Acquiring terms

last updated: December 12, 2024

ACQUIRING SERVICE(s) TERMS AND CONDITIONS

 

Please read these Acquiring Service(s) Terms & Conditions (the “Agreement”) carefully before you agree to use the Services (as defined below) from Guavapay Limited (“Guavapay”). This Agreement (as further defined below) sets out the rights and obligations of the Merchant and Guavapay with regards to the use and provision of the Guavapay Services.

The Merchant (you) accept(s) this Agreement by i) ticking a box, ii) signing through a digital signature and/or iii) using the Guavapay Services.

Any written term agreed individually between you/Merchant and Guavapay and duly executed shall prevail over this Agreement, including its schedules or other related documents, unless stated otherwise or contrary to any Applicable Laws.

You/a Merchant may review the current Agreement prior to using the Guavapay Services and at any time by clicking on the "Acquiring Service Terms and Conditions" page on the Website which will show the most recent revision date. We encourage you/Merchants to print a copy of this Agreement for your future reference.

 

a:      BACKGROUND

 

(A)  The Merchant wishes to receive the Services (as defined below).

 

(B)  Guavapay has the skills, background and experience in providing the Services.

 

(C)  Guavapay is willing to provide the applicable Services and the Merchant is willing to appoint Guavapay to provide the Services, all in accordance with the provisions of this Agreement.

 

(D)  Guavapay only contracts with Merchants within its licensed card schemes acquiring jurisdictions.

 

This Agreement governs the supply of the Services by Guavapay to the Merchant entity approved by Guavapay under this Agreement.

 

b: OPERATIVE PROVISIONS

 

1. DEFINITIONS AND INTERPRETATION

 

1.1. The following definitions shall apply when interpreting this Agreement:

 

3-D Secure	means the “Three Domain Secure” protocol developed by Visa International Inc. (Visa) branded as “Visa Secure”, the “Mastercard Identity Check” developed by Mastercard International Inc including successive versions thereof and any amendments thereto and any other similar protocols developed by the aforementioned and any other Card Schemes;
Acquired Funds	means the amount of funds recorded on Transaction Data, arising from Transactions processed via the Acquiring Services and the subject of any Pay-out to Guavapay in accordance with this Agreement;
Acquirer	means any bank or other body duly authorised by a Card Scheme to enable the use of Cards by accepting Transactions from Merchants on behalf of the Card Schemes, routing these to the Card Scheme and collecting and settling the resulting funds to the Merchant (and being Guavapay under and for the purposes of this Agreement);
Acquiring Services	means payment services enabling the execution of Transactions initiated by, or via, the Merchant, by means of Cards, which involve, amongst other matters, operating the Authorisation process, transmitting payment orders to the Intermediary Institutions, and are designed to provide the Merchant with funds due further to the acquisition of goods or services by the Cardholder on the Merchant Website;
Agreement	means this agreement between Guavapay and Merchant comprising of this Agreement together with all schedules, appendices to this agreement, and any documents or other terms incorporated by reference into this agreement, including, without limitation, the Privacy Notice and, to the extent applicable, the “POS Service Terms and Conditions” at Schedule 4 and the “Payment by Link Terms and Conditions” at Schedule 5;
API	means application programming interface consisting of direct secured internet connection between the Merchant Website and the Guavapay environment via which Transaction Data is transmitted;
API Terms of Use	refers to the terms of use for the API as notified to Merchant by Guavapay from time to time;
Applicable Laws	means all laws and regulations (and including the requirements of any Regulatory Authority) applicable to a Party (including a Party’s rights or obligations) or to any Transaction for the time being in force in any jurisdiction, including without limitation the Data Protection Legislation;
Authorisation	means the process by which Guavapay requests and subsequently receives the Card Issuer’s permission to execute a Transaction by using a Card;
Authorised User	means an individual authorised by the Merchant and accepted by Guavapay to have access to the Merchant Account;
Business Day	means a day on which banks are open for general business in England but excludes Saturdays, Sundays and any other day which is a public holiday in England;
Card	means any valid payment card (including a credit, debit, charge, purchase or other payment card) issued by a Card Issuer under a Card Scheme and accepted as a non-cash payment instrument for the Cardholder to carry out Transactions in accordance with its agreement with Guavapay and in compliance with Applicable Laws and the applicable Card Scheme Rules in force from time to time;
Card Issuer	means any bank or other body authorised by a Card Scheme to issue Cards;
Card Number	means the number displayed on a Card identifying the Cardholder Account;
Card Not Present Floor Limit	means the total value for each Card Not Present Transaction at which Merchant must obtain Authorisation. This is set out in the Application Form and Guavapay may increase or decrease this at any time by giving Merchant written notice from time to time;
Card Not Present Transaction	means any type of Transaction where the Cardholder is not present or the Card is not provided physically to Merchant at the time of the transaction, including Transactions made via the telephone, mail order and/or a Merchant Website;
Card Present Floor Limit	means the total value for each Card Present Transaction at which Merchant must obtain Authorisation. This is set out in the Application Form and Guavapay may increase or decrease this at any time by giving Merchant written notice from time to time;
Card Present Transaction	means any type of Card Transaction where the Cardholder is present and the Card is physically provided to Merchant at the time of the transaction;
Card Scheme	means any of VISA International Inc., MasterCard International Inc., UnionPay International and any other card scheme Guavapay approves from time to time;
Card Scheme Rules	means the rules and operating instructions issued by the Card Schemes from time to time;
Cardholder	means the company, firm, individual or other body for whose use a Card has been lawfully issued at any time;
Cardholder Account	means the account in the name of the Cardholder which may be debited or credited by the Acquirer in respect of Card Transactions;
Cardholder Information	means and information relating to a Cardholder including any Card Number and Personal Data;
Chargeback	means a Transaction made with a Card which is being disputed by the Cardholder or Card Issuer and returned to Guavapay under the relevant Card Scheme, typically resulting in charging the Merchant with the value of the disputed Transaction or portion of such Transaction;
Confidential Information	means information received in connection with, or which a Party has learned in consequence of, this Agreement or its terms and conditions or relating to the commercial secret of the Parties, including know-how information about customers, employees, Card data, Transaction data and information on the Cardholders. Confidential Information under this Agreement shall not include (i) information that is or becomes publicly available on the date of signing this Agreement or after signing it; (ii) information that is publicly available through no fault of a Party; (iii) information that was legally received by a Party before entering into this Agreement;
Control or Controlled	in respect of a Party means the exercise, or ability to exercise or entitlement to acquire, direct or indirect control over such Party by means of ownership, contract or otherwise;
Data	means Transaction Data and records of any kind relating to Transactions, Chargebacks, Representments, Retro-Charge or Refunds (including, for the avoidance of doubt, data relating to Cards and Cardholder Information) and shall include Transaction Personal Data and Sensitive Authentication Data;
Data Protection Legislation	means any laws and relating to privacy or the use or processing of data relating to natural persons, including EU Regulation 2016/679 (“GDPR”) and the Data Protection Act 2018 (“DPA”) and the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and any laws or regulations ratifying, implementing, adopting, supplementing or replacing the forgoing; in each case, to the extent in force, and as such are updated, amended or replaced from time to time;
Data Controller	means the entity which alone or jointly with others determines the purposes and the means of the processing of Personal Data;
Data Processor	means the entity which processes Personal Data on behalf of the Data Controller;
Data Subject	means any individual person who can be identified, directly or indirectly, via an identifier including but not limited to a name, an ID number, location data, or via factors specific to the person’s physical, physiological, genetic, mental, economic, cultural or social identity;
Database	means MasterCard Alert to Control High-risk Merchants (MATCH) and/or Visa Merchant Alert Services (VMAS) as the case may be;
Deductions	means any and all of the following: (1) Fees due to Guavapay as per the provisions of this Agreement; (2) Chargebacks, Refunds, credits, payments imposed and any other amounts deducted from settled Transactions by the Card Schemes, third party Acquirers (if any); (3) Assessments; (4) the Reserve Amounts and any additional amount required to maintain the Reserve at the designated level; (5) amounts of overpayment to Merchant, however made; (6) payments made in respect of invalid Transactions;
Documentation	means any documents Guavapay supplies to Merchant from time to time, whether in physical or electronic form;
Effective Date	means the date on which this Agreement is signed or it is accepted unless specified in a document signed by the Parties;
Fees	means any fees, tariffs and charges that are due to Guavapay from the Merchant under this Agreement or otherwise as stemming from the provision of the Services, such Fees being set out on the Website unless specified in a document signed by the Parties;
Fixed Reserve	means a pre-defined amount of funds which are excluded from the Pay-out for a fixed period of time in order to secure any possible claims meaning from Guavapay and against the Merchant;
Floor Limit	means the Card Present Floor Limit or Card Not Present Floor Limit (as applicable);
Fraud Risk Controls	means a set of filters and rules aimed at the identification of unwarranted Transactions submitted to the Payment Gateway;
Gateway Services	means the Guavapay services enabling the use of a Payment Gateway;
Group Company	in respect of a Party means any undertaking which Controls or is Controlled by or under common Control with or by such Party;
Hosted Payments Page	means the Transaction interface where the Cardholder is redirected from the Merchant’s Website to a payment site hosted by Guavapay, on which Transaction details are entered by the Cardholder;
Intermediary Institution	means an institution which participates in the process of transferring Acquired Funds in favour of the Merchant in order to execute a Transaction, including Acquirers and Card Issuers;
Internal Guavapay Program	means a program developed by Guavapay which aims to reduce the number of Chargebacks of the Merchant;
Intellectual Property Rights	means rights in patents, database rights (including rights of extraction), designs, copyright, trademarks, service marks, domain names, whether registered or unregistered, and all rights and forms of protection of a similar nature of any of the aforesaid items or having equivalent effect in any country or jurisdiction, together with all registrations, applications, renewals and extensions of and to such rights;
Losses	means any liabilities, losses, damages, charges, fines, costs and/or expenses (including reasonable and properly incurred legal fees and/or expenses);
Merchant	means the supplier of goods or services, who has entered into this Agreement with Guavapay for the purpose of using the Services;
Merchant Account	means a dedicated information management account available on the Guavapay Website or other notified systems containing Data related to Merchant Transactions, Chargebacks, Refunds, Representments and Retro-Charges, and where the Merchant can perform different operations relating to the Services;
Merchant Category Code (MCC)	means the four-digit number assigned by Card Schemes, and which are used to classify the business by the type of product and services provided;
Merchant Credentials	means credentials used to authenticate the Authorised User when logging into the Merchant Account, including but not limited to login, password, and certificate;
Merchant Application	means an application developed by Guavapay and submitted by the Merchant to Guavapay, whether in electronic or in other tangible form, detailing information regarding the Merchant’s identity, ownership, business information, website(s), Transaction processing estimates and other relevant data required by Guavapay to be provided when Merchant submits the Merchant Application Form;
Merchant Application Form	means the documents detailing the Merchant’s business, structure, financials, Chargeback amounts, goods and services offered, licenses where applicable and any other due diligence document/data requested by Guavapay in order to evaluate Merchant´s application for Services and/or otherwise comply with Applicable Laws and Card Scheme requirements, and where approved by Guavapay, to facilitate the onboarding of the Merchant;
Merchant Bank Account	means a payment account in the name of the Merchant established with either Guavapay or a duly authorised third-party financial institution approved by Guavapay for the purpose of receiving Payouts and paying any Fees, Other Charges or other sums due to Guavapay under this Agreement;
Merchant Website	means the Merchant’s online store where the Merchant displays and sells its products and/or services and set out in Merchant Application Form;
Minimum Term	means twelve months from the Services Start Date;
Operating Guide	means the operating guide or merchant manual issued and varied by Guavapay from time to time setting out those detailed procedures and operating instructions Merchant must follow in connection with accepting and processing transactions and Merchant´s other obligations under this Agreement;
Other Charges	means any assessment, fines, fees, charges or expenses of any nature which Card Schemes or Intermediary Institutions or any Regulatory Authority levy on Guavapay at any time directly or indirectly in relation to any aspect of Guavapay’s relationship with the Merchant including in connection with the provision of any Services or breach of this Agreement by Merchant;
Payment Gateway	means software technology that supports the processing of Authorisation requests and the transmission of Transaction Data by Guavapay between Merchant and the Cardholder via Intermediary Institutions and Card Schemes to enable a Transaction, Representment or Retro-Charge or making a Refund over the internet;
Pay-out(s)	means any payment of Acquired Funds (less those amounts deducted from Acquired Funds before remittal to Merchant as described in clause 8 of this Agreement) Guavapay makes to the Merchant Bank Account under this Agreement in the course of Acquiring Services;
PCI DSS	means Payment Card Industry Data Security Standard, Payment Application Data Security Standard (PA DSS) and the PIN Transaction Security Standard as updated from time to time and published by the PCI Security Standards Council (the “PCI SSC”) at https://www.pcisecuritystandards.org
Personal Data	has the meaning given to it in the Data Protection Legislation, as amended from time to time, and is any information relating to the Data Subject;
Plug Ins	means tools to access or view content on Guavapay systems or Payment Gateway;
Plug Ins Terms of Use	refers to the terms of use for the Plug Ins available on the Website and/or notified to Merchant by Guavapay from time to time;
Privacy Notice	means a document, as updated by Guavapay from time to time, detailing the manner in which Guavapay protects Personal Data as is available by means of the following link: https://myguava.com/legal/GB/policies/privacy-policy
Processing Statement	means a document detailing acquired Transactions, Fees, Chargebacks, Refunds, Reversals, and amounts retained on the Reserve Account for a particular period;
PSR 2017	means the Payment Service Regulation 2017 as amended from time to time;
Recurring Payment	means a repetitive period payment for which the Merchant charges the Cardholder;
Refund	means a Transaction, in respect of an initiating Transaction, made wholly or partially to reverse that initiating Transaction;
Regulatory Authority	means any governmental or law enforcement or regulatory authority, tribunal or other law, rule or regulation making entity (including any stock exchange and data protection authority) that any of the Parties and/or their Group Companies submit to or are subject to the jurisdiction of, including in relation to their respective activities under this Agreement;
Renewal Term	means a term of twelve months commencing on the anniversary of the Services Start Date;
Representment	means a Transaction to reverse a Chargeback by the re-execution of the original Transaction, where Merchant has successfully challenged the Chargeback;
Restricted Person	means a person that is (i) listed on, or owned or controlled by a person listed on any Sanctions List; (ii) located in, incorporated under the laws of, or owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide Sanctions; or (iii) otherwise a target of Sanctions;
Retro-Charge	means a Transaction initiated by Merchant to reverse a Refund to which the buyer was not entitled;
Reversal	means a reversal of the funds originally transferred as Transaction, initiated by the Cardholder or the Intermediary Institution, particularly as a result of (i) absence of the Cardholder’s consent to make a Transaction, (ii) withdrawal of previous consent, or (iii) inconsistency in the Cardholder’s data that was provided when effecting a Transaction;
Reserve Account	means a separate account with the Acquiring Institution where the Rolling Reserve or Fixed Reserve (as the case may be) is retained;
Rolling Reserve	is a several or collective reference to a Fixed Reserve and Rolling Reserve;
Reserve Fund	means a pre-defined percentage of Acquired Funds which are excluded from the Pay-out for a fixed period of time in order to secure any possible claims of Acquiring Institution against the Merchant;
Sanctions	means any economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: (i) the United States government; (ii) the United Nations; (iii) the European Union; (iv) the United Kingdom; or (v) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, and Her Majesty’s Treasury (together “Sanctions Authorities”);
Sanctions Lists	means the “Specially Designated Nationals and Blocked Persons” list issued by OFAC, the Consolidated List of Financial Sanctions Targets issued by Her Majesty’s Treasury, or any similar list issued or maintained or made public by any of the Sanctions Authorities;
Sensitive Authentication Data	means security information used to authenticate Cardholders and authorise Transactions. Data elements include magnetic stripe data (PAVE, CVV, CVC, CID) PINs, PIN blocks and the three or four-digit number security code on the front or on the back of a Card (e.g. MasterCard CVC2/ Visa CVV2);
Services	is a several or collective reference, as the context requires, to any or all services rendered by Guavapay to the Merchant under this Agreement, including but not limited to the provision of Acquiring Services, Gateway Services and/or any other services agreed to be provided by Guavapay from time to time under this Agreement;
Service Start Date	means the date, set out in the Merchant Application Form approved by Guavapay or otherwise agreed upon in writing with Guavapay (and in any event not being earlier than the date on which Guavapay has confirmed Merchant´s onboarding, and the date on which the first Transaction is submitted for processing via the Services in a live environment pursuant to this Agreement);
Settlement	means the crediting to Guavapay or its agent of the value of a Transaction (i.e. relevant Acquired Funds) as determined by the relevant Card Scheme (and “Settle” and “Settled” shall be construed accordingly);
Term	means the period of time from the Effective Date and until terminated in accordance with this Agreement’s terms, subject to any Minimum Term and any Renewal Term, if any, as such terms may be defined in the Merchant Application Form and agreed to in writing by Guavapay;
Trading Limit	means the maximum aggregate value of single or multiple Transactions that the Merchant may complete in respect of any specified period as notified by Guavapay to Merchant;
Transaction	means a payment transaction initiated by the Cardholder via the Payment Gateway in consideration for goods or services purchased from the Merchant at the Merchant Website. The term “Transaction” also includes, unless the context requires otherwise, a Refund, a Representment, a Retro-Charge, a Recurring Payment and a series of connected Transactions;
Transaction Data	means Transaction Personal Data and any other data relating to a specific Transaction;
Transaction Personal Data	means Personal Data which it is necessary to provide or to process in connection with Transactions, Chargebacks, Refunds, Representments or Retro-Charges in the course of providing the Services; and
Website	means the website available at: https://myguava.com/, including https://myguava.com/business.

