PayAlly Limited (hereinafter PayAlly) is in the business of financial Transaction processing, which includes, but is not limited to, the processing and settlement of Payment Card Transactions, PayAlly is licensed by the Financial Conduct Authority of United Kingdom under the No. 774327 to provide acquiring processing services;
Whereas the Merchant wishes to engage the services of Payally to perform processing and settlement of its payment card Transactions; and
PayAlly is willing to provide its services to the Merchant subject to the conditions set forth in this Agreement.
Now therefore it is being agreed as follows:
The following capitalized shall bear the meaning ascribed thereto:
1.1 “Agreement” shall mean this agreement in its entirety, including all schedules and annexes thereto and including the merchant application form and pricing agreement, as the same may be amended from time to time, in whatever form, whether substantial or otherwise;
1.2 “Authorisation” shall mean an affirmative response, by or on behalf of a Card Issuer to a request to effect a Transaction, that a Transaction is within the Cardholder’s available credit limit and that the Cardholder has not yet reported the Card lost or stolen. All Transactions require Authorisation;
1.3 “Business Days” shall mean a day when PayAlly is open for business except Saturdays, and also excluding Sundays, bank holidays and public holidays in United Kingdom;
1.4 “Card” shall mean any or all of all Visa, Visa Electron cards (in electronic environments), all MasterCard cards, all Maestro cards (in electronic environments), all JCB cards, all AmEx cards, all Discover, all UnionPay cards and any other cards that may be agreed to by the Merchant and PayAlly from time to time;
1.5 “Cardholder” shall mean the person or entity authorised to use a Card;
1.6 “Cardholder Activated Terminal (CAT Terminals)” means an unattended electronic POS terminal or a terminal, personal computer or other device that a Cardholder uses to initiate an Electronic Commerce Transaction;
1.7 “Card Schemes” shall mean Visa, Master Card, AmEx, Discover or any other similar schemes such as UnionPay;
1.8 “Card Issuer” shall mean a member of a Card Scheme that enters into a contractual relationship with a Cardholder for the issuance of one or more Cards;
1.9 “Chip and Pin Card” shall mean a Card embedded with a Chip that communicates information to a POS terminal and a personal identification numeric code is used to identify the Cardholder in an authorisation request;
1.10 “Chargeback” shall mean a Transaction which is successfully charged back on request of the Cardholder or the Card Issuer pursuant to the relevant rules resulting in a cancellation of a Transaction in respect of which a Merchant has been paid or was due to be paid.
1.11 “Fees” shall mean the fees or commission or other payment described in the merchant application form of this Agreement;
1.12 “General Conditions” shall mean these general terms and conditions regulating the relationship between PayAlly and the Merchant (including all annexes included therein);
1.13 “Merchant Application Form” means that form filled out by the Merchant and duly signed by the Merchant outlining the Merchant’s details, including but not to, the corporate details of the Merchant, shareholder identification details, Banking details and contact information.
1.14 “Merchant Operation Account” means a payment account in the Merchant’s name held at PayAlly, or another Payment or Credit Institution in one or more currencies utilised to settle Transactions processed by the Member pursuant to the Merchant Agreement and effecting appropriate debits and credits to and from such account.
1.15 “Point of Sale (POS)” shall mean an attended or unattended access device located in or at a Merchant’s premises that meets the Card Schemes requirements, and that permits a Cardholder to initiate and effect a Transaction for the purchase of products or services sold by such Merchant with a card in accordance with the Card Scheme Rules;
1.16 “Payment System” shall mean system used to settle financial Transactions through the transfer of funds with the employment of operational network.
1.17 “Personal Identification Number (PIN)” shall mean numeric code used in the process of authenticating or identifying a Cardholder to the Payment System and the Payment System to a Cardholder.
1.18 “Services” shall mean the services contained in Article 7 of this Agreement.
1.19 “Small Merchant” shall mean a merchant that processes less than EUR 20,000 per month, is a sole trader or where a corporate entity, has no more than 3 individual shareholders and whose industry qualifies as low risk in terms of PayAlly internal policy and no operating license is required.
1.20 “Transaction” shall mean the acceptance of a Card or information embossed on the Card, for payment for goods sold and/or leased and/or services provided to Cardholders by the Merchant, and receipt of payment from PayAlly, whether the Transaction is approved, declined or processed as a forced sale. The term ‘Transaction’ shall include credits, errors, returns and adjustments;
2.1 In consideration of the payment by the Merchant to PayAlly of the Fees, which the Merchant agrees to pay to PayAlly, PayAlly hereby undertakes to provide and perform all and any of the Services, as the same may be amended from time to time pursuant to this Agreement.
