Conditions at any time during the term by contacting us at the details below.
          3. We will provide you with real time information via the Online Portal in respect of Transactions processed, Remittances, any deductions we have made from the Remittances and, where applicable any interest rates or currency conversion rates applied. Unless otherwise agreed with you, we will aggregate Transaction information (as provided to you via the Online Portal) by brand, application, payment instrument category and the rate of Interchange Fee applicable to the Transaction.
          4. Unless otherwise specified in these Terms and Conditions, you must send all written notices and statements addressed to PCO to the following details in order for them to be effective:

   PayCheckout B.V.Noorderhof 24, 5804 BV, Venray, the Netherlands Marked for the attention of: General Manager or such other individual as we may notify you of from time to time with a copy to be delivered to the General Counsel.

   Email: support@cashflows.com copied to compliance@cashflows.com

   1. 1. 5. You can also contact customer support on +44 (0)1223 550 920.
         6. Any written notice to be given under or in connection with the Contract shall be served by:
            1. delivering it personally, by courier or bailif's writ;
            2. sending it by registered letter;
            3. email (but only where sent to you by us)

   to the address of the other party as set out in this Contract or as otherwise notified by such party from time to time.

   1. 26. 7. Any notice given in accordance with this clause 26 shall be deemed to have been received:
             1. if delivered personally, by courier or bailif's writ: at the time of delivery;
             2. in the case of email, on the date it is transmitted (provided in the case of email that no "bounce back" message is received).
      27. ENTIRE AGREEMENT

   The Contract and the documents referred to in it constitute the entire agreement and understanding between us and you in respect of the matters dealt with in it and supersedes and invalidates all other prior representations, arrangements, understandings and agreements relating to the subject matter of the Contract which may have been made between you and us either orally or in writing prior to the date of the Contract, other than any securities or written pledges, undertakings or assurances which you may previously have given to us and, subject to and together with such securities etc. sets out the entire agreement and understanding you and we have. The applicability of the Merchant's purchasing or other general terms and conditions is expressly rejected.

   1. 28. APPLICABILITY OF REGULATIONS

   The provisions of title 7B of Book 7 of the DCC and other laws and regulations implementing PSD2 or its predecessor, PSD, are not applicable to the extent it is permitted to deviate from relevant provisions in relationships with non-consumers, in accordance with Article 38 and 61 PSD2.

   1. 29. SEVERABILITY

   To the extent permitted by law, this Contract cannot be nullified or annulled by you, in whole or in part. The provisions of this Contract are severable and the invalidity or unenforceability of any provision herein shall not affect the validity or enforceability of the other provisions of the Contract, which shall remain in full force and effect, and if such provision would cease to be illegal, invalid or unenforceable if some part of the provision were modified or deleted, the provision in question shall apply with such minimum modification or deletion as may be necessary to make it legal, valid and enforceable.

   1. 30. EVIDENCE
          1. Any and all data that we and/or the Foundation have kept, such as regarding the performance or use of the agreement, will constitute imperative evidence in your respect you. This also holds true for the data of other parties that we have engaged. You may always submit evidence to the contrary.
      31. MISCELLANEOUS
          1. Nothing in the Contract is intended to create a partnership or joint venture or legal relationship of any kind that would impose liability upon one party for the act or failure to act of the other party, or to authorise either party to act as agent for the other. Save where expressly stated in the Contract, neither party shall have authority to make representations, act in the name or on behalf of or otherwise to bind the other.
          2. Nothing in the Contract shall render either party or any of their respective employees an employee of the other or render either party or any of its employees capable of incurring any liability or obligation on the other's behalf, and neither party shall hold itself out as such.
          3. No person who is not a named party to the Contract can enforce any rights pursuant to sections 6:253 and 6:254, paragraph 2, DCC. However, our sub-contractors and any of our subordinates and] are entitled to invoke any and all exoneration clauses under this Contract as their own.
      32. COMPLAINTS
          1. If you have any complaints in relation to the Acquiring Services provided, please contact us on complaints@cashflows.com and we will try to resolve your complaint.

   A complaint submitted in writing or via email must be signed and shall contain at least:

   a.             The name and the address of the complainant

   b.             The date; and

   c.             The description of the conduct against which the complaint is addressed

   1. 32. 2. We will try and resolve a formal complaint about the provision of the Acquiring Services immediately, but where this isn’t possible, we will send you a prompt acknowledgement confirming the name of the person dealing with the matter.
          3. We aim to resolve complaints within six weeks upon receipt of your complaint. However, if we need longer to carry out a detailed investigation, we will send you an update on the progress of your complaint which will include the deadline by which you should receive a final reply which should be within 35 business days. If we are not able to resolve any complaint to your satisfaction or within the timeframes above, you may be able to refer your complaint to the Financial Services Complaints Tribunal (KiFiD) (Address: Postbus 93257, 2509 AG, DEN HAAG / Telephone: 070-333 8 999 / Website: www.kifid.nl).
      33. GOVERNING LAW AND JURISDICTION
          1. The Contract and any contractual or non-contractual matter arising from or in connection with it shall be governed by and construed in accordance with Dutch law excluding the Convention on Contracts for the International Sale of Goods.
          2. The courts of Amsterdam, the Netherlands, shall have exclusive jurisdiction over any contractual or non-contractual claim or matter arising from or in connection with the Contract, or the legal relationships established by or in connection with it. We may also bring proceedings against you in connection with the Contract at the place of your registered office.

    

   Appendix 1

   Data Processing Register

   Data Subjects

   The Personal Data to be processed by Cashflows pursuant to this Contract concerns Merchants who are individuals, individual cardholders and payees.

   Nature and purposes of the Processing

   1. 1. The Transaction Personal Data to be Processed under this Contract shall be processed for the purpose of delivering Acquiring Services to you.
      2. The other Personal Data to be Processed under this Contract shall be processed for the purposes set out in Clause 19.3 of this Contract.

   Categories of Personal Data

   The Personal Data to be Processed under this Contract concerns payment and account information and identity verification information.

   Recipients

   Personal Data to be processed under this Contract may be transferred to the recipients and categories of recipients set out in clause 19 of this Contract.

   Special Categories data

   We may process special categories of Personal Data under this Contract relating to criminal convictions, where necessary for the purposes set out in clause 19.3 of this Contract.