1.2.       Interpretation:

 

1.2.1. clause headings in this Agreement are for convenience only and these do not affect the meaning or interpretation of the clause(s) concerned;

 

1.2.2. references to statutes, statutory provisions, regulations and statutory instruments also refer to the amended, extended or re-enacted or updated versions of these as may be in force from time to time;

 

1.2.3. the word “including” means “including, without limitation”, and the word “include(s)” means “include(s), without limitation”;

 

1.2.4. a reference to a clause is a reference to a clause in this Agreement, unless provided otherwise;

 

1.2.5. in the event of any inconsistency between any provision in this Agreement and any provision in the Merchant Application Form, the Operating Guide and all other operating guides provided to Merchant in respect of any Guavapay Services, the provision in this Agreement shall prevail, unless provided otherwise; and

 

1.2.6. where Guavapay approval, consent or authority is required, we may exercise that approval or consent right subject to any applicable Card Scheme Rules, legal or regulatory requirements.

 

2.              KEY CONDITIONS TO PROVISION OF SERVICES

 

2.1.       The Merchant shall be entitled to use the Services after and for as long as it has satisfied certain Guavapay verification, know-your-client and risk based related requirements mandated by the Card Scheme Rules and/or Applicable Laws (“KYC Requirements”). KYC Requirements may be updated or supplemented from time to time to comply with changes in Applicable Laws or the Card Scheme Rules and may vary between Services.

 

2.2.       The Merchant shall provide all reasonably required cooperation with Guavapay’s initial and ongoing requests for documentation and information and undertakes to assist Guavapay in the verification and know-your-client process as shall be required, including by providing any required documentation and other information, executing any required agreements, instruments and other certifications.

 

2.3.       The Merchant agrees to provide the Acquirer all the documents requested and to respond in a timely manner to all queries raising from the provision of such documents. The Merchant undertakes on an ongoing basis during the Term, to notify Guavapay promptly and with any supporting documentation and information of any changes which may occur regarding any documentation and information it provided when submitting the Application Form and/or being onboarded for Services, including but not limited with respect to the Merchant’s business (goods and services, financial information, tradenames or URLs, geographical targets, Merchant Bank Account details and so on), the Merchant’s location (physical address) and fixed place of business through which it conducts its business as such address was disclosed to and approved by Guavapay, Merchant’s directors and majority shareholders or any change in Control, as well as with respect to the Merchant’s financial standing and ability to meet its obligations in this Agreement. The Merchant acknowledges and agrees that Guavapay shall have the right to examine these changes and determine whether such changes affect its decision to provide Services or the manner in which Services are provided to the Merchant and to notify the Merchant accordingly. Guavapay shall act reasonably in such determination.

 

2.4.       The Acquirer reserves its rights to refuse to onboard the Merchant at its own discretion and following its risk appetite.

 

2.5.       The Merchant represents and warrants that the information submitted within the Merchant Application Form and any other documentation provided by the Merchant is true, complete and accurate, and that the Merchant has disclosed any adverse information pertaining to its business, including but not limited to any insolvency events and or court judgements.

 

3.              PROVISION OF Guavapay Services

 

3.1.       In consideration of Merchant paying the Fees and the Merchant’s ongoing compliance with Applicable Laws and the terms of this Agreement, Guavapay will, in accordance with all Applicable Laws and relevant Card Scheme Rules, and using reasonable care and skill, provide agreed Services from the applicable Service Start Date.

 

3.2.       Guavapay is only required to provide the Services in respect of Merchant’s business as set out in the Application Form and approved by Guavapay at the Service Start Date (or any modified business notified to and approved by Guavapay as per clause 2.3 above) and only to the extent permitted by Applicable Laws and Card Scheme Rules.

 

3.3.       For the avoidance of doubt, Merchant acknowledges and agrees that neither Guavapay nor any Guavapay Group Company is obliged to execute any Transaction or provide any Service that fails to comply with any Applicable Laws or the Card Scheme Rules, in any jurisdiction. Accordingly, Guavapay shall be entitled to refuse to process any such Transaction or provide any such Services which it considers, in its sole discretion, would breach any such Applicable Law or the Card Scheme Rules in any jurisdiction. 

 

3.4.       The Merchant must ensure that its systems and the Transactions processed comply at all times with all technical, communications, implementation and integration requirements as provided by Guavapay from time to time. Such compliance is mandatory to Guavapay’s ability to provide Services as described and the Merchant should not make alterations to the Merchant’s systems which may affect integration with the Guavapay API or otherwise without first consulting with Guavapay and properly testing the change.

 

3.5.       Certain components of the Services may be provided by or rely on third parties (e.g. Card Scheme, third party Acquirers, banks, processing networks, money transfer systems, external databases, etc.) who are not subcontractors or agents of Guavapay, and are subject to such third party’s solvency, acts or omissions, performance, availability, service levels, terms and conditions and where applicable the availability of processed funds held with such third parties should a third party become insolvent or otherwise unavailable (e.g. settlement banks). Guavapay disclaims and will not be liable or responsible for the aforementioned reliance or dependency on third parties.

 

3.6.       The Services that are governed under this Agreement consist of the following, subject to the client selecting them as appropriate from time to time:

 

·       acquiring Services;

 

·       provision of the Payment Gateway;

 

·       provision of the Merchant Account and possibility to administer payments, verify Transaction history and so on;

 

·       execution of Pay-outs;

 

·       POS Service (where selected on the Merchant Application Form);

 

·       Payment by Link (where selected on the Merchant Application Form); and

 

any additional services, if any, agreed from time to time by way of written addendum/amendment to this Agreement.

 

3.7.       To provide the Acquiring Services, Guavapay acts as the sole or primary Acquirer. In case third-party Acquirers are required or utilised to process Transactions, Guavapay shall notify the Merchant of the respective Acquirers that are engaged in the processing of Cards for different Card Schemes (and to the extent required, Merchant shall enter into any additional terms and conditions, if any, of such third-party Acquirers).

 

3.8.       Where Guavapay executes a Transaction or Refund in accordance with details provided by the Merchant, the Transaction or Refund will be deemed to have been correctly executed by Guavapay. Where the details provided by the Merchant are incorrect, Guavapay shall not be liable for the non-execution or defective execution of the Transaction or Refund, but Guavapay will make reasonable efforts to recover the funds involved in such a Transaction or Refund and Guavapay may charge the Merchant for any such efforts.

 

3.9.       Access to the Services or any part of the Services (including the Payment Gateway) may be changed, or partially or completely suspended, when, and to the extent, justified by circumstances, including but not limited to where it is necessary to ensure a secure and stable environment for the Services, where changes in Applicable Laws or Card Scheme Rules so require, where repairs, maintenance works, adaptations, changes or additions to the Services including any API or Payment Gateway software are required, or where measures are needed to identify and resolve faults arising in the Services.

 

3.10.   In the event of any suspension being required as described in clause 3.9, Service interruptions shall not be treated as constituting any breach of Guavapay’s obligations hereunder or, to the maximum extent permitted by Applicable Laws, result in Guavapay being liable to the Merchant for any Losses incurred as a consequence. Unless suspension of the Services stems from unplanned and unforeseen disruptions, Guavapay will inform the Merchant about the Services suspension in reasonable advance where possible.

 

4.              Guavapay’s Rights and Obligations

 

4.1.       Under this Agreement Guavapay shall:

 

4.1.1. act as an Acquirer and perform all necessary ancillary activities for the Merchant to be able to accept the Transactions utilising Cards of Card Schemes that are identified in the Merchant Application Form or otherwise approved by Guavapay from time to time;

 

4.1.2. provide the Merchant with access to the Services;

 

4.1.3. provide the Merchant with the Gateway Services via a connection to the Payment Gateway by the means of a Hosted Payments Page, and/or API or Plug Ins, as detailed in the API Terms of Use or Plug in Terms of Use (as relevant) entered into by and between the Merchant and Guavapay;

 

4.1.4. enable the Merchant to transfer Transaction Data from the Payment Gateway to Intermediary Institutions and Card Schemes which then will enable processing of the Transactions;

 

4.1.5. where agreed to be part of the scope of Services, set up the Fraud Risk Controls for monitoring fraudulent or suspicious activities of the Cardholders and adjust filters that are aimed at the reduction of fraudulent Payments;

 

4.1.6. open and maintain a Merchant Account which will allow the Merchant to view and manage recorded Transaction Data, and, in particular, view lists of Transactions made, and their status including Fraud Risk Controls, Authorisation, errors, Refunds, Reversals and Chargebacks, and manually initiate Refunds, as well as view the Reserve Amount.

 

4.1.7. provide the Merchant with the Merchant Credentials which will allow the Merchant to access information and perform operations on the Merchant Account;

 

4.1.8. provide ongoing technical support of the Services;

 

4.1.9. provide the Merchant with Processing Statement(s), or all required Transaction Data within the Merchant Account (as per sub-clause 4.1.6 above);

 

4.1.10.                be responsible for remitting or procuring remittal of Acquired Funds directly to the Merchant Bank Account;

 

4.1.11.                provide the Merchant with all the information necessary to effectively integrate the Merchant’s Website with the Payment Gateway (via the Hosted Payment Page or API, as relevant); and

 

4.1.12.                provide the Merchant’s information to the relevant Card Schemes subject to Applicable Laws.

 

4.2.       Guavapay reserves the right to demand from the Merchant any such confirmation as appropriate that the Merchant has supplied goods and/or services for which any Transaction has been made.

 

4.3.       Guavapay reserves the right and the Merchant agrees, that at any time, during the Term, Guavapay is entitled as part of its general compliance standards to:

 

4.3.1. act to identify the Merchant and apply risk-based appropriate measures to identify and verify its identity, and that of its Authorised Users, directors, representatives, shareholders and ultimate beneficial owners;

 

4.3.2. monitor business relations with the Merchant, including verification of Transactions carried out;

 

4.3.3. obtain information concerning the purpose and nature of business relations intended by the Merchant and additional information allowing Guavapay to assess the Merchant and each Transaction, including data held by the Merchant;

 

4.3.4. assess the Merchant’s compliance with the provisions of this Agreement;

 

4.3.5. evaluate the Merchant’s performance of obligations towards Cardholders related to Transactions and verify the manner in which Merchant has behaved in respect of Transactions; and/or

 

4.3.6. suspend the provision of Services at any time (with or without notice) in the circumstances and in accordance with the provisions of this Agreement.

 

4.4.       Guavapay may suspend the processing of all or any Transactions, Refunds, Representments or Retro-Charges (including activity which would otherwise have constituted a Transaction, Refund, Representment or Retro-Charge) where Guavapay reasonably believes that a Transaction, Refund, Representment or Retro-Charge (including activity which would otherwise have constituted a Transaction, Refund, Representment or Retro-Charge) may be fraudulent or involves any criminal activity, until the satisfactory completion of Guavapay’s investigation and/or that of any Regulatory Authority, Card Scheme, or any other third party.

 

5.              Merchant’s Rights and Obligations

 

General rules

 

5.1.       Under this Agreement the Merchant shall, on an ongoing basis:         

 

5.1.1   duly comply with Applicable Laws, Card Scheme Rules and Sanctions requirements and all terms and conditions of this Agreement which apply to Merchant;

 

5.1.2   only use the Services in accordance with Applicable Laws, Card Scheme Rules, and this Agreement;

 

5.1.3  only use the Services solely in connection with processing Transactions exclusively for such goods and/or services that fall into the MCC reported to and accepted by Guavapay and only those that are offered by the Merchant on the Merchant Website previously approved by Guavapay;

 

5.1.4  integrate its Merchant system with the Payment Gateway using the API or Plug In in the manner indicated in the API Terms of Use or Plug in Terms notified to Merchant from time to time, and in accordance with the guidance and Documentation supplied by Guavapay or make use of the Hosted Payments Page as permitted by Guavapay;

 

5.1.5  not attempt or permit submission of Transactions via the Payment Gateway other than for those Card Schemes which are identified in the Merchant Application Form or otherwise agreed with Guavapay;

 

5.1.6  regularly review and manage Transactions initiated with the use of the Payment Gateway, and via the Acquiring Services, and notify Guavapay promptly of any suspected unauthorised activity or of any unauthorised activity in respect of Transactions or any use or access of the Merchant Account;

 

5.1.7  deliver timely and diligently all goods and/or services sold by the Merchant and the subject of relevant Transactions;

 

5.1.8  collect, store and transmit appropriate Transaction Data in a secure manner, protect the privacy of such data, and comply with requests from Guavapay to take reasonable actions to maintain the security and integrity of the Services;

 

5.1.9  be responsible for its employees’ actions while in its employ; and

 

5.1.10 fully co-operate with any investigation required by Guavapay or any Card Scheme or Regulatory Authority which may arise in connection with the Transactions or Merchant activity hereunder, until the investigation is complete.