2.2 Use of the Services covered by this Agreement is deemed to be acceptance of such Merchant Acquisition Agreement in its entirety.
2.3 In the case of Small Merchants, Member reserves the right to review pricing terms should the Merchant no longer qualify as a Small Merchant in terms of this Agreement and to alter such pricing as it deems fit and at its absolute discretion.
3.1 The Fees, the Merchant Application Form and the Pledge Agreement;
3.2 All and any guidelines, procedures, user guides, rules, regulations, notices, information, circulars or conditions issued by a Card Issuer and/or Card Schemes from time to time and which PayAlly is bound to follow (the “Card Conditions”);
3.3 All and any guidelines, procedures, user guides, rules, regulations, notices, information, circulars or conditions that PayAlly may issue or notify from time to time;
3.4 All and any documents relating to existing and future security on favour of PayAlly as may be requested from the Merchant; and
3.5 Any other documents that may be designated to form part of the Agreement by PayAlly and the Merchant.
4.1 To the extent that any of the details provided by the Merchant to the Company on this Agreement, together with such information as may be subsequently supplied by the Merchant in any manner, whether orally or in writing, constitutes personal data within the meaning of the EU General Data Protection Regulation, the Merchant consents to the processing of such data for the following purposes:
4.2 The Merchant consents to the disclosure of information to, and to the exchange thereof with, all PayAlly employees and its subsidiaries, associates, agents, fraud monitoring agents, and any other member or controlling body of the relative Payment System.
4.3 The Merchant consents to the usage and processing of the Merchant’s personal data for purposes concerning direct marketing, such as to inform the Merchant, by mail or otherwise, about other products and services supplied by PayAlly, its subsidiaries, associates, agents, by any other member or controlling body of the relative Payment System or by other carefully selected third parties, and for research purposes.
4.4 In the event that the Merchant opposes the processing of his/her personal data for purposes concerning direct marketing, the Merchant is required to inform PayAlly in writing.
4.5 The Merchant has the right to request access to, and rectification of, the personal data concerning the Merchant, which is held by PayAlly.
6.1 During the Term and subject to the terms and conditions of this Agreement, the Provider agrees to perform certain services (Provider Services), in order to allow the Merchant to accept and process Transactions. The Provider shall provide the Merchant with the following services:
7.1 PayAlly shall provide and perform all and any of these services as agreed to from time to time between the Parties:
9.1 If any of the clauses or part thereof of this Agreement is or becomes invalid or unenforceable for any reason whatsoever, the validity of the remaining clauses or part thereof will not in any way be affected or impaired.
9.2 If any invalid or unenforceable clause or part thereof of this Agreement would be valid or enforceable if its form or effect were modified in any way, it shall be deemed to have the modified form or effect provided that PayAlly gives its consent in a written form.
10.1 Unless otherwise agreed, the Merchant agrees to accept as payment for all goods and services supplied within the normal range of its activity and without discrimination all and any Cards (as the same is defined in the Agreement).
10.2 The Merchant undertakes that all Transactions submitted for authorisation through PayAlly shall be cleared and settled through PayAlly.
10.3 Unless otherwise required in terms of applicable law, the Merchant shall not discriminate between persons paying for goods or services in cash or by utilizing a Card. Accordingly, the Merchant shall not impose any minimum or maximum Transaction values and shall not apply different prices or other conditions.
10.4 The Merchant is required to notify PayAlly in writing of any changes in the method in which it conducts its business, its products or service offerings or its establishment address.
10.5 PayAlly reserves the right to:
10.6 Provided that immediate or no notice may be given as above described where the amendment is necessitated in one of the following cases:
10.7 These amendments shall be without prejudice to the Merchant’s right to terminate this Agreement by giving a notice in writing to PayAlly in terms of clause 24 below.
10.8 PayAlly reserves the right to modify the Services from time to time in its’ reasonable discretion and upon reasonable written notice to the Merchant, provided that such modifications shall not diminish the functionality of the Services.
10.9 The Merchant agrees that PayAlly shall have an undisputed right to suspend the provision of the Services and the effects of the Agreement in the event that, in its sole view, the Merchant experiences an escalation of Chargebacks in a given period of time. Such suspension shall not require prior notice provided that, upon the determination by PayAlly that it shall suspend its services/the effects of this Agreement, it shall notify the Merchant in writing of the same and requiring the Merchant to carry out all corrective measures it deems necessary. In the event that the Merchant does not comply with the corrective measures within the time stipulated in the notice, PayAlly shall be entitled to terminate the Agreement forthwith.