5.2.       In respect of Guavapay’s provision of Acquiring Services, the Merchant shall authorise Guavapay to collect Acquired Funds on behalf of the Merchant via the Payment Gateway for the purpose of subsequent Payouts to the Merchant in accordance with and subject to the terms of this Agreement.

 

5.3.       The Merchant undertakes to install and use 3-D Secure for all relevant Transactions, unless otherwise explicitly agreed in writing with Guavapay.

 

5.4.       The Merchant must not accept any Transaction if it has any reason to believe or is aware that a particular Card is being used by an unauthorised person or a payment made in breach of Card Scheme Rules or Applicable Laws, including in particular for illegal or prohibited purposes.

 

5.5.       The Merchant shall comply with all Card Scheme Rules regarding, among other matters: (i) security of Transactions, (ii) allowed Merchant Website content, (iii) Transaction Floor Limits (which is 0 for all Card Not Present Transactions unless notified otherwise by Guavapay), (iv) selling goods and/or services which fall within the Merchant’s approved MCC(s), (v) procuring Authorisations, and (vi) use of trademarks of Card Schemes. The Merchant accepts and acknowledges that Card Schemes may change standards applicable to Transactions at any time, and prohibit the Merchant from engaging in any conduct the Card Schemes deem potentially contrary to their rules.

 

5.6.       The Merchant is obliged to fully cooperate with Guavapay, Intermediary Institutions (if applicable), and Card Schemes, in order to clarify any doubts connected with Transactions, including but not limited to any complaints connected with them. In particular, the Merchant is obliged to provide promptly, but in no case later than within ten (10) Business Days, at each and every request of Guavapay or the Intermediary Institution, all necessary information and documents regarding any Transaction including but not limited to any customer terms and conditions to which the Transaction relates, as well as evidence attesting to provision of the goods and/or services for which the Transaction has been undertaken.

 

5.7.       The Merchant shall promptly, but not later than within three (3) Business Days, inform Guavapay of any changes to the Merchant’s business, its legal form, address, type of goods and/or services offered, changes in the ownership structure of the Merchant, as well as of any significant changes in the Merchant’s terms and conditions regulating provision of goods and/or services. The Merchant shall be fully liable for damages incurred by Guavapay or Intermediary Institutions as a result of failure to transmit the information about such changes to Guavapay promptly.

 

5.8.       The Merchant shall resolve any disputes of the Cardholders relating to the goods and/or services directly between the Merchant and such Cardholders. The Merchant must not include a clause in its terms and conditions that prevent or limit the Cardholders from raising any claims against the Merchant, or that refer the Cardholders to a third party for claim handling, unless otherwise agreed in writing by Guavapay.

 

5.9.       The Merchant shall retain relevant records attesting to the performance of obligations as contracted for in respect of Transactions, and all other documents related to the goods and services the subject of Transactions (estimates, invoices, proof of delivery, etc.), for at least two years from the date of the Transactions, and deliver them promptly at each and every request of Guavapay. This Clause 5.9 shall remain in force notwithstanding termination of this Agreement.

 

5.10.   The Merchant must not accept or process Recurring Transactions, deferred supply transactions, any prepayment, or a deposit using a Card unless Guavapay specifically allows the Merchant to do so in writing and then only in accordance with the Operating Guide.

 

The Merchant Website:

 

5.11.   The Merchant shall comply with the virtual front-end requirements for the Merchant Website set out in Schedule 3 of this Agreement. The Merchant shall also ensure the Merchant Website which has been integrated with the Payment Gateway will remain in a working state while prominently displaying the following:

 

5.11.1.  legal and trading name of the Merchant clearly identifying the Merchant, as well as contact details, including the exact addresses of registered office and branches and telephone number;

 

5.11.2.  a detailed description of goods and/or services offered on the Merchant Website, with a clear indication of the prices for each product and/or service;

 

5.11.3.  privacy policy of the Merchant, including information about transferring Personal Data of the Cardholders to Guavapay, compliant with relevant Data Protection Legislation;

 

5.11.4.  terms and conditions with a confirmation function of delivery of goods and/or provision of services by the Merchant that outline: (i) rules for the delivery of goods and/or services, (ii) return, refund policy in case the Cardholder’s complaint is accepted, (iii) the complaint procedure including the contact data (email address or telephone number) of the customer service office;

 

5.11.5.  trademarks of relevant Card Schemes that are accepted by the Merchant;

 

5.11.6.  specification of the available currency(ies), fees charged for the delivery, packaging, taxes, and all other applicable fees;

 

5.11.7. manner of communication to the Cardholder, where the Merchant Website or services are provided for a trial period, by the Merchant, prior to the end of the trial period but no later than when the obligation to pay arises, how the Cardholder may cancel the service without incurring any subsequent charges;

 

5.11.8.  subsequent notification of the Cardholder, after submission of an order by the Cardholder and successful authorisation of Transaction(s), that the Transaction was accepted and type of goods and/or services purchased;

 

5.11.9.  any export restrictions; and

 

5.11.10. any other information required by Applicable Law and Card Scheme Rules.

 

Specific Rules

 

5.12.   The Merchant undertakes to comply with the specific rules set out in Schedule 2 of this Agreement.

 

Authorised Users and Use of Merchant Account

 

5.13.   The Merchant shall have the right to register more than one Authorised User. Each additional Authorised User, whether it is an employee or a third-party, must undergo Guavapay required identification and verification procedures to be registered with Guavapay. The Merchant authorises Guavapay to treat and execute all orders and actions by all Authorised Users as if the Merchant has given that order or carried out that action itself.

 

5.14.   It is the Merchant’s responsibility to withdraw authority granted to any Authorised User. The Merchant is also responsible for all orders and actions relating to this Agreement performed by all Authorised Users.

 

5.15.   The Merchant shall ensure that the Merchant Credentials are not disclosed to any other person than the Authorised User. The Merchant shall take all reasonable actions to ensure that there is no unauthorised use of the Merchant Credentials or of any other Confidential Information employed in the provision of Services or use of the Merchant Account. However, if the Merchant suspects that there may be or has been or is aware that there has been unauthorised use of the Merchant Credentials or of any other Confidential Information used in the provision or use of Services and/or the Merchant Account, the Merchant shall notify Guavapay immediately by means of an email written to the general support email address indicated in the Application Form or otherwise notified to Merchant. Guavapay will use all reasonable endeavours to prevent unauthorised use of the Services and Merchant Account upon receiving such notification.

 

5.16.   Except as expressly permitted under this Agreement, Merchant must not copy, download, disclose or make available to any third party any data from the Merchant Account or the Documentation in whole or in part for any purpose whatsoever.

 

5.17.   Merchant is responsible for all Losses resulting from any unauthorised activity in connection with the Merchant Account (including use of Merchant Credentials). Merchant acknowledges and agrees that without limitation Guavapay may suspend the Services and/or at Merchant´s cost take such other steps as Guavapay considers necessary if Merchant has acted fraudulently or it has either intentionally or not, and whether or not through negligence, failed to comply with the provisions of this Agreement (including failing to protect its Merchant Credentials, or failed to notify Guavapay of any unauthorised Transactions under this Agreement).

 

Sanctions and Merchant Location Requirements

 

5.18.   Merchant shall comply in all respect with all Sanctions. Merchant undertakes that it is not, and will procure that none of its directors, officers, agents, employees or persons acting on behalf of the foregoing is, a Restricted Person and does not act directly or indirectly on behalf of a Restricted Person.

 

5.19.   Merchant shall to the extent permitted by law promptly upon becoming aware of them supply to Guavapay details of any claim, action, suit, proceedings or investigation against Merchant or the persons listed in clause 5.18 above with respect to Sanctions by any Sanctions Authority/ies.

 

5.20.   Merchant warrants and undertakes that it: (i) has a permanent establishment and/or business registration in the country referenced as its address in the Merchant Application Form which is where the Acquiring Services are provided; and (ii) will abide by all relevant accounting principles as they apply to Merchant and record the Transactions that Guavapay processes for Merchant in the accounting records of the permanent establishment/business registration as the case may be fully and properly in accordance with those principles and the Card Scheme  Rules.

 

Evidence of Card Transactions

 

5.21.   Guavapay may at any time require Merchant to prove to Guavapay’s satisfaction that any Card Transaction was authorised by the Cardholder. Merchant must retain the original paper, microfilm or electronic copy of the Transaction sales receipt and any Refund receipt for at least eighteen (18) months from the date of the Card Transaction (or for Recurring Transactions, at least eighteen (18) months from the date of the last Card Transaction forming part of the Recurring Transaction) and produce them to Guavapay or its agents on request. Failure to do so within the period set by Guavapay may result in a Chargeback.

 

5.22.   If any Transaction Data that have been submitted are lost or damaged, Merchant will resubmit the relevant data by the method agreed between Merchant and Guavapay.

 

5.23.   It is Merchant´s responsibility to ensure that all Transaction Data, which Merchant retains or is submitting to Guavapay or its agents, are complete and not damaged and that all Transaction Data is securely held in accordance with the Operating Guide and can be reconstituted in a complete and easily readable form.

 

5.24.   Neither Guavapay nor its agents will in any circumstances, other than if due to its negligence, be liable in respect of the face value of any Transaction Data which Merchant retains or is submitting to Guavapay in the event of loss or damage to such Transaction Data, or for the costs of reconstituting such Transaction Data, or for any other loss or damage. If any loss or damage to any physical medium containing any Transaction Data is due to Guavapay negligence, we will reimburse to you the replacement value of the lost or damaged medium.

 

6.              Prohibited Activities

 

6.1.       The Merchant shall at all times comply with Guavapay’s Prohibited Use Policy available on the Website (link:          https://myguava.com/legal/GB/policies/prohibited-use-policy), as such policy may be updated from time to time.

6.2.       Under this Agreement the Merchant is prohibited from the following acts and/or omissions:

 

6.2.1. use of the Services in a manner that violates Applicable Laws, Card Scheme rules, is contrary to good practices, or infringes any third-party rights;

 

6.2.2. engaging in any activity that could cause harm to the Card Schemes systems or brands;

 

6.2.3. sublicensing, subcontracting, or otherwise making any part of the Services available for use to any third party;

 

6.2.4. providing information that is false, inaccurate or misleading;

 

6.2.5. refusing or evading to confirm its identity or any other information provided to Guavapay, including refusing to supply additional documents, clarifications, and information that were requested by Guavapay;

 

6.2.6. conducting business or using the Services in a way which may result in complaints, disputes, Chargebacks, Fees, or Other Charges being imposed on Guavapay, the Merchant, Intermediary Institutions, or third parties;

 

6.2.7. any such action or omission which may expose Guavapay to credit or fraud risk, risk of breaching any of the legal obligations, reputational risk, or sudden increase of such risks, which shall be determined in the sole and absolute discretion of Guavapay;

 

6.2.8. tampering or attempting to tamper the Merchant Account or Payment Gateway; and/or

 

6.2.9. taking any action which imposes an unreasonable or disproportionately large workload on Guavapay or present a risk to the security or stability of Guavapay systems including the Payment Gateway.

 

6.3.       The Merchant acknowledges and accepts not to sell goods and/or provide services linked to:

 

6.3.1. child pornography;

 

6.3.2. adult content;

 

6.3.3. content that contains violence or perversions;

 

6.3.4. drugs;

 

6.3.5. weapons;

 

6.3.6. activities that incite national and religious discord;

 

6.3.7. tobacco products;

 

6.3.8. medical products and medicines;

 

6.3.9. activities that infringe on copyright (digital content (music, videos, and/or software), designer (branded) products, counterfeit medicines, etc.);

 

6.3.10. timeshares;

 

6.3.11.  replicas;

 

6.3.12.  acquisition, exchange and sale of crypto currency (exchanges, wallets, etc. services), other analogues of virtual currencies and other quasi-cash; attraction of investments in the form of sale to investors of a fixed number of new units of cryptocurrencies (ICO and its varieties);

 

6.3.13. trading binary options and similar financial instruments with impossible conditions for the withdrawal of previously deposited funds from the system;

 

6.3.14.  activities that may be misleading or deceiving for the Customer (goods with a short period of free testing and with no opportunity to reject the goods; delivery of the Customer’s Personal Data to a third party; the need for the holder’s express rejection of extra services or goods at the website; and/or fraudulent fundraising or activities that imitate provision with governmental services or activities of a website that are thought to be conducted with celebrities’ approval or participation, etc.); and

 

6.3.15. other goods or services whose sales violate requirements of Applicable Laws in the UK or any other relevant territory, including but not limited to:

 

                                                   i.     waste generated in the process of chemical weapons destruction;

 

                                                  ii.     museum objects and museum collections that are part of the Museum Fund of the UK;

 

                                                iii.     precious stones in nuggets;

 

                                                iv.     pesticides characterized by an increased probability of a negative effect on people’s health and the environment, this probability confirmed by registration tests of pesticides and agrochemicals;

 

                                                 v.     counterfeit medical and dental devices that have not been approved by regulators or whose life has expired, such as condoms; prescription contact lenses and coloured contact lenses; intravascular catheters; implants for breasts and other body parts; devices and equipment for use by hospitals, doctors, and dentists; diagnostic kits for tests for HIV, diabetes mellitus and pregnancy, etc.;

 

                                                vi.     cyberlockers;

 

                                              vii.     modchips (devices used to bypass technical capabilities for copyright protection in many popular game devices, including game consoles, in order to run copies of licensed games and applications and proprietary programs); and/or

 

                                            viii.     activity on attraction of funds of physical persons in the large size at which payment of the income is performed at the expense of the attracted money of other physical persons in the absence of investment and (or) other legal business activity connected with use of the attracted money in the volume comparable to the volume of the attracted money (investment and financial “pyramids”).

 

7.              Fees and other amounts due to guavapay

 

7.1.       The Fees applicable to the provision of Services under this Agreement are set out on the Website, unless separately set out in the Merchant Application Form or a relevant pricing schedule annexed or incorporated by reference into the Merchant Application Form and agreed to by Guavapay. All applicable Fees are immediately due and payable subsequent to the provision of Services, unless otherwise agreed. Guavapay may charge interest on unpaid sums at the rate of 2% per year above Bank of England base rate from time to time. Interest shall accrue on a daily basis on any sum that Merchant fails to pay on time and will continue to accrue until Merchant has paid the sum due (including interest) in full.

 

7.2.       Unless agreed otherwise between Guavapay and the Merchant, all Fees are exclusive of VAT and any other taxes under any Applicable Laws. The Merchant will be solely responsible for paying any such applicable taxes (other than taxes arising on Guavapay´s income).

 

7.3.       If requested Merchant agrees to complete and sign a direct debit mandate authorising the bank/financial institution at which Merchant holds the Merchant Bank Account to pay on presentation all requests for payment of a direct debit originated by Guavapay in respect of sums due under this Agreement. Merchant will not during the Term of this Agreement revoke such mandate other than to change its account to another bank. If Merchant intends to so change its account, it must give Guavapay at least thirty (30) days written notice and must complete a new direct debit mandate to the new bank.

 

7.4.       The Fees due from the Merchant to Guavapay and amounts credited on the Reserve Account shall be displayed in the Merchant Account and/or provided to Merchant on a periodic basis in the Processing Statements.

 

7.5.       The Merchant undertakes to also reimburse Guavapay for any and all of the following payments:

 

7.5.1  the amount of any Refunds issued (if not already deducted from sums paid by Merchant to Guavapay);

 

7.5.2  the amount of any overpayments made by Guavapay in respect of Transaction Data;

 

7.5.3  the amount of any payments made by Guavapay in respect of invalid Transaction Data and/or Chargebacks or Chargeback costs;

 

7.5.4  the amount of any fees, fines, penalties and/or Other Charges payable by Guavapay to a Card Scheme, Card Issuer, Intermediary Institution, Regulatory Authority or any other person as a result of any failure by Merchant to comply with the PCI DSS, Card Scheme Rules, Applicable Laws or this Agreement.

 

7.6.       Guavapay may collect any Fees or Other Charges or any other sums referenced under clause 7.5, by any one or more of the following means (but in no particular order): (i) by utilising the direct debit mandate to debit such amount from the Merchant Bank Account, (ii) by debiting such amounts from the Acquired Funds, without notice or demand, before the making of any corresponding Payouts; (iii) by debiting such amounts from the Reserve Amount; (iv) by invoicing such amounts to the Merchant; and/or (v) by taking any lawful collection measures, in court or otherwise to collect such sums.

 

7.7.       Merchant will open and maintain in its name a Merchant Bank Account throughout the Term of this Agreement and for such period as may be required thereafter (in any case not less than twelve (12) months after Agreement termination) for the purposes of any applicable provisions of this Agreement. Merchant will ensure that the Merchant Bank Account shall at all times have a credit balance sufficient to meet any sums due and payable to us under or in connection with this Agreement. This clause 7 shall not prejudice any Merchant rights under Applicable Laws or the UK Direct Debit Guarantee Scheme to recover payments made to Guavapay by direct debit.

 

7.8.       Fees related to repayment (including but not limited to Refunds, Reversals, or Chargebacks) of funds to Cardholders are subject to the following:

 

7.8.1. any and all repayments which Guavapay makes on behalf of or for the Merchant shall correspondingly reduce the amount of Acquired Funds due for Payout. In the event that the Acquired Funds are insufficient to cover the costs of repayment then such repayment may be made from the Reserve Amount. If the Acquired Funds or Reserve Amount are insufficient to cover the costs of repayment then the Merchant shall pay the difference on the basis of an invoice or a debit note issued by Guavapay within the due date indicated therein, or Guavapay may utilise its direct debit mandate rights over the Merchant Bank Account to recoup such sum;

 

7.8.2. where the Merchant does not have sufficient funds held with Guavapay to cover the costs of the repayment, or where the satisfaction of the repayment request would involve excessive difficulties or costs disproportionate to the amount of the actual repayment, Guavapay may refuse the request, excluding instances relating to Chargebacks and/or Reversals, and in so doing it must inform the Merchant thereof.

 

7.9.       Where the Fees and/or Other Charges or other sums due Guavapay are collected by invoicing the amount to the Merchant, the Merchant must pay sums due under any invoice under this Agreement within ten (10) Business Days from the date of receipt of the invoice. Interest shall accrue on any unpaid invoice owed by the Merchant to Guavapay at the rate detailed in clause. The Merchant shall pay the interest together with the overdue amount.

 

7.10.   Fees may be varied by Guavapay in accordance with clause 24 of this Agreement.

 

8.              PAYments to merchant  

 

8.1.       Guavapay will show the amount of each Transaction in the Merchant Account following or conditional upon Guavapay’s receipt of the corresponding Acquired Funds. For the avoidance of doubt, each Payout is subject to and dependent on Guavapay being Settled with the corresponding Acquired Funds.

 

8.2.       To the extent Acquiring Services are rendered in the Merchant’s favour resulting in Settlement of Acquired Funds, the corresponding Payouts will be initiated to the Merchant. Notwithstanding the foregoing, and subject to the remaining provisions of this clause 8, such Payout shall occur not earlier than the moment when the Acquired Funds are actually received by Guavapay (and amounts due to Guavapay netted off), and typically the remittal period shall be T+2.

 

8.3.       Any Pay-out involving currency conversion shall be performed at the exchange rate of Guavapay which will be indicated in the Merchant Account or otherwise communicated to the Merchant by Guavapay at the time of the execution of the order, unless the Merchant and Guavapay have agreed that a pre-determined exchange rate shall be applicable.

 

8.4.       Guavapay may without notice withhold payment of sums relating to Card Transactions if Guavapay suspects that any Transaction between Merchant and a Cardholder:

 

8.4.1. is fraudulent;

 

8.4.2. involves any other illegal activity;

 

8.4.3. was not in the ordinary course of Merchant´s business; or

 

8.4.4. was non-compliant with PCI DSS obligations under this Agreement.

 

8.5.       Guavapay may continue to withhold payment due to Merchant until in Guavapay´s reasonable opinion any of the matters referred to in clauses 8.4.1 to 8.4.4 (inclusive) no longer apply and such Transactions are no longer liable to be the subject of a Chargeback.

 

8.6.       Guavapay may alter the way it settles Transactions between Merchant and a Cardholder by migrating Merchant to a system under which Guavapay settles such Transactions by holding back payments to Merchant for a pre-determined number of days (“Deferred Payment”) if:

 

8.6.1. Guavapay provides written notice of termination of this Agreement;

 

8.6.2. Guavapay reasonably suspects that Merchant´s financial position has deteriorated;

 

8.6.3. the number and/or size of Transactions becomes in Guavapay´s opinion excessively high for a business of Merchant´s type and size; or

 

8.6.4. based on Guavapay reviews of Merchant´s processing history, Guavapay is of the opinion that there is a potential risk of Losses to Guavapay through Chargebacks.

 

8.7.       Where Guavapay moves (or intends to move) the Merchant on to a system of Deferred Payment, we will tell you when the Deferred Payment will start (which other than in cases of urgency or where we exercise our rights under this clause will be at least seven (7) days after Guavapay contacts the Merchant) and explain the terms on which Transactions will be Settled from that date.

 

8.8.       No interest shall accrue in respect of any amount withheld under this clause 8, and Guavapay disclaims liability to Merchant for any deferment/withholding of any Payouts otherwise due to you effected pursuant to any right of Guavapay to so defer or withhold payment to the Merchant under any provision of this Agreement.

 

9.              security and set off

 

9.1.       Guavapay may at any time, acting reasonably, require Merchant to provide additional or new collateral (as the case may be) in a form to be decided by Guavapay where, in Guavapay´s absolute discretion, Guavapay determines that such collateral is necessary to act as security in relation to the performance of Merchant obligations under this Agreement on account of, inter alia, Chargebacks, Refunds, corrections and Merchant liability for Losses suffered by Guavapay, penalties, fines and all other amounts which Merchant owes or may in future owe to Guavapay under or in connection with this Agreement.

 

9.2.       By way of illustration only, Guavapay may establish a Reserve Account in relation to Merchant, require Merchant or a Merchant Group Company to provide guarantees or other security, and/or apply special terms and conditions in relation to Merchant acceptance of Card Transactions at any time, for the purpose of providing a source of funds to pay Guavapay for any and all Merchant liabilities.

 

9.3.       The Reserve Account may, at Guavapay´s reasonable discretion, be funded by: (i) requiring Merchant to deposit into the Reserve Account a cash amount determined by Guavapay within seven (7) Business Days of written notice from Guavapay; (ii) Guavapay debiting the Merchant Bank Account for any amount for deposit to the Reserve Account; and/or (iii) Guavapay depositing into the Reserve Account any payments that we are obliged to pay to Merchant (e.g. Payouts) under this Agreement.

 

9.4.       The level of any Reserve Amount in the Reserve Account may be set in Guavapay´s sole discretion and increased or decreased by Guavapay as it may determine from time to time.

 

9.5.       Without prejudice to the generality of clause 9.2 and Guavapay´s discretion under clause 9.4, Guavapay may create a Rolling Reserve from the funds collected on the Reserve Account (e.g by deducting 10% from each Transaction amount as a rolling reserve for 180 days). Alternatively, Guavapay may create a Fixed Reserve by the means of Merchant prefunding a certain amount on the Reserve Account. The amount and period of possession of the Fixed Reserve shall be determined by Guavapay from time to time and notified to the Merchant.

 

9.6.       Guavapay may also convert a Rolling Reserve into a Fixed Reserve at any time it deems relevant and retain such funds on the Reserve Account. The amount and period of possession of the Fixed Reserve shall be determined by Guavapay at the time of conversion and notified accordingly to the Merchant.

 

9.7.       All funds held in any Reserve Account and all rights, title and interest to such funds, are at all times (and in the event of Merchant becoming involved in any insolvency event) exclusively for Guavapay´s benefit and vested in Guavapay.

 

9.8.       If Guavapay request that Merchant provides, or ensure that a Merchant Group Company provides, a parent company guarantee, such guarantee shall be provided in the form prescribed by Guavapay.

 

9.9.       The Merchant hereby irrevocably authorises Guavapay, from time to time and at any time, without notice, and both before and after demand, to set off by whatever means the whole or any part of Merchant´s liabilities (including but not limited to Fees and Other Charges or other sum owed by Merchant to Guavapay) to Guavapay under this Agreement, against (i) any Payout due to the Merchant and/or (ii) against the Reserve Amount, and/or (iii) any other sums (whether or not related to the Transaction that gave rise to the liability) held by Guavapay or owed to the Merchant under this Agreement or any other agreement with Guavapay.

 

10.         Fraudulent Payments and Safeguards

 

10.1.   If the Cardholder submits a claim, that in particular demands a return of funds in connection with an executed Transaction, Guavapay may freeze the funds collected to the extent necessary to wholly cover the claim. Such freezing does not limit or otherwise preclude the right to Payout of non-frozen Pay-out funds.

 

10.2.   If Guavapay has justified reasons to believe that the Merchant (or a third party acting on behalf or otherwise with the consent of the Merchant) has engaged or is engaging in prohibited activities described under clause 6 of this Agreement, or it undertakes other actions which expose Guavapay or any other third parties, Card Schemes and Intermediary Institutions (if applicable) included, to the risk of claims, Chargebacks, Reversals, Refunds, Other Charges, or the Merchant’s financial standing has significantly deteriorated, then Guavapay, without incurring any liability whatsoever towards the Merchant, may:

 

10.2.1. block the Merchant Account, or suspend Services in their entirety or in part;

 

10.2.2. block the Merchant Account and freeze all or part of the Acquired Funds then within its possession or control in accordance with provisions of this Agreement;

 

10.2.3. submit the Merchant to Internal Guavapay Program;

 

10.2.4.  increase the level of any Reserve Amount (whether via a Fixed Reserve or Rolling Reserve) by any means available to it under this Agreement;

 

10.2.5.  change existing, or introduce additional, Trading Limits applicable to the Merchant;

 

10.2.6.  decline any Transaction, especially in case of justified doubts as to the legality of the underlying transaction or as to the legality of the Transaction itself;

 

10.2.7.  demand additional information or documents from the Merchant; and/or

 

10.2.8.  terminate this Agreement with immediate effect.

 

10.3.   Acquired Funds may be withheld if there is a justified necessity to protect Guavapay or the Merchant against the risk of liability, and at least until the right to initiate a Chargeback or a Reversal by the Cardholder has expired.

 

10.4.   Guavapay will release the frozen funds when it determines that the risk associated with the Transaction or the risk associated with the Merchant or its business no longer applies or has been materially reduced. The Merchant agrees to cooperate closely with Guavapay in order to determine whether the above risk has ceased to exist or sufficiently reduced, in particular by providing necessary supporting information and documents.

 

10.5.   If the Merchant disputes Guavapay’s decision regarding the freezing of the Acquired Funds, the Merchant may terminate this Agreement with Guavapay in accordance with clause 24. In such case, the funds in question will be nevertheless held for a period of up to 180 days from the effective termination date of this Agreement or longer where permitted and/or required under Card Scheme Rules and/or Applicable Law.

 

10.6.   In order to contain the risk connected with processing Transactions on behalf of the Merchant, Guavapay may also limit the amount of a single Payout to the Merchant or change/defer the dates of Pay-outs.

 

11.         Payment Interface, PCI DSS AND USE OF THE PAYMENT GATEWAY

 

Payment Interface and PCI DSS Compliance

 

11.1.   The type of payment interface which the Merchant will use for the enjoyment of Acquiring Services, and whether any API, Plug In or use of a Hosted Payment Page will be applicable depends on the nature of the business of the Merchant and shall be discussed and confirmed with Guavapay. The Merchant is obliged to follow the rules and guidance provided by Guavapay when setting up one or another type of payment interface.

 

11.2.   As a general rule and unless the Merchant is allowed to use the API or Plug In, the Merchant shall not capture, register or make Cardholders complete any Transaction details on the Merchant Website but shall use for such purposes the Hosted Payment Page. The Merchant shall ensure that Cardholders submit all of the Transaction details therein. The Merchant shall not use screen grabbing or other emulation technologies to input payment details into the Hosted Payment Page.

 

11.3.   Only where Guavapay explicitly and in writing agreed to allow the Merchant to accept Transactions by the means of the API the Merchant shall be entitled to use such for Acquiring Services, and on the basis of any notified API Terms.

 

11.4.   The Merchant must at all times fully comply with the current PCI DSS Standards and on Guavapay’s request demonstrate such compliance and provide self-assessment questionnaires and/or valid certification (as the case may be) of its compliance together with any other documents which may be requested by Guavapay. If the Merchant cannot prove the compliance and/or its prior certification becomes invalid, the Merchant shall notify Guavapay immediately.