10.10 The Merchant represents and warrants in favour of PayAlly that, as at the date of the Agreement and throughout the term of this Agreement:
11.1 The Merchant acknowledges that whilst there are different types of Card Transactions which can be processed, the Merchant is only authorised to accept the types of Transactions as follows:
11.3 Card Present (CP) Transactions:
11.4 Card Not Present Transactions:
11.5 Internet Transactions
11.6 Recurring Transactions:
The Merchant may only accept Card payments for goods and services it offers in its normal line of business. The payments can be processed either electronically or by such other methods depending on the equipment and procedural guidelines provided to the Merchant by PayAlly. Special rules apply for certain lines of business as outlined below.
The Terminal or other equipment must always be used by the Merchant and/or his authorised staff and never by the Cardholder, unless the latter is required to enter the PIN.
12.1 Accepting a Card Payment.
12.2 Transaction Floor Limits:
12.2.4 CNP Transactions and Internet Transactions:
13.6 Regardless of the Transaction amount, the Merchant must request a manual telephone authorisation, in the following cases:
14.1.1 The Virtual POS key shall be granted to Merchant by PayAlly in order to allow said Merchant access to the Virtual POS system which system shall allow Merchant to do the following:
14.1.3 If Virtual POS key lost or stolen you must report it immediately to PayAlly Support Service:
14.2 Use of the Virtual POS System
14.3 Information Security Best Practices
14.3.1 The following are precautions that the Merchant must take to ensure a reasonable level of security when using the Virtual POS service:
15.1 Unless otherwise agreed, the Transaction Receipt shall record:
15.2 CNP and Internet Transactions: The Merchant must ensure and/or procure that the Cardholder is made aware of any Terms and Conditions or Cancellation Policy of the Merchant regulating the Transaction prior to completing the Transaction.
15.3 On the Transaction Receipt, the Merchant is to write:
15.4 A copy of the Transaction Receipt shall at all times be sent to the Cardholder, whether physically or electronically, or both.
15.5 The Merchant is to retain proof that the Cardholder or the Cardholder’s agent signed a carrier delivery receipt for goods delivered to the Cardholder’s address.
15.6 Document Retention Periods
15.6.4 Recurring Transactions: the Merchant must retain a copy of the written agreement entered into between the Merchant and the Cardholder for a period of two (2) years from the date of payment of the last Recurring Transaction and must provide it to PayAlly immediately upon request. If the Recurring Transaction is disputed before the expiration of the retention period, the agreement must be retained until the dispute is finally resolved.
18.104.22.168 The written agreement between the Merchant and the Cardholder must include all of the following:
22.214.171.124 The Transaction will not be honoured if one of the following occurs:
15.8 Delayed or Amended Charges
15.9 Gaming Merchants
15.10 Car Rental Merchants
15.10.2 The Merchant shall obtain authorisation for the full estimated amount of the Transaction (“Estimated Rental Transaction”). The Estimated Rental Transaction shall be determined by multiplying the rate by the rental period reserved by the Cardholder. The Merchant shall not overestimate this amount and shall not include an amount for any possible damage to or theft of the vehicle. If the Merchant fails to obtain authorisation for the Estimated Rental Transaction and the Cardholder fails to pay the Transaction for any reason, PayAlly shall have recourse for the full amount of the Transaction. Upon return of the vehicle, the following terms shall apply:
15.10.3 A Car Rental Merchant should also comply with the following:
15.10.4 For rental car damage, the Merchant must provide all of the following:
126.96.36.199 Documentation showing the Cardholder’s consent to pay for damages with his Card. Such consent must be evidenced either:
15.11 Accommodation Merchants
15.11.6 The Accommodation Merchant may then process a Card Transaction in the form of a CNP Transaction and complete a Transaction Receipt that must contain the following:
15.12 Timeshare Merchants
15.14 Customer Activated Terminals (“CAT”)
15.14.1 PayAlly will accept Transactions which are activated at the terminal by a Cardholder and unattended by the Merchant, subject to the following:
15.15 Cash and Quasi-Cash Merchants The Merchant must validate the Cardholder’s identity. The Merchant agrees to:
15.15.5 Indicate the positive identification on the Transaction Receipt, including:
16.1 The Merchant will prominently display all the Card logos accepted at his outlet/site as well as the latest promotional material made available by PayAlly. The said promotional material is to be removed by the Merchant immediately at PayAlly’s request or upon termination of the Agreement for any reason whatsoever.
16.2 The Merchant has the right to refer to its membership of the International Payment Systems in all its advertising or publications: provided that the Merchant is to submit all such advertising or publications which refer to PayAlly or to any Card for PayAlly’s prior approval.