 

11.5.   Guavapay has right to immediately suspend the provision of its Services to the Merchant in case Guavapay has any indication that the Merchant is not compliant with the PCI DSS Standards and which Merchant cannot immediately prove to be unfounded. The Merchant shall fully indemnify and hold Guavapay harmless in respect of any Losses and claims (including those of Card Schemes) Guavapay incurs or suffers as a result of the Merchant’s breach of its obligations outlined under this clause 11.

 

11.6.   The Merchant must notify Guavapay immediately of its use of any service provider that will have access to Cardholder data and the purpose of such access. A Merchant using service providers must:

 

11.6.1.  validate that the service providers are certified as compliant with the PCI DSS or a similarly established data security standard; and

 

11.6.2.   provide Guavapay with information on any service providers that the Merchant uses or intends to use.

 

Payment Gateway

 

11.7.   Guavapay hereby grants to Merchant a personal, non-exclusive and non-transferable right to use the Payment Gateway for the Term in relation to the Transactions, for the purposes expressly described in the Documentation.

 

11.8.   Merchant shall not, and shall not cause or permit any third party to:

 

11.8.1.  use the Payment Gateway in any way, other than in accordance with this Agreement or as otherwise instructed by Guavapay in writing;

 

11.8.2.  circumvent or attempt to circumvent any applicable security measures of any element of the Payment Gateway including disassembling, decompiling, decrypting, extracting, reverse engineering or modifying its Software, or otherwise applying any procedures or process to the software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the software or any algorithm, process, procedure or other information contained in the software;

 

11.9.   Guavapay reserves the right in its absolute discretion, without prior notice, to suspend the provision of the Payment Gateway for a reasonable period of time for any reason including, but not limited to, maintenance and/or Payment Gateway software upgrades.

 

11.10. Merchant acknowledges that neither Guavapay nor any of its subcontractors underwrites or agrees to compensate Merchant or any third party (including Merchant customers) for the value of any Transaction (or Transaction Data) as a result of any failure or delay in processing of any such Transaction pursuant to or in connection with this Agreement. Merchant´s sole remedy for such failure or delay shall be for us to use commercially reasonable endeavours to complete processing of the relevant Transaction as soon as practicable after receipt of notification from Merchant of the relevant failure or delay.

 

11.11.The provision of the Payment Gateway does not give rise to additional or separate liability for the Authorisation or non-Authorisation of Transactions, Chargebacks or any other Losses incurred by Merchant.

 

11.12.Merchant acknowledges and accepts that Guavapay will only be able to provide the Payment Gateway to Merchant if Merchant properly collects and delivers relevant data (including, if applicable, Transaction Data) to Guavapay in accordance with this Agreement, the Documentation or as otherwise advised by Guavapay.

 

11.13. Merchant acknowledges and accepts that neither Guavapay nor its subcontractors shall have any liability whatsoever or howsoever to Merchant in relation to any data submitted by Merchant or the results of the Payment Gateway, including any Authorisation request sought on Merchant´s behalf.

 

11.14. Merchant acknowledges and accepts that Guavapay does not in any way guarantee the valid or non-fraudulent use of any payment method for the purchase of goods or services or of any of the Payment Gateway by Merchant customers. Fraudulent or invalid use of a payment method cannot be exhaustively checked for and Guavapay expressly excludes any liability for invalid or fraudulent use of any payment method or any of the Payment Gateway, to the maximum extent permitted by Applicable Laws.

 

12.         floor and Trading LimitS and Fraud Risk Controls

 

12.1.   In order to reduce the level of Transaction risk and to ensure security in and of the Acquiring Services and Guavapay itself, Floor Limits and Trade Limits shall be fixed for the Merchant in proportion to the level of risk involved in its activity as determined by Guavapay in its sole and absolute discretion. Trading Limits and Floor Limits may not be exceeded. Guavapay may from time to time notify Merchant of a Trading Limit and/or a Floor Limit.

 

12.2.   Any changes to the Floor Limits or Trading Limits are subject to consent by Guavapay and also, if necessary, grant by the Merchant adequate protection against the risk involved, including but not limited to such an undertaking as an increase of the amounts held in the Reserve Account.

 

12.3.   Guavapay is entitled to refuse the total value of a Transaction which exceeds its respective Floor Limit. In the event that Guavapay accepts any Transaction above the Floor Limit, the Merchant acknowledges that such Transaction may be charged back in total to the Merchant at a later date. The Merchant shall not exceed the Floor Limit or complete a Transaction in excess of the Floor Limit without the prior written approval of Guavapay.

 

12.4.   Guavapay shall have discretion in determining which fraud prevention tools to use and for setting or modifying filters that provide which Transactions to accept or decline on the Merchant’s behalf and flag Transactions as potentially fraudulent.

 

12.5.   Guavapay does not represent or warrant that the Fraud Risk Controls are error-free or that their use will identify all fraudulent Transactions. In addition, Guavapay shall not be liable for any Losses of the Merchant resulted from a Transaction which was accepted or rejected due to the Fraud Risk Controls.

 

13.         Ongoing compliance Monitoring

 

13.1.   The Merchant shall be subject to ongoing, lawful monitoring which shall include, but is not limited to, the periodic review of the Merchant Website, products and services, and of customer due diligence documentation submitted to Guavapay.

 

13.2.   Where the Merchant is obliged to provide additional or updated documentation or make any change to the Merchant Website in light of said ongoing monitoring procedure, the Merchant may be automatically placed into an Internal Guavapay Program.

 

13.3.   The Merchant agrees that Guavapay shall have an undisputed right to place the Merchant under supervision in Guavapay´s Internal Guavapay Program, which the Merchant will be obliged to follow, subject to Applicable Laws, and all reasonable instructions of Guavapay. Such right or use of the Internal Guavapay Program does not limit or preclude Guavapay exercising any right it may have to suspend the provision of the Services. Such suspension shall not require prior notice provided that, upon the determination by Guavapay that it shall suspend its Services, it shall notify the Merchant in writing of the same and require the Merchant to carry out corrective measures it deems necessary in a timely manner.

 

13.4.   The terms of the Internal Guavapay Program on which the Merchant is placed shall be notified to the Merchant in a timely manner. Where Merchant unreasonably refuses to cooperate with such program, or fails to respond or comply with reasonable requests for information or action, such refusal or failure shall be deemed a breach of Merchant obligations, and entitle Guavapay to terminate this Agreement at any time thereafter on immediate written notice.

 

14.         Support Service

 

14.1.   The Merchant can contact the Customer Support service of Guavapay at all times by:

 

14.1.1.  writing a letter to this address: Customer Support, Guavapay Limited, Salisbury House, 29 Finsbury Circus, London EC2M 5QQ, United Kingdom;

 

14.1.2.  writing an email to us at  [email protected];

 

14.1.3. phone on +44 204 577 1440;

 

14.1.4. chat through the app or Website; and/or

 

14.1.5. filling a form on the Website           https://myguava.com/business/contact-us.

 

15.         Data Protection, data security and audit rights

 

Data Protection

 

15.1.   The Parties agree to the following provisions in respect of their obligations under Data Protection Legislation.

 

15.1.1.   Personal Data Processing

 

Legal Compliance: Both Guavapay and Merchant, each acting as a Data Controller, will process the Personal Data in compliance with applicable Data Protection Legislation.

 

Purposes of Processing: Guavapay will only process the Personal Data:

 

·       as required in order to meet Guavapay´s obligations pursuant to this Agreement;

 

·       as agreed in writing between the Parties;

 

·       as required or allowed by Applicable Laws relating to Guavapay;

 

·       for fraud prevention or investigation purposes, or other risk management purposes;

 

·       for customer identification and information verification purposes, including in connection with "know your customer", anti-money laundering or anti-terrorism financing purposes;

 

·       in accordance with Card Scheme Rules;

 

·       to enforce Guavapay´s rights, or the rights of other persons in a financial transaction; or

 

·       to comply with Guavapay policies applicable to Guavapay´s obligations under this Agreement, including to protect the security of the Personal Data.

 

15.1.2.  Information Transparency

 

·        As a Data Controller of the Personal Data, Merchant will provide an information notice to Data Subjects meeting the requirements of Data Protection Legislation, including the information referred to in Articles 13 and 14 of the GDPR; and

 

·        As a Data Controller of the Personal Data, Guavapay will provide an information notice to Data Subjects meeting the requirements of Data Protection Legislation, including the information referred to in Articles 13 and 14 of the GDPR.

 

15.1.3.  Mutual Assistance

 

Each Party will provide the other Party with such assistance and co-operation as it reasonably requests to enable the requesting Party to comply with any obligations imposed on it by Data Protection Legislation in relation to the processing of the Personal Data. A Party will be entitled to refuse or limit its assistance where the requesting Party is in the position to fulfil the obligations without that Party’s assistance.

 

15.1.4. Communication Notices

 

All notices and other communications between the Parties under this clause 15 must be provided in accordance with the Notices provision and, in the case of Guavapay, also by email to its Data Protection Officer, [email protected].

 

15.1.5. Guavapay’s Privacy Notice

 

For full details of Guavapay´s Privacy Notice, please visit the Guavapay Website at https://myguava.com/legal/GB/policies/privacy-policy.

 

Data Security

 

15.2.   Merchant must and Merchant will ensure that its agents and any sub-contractors have in place appropriate technical and organisational security measures which ensure an appropriate level of security for the processing of Cardholder Information and protect Cardholder Information against accidental or unlawful destruction or alteration, accidental loss, or unauthorised disclosure access or processing.

 

15.3.   Merchant will notify Guavapay no later than twenty-four (24) hours after if it becomes aware of a Personal Data breach, and provide to Guavapay as much detail relating to the breach as is available to it at the time of such notification, including the information required by Articles 33 and 34 of the GDPR, and will provide Guavapay with regular updates to this information as the Merchant becomes aware of it. The Merchant will maintain a log of Personal Data breaches.

 

15.4.   Merchant shall notify Guavapay immediately if it becomes aware of or suspects any security breach relating to Data (whether or not the Merchant has complied with the PCI DSS). As soon as reasonably practicable, Merchant shall also (and without prejudice to any other remedy Guavapay has in respect thereof) immediately identify and resolve the cause of such security breach and take any steps that Guavapay may require of Merchant to do so.

 

Audit Rights

 

15.5.   No more than once annually during the Term of this Agreement (unless prompted by a request from a Regulatory Authority or Card Scheme or any event or events giving rise to a security breach pertinent to this Agreement), within twenty-eight (28) days' written notice from Guavapay, the Merchant will: (i) permit Guavapay and/or its duly authorised representatives to access during business hours such premises or systems on which the Merchant's business trades or where the Merchant's records are located and to take and retain copies of all such records to ascertain if the Merchant is performing its obligations hereunder; and (ii) provide all reasonable cooperation in relation to such audit.  Any records so accessed and/or copies so taken shall, for the avoidance of doubt, be deemed to be Merchant Confidential Information.  Where such audit is undertaken at the specific request of a Card Scheme, the Merchant shall pay any costs and charges reasonably incurred by Guavapay in respect of such audit.

 

16.         Confidentiality And use of information

 

16.1.   Each Party shall treat Confidential Information as strictly confidential and neither Party shall disclose Confidential Information without the written consent of the other Party, except as permitted by Clauses 16.2 to 16.4.

 

16.2.   Each Party shall be entitled to disclose Confidential Information without prior notice to the other:

 

16.2.1.  if required under Applicable Laws; and/or

 

16.2.2.  if requested by any Regulatory Authority or by any competent court, in each case having jurisdiction over that Party; and/or

 

16.2.3.  in order to disclose Transaction Data about Refunds and Chargebacks to the Intermediary Institutions; and/or

 

16.2.4.                if the disclosure is to its professional advisers acting under a duty of confidentiality in relation to that Confidential Information.

 

16.3.   Guavapay is entitled to disclose Confidential Information about the Merchant to Intermediary Institutions or Card Schemes or to any of its Group Companies or Regulatory Authority/ies for the purpose of Applicable Laws or Card Scheme Rules compliance, or to meet its obligations or enforce its rights (including without limitation customer/KYC due diligence and other compliance monitoring) or provide Services under this Agreement.

 

16.4.   Each of the Parties shall be entitled to disclose the existence of this Agreement without prior notice to the other. Each Party will take all action reasonably necessary to secure the other Parties’ Confidential Information against theft, loss or unauthorised disclosure.

 

16.5.   Other than as expressly permitted under this Agreement, on termination of this Agreement for whatever reason, each Party shall forthwith cease to use any Confidential Information of the other Parties 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 a Party will be permitted to retain such part of the Confidential Information for the purposes of and for so long as required by any Applicable Laws or its legitimate internal compliance requirements. Any obligation to destroy or permanently erase Confidential Information shall not be applicable to Confidential Information that forms part of an electronic back-up system which is not immediately retrievable as part of day-to-day business.

 

16.6.   The obligations in this clause 16 shall survive the termination of this Agreement.

 

17.         Intellectual Property RIGHTS

 

17.1.   “MyGuava”, “MyGuava Business”, “Guavapay” are trademarks and “Guavapay.com” is a domain of Guavapay (collectively referred to in this Clause 17 as “Marks”). These Marks may neither be used in connection with third-party products or services in any manner that may be misleading to existing or potential customers nor be used so as to discredit or otherwise damage the reputation of Guavapay or any Guavapay Group Company/ies or their Services. These Marks may be used by the Merchant exclusively in a manner as defined in this clause 17 below.

 

17.2.   Guavapay grants the Merchant a non-exclusive and non-transferable license to use the Marks in order to inform Cardholders and users of the Merchant’s Website about the cooperation established with Guavapay and the possibility to undertake Transactions via the Payment Gateway. The license is granted for the Term of this Agreement.

 

17.3.   Without written permission from Guavapay, it is strictly forbidden to sell, license, rent, modify, distribute, reproduce, transmit, publish, adapt, publicly display or create (derivative) works from materials or content or any other Intellectual Property Rights that Guavapay provides on its website or within the Services.

 

17.4.   The Merchant grants Guavapay, without extra remuneration, a non-exclusive license to use, present and copy the Merchant’s logo exclusively for the purposes of marketing Guavapay services.

 

17.5.   The Merchant acknowledges that trademarks of the Card Schemes and Intermediary Institutions are their own property, and the Merchant commits to refrain from challenging any rights therein. The Card Schemes and Intermediary Institutions may, at any time, without prior notice and for any reason, prohibit the Merchant from using their respective trademarks or order the Merchant to use them in a different way.

 

18.         LIABILITY AND INDEMNITIES

 

18.1.   Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:

 

·       death or personal injury caused by negligence;

 

·       fraud or fraudulent misrepresentation; and

 

·       breach of any implied terms.

 

18.2.   Nothing in this clause 18 shall limit the Merchant's payment obligations under this Agreement, including under clause 7 (Fees and Other Amounts Due to Guavapay). The Merchant assumes full liability for any and all payments mentioned in clause 7 of this Agreement in connection with the Merchant´s use of the Services and/or breach of this Agreement.

 

18.3.   Subject to clause 18.1 (Liabilities which cannot legally be limited), Guavapay's aggregate liability to the Merchant for all Losses shall be limited to the Fees paid by the Merchant during the six (6) month period preceding the date on which the relevant cause of action arose.  In addition, Guavapay shall not be liable on any basis under this Agreement for:

 

·       loss of profits;

 

·       loss of sales or business;

 

·       loss of bargain;

 

·       loss of opportunity or contracts;

 

·       loss of anticipated savings;

 

·       loss of use or corruption of software, data or information;

 

·       loss of or damage to goodwill (or any other damage to reputation); and

 

·       special, incidental, punitive, indirect or consequential loss of whatever nature and even if Guavapay was aware of the possibility that such losses might be incurred by the Merchant.

 

18.4.   The implied terms of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.

 

18.5.   Merchant agrees to indemnify and keep Guavapay and its agents indemnified against any and all Losses, claims and liabilities which Guavapay or its agents may suffer or incur which in any way, directly or indirectly, arise from or relate to any claim whether in contract, or tort (including negligence or breach of statutory duty) in respect of any Transaction between you and any Cardholder.

 

18.6.   Merchant agrees to indemnify and keep Guavapay and its agents indemnified on a full and continuing basis against any and all claims, Losses or liabilities which Guavapay or its agents may suffer or incur, arising directly or indirectly:

 

18.6.1.  in connection with this Agreement as a result of anything done or omitted to be done by the Merchant or any employee or any agent of Merchant including any breach or alleged breach of any of the warranties and representations in this Agreement;

 

18.6.2.  from any payments due to Guavapay under this Agreement including Clause 7 (Fees and Amounts Due to Guavapay);

 

18.6.3.  from operation or use of any Merchant Website, including in contravention of any Applicable Laws or code of practice or any infringement or other violation of any third-party Intellectual Property Rights;

 

18.6.4.   from Merchant’s failure to require the entry of a PIN into a PIN Entry Device where a Chip and PIN Card is used as part of a Card Present Transaction;

 

18.6.5.   out of a breach of its PCI DSS obligations or any security breach, loss, corruption, compromise or breach of Transaction Personal Data;

 

18.6.6.  for breach of clause 17 or misuse of the Marks and/or any Intellectual Property Rights belonging to Guavapay; and

 

18.6.7.  in connection with Merchant non-compliance or breach of Applicable Laws, the Card Scheme Rules, or any other reason where a Card Scheme imposes a fee, fine penalty or charge against Guavapay due to any action or inaction by the Merchant. Merchant shall at its expense, provide Guavapay or its agents with all assistance necessary to resolve any dispute arising under the Card Scheme Rules.

 

18.7.   Guavapay does not guarantee the completion of Transactions; neither does it guarantee that the Intermediary Institution or Card Schemes will complete the Transactions. The Merchant agrees to assume the risk connected with such Transactions and defend Guavapay against and hold it harmless from liability in this respect.

 

18.8.   Guavapay is not a party to an agreement concluded between the Merchant and the Cardholder or other end user or an agreement between the Cardholder and the Intermediary Institution, and does not assume any liability whatsoever for proper performance by those parties of their contractual obligations. In particular, Guavapay does not assume any liability with respect to goods and/or services provided by the Merchant or contents of the Merchant Website.

 

18.9.   Guavapay shall not be liable for any Losses suffered by any third party, including the Cardholders, where such damage is caused by the Merchant’s failure to comply with its obligations under this Agreement.

 

18.10.  Save to the extent expressly indicated to the contrary in this Agreement, the Services and all their features, as well as the Guavapay Website, are provided on an ‘as is’, ‘as available’ basis. Guavapay makes no representation of any kind whatsoever for the Services or the content, materials, information and functions made accessible by the Services. Guavapay obligations are limited only to those expressly specified in this Agreement. Guavapay does not grant warranties of any kind, either express or implied, as regards the Services, Payment Gateway, API, Plug Ins, Hosted Payment Page, Guavapay Website or its content.

 

18.11.  The restrictions and limitations of liability as defined in this Agreement are effective irrespective of the nature or cause of the Merchant’s claim or demand, be it contractual, tortious or otherwise.

 

19.         Force Majeure

 

19.1.   Guavapay shall not be liable to Merchant or any third party/ies for any Losses arising from any events beyond Guavapay’s reasonable control which are likely to interrupt, disorganise or disturb, totally or partially, the Services of Guavapay, Intermediary Institutions or Card Schemes including (without limitation) acts of God, interruptions of telecommunications system, any industrial action, labour dispute fire, flood or storm, war, riot, civil commotion, security alert, act of terrorism or associated event, act of sabotage or vandalism, virus, pandemic, compliance with any Applicable Laws or court order, power cut failure, computer system malfunction including software hardware and internet connectivity, lockouts, boycotts and picketing, irrespective of Guavapay being itself a party to the conflict or of its functions being only partly affected thereby, extraordinary fluctuations in any financial markets that may materially affect Guavapay or the Merchant’s ability to perform obligations under this Agreement.

 

19.2.   Guavapay shall not be liable if Guavapay is unable to perform any of Guavapay’s obligations or Guavapay’s performance of its obligations or Services is delayed due to events described in clause 19.1. If any of events mentioned in Clause 19.1 occur then, this Agreement can be suspended for the period during which they continue or at Guavapay’s discretion and in order to protect both the Merchant and Guavapay, Guavapay may terminate the relationship following the procedure provided in clause 22.

 

20.         Term and Termination

 

20.1.   This Agreement is effective on the Effective Date, being the date on which Merchant accept(s) this Agreement by i) ticking a box, ii) signing through a digital signature and/or iii) commences using the Services.

 

20.2.   Unless otherwise agreed in writing, this Agreement will continue in force for the Term, being the Minimum Term and any subsequent Renewal Terms, until terminated by either Party providing the other with at least three (3) months prior written notice in writing of its intention to terminate, such notice to expire at the end of the Minimum Term or a Renewal Term, as relevant.

 

20.3.   Without prejudice to the foregoing, Guavapay reserves the right to exercise immediate termination of this Agreement:

 

20.3.1.  in the event of a request of any Card Scheme to terminate the Merchant;

 

20.3.2.  in the event of material changes in the business line or practices of the Merchant (not notified to, and approved by, Guavapay);

 

20.3.3.  in the event of unauthorised changes to Merchant Bank Account details;

 

20.3.4.  in the event of the Merchant being inactive and/or not using Acquiring Services for a period of at least ninety (90) calendar days;

 

20.3.5.   if the Merchant is offering or has been offering poor quality goods and/or services;

 

20.3.6.   if the Merchant violates the terms and conditions of this Agreement, including, but not limited to, failure to pay to Guavapay any Fees, Other Charges, and/or amounts due under this Agreement or otherwise;

 

20.3.7.   if any event or circumstance becomes known to Guavapay which, in its sole opinion, gives rise to fraud or suspicion of fraud or other criminal activity, or causes or may cause Guavapay to be in breach of any legal or regulatory requirements including Card Scheme Rules, or is jeopardising or may jeopardise the integrity or security of any of Guavapay´s or its agents´ computer systems;

 

20.3.8.  if the number of Chargebacks in relation to Merchant business is excessively high in Guavapay´s reasonable opinion;

 

20.3.9.  if the Merchant was placed into Internal Guavapay Program and fails to comply with its requirements;

 

20.3.10.  if the Merchant is insolvent or bankrupt, or goes into or commences proceedings for the liquidation or makes an agreement with its creditors generally;

 

20.3.11.   if the Merchant is a partnership, and the partnership ends;

 

20.3.12.   if the Merchant is a legal entity and control of the Merchant or its business changes;

 

20.3.13.   if documents are requested from the Merchant and such documents are not received by Guavapay within ten (10) calendar days from the date of the request. In this instance, Guavapay reserves the right to freeze funds then (or which later fall) in its control or possession and/or withhold any Pay-outs due to the Merchant as provided in this Agreement for any reasonably required timeframe of Guavapay to address any issues and/or ensure it avoids or minimizes its Losses or other liability;

 

20.3.14.  if the Merchant does not comply with any reasonable request of Guavapay made pursuant to Clauses 2.3 or 13; or

 

20.3.15.  if an event outlined in Clause 19 (Force Majeure) occurs and continues for a period of thirty (30) calendar days.

 

20.4.   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, Fees or Other Charges which are notified to Guavapay at any time after this Agreement has ended.

 

20.5.   If this Agreement is terminated by Guavapay under Clause 20.3, the Merchant may be listed on the Databases.

 

20.6.   If this Agreement ends, the Merchant must promptly return to Guavapay all equipment and materials supplied by Guavapay and must pay Guavapay immediately all and any amounts due under this Agreement.

 

20.7.   Termination of this Agreement shall not affect the clauses that are intended by their nature to survive such termination.

 

21.         REGULATORY INFORMATION, COMPLAINTS AND CORPORATE OPT-OUT

 

Regulatory Information

 

21.1.   Guavapay Limited is a private limited company registered in England and Wales under company number 10601900, and whose registered office address is at Salisbury House, 29 Finsbury Circus, London, EC2M 5QQ, England. Guavapay Limited is registered with the Financial Conduct Authority under the Electronic Money Regulations 2011 as a small e-money issuer for the provision of e-money and also authorised to provide other (non-e-money) payment services in accordance with the Payment Services Regulations 2017.

 

Complaints

 

21.2.   Guavapay strives to resolve any concerns in an amicable manner and in case of any issues the Merchant should contact customer support of Guavapay first. In case the issues cannot be resolved by contacting customer support, the Merchant is directed to submit an official complaint to Guavapay in accordance with Guavapay’s Complaints Policy, available at:   

                   https://myguava.com/legal/GB/policies/complaints-policy.

 

Corporate Opt-out

 

21.3.   Where the Merchant is not a consumer, micro-enterprise or a charity within the meaning of the PSR 2017, the Merchant and Guavapay agree with respect to the PSR 2017, that:

 

21.3.1.  regulations 41 to 62 (Part 6) shall not apply in accordance with regulation 40(7);

 

21.3.2.   all of regulations 66(1), 67(3) and (4), 75, 77, 79, 80, 83, 91, 92 and 94 shall not apply in accordance with regulation 63(5) (or any equivalents thereof which have been implemented locally where Merchant is incorporated); and

 

21.3.3.  the time period in regulation 74(1) (notification of authorised or incorrectly executed payment transactions) shall be 2 (two) months.

 

22.         NOTICES

 

22.1.   When executing this Agreement, the Merchant provides its email, phone, address and other contact details. By providing such contact details, the Merchant authorises Guavapay to send all communications and notices by such means. The Merchant shall be obliged to notify Guavapay of any changes to its contact information without undue delay but in whichever case no later than three (3) Business Days after such change. If some notice or communication was not received by the Merchant since its details have changed, but the Merchant did not provide timely notice of such change, Guavapay shall not be responsible for such undelivered notice and such notice will be treated as properly delivered.

 

22.2.   Each notice or other communication sent to a Party hereunder shall be deemed received if one or more of the following applies:

 

22.2.1.  it is delivered by hand or sent by courier, on the day it is delivered;

 

22.2.2.  it is sent via ordinary post, three (3) Business Days after the date it was sent if it is sent to an address in the United Kingdom, or five (5) Business Days after the date it was sent if it is sent to an address not in the United Kingdom; and/or

 

22.2.3.  it is sent by email on the date transmitted, unless the sending Party receives a delivery failure report or other message showing failure to deliver.

 

22.3.   When a notice or communication is delivered, transmitted or received in a way described in Clause 22.2 on a day that is not a Business Day, the notice or communication shall be deemed delivered or received by the Merchant on the next Business Day.

 

22.4.   Any notice sent to Guavapay under this clause 22 shall be delivered to the following address, email, phone, or chat (as applicable):

 

Guavapay Limited

Salisbury House, 29 Finsbury Circus, London, EC2M 5QQ, England

Marked FAO: General Counsel, Guavapay Limited

 

Email: [email protected]

 

Any notice issued to Merchant shall be delivered to the address and/or email indicated in the Merchant Application Form (or other address you notify to us from time to time).

 

22.5.   Guavapay reserves the right to use a communication method that it deems appropriate for each notice or other communications on its sole discretion. By entering into this Agreement, the Merchant undertakes the responsibility to check communication channels indicated herein regularly. Guavapay shall not be responsible or liable for the failure of the Merchant to check communication channels.

 

22.6.   All information received from the Merchant will be stored and secured in according to standards enshrined in the Privacy Notice. Nevertheless, when relying on communication channels such as email, the Merchant bears the risk arising of transmitting the information via the internet and third parties over which Guavapay does not have control.

 

23.         APPLICABLE LAW AND JURISDICTION; LEGAL COMPLIENCE

 

23.1.   The relationship between Parties shall be governed by the laws of England and Wales.

 

23.2.   All disputes shall be of the exclusive competence of the courts of England and Wales, and both Parties waive any objection to the courts of England and Wales on the 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.

 

23.3.   The Merchant shall ensure that, in all his dealings with Guavapay, it complies with any legal, regulatory or other Applicable Laws obligations incumbent upon it (such as but not limited to its tax obligations in the country(ies) in which the Merchant has to pay taxes). Should the Merchant fail to comply with such obligations, the Merchant shall be exclusively responsible for all consequences thereof (including possible financial or criminal sanctions), and Guavapay shall not bear any responsibility in that respect. The Merchant is invited to consult relevant legal or other advisers in case of doubt as to the exact obligation’s incumbent upon it. The Merchant’s attention is also drawn to the fact that, based on legislation with extraterritorial effect, Guavapay may have to disclose, within the limits provided for by such legislation, its name to competent foreign authorities (including possibly tax authorities).

 

24.         SERVICE AND AGREEMENT CHANGES 

 

24.1.   Guavapay may from time to time change this Agreement (including the Fees and the Operating Guide) and we will notify you of any changes by sending an e-mail to the primary e-mail address registered in the Merchant Application Form (or other e-mail we hold on file).  Unless Guavapay is required to implement a change on shorter notice pursuant to Applicable Laws or Card Scheme Rules, Guavapay will give you at least two (2) months’ notice before making the changes. However, changes in interest or exchange rates may be applied immediately and without notice where such a change is favourable to Merchant. By continuing to use the Guavapay Services you will be deemed to have accepted any changes made to this Agreement unless you notify us to the contrary before they come into force.

 

24.2.   We reserve the right to adjust the Fees at our reasonable discretion from time to time in accordance with increases in the UK Retail Price Index and, in the event of a change in the costs for the services of payment schemes and other providers.