16.3 This Agreement does not give either PayAlly or the Merchant any rights in the other party’s name, logo, trademarks, trade names, services marks or similar proprietary designation marks. No use may be made of a party’s marks or other intellectual property rights without the prior written consent of that party.
16.4 At all points of Cardholder interaction, the Merchant’s identity must be clear to the Cardholder so that the Cardholder can readily distinguish the Merchant from any supplier of goods or services to the Merchant or from any other third party.
17.1 Merchants should not complete a Transaction if one of the following occurs:
17.2 PayAlly reserves the right to freeze all funds, or a part thereof, representing proceeds of Transactions and/or withhold from the Merchant any payment due to the Merchant under this Agreement if in PayAlly’s reasonably exercised judgment the Merchant is or may be engaged in fraudulent or suspicious activity and/or there is a risk that the Merchant will be unable or unwilling to meet his contractual obligations under this Agreement or any other Agreement the Merchant may have with PayAlly, including but not limited to excessive Chargebacks incurred by the Merchant and this without prejudice to any funds held in the Client Accounts as Rolling Reserve. These funds are to be used to offset future Chargeback liability, fraud loss, and/or any payment of fines that may be imposed by any regulatory authority or Card Schemes against the Merchant or against PayAlly due to an act or omission of the Merchant and will be released in the eventuality that no Chargebacks arise. In particular, but without limitation, PayAlly shall be entitled to:
17.3 PayAlly further reserves the right to hold all funds held by PayAlly and belonging to Merchant, following the termination of this Merchant Agreement, for one hundred and eighty (180) Business Days (hereinafter referred to as the ‘Chargeback Period’). Settlement to the Merchant of funds so held shall be released to Merchant at the expiration of the month in which the Chargeback Period expires plus five (5) Business Days.
17.4 PayAlly reserves the right to use and enforce said frozen funds to pay Chargebacks, other Fees, and/or any payment of fines that may be imposed by any regulatory authority or Card Schemes against the Merchant or against PayAlly due to an act or omission of the merchant and to set-off any fees and/or reimbursements payable and due to it in terms of this Agreement from monies held by it for the benefit of the Merchant, even if the Merchant declares bankruptcy or insolvency and to retain said frozen funds for a period of six (6) months after the termination of the Agreement and this notwithstanding The Payment Services Regulations 2017 Nr.752 (Safeguarding of Funds).
17.5 The obligations in this clause shall survive the termination or expiry of this Agreement.
18.1 Without prejudice to the foregoing and to PayAlly’s rights, in terms of this agreement, PayAlly reserves right to freeze funds and/or withhold any payments due to the Merchant, PayAlly shall also be entitled to withhold and retain from the Merchant any sums/payments due to the Merchant under this Agreement or any other agreement the Merchant may have with PayAlly as a security against any sums due (including Chargebacks) to PayAlly by the Merchant under this Agreement. This sum (Reserve) may take the form either of an initial deposit or of a percentage of each Transaction (Rolling Reserve) as may be agreed by PayAlly and the Merchant from time to time. Moreover, a bank guarantee from the Merchant or/and a personal guarantee/s and/or any other guarantee or security may be required from the proprietors of the Merchant as a security against potential Chargebacks should the business of the Merchant fail.
18.2 Merchant hereby gives its irrevocable consent to PayAlly to use funds held by it pursuant to this Clause 18.1; to provide Security and/or any other guarantee as may be required from time to time to the Card Schemes for payment against potential Chargebacks and/or payments of any charges/assessments and/or fines to the said Card Schemes.
18.3 PayAlly reserves the right to use and enforce the reserve and/or the personal guarantee and/or any other guarantee or security to pay Chargebacks and/or other Fees, even if the Merchant declares bankruptcy or insolvency and to retain the reserve and/or the personal guarantee/s and/or any other guarantee or security for a period of one hundred and eighty (180) Business Days (the ‘Chargeback Period’) after the termination of the Agreement and this notwithstanding The Payment Services Regulations 2017 Nr.752 (Safeguarding of Funds). Settlement to the Merchant of funds so held shall be released to Merchant at the expiration of the month in which the Chargeback Period expires plus five (5) Business Days. Funding of the Rolling Reserve shall be resumed at the expiration of this one hundred and eighty (180) Business Days and release shall be in accordance with this Merchant Agreement.
18.4 The Reserve amount is determined on the Merchant Registration Form and PayAlly reserves the right to review this Reserve from time to time.