 

24.3.   Guavapay may change Floor Limits, Trading Limits or cancel facilities without letting you know beforehand in exceptional circumstances, for example, where Guavapay suspects fraud.

 

24.4.   If Merchant does not wish to accept the changes Guavapay makes to this Agreement, Merchant may terminate this Agreement immediately by giving Guavapay notice in writing within one (1) month of such change coming into effect. Such notice shall be sent to the address set out in clause 22.4.

 

24.5.   From time to time, Guavapay may make changes to its Privacy Notice, adjust the content and interfaces of the Services, including the Payment Gateway, API and Plug Ins or Merchant Account functionality or features, or modify any of the Services as necessary to comply with any Applicable Laws or Card Scheme Rules, or make changes which do not materially affect the nature or quality of the Services or Merchant obligations. Such adjustments may result in changes to the Operating Guide and Documentation, and are not subject to prior written notice or any right of termination under clause 24.1.

25.         Assignment, subcontracting and novation

 

25.1.   The Agreement is personal to Merchant and Merchant may not assign, novate or transfer it or any of its rights or obligations under it unless Guavapay provides written consent to the contrary.

 

25.2.   Merchant may only use an agent or subcontractor in relation to the performance of its obligations under this Agreement with Guavapay´s prior written consent. Guavapay may reasonably withdraw that consent at any time.

 

25.3.   Merchant shall be liable to Guavapay for the acts or omissions of: (a) any of its personnel; and (b) any of its Group Companies and any of their respective personnel, in the course of or relating to the performance of Merchant obligations under this Agreement or arising out of or in connection with any Transaction, Refund, Representment, Chargeback or Retro-Charge.

 

25.4.   Subject to Applicable Laws and the Card Scheme Rules, Guavapay shall be entitled at any time to assign or transfer this Agreement or the benefit of any or all of Guavapay´s rights under this Agreement and/or to sub-contract Guavapay obligations under this Agreement without Merchant consent. Upon request, you shall execute any documents required to affect any such assignment, transfer or subcontract.

 

25.5.   Guavapay shall be entitled to novate any or all of its rights and obligations (as appropriate) under this Agreement to a third party at any time on giving Merchant at least two (2) months’ notice. If Guavapay does this, Merchant shall be entitled to terminate this Agreement within two (2) months of Merchant receiving the notice of the novation. Merchant will be deemed to have accepted the novation of this Agreement two (2) months from receipt of the notice.

 

26.         ENTIRE AGREEMENT AND NO WAIVER 

 

26.1.   This Agreement together with any documents referred to in it and any variation to it, constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes and invalidates all prior agreements, understandings, arrangements and representations, both written and oral and whether express or implied, between the Parties with respect to the subject matter hereof, other than any securities or written pledges, undertakings or assurances which Merchant may previously have given Guavapay as a condition precedent or in anticipation of this Agreement.

 

26.2.   Neither Party has entered into this Agreement in reliance on any oral or written agreement, representation or warranty from the other Party, other than those explicitly set out in this Agreement, save that, notwithstanding the foregoing, Merchant acknowledges that Guavapay has entered into this Agreement in reliance on Merchant representations set out in the Application Form.

 

26.3.   No failure to exercise or delay by Guavapay in exercising any right, power or remedy provided by law or under this Agreement shall impair the same or be construed as a waiver or release of that right. Furthermore, no waiver of any provision in this Agreement, however, will be deemed a waiver of any subsequent breach of such provision or a waiver of a similar provision.  

 

26.4.   Save to the extent expressly set out in this Agreement, Guavapay hereby excludes all warranties, conditions, terms, obligations, undertakings and representations (whether in each case express or implied by statute, common law, custom, trade usage, course of dealing or otherwise, (including but not limited to implied undertakings of satisfactory quality and reasonable fitness for purpose)) to the fullest extent permissible by Applicable Laws, and Merchant hereby waives irrevocably any rights or remedies it may otherwise have had in respect of any of the same.

 

26.5.   For the avoidance of doubt, nothing in this clause 26 or any other provision of this Agreement shall operate to exclude liability for any fraud.

 

27.         RIGHTS OF THIRD PARTIES

 

The terms of this Agreement shall not be enforceable by a third party except that any rights and any exclusion or limitation of liability in any term may be enforced by or relied upon by Guavapay’s agents under the Contracts (Rights of Third Parties) Act 1999. Except as otherwise set forth herein, the Parties do not intend, nor shall there be, any third-party beneficiary rights, and the rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.

 

28.         SEVERABILITY AND ENFORCEABILITY

 

If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall, wherever possible, remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.

 

29.         REMEDIES ARE CUMULATIVE

 

Except where expressly agreed otherwise in this Agreement, the rights and remedies of the Parties under this Agreement are cumulative, may be exercised as often as the relevant Party considers appropriate and are in addition to the Parties´ rights and remedies under Applicable Laws.

 

30.         INDEPENDENT CONTRACTORS

 

Each of Merchant and Guavapay are independent contractors. Neither Guavapay nor Merchant nor any of their respective representatives are an employee, partner, agent or joint venture of Merchant and Guavapay respectively.

 

 

 

 

 

 

SCHEDULE 1

 

CARD ACCEPTANCE REQUIREMENTS (INCLUDING CHARGEBACKS)

 

This Schedule 1 reflects the Card Schemes rules and provides guidance with regards to the processing of Card Transactions for Cardholders purchasing goods and services from the Merchant’s business.

 

1.              Card Organisation Brands

 

1.1.           The Merchant is allowed to display relevant trademarks of the Card brands accepted by Guavapay on its website and promotional materials. Such display can only be of the official trademarks of Guavapay and the Cards Schemes.

 

1.2.           The Merchant is prohibited from:

 

-    indicating that Guavapay or any Card Schemes endorses or promotes its goods and services; and

 

-  using Guavapay or any Card Schemes trade mark in any advertising, displays or press releases.

 

2.              Authorisations

 

It is required from the Merchant to obtain an Authorisation for all Card Transactions. Authorisations must be obtained irrespective of the Transaction values for international Maestro Card, or a Visa Electron Card in accordance with the terms set out herein.

 

The following provisions apply to Authorisations:

 

2.1.       An Authorisation or approval code granted confirms that the Card has available funds on the account at the time of the Authorisation, and that the Card has not been reported lost or stolen.

 

2.2.       An Authorisation code granted does not confirm that the individual presenting the Card is genuine or is the rightful Cardholder.

 

2.3.       An Authorisation for a Card Transaction is not a guarantee of payment as the Transaction can be disputed at a later date.

 

2.4.       The use of Address Verification Services (AVS) in conjunction with an Authorisation code must be viewed separately as the risk liability is with the Merchant if it chooses to process where there is no AVS data available, or the address does not match the Cardholder’s billing address.

 

2.5.       The Merchant acknowledges and agrees to:

 

-    comply with the instructions provided by the Authorisation provider and, if requested, obtain further identification from the Cardholder prior to an Authorisation code being granted;

 

-     not attempt multiple Authorisations for a single Transaction on the same Card if the original attempt was declined;

 

-         not attempt to obtain Authorisations for lower values on the same Card.  Instead, it is agreed that an alternative method of payment shall be requested by the Merchant;

 

-      obtain the CVV2 card verification code with each Authorisation request unless the Transaction is a Recurring Payment and for Recurring Payments, submit the CVV code only with the first Authorisation approval request and not with any subsequent or future Authorisation requests;

 

-         obtain authorisation for Mail Order/Telephone Order (MOTO) Transactions; and

 

-       obtain authorisation for the Transaction value of the Card for each Transaction split over more than one Card at the Cardholder’s request.

 

2.6.       The Merchant may instruct Cardholders to contact their Card Issuer for any declined Transaction.

 

2.7.       Failure to obtain an Authorisation approval code, or if a Card Transaction is submitted for processing after receiving a decline, may result in the Transaction becoming a Chargeback. A fee applies for every request for an Authorisation for both approvals and declines.

 

2.8.       If a Cardholder wishes to purchase goods, services, accommodation or other facilities from Merchant which are equal to or cost more than the relevant Floor Limit for the Card concerned, Merchant must get prior Authorisation at the time of purchase by following the procedures set out in the Operating Guide. For Recurring Transactions, the Floor Limit will always be nil.

 

2.9.       Guavapay may vary the Floor Limits at any time and by such means and on such notice as Guavapay may think fit.

 

2.10.   If Authorisation is refused, the Card Transaction must not proceed and Merchant must not seek Authorisation for any different amount.

 

2.11.   If a Cardholder does not immediately conclude the Card Transaction following receipt of the Authorisation, Merchant must notify Guavapay as soon as possible to cancel the Authorisation except if otherwise allowed in the Operating Guide.

 

2.12.   If Guavapay has specified a Floor Limit which is higher than the standard for Merchant´s type of business (as determined by the Association for Payment and Clearing Services from time to time), any Card Transaction disputed by the Cardholder equal to or in excess of such standard limit may be charged back even where Merchant has complied with this Agreement and even where Guavapay has given Authorisation. Any such Authorisation operates only to confirm the availability of funds and that the Card has not been reported lost or stolen at the time of Authorisation.

 

3.              Card Not Present Transactions

 

3.1.       Card Not Present transactions are categorised into the following:

 

-        MOTO (Mail Order Telephone Order) or Manually Keyed Payments;

 

-        eCommerce; and

 

-        Recurring Payments.

 

3.2.       The Merchant agrees to display on its Merchant Website a complete description of and if applicable all components and elements of its product and services, as well as details of its delivery timescales and services, privacy policy, cancellation and returns policy.

 

3.3.       The Merchant is warned that Card Not Present Transactions have a higher risk of fraud and Chargebacks and that as a result the Merchant should exercise caution and remain vigilant given that the Cardholder and Card are not physically present.

 

3.4.       When processing MOTO Payments, the Merchant must obtain the Cardholder’s name as it appears on the card, the Card account details, the expiry date, the Cardholder’s statement or billing address, the three-digit security code (back of the card) CVV2.

 

3.5.       The Merchant must use the fraud mitigation services and request the AVS Address Verification Service if available, such as Mastercard Secure Code or Verified by Visa for additional security.

 

3.6.       The Merchant is advised to refer to the PSR 2017 requirements for Stronger Customer Authentication which allows for multi-factor authentication.

 

3.7.       The Merchant acknowledges and agrees to:

 

-        provide a sales invoice or receipt for the Cardholder;

 

-        notify the Cardholder of the estimated delivery for the goods and services purchased;

 

-        not proceed with a Card Not Present Payment, and to decline such Payment:

 

*   if security inconsistencies have been identified with the Cardholder’s details even if an Authorisation code has been granted; and/or

 

*   if the order appears to be out of line and suspicious.

 

-     conduct proper due diligence on the static information provided and the location of the shipping address upon receipt of any new and high value orders received in order to ensure consistency and coherence; and

 

-        not to proceed to process an order in case of suspicions, and when the Authorisation has been granted, prior to any concerns identified, to refund the Card and not release any goods or provide any services.

 

4.              Recurring Payments

 

4.1.       It is agreed that for all Recurring Payments, the Merchant must obtain the Cardholder’s approval to debit the account linked to their Card periodically for recurring goods and services for the due amount as agreed between the Merchant and the Cardholder.

 

4.2.       Guavapay shall not be a party to any dispute between the Merchant and the Cardholder and the Merchant agrees that Guavapay shall not be held liable for any Losses including consequential, direct, indirect or special losses, damages or equivalent whether directly or indirectly cause by such dispute between the Merchant and a Cardholder.

 

4.3.       The Merchant agrees that for Recurring Payments, it shall:

 

-        process Card Payments in accordance with the Cardholder’s authority and only submit the data if the Cardholder has not given notice for the cancellation of the continued service;

 

-        obtain an authorisation code for every transaction and use the mitigation tools using AVS, CVV2 checks for additional security;

 

-        immediately refund a Recurring Payment if the Cardholder has requested cancellation and in order to avoid a Chargeback;

 

-        not proceed with debiting and submitting the Card data where the Cardholder has requested cancellation;

 

-        notify Cardholders of the Recurring Payments dates and amounts due; and

 

-        not alter the amount debited and or the due date without providing Cardholders adequate notice and only proceed with the Recurring Payments where prior approval from the Cardholders has been received.

 

4.4.       The Merchant shall process Recurring Payments at its own risk. Any Recurring Payment processed in breach of the terms herein or any Operating Guide requirements, may result in Cardholders raising disputes and Chargebacks against Merchant (and these being recorded against the Merchant Account).

 

4.5.       In the case of any Recurring Payments:

 

4.5.1. the Merchant shall explain on the Merchant Website how to cancel the Recurring Payments order for goods and/or services;

 

4.5.2. the Merchant shall perform the first Recurring Payment upon Cardholder signing up for Recurring Payments through 3-D Secure;

 

4.5.3. the Merchant shall refrain from initiating Recurring Payments if the Cardholder has cancelled the relevant order; and

 

4.5.4. the Merchant shall notify the Cardholder at least seven (7) Business Days prior to the Recurring Payment taking place if:

 

-        the Recurring Payment amount has changed;

 

-        the Recurring Payment date has changed;

 

-        more than twelve (12) months have elapsed from the last Recurring Payment; or

 

-        a trial period has ended or promotional activity has expired.

 

5.              Refunds

 

5.1.     The Merchant must provide clear and visible information to Cardholders on their refund policy and if applicable their cancellation policy which shall be published on their website, or available upon request from the Cardholder.

 

5.2.   The Merchant agrees to provide invoices and promotional material upon request to any or both of Guavapay and the Cardholder.

 

5.3.      The Merchant represents that its terms and conditions showing the total amount of its goods and services are presented in a transparent, clear and not misleading manner and will be available on its website at all times, in order to avoid Cardholder abandonment and potential Cardholder disputes.

 

5.4.      The Merchant shall be responsible for resolving Cardholder requests for refunds directly with the Cardholder and should do so in a timely manner to avoid the Cardholder from raising a dispute with their Card Issuer.

 

5.5.       The Merchant accepts to:

 

-   display the contact details for its customer service, including telephone number and email address with a reasonable time frame for queries to be responded to;

 

-       provide Cardholders with unique reference numbers in order to locate and process any refund due;

 

-        advise Cardholders of the expected processing days for a refund;

 

-        apply a refund to the corresponding payment Card the original transaction was performed on;

 

-    not process a refund for a Recurring Payment after a chargeback for the same has been raised by the Card Issuer;

 

-        not process a refund for Cardholders for more than the original Transaction amount;

 

-        not intentionally process a Card payment and submit a refund to that Card at a later date for the sole purpose of debiting and crediting its own Card or Card connected to the Merchant itself, or for the benefit of another Cardholder.

 

6.              Accepting Advance Payments

 

6.1.       The Merchant is authorised to offer, if permitted in the agreement between the Merchant and the Cardholder, advance payments for Cardholders to typically pay a deposit for custom orders, advance booking for events, tickets for travel, accommodation and other travel related services such as vehicle rentals.