18.5 In addition and without prejudice to the Reserve:
18.6 PayAlly shall be entitled to retain all of the interest earned from the maintenance of any monies held by PayAlly for the benefit of the Merchant.
18.7 PayAlly undertakes that any funds held by PayAlly for the benefit of the Merchant shall at all times not be commingled with PayAlly’s money and assets in accordance with the applicable legislation.
18.8 PayAlly is authorised by the merchant to deduct and set-off any fees and/or reimbursements payable and due to it in terms of this Agreement from monies held by it for the benefit of the Merchant and this notwithstanding The Payment Services Regulations 2017 Nr.752 (Safeguarding of Funds).
18.9 It is hereby acknowledged by the Parties that the Transaction(s) entered into between them (and the holding or control of the funds by PayAlly) does not constitute a loan and that the Merchant’s funds have not been given on the sole condition of being returned in the same amount and of the same kind and quality.
18.10 The obligations in this clause shall survive the termination or expiry of this Agreement.
19.1 The Merchant must supply the goods and services which have been paid for by a Card in accordance with the terms of its agreement with the Cardholder. The Merchant must accept and process all Transactions lawfully and in good faith.
19.2 PayAlly will not, under any circumstances, interfere with, or accept responsibility for, any disputes arising between the Merchant and a Cardholder in respect of goods or services acquired with a Card. PayAlly reserves the right to deduct from its settlement the amount under dispute if this amount would not have been paid by the Cardholder. In such cases, the Merchant is entitled to undertake all such steps as may be necessary to recover this amount, and the right to obtain payment from the Cardholder will be assigned by PayAlly to the Merchant.
19.3 “Chargeback” shall mean an unpaid Transaction, which is returned to PayAlly by a Card issuer.
19.3.2 Card issuers may refuse to settle a Transaction undertaken and processed by a Merchant in any, but not to the following cases and events:
19.4 Fines Imposed by International Payment Systems
20.1 The Merchant is prohibited from the following:
20.1.18 Splitting the total amount into smaller amounts, to avoid authorisation. Exceptions to this rule are:
20.2 Applicable to AMEX Cards only: The Merchant is prohibited from accepting the Card for gaming goods or services.
21.1 If the Merchant has more than one owner or principal, liability under the Agreement rests with all such parties involved on a joint and several basis. This includes liability for Chargebacks.
21.2 For the fulfilment of all obligations under this Agreement, the Merchant shall be responsible for the actions of his or her employees or agents.
21.3 The Merchant is liable for and shall indemnify, and hold harmless PayAlly, its subsidiaries and any International Payment System from any losses, costs, claims, actions, proceedings and demands (including reasonable legal costs, any penalties or fines imposed by International Payments Systems on PayAlly, any increase in the card issuer interchange fee payable by PayAlly to card issuers which is attributable to the Merchant’s breach of the Agreement as well as chargebacks including Chargebacks arising during a ‘Chargeback window’ as imposed by any International Payment System as part of a monitoring programme for merchants identified and listed on global bulletins as having an excessive fraud or Chargeback activity) that arise out of or in connection with this Agreement, any Transaction or the goods or services relative to the Transaction, any promotion or marketing of any goods or services sold by the Merchant, improper activity of the Merchant, any misrepresentation by the Merchant to the Cardholder or any breach of any obligation or duty that the Merchant owes to the Cardholder, any investigations into Transactions which are shown to involve fraudulent or criminal activity on the Merchant’s part, any breach of, or failure by the Merchant or his employees, agents or contractors to comply with, the Agreement, any act or omission done wilfully or negligently by the Merchant, his employees, agents or contractors as well as any violation by the Merchant, his employees, agents or contractors of any applicable laws or regulations.
21.4 The Merchant shall assist PayAlly as it may require in the handling of any claims or actions brought against PayAlly by any Cardholder or Card issuer and PayAlly shall be entitled to settle or otherwise deal with such claims or actions at its sole discretion.
21.5 The parties hereby agree that all fees, charges or assessments assessed directly to the Merchant by the Card Scheme Rules, or to PayAlly by the Card Scheme Rules in connection with any act or omission done wilfully or negligently by the Merchant, shall be the liability of the Merchant and shall be charged to the Merchant.
21.6 Without prejudice to any other rights which PayAlly may have:
21.7 Any written statement by PayAlly of the amounts owing under this Agreement shall, in the absence of manifest error, be conclusive and binding on the Merchant.
21.8 All and any payments to be made by the Merchant to PayAlly in terms of this Agreement shall be exclusive of VAT, unless otherwise agreed by written means.
22.1 The Merchant shall ensure that the Terminal complies with all applicable requirements as may be outlined by local laws, rules and regulations and by the Card Schemes;
22.2 The Merchant is to ensure that the entry of a user’s PIN on the Terminal/s is not recorded by CCTV.
23.1 The Merchant shall be subject to periodic ongoing monitoring which shall include, but is not limited to, the periodic review of Merchant physical location, website and of customer due diligence documentation submitted to PayAlly.
23.2 WWhere the Merchant is obliged to provide additional or updated documentation or make any change to its website or other requirement in light of said ongoing monitoring procedure the Merchant shall be automatically placed into an Internal PayAlly Program. The Merchant shall provide said documentation or make any requisite change within seven (7) business days of any such request made by PayAlly.
23.3 The terms of the program shall be notified to the Merchant in a timely manner.
23.4 Should Merchant not comply with any such request made by PayAlly as outlined in this clause PayAlly shall have the right to terminate this Agreement.
24.1 This Agreement shall come into effect as on the date PayAlly accepts Merchant following its customer due diligence procedures and shall remain in force for a term of three (3) years, provided that either party may terminate this Agreement by giving the other party at least 30 days written notice of its intention to terminate, whether in relation to all or any one or more of the Card types accepted according to this Agreement.
24.2 Without prejudice to the foregoing, PayAlly reserves the right to exercise immediate termination of the Agreement, whether in relation to all or any one or more of the Cards:
24.3 Termination of this Agreement will not affect the liability of any of the parties towards the other party, existing at such date of termination, including but not limited to, any liability on the Merchant’s part in respect of Chargebacks which are notified to PayAlly at any time after the Agreement has ended.
24.4 If this Agreement is terminated by PayAlly for cause, the Merchant may be listed on the Visa Merchant Alert Service. The Visa Merchant Alert Services is a Terminated Merchant Database (the “Database”) established pursuant to the Guidelines for Terminated Merchant Databases. The Merchant has the right to request access to, and rectification of, the personal data concerning the Merchant, which is held on the Database.
24.5 Queries or complaints regarding the inclusion of the Merchant’s data in the Database should be discussed with PayAlly’s personnel. If the Merchant is not satisfied with the reply or no agreement has been reached with PayAlly, the Merchant may lodge a complaint with the Data Protection Commissioner.
24.6 If this Agreement ends, the Merchant must promptly return to PayAlly all equipment and materials supplied by PayAlly and must pay PayAlly immediately all and any amounts due under this Agreement.
25.1 In addition to the clause above relating to personal data, the information contained herein and related to the activities of the Merchant can be exchanged by PayAlly with any member of the PayAlly Group (PayAlly and its subsidiaries), the Group’s associates and agents and with any other member or controlling body of the relative International Payment System.
25.2 Subject to the foregoing clause, PayAlly and the Merchant agree to keep confidential and not disclose to any third party any information received from the other that is not publicly available and the terms of this Agreement including, without limitation, the commission and/or Transaction fee indicated in the merchant application form of this Agreement. The Merchant shall take all steps necessary to prevent the transfer or disclosure of Cardholder information to any third party and will not use or disclose the names, addresses, account numbers and Transactions of the Cardholders, except as otherwise provided in this Agreement. For the avoidance of doubt, the obligations in this clause shall survive the termination or expiry of this Agreement.
25.3 The Merchant shall not compile or use any lists of Cardholders or Card numbers or other information related to the Cardholders other than for the proper performance of its obligations or exercise of its rights under the Agreement.
25.4 The Merchant hereby expressly agrees that it shall be solely responsible for:
25.5 Merchant represents and warrants that it shall comply with all applicable privacy, consumer, data protection and other laws and regulations with respect to its:
25.6 The Merchant may not for any reason, reverse engineer, extrude or retrieve any internal data and system structure while using PayAlly’s services and/or any system utilized by PayAlly to process payments. If any of the said system structure or data became available or visible to the Merchant inadvertently, the Merchant shall immediately contact the PayAlly in order to eliminate such possibility in a future and immediately delete such information from its system. Any usage of such information for the Merchant's financial, promotional and marketing or any benefit by the Merchant is prohibited.
25.7 The Merchant agrees to:
26.1 PayAlly will endeavour to give a complete service at all times, however it shall not be liable to any person if it is unable to perform its obligations under this Agreement due to the failure of any machine, computer, telephone line or software, whether belonging to or licensed to PayAlly or not, any industrial dispute or anything which is outside the control of PayAlly.
26.2 Without prejudice to clauses 17, 18, 19, 21, and 25 above, neither PayAlly nor the Merchant will be liable to the other for any incidental, indirect, consequential, pure economic loss or special damages of any kind, however arising.
26.3 The Merchant shall hold PayAlly harmless and fully indemnified against any claim, loss or liability incurred by the Merchant as a result of the inclusion of its data in the Database, unless due to fraud, wilful default or gross negligence by PayAlly.
27.1 Merchant statements will be made available to the Merchant electronically.
27.2 The Merchant is responsible for checking this information (whether on paper or electronically) and to contact PayAlly immediately if the information is considered to be incorrect in any respect.
27.3 Unless otherwise provided, any notice period required to be given under this Agreement shall be reasonable and any statement, notice, communication, changes to this Agreement or other document which is required to be given or served by PayAlly under this Agreement shall be notified to the Merchant either in writing, including electronic means such as email, where permitted, by publication in the press or on the corporate web-site www.payally.eu. When mailed, any such document shall, (at PayAlly’s sole discretion) be sent either to the Merchant’s address stated in this Agreement, or at any other address notified in writing by the Merchant to PayAlly. If the Merchant is a partnership or a company, a document served on any one of the partners or the directors or at the last notified address of the partnership or company will be deemed to have been validly mailed.
28.1 This Agreement is personal to the Merchant and the Merchant is not entitled, without PayAlly’s prior written consent to assign or transfer or permit the exercise by any person of any of its rights under the Agreement, or transfer or subcontract any of its obligations under the Agreement.
28.2 PayAlly may assign, subcontract or transfer this Agreement in whole or in part to any of its holding, parent, subsidiary or affiliate companies or to any International Payment System or the designee of such International Payment System, upon prior written notice to the Merchant, provided that such assignee is fully capable of performing PayAlly’s financial and business obligations hereunder.
29.1 Without prejudice to the other provisions of this Agreement, PayAlly may, at any time, require the Merchant to provide guarantees or other securities for the Merchant’s obligations under this Agreement and/or to take up an insurance policy acceptable to PayAlly to cover all or any of the Merchant’s obligations and liability under this Agreement and/or to apply special terms or conditions in relation to the Merchant’s acceptance of Transactions. PayAlly may rely on any guarantees or other security provided to PayAlly now or in the future.
29.2 Any failure or delay by PayAlly in enforcing any right, power or remedy under this Agreement or applicable law shall not be deemed to be a waiver thereof unless in writing signed by PayAlly.
29.3 If any provision of the Agreement is or becomes illegal or invalid, that provision will be deemed deleted from the Agreement and the remaining provisions shall continue in force.
29.4 Any notice to be given by either of the parties under the Agreement shall be given in writing. It must be delivered in person or, by post, by fax or by email at the address or numbers set out in the Merchant Registration Form or at such other addresses or numbers as are notified by one party to the other in writing from time to time.
29.5 This Agreement together with the documents referred to in this Agreement form the entire agreement between the parties in relation to the subject matter hereof. Neither of the parties has relied on any verbal or other written information provided by the other unless it is set out or expressly referred to in those documents, except that PayAlly has relied and will continue to rely on all verbal and written information provided by the Merchant in relation to its business or status.
29.6 The Merchant may obtain information on the Card interchange fees as well as the relative rules and regulations from their relative websites (e.g. Visa - www.visaeurope.com /MasterCard - www.mastercard.com).
29.7 During the duration of this Agreement, the Merchant may at any time request a copy of this Agreement or as may be amended from time to time. Unless otherwise agreed, the English language will be used for the purpose of interpreting the Agreement and for all communications in connection with the Agreement.
29.8 Queries or complaints regarding this Agreement should be discussed with PayAlly’s Customer service personnel. The Merchant may lodge a complaint either by phoning PayAlly’s customer relations centre on +442074896480 or by writing to VP in charge of Merchant Acquiring, PayAlly, 80 Coleman Street, London, United Kingdom, EC2R 5BJ.
If the Merchant is still not satisfied with PayAlly’s reply or no agreement has been reached with PayAlly, the complaint may be directed to:
30.1 The Merchant has contracted with PayAlly as principal and not as agent for any person.
30.2 The Merchant represents that the individual/s signing the Application Forms and the Agreement has/have authority to do so and to bind the Merchant to the provisions of this Agreement.
The Parties agree that the Courts of England and Waleshave jurisdiction to settle any disputes in connection herewith and accordingly submit to the jurisdiction of such Courts. The Merchant waives any objection to the England and WalesCourts on grounds of inconvenient forum or otherwise as regards proceedings in connection herewith and agree that a judgment or order of such a Court shall be conclusive and binding on them and may be enforced against them in the Courts of any other jurisdiction.
33.1 Capitalised terms defined in the Terms and Conditions (as hereunder defined) and used herein shall have the same meanings as in the Terms and Conditions, unless otherwise defined in Clause 33.2.
33.2 The following capitalised terms shall bear the meaning ascribed thereto:
33.3 For the purposes of this Agreement, references to an Account shall, if applicable, be deemed to refer to Pledgee client Accounts. References to a bank shall, if applicable, be deemed to refer to such Banks, which at which Pledgee holds clients Accounts.
34.1 For the purpose of securing the Secured Indebtedness, the Pledgor herewith pledges to the Pledgee the Pledged Monies. The Pledged Monies are blocked for the benefit of the Pledgee.
34.2 The parties understand that the Account is a clients’ account maintained by the Pledgee and into which, subject to applicable legislation, the Pledgee holds moneys belonging to a number of merchants in relation to which the Pledgee provides merchant acquisition services. The pledge created by virtue of this agreement shall be construed to relate limited to the Pledged Monies and not to any other monies which may from to time be held by the Pledgee for the benefit of other merchants in the Account.
34.3 The liability of the Pledgor hereunder and the pledge is and shall be continuous and shall subsist for all the time the Pledgor shall have an indebtedness towards the Pledgee and until this pledge is cancelled by the Pledgee.
34.4 The Pledged Monies shall remain pledged and blocked and the legal validity and scope of this Pledge and block shall in no manner be affected by any waiver of the Pledgee or any release by the Pledgee of any part of the Pledged Monies from the pledge created hereunder.
34.5 The Pledgor shall not, except with the Pledgee's consent, make any disposition with regard to the Pledged Monies or the Account. The Pledgor shall inform the Pledgee of any and all attachment or similar action which may be taken by a third party against the Pledged Monies associated therewith.
34.6 The Pledgee shall, at all times, have the right to inspect the Pledgor's books and records or have them inspected by a third party which is professionally bound by confidentiality (including tax and legal consultants).
34.7 If any provision of this Pledge is found to be invalid, this shall not affect the validity of the remaining provisions. In such event the Parties shall agree to a substitute provision that fulfils fully or as closely as possible the economic purpose of the invalid clause.
34.8 The Pledgor herewith confirms that pledging and blocking of the Pledged Monies is not restricted by any restraints on disposal or third party rights whatsoever.
34.9 Any and all charges, fees or other costs whatsoever which may become due through or in connection with this pledge and blocking shall be borne by the Pledgor and shall be promptly reimbursed to the Pledgee.
35.1 In the event that the Pledgee demands payment of any sums due to the Pledgee by the Pledgor under the Agreement, the Pledgee shall be entitled (but not obliged) to use the Pledged Monies and shall be entitled to cover any of the Pledgor’s unsettled debts under the Agreement. For this purpose, the Pledgor herewith authorises and provides a mandate to the Pledgee to utilise the Pledged Monies in the Account in order to settle any liability of the Pledgor to the Pledgee. In order to exercise this right, it shall not be necessary for the Pledgee to remind the Pledgor of the overdue debt or for the Pledgee to inform the Pledgor prior to exercising its rights to satisfy unsettled debts.
35.2 To the extent applicable, this pledge is also regulated by The Financial Collateral Arrangements (No. 2) Regulations 2003 (Amendment) Regulations 2009.
35.3 In addition to the rights conferred by law, the Pledgee shall be entitled, in terms of the provisions of the Set-Off and Netting on Insolvency Act, 2000 (as amended), to set-off against monies due to it under this Pledge all or any monies from time to time standing to the credit of the Pledgor (whether sole or joint with any other person(s)) with the Pledgee (or any subsidiary of the Pledgee).
35.4 For the purposes of Clause 35.3:
35.5 However, it is expressly agreed that the liability of the Pledgor under this Pledge shall in no way be extinguished, discharged or reduced or in any way affected by any right of set-off or counter- claim or any right whatsoever against the Pledgee and the Pledgor is hereby expressly waiving all rights (including any and all rights of action) the Pledgor may have against the Pledgee until after payment in full of the Secured Indebtedness to the satisfaction of the Pledgee.
The Parties agree that the Courts of England and Waleshave jurisdiction to settle any disputes in connection herewith and accordingly submit to the jurisdiction of such Courts. The Pledgor waives any objection to the England and WalesCourts on grounds of inconvenient forum or otherwise as regards proceedings in connection herewith and agree that a judgment or order of such a Court shall be conclusive and binding on them and may be enforced against them in the Courts of any other jurisdiction.