 

6.2.       The Merchant shall display its full refund and cancellation policy.

 

6.3.     The Merchant shall obtain the Cardholder’s approval and provide confirmation with a detailed description of the goods and services for the advance payment.

 

6.4.    The Merchant shall provide Cardholders with the expected delivery date for the goods and services.

 

6.5.    In circumstances where the Merchant is unable to provide the goods and services, it shall advise Cardholders immediately and offer refunds for non-fulfilment of orders.

 

7.              EXCHANGES FOR GOODS AND SERVICES

 

7.1.       The Merchant may follow its standard business policy for exchange of goods and services directly with Cardholders.

 

7.2.       The Merchant shall issue a refund for an uneven charge for the return and exchange of the goods.

 

8.              SECURITY

 

8.1.  The Merchant is responsible for the security their devices and for maintaining controls to prevent employees or other individuals from submitting transactions or refunds that do not reflect bona fide Transactions processed at an earlier date.

 

8.2.   The Merchant shall maintain a secure network firewall to protect customers data and shall adhere to the data security standard stated in the PCI DSS for protecting stored data and data sent across networks.

 

8.3.       The Merchant warrants to:

 

-        regularly update anti-virus software in order to keep security patches up to date;

 

-        regularly test its security systems and processes;

 

-        physically restrict access to Cardholder information for authorised personnel only;

 

-        maintain a security policy for employees and contractors;

 

-        not transmit Cardholder Account numbers to Cardholders for internet transactions; and

 

-        only use services and merchant equipment that has been certified as PCI-DSS compliant by the Card Schemes.

 

9.              CARDHOLDER COMPLAINTS RESOLUTION

 

9.1    The Merchant is responsible for acknowledging and responding to any Cardholder dissatisfaction and or queries received for the goods and services provided.

 

9.2         The Merchant shall display customer service contact information on is website providing a variety of options for Cardholders to contact Merchants with their enquiries.

 

9.3    The Merchant agrees to respond to Cardholders in a reasonable timeframe to avoid Cardholder queries escalating into complaints and as much as possible to provide for a solution to any complaint.

 

9.4          It is accepted by the Parties that Guavapay will not accept complaints pertaining to relations between the Merchant and a Cardholder or between the Merchant and a third party. 

 

9.5         It is advised to the Merchant to engage to provide a good customer service in order to have a positive impact on the Merchant business and to increase Cardholder complaints resolutions.

 

9.6         Guavapay recommends for instance where resolution cannot be agreed with the Cardholder, to arrange for the return of goods or services and refund the transaction notifying the Cardholder.  In such instance, the refund can be immediately processed to avoid the Cardholder raising a Chargeback with their Card Issuer.

 

9.7   It is however noted that there shall be instances where not all Cardholder enquiries or complaints can be resolved. The Merchant agrees that all correspondence demonstrating the Merchant’s efforts for the resolution of the dispute shall be recorded in writing should Guavapay request this information in case of, but not limited to a Chargeback request being raised.

 

10.         CHARGEBACKS

 

10.1   In case of a Chargeback, the Cardholder shall contact its Card issuing bank to raise a dispute under the relevant Card Scheme chargeback reason codes. The Card Issuer shall then initiate and raise the Chargeback process by requesting a reversal of the funds for the disputed amount to be credited back to the Cardholder’s Card.

 

10.2     The Merchant is responsible and liable for all Chargeback and Chargeback fees.

 

10.3   In case of a Chargeback, the Merchant will receive a Chargeback notification requiring the Merchant immediate attention and response with all the supporting documentation requested in order to deal with the Chargeback.

 

10.4  It is imperative that and the Merchant agrees to keep records of all Transactions and Cardholder data relating to the goods and services provided which include, billing address, shipping address, proof of delivery, signed delivery proof. It is recommended for shipping of goods, that the Merchant uses a track and trace service and obtain signatures as proof of delivery.

 

10.5     Wherever possible, the Merchant agrees to contact the Cardholder directly to resolve the dispute.

 

10.6  The Merchant shall not process a refund for a Transaction that has been raised as a Chargeback. Where the Merchants has provided the requested supporting documentation within the time frame stated (within the Chargeback notification), Guavapay will submit the information as a Representment of the Transaction or reversal of the Chargeback, as the case may be.

 

10.7     It is noted and accepted that the submission of Representments is not a guarantee that the Transaction will be reversed or resolved in the Merchant’s favour. For Representments, the Card Issuer at their discretion may continue to dispute the Chargeback further and attempt to uphold the original Chargeback claim.

 

10.8     It is understood and accepted that the Merchant is responsible for all the Chargeback fees irrespective of the outcome and ruling for the dispute.

 

10.9  Where the Merchant responds to a Chargeback and provides inadequate or ineligible documentation within the specified time frame, the Merchant may be subject to a Chargeback as there is no recourse to pursue the claim. If the Merchant does not challenge or dispute the Chargeback within the time frame specified under the relevant Card Scheme Rules, the Merchant shall relinquish its reversal rights and Guavapay will accept the Chargeback on the Merchant’s behalf.

 

10.10 All Chargebacks raised irrespective of their outcome, either defended or lost, will be recorded against the Merchant Account.

 

11.         CHARGEBACKS FOR FRAUD

 

11.1. This section refers to Chargebacks raised whereby the Cardholder claims they did not authorise or recognise the Transaction. The Chargeback codes for fraud are specific to Card Present, Card Not Present and internet MOTO transactions.

 

11.2.   The Merchant must respond to all retrieval and Chargeback notifications by submitting the requested information within the specified time frame.

 

11.3.   The Merchant agrees to provide clear and legible documentation in a timely manner.

 

12.         CHARGEBACKS FOR CONSUMERS DISPUTES

 

12.1. The Chargebacks raised under the Card Scheme Chargeback reason codes have the description under which the Card Issuer is disputing the Transaction.

 

12.2.   Common Chargeback codes associated with Cardholder disputes are:

 

-        No Cardholder Authorisation     

 

-        Cardholder Does Not Recognise        

 

-        Services or Merchandise Not Provided

 

-        Cancelled Recurring Transaction

 

-        Not as Described or Defective Merchandise

 

-        Credit Not Processed

 

-        Duplicate Processing or Paid by Other Means

 

-        Misrepresentation of Goods and Services

 

-        Cancelled Merchandise / Services

 

13.         CHARGEBACK REDUCTION GUIDE

 

13.1.   The following steps are suggestions that can be undertaken by the Merchant to reduce Chargebacks:

 

-        implement 3D Secure transaction verification, Verified by Visa and Mastercard Secure Code;

 

-        perform additional authentication CVC/CVV2 checks at the authorisation stage;

 

-      review the Cardholder order and details provided, conduct assessment on new and high value orders received;

 

-     exercise judgment on multiple orders received for the same Cardholder who may provide more than one shipping address or more payment cards;

 

-      contact and advise Cardholders if there are any unforeseen delays on delivery timescales and advise on the expected date of delivery;

 

-        offer replacement of goods damaged in transit;

 

-        refund Cardholder request in a timely manner;

 

-        cancel Recurring Payments immediately for Cardholder requests;

 

-    exercise caution when processing Transactions, look for accidental duplication, immediately cancel or refund the additional Transaction; and

 

-        obtain signatures where possible for delivery of goods.

 

 

 

 

SCHEDULE 2

 

SPECIFIC TRANSACTION RULES

 

The Merchant shall comply with the following rules:

 

-        it is forbidden to re-submit a particular Transaction for processing where the Transaction was previously rejected by the Intermediary Institution;

 

-        it is forbidden to accept Transactions with Cards for goods and/or services which are not offered by the Merchant in the course and within the scope of its own business, or which are provided by order of a third party, or which are provided by different providers;

 

-        the Merchant’s commercial offers must not mislead or otherwise give a false impression that Guavapay or Card Schemes are themselves providers of the goods or services offered by the Merchant;

 

-        it is forbidden to discriminate against Transactions made with Cards or against Cardholders who use that method of payment, especially by way of imposition of extra charges for Transactions made with Cards or requiring additional protection (securities, guarantees, or alike);

 

-        it is forbidden to accept Transactions made with a Card on loans granted by the Merchant, or in virtue of repayment of cash paid by the Merchant or redemption of bad debts or bad checks;

 

-        it is forbidden to establish a minimum or maximum limit on Transaction value with respect to Transactions made with a Card;

 

-        it is forbidden to accept so-called split sales transactions, that is to accept payment for a given product and/or service made in several separate Transactions;

 

-        it is forbidden to demand from the Cardholder to waive the right to dispute a Transaction made with a Card;

 

-        it is forbidden for the Merchant to share or sell data connected with Cards;

 

-        it is forbidden to submit a Transaction that was previously disputed and subsequently returned to the Merchant however the Merchant may pursue payment from the customer outside the Card Scheme payment systems;

 

-        it is forbidden to submit any Transaction into the payment systems that is illegal or that the Merchant knows or should have known was illegal;

 

-        it is forbidden to submit a Transaction into the Card Scheme payment systems that the Merchant knows or should have known to be fraudulent or not authorised by the Cardholder;

 

-        it is forbidden to require a Cardholder to complete a postcard or similar device that includes any of the following in plain view when mailed: the cardholder’s account number, card expiration date, signature, or any other card account data;

 

-        it is forbidden to request a Card Verification Value 2 (CVV2)/Card Verification Code (CVC) from the Cardholder for a card-present environment transaction;

 

-        it is forbidden to store Card Verification Value 2 (CVV2)/Card Verification Code (CVC) information subsequent to Authorisation;

 

-        it is forbidden to add surcharges to Transactions, unless explicitly done so in accordance with Applicable Laws and any specific Card Scheme specific to the United Kingdom;

 

-        it is forbidden to disburse funds in the form of traveller’s cheques, if the sole purpose is to allow the Cardholder to make a cash purchase of goods and services from the Merchant;

 

-        it is forbidden to accept a Transaction that does not result from an act between the Cardholder and the Merchant;

 

-        it is forbidden to accept payment cards for: collecting or refinancing existing debt that has been deemed uncollectible by the Merchant providing the associated goods or services; previous card charges and a transaction that represents the collection of a dishonoured cheque;

 

-        it is forbidden to request or use an account number for any purpose other than as payment for its goods or services;

 

-        it is forbidden add any tax to Transactions, unless Applicable Laws expressly requires that a Merchant be permitted to impose a tax. Any tax amount, if allowed, must be included in the Transaction amount and not collected separately.

 

Transaction Data Submission: In presenting or submitting Transaction Data to Guavapay, Merchant warrants to Guavapay that:  

 

-        the Card Transaction entered into by Merchant is one which relates directly to its business;

 

-        the Card Transaction has been entered into by Merchant in good faith and in compliance with all legal requirements to which you are subject and this Agreement;

 

-        all information contained in the Transaction Data is true and complete;

 

-        Merchant has supplied (or, where Transaction Data relates to a Deferred Supply Transaction, Merchant has agreed to supply) the goods, services, accommodation or other facilities to which the Transaction Data relates and to the value stated therein;

 

-        Merchant is not aware of any dispute relating to, or any matter which may affect the validity of, a Card Transaction;

 

-        Merchant is not aware that the Card Transaction has been previously subject to a Chargeback;

 

-        Merchant is not aware of any circumstances that would or might result in a breach of Applicable Laws or Card Scheme Rules in connection with the relevant Transaction Data; and

 

-        If Merchant is allowed to process Deferred Supply Transactions and Merchant has not supplied the relevant goods, services, accommodation or other facilities within the Deferred Supply Period of the Card Transaction, Merchant must provide a Refund to the Cardholder and advise the Cardholder that it has done so.

 

 

 

SCHEDULE 3

 

GUAVAPAY’S REQUIREMENTS FOR THE VIRTUAL STORE FRONT OF THE MERCHANT’S WEBSITE

 

These requirements are imposed by Guavapay on the virtual store front of the Merchant Website (hereinafter the “Requirements”) and constitute essential terms and conditions of this Agreement.

 

The Merchant agrees to fully comply with these Requirements and warrants that the goods and services delivered and provided by the Merchant comply with all Applicable Laws.

 

1.     The Merchant warrants that the Merchant Website complies with the Requirements below and to include the following information:

 

1.1.    The Merchant Website does not contain links to or banners of websites or links to banner networks that conflict with Applicable Laws. The Merchant Website does not include references to suspicious websites (such as adult entertainment, or prohibited activities mentioned in clause 6 of this Agreement) or links to banner networks that may contain pop-up banners with suspicious/banned content.

 

1.2.  Logos of the Cards Schemes and of Guavapay must not be misleading for Merchant customers (“Customers”) as regards to the person on whose behalf the business is being conducted. The Merchant should use the brand of the Cards Schemes in full colour, evidencing the acceptance of the respective Cards for payment and the use of 3DSecure. Up-to-date images of Cards Schemes logos for download may be posted on the respective websites of the Cards Schemes or provided by Guavapay upon the Merchant’s request.

 

1.3.  For reference purposes the Merchant Website includes up-to-date information on the Merchant, which unambiguously demonstrates the nature of its activities. A condition to be satisfied on a mandatory basis is that the Merchant Website includes information regarding the country of the Merchant’s registration, the Merchant’s place of business, postal address (not a PO address), and a contact telephone number that the Customers may use to contact the Merchant’s helpdesk.

 

1.4.    The list of goods and services sold by the Merchant is to be consistent with the Merchant’s list of goods and services offered at the page of the Merchant Website.

 

1.5.   Goods and services (including use features, power consumption parameters, dimensions, etc.) and tariffs for (prices of) goods and services are described and posted in full and are updated on a regular basis with due regard to variations of prices of the goods and services and the range of goods and services available on the Merchant Website.

 

1.6.    Guavapay reserves its right to verify the goods and services’ tariffs described on the Merchant Website to ensure that incompleteness and/or inaccuracy of information on the goods and services and their tariffs do not result in Refunds.

 

1.7.   The Merchant Website includes a description of the process for paying for the goods and services by using Cards. The Merchant shall receive Guavapay’s consent for such descriptions before posting them on the Merchant Website.

 

1.8.  The Merchant Website shall include information provided to the Customer before the Transaction is made and relevant to the delivery and return of the goods and services, including time limits for and methods of such delivery and return, and any other information needed for getting a clear idea of the delivery of the goods and services after a Transaction is made. Such information should be provided on the Merchant Website where the Customer is given the opportunity to read it. The Customer's consent to the terms of payment and provision of the goods and services, including consent to recurrent payments, is carried out by putting a mark in the appropriate fields of the pages of the Merchant Website.

 

1.9.    Where relevant, the Merchant shall provide information on methods of retention of and control over risks of fraudulent transactions by using Guavapay’s capabilities for combating fraudulent transactions.

 

1.10. All pages related to operations of the virtual storefront of the Merchant Website or to requirements imposed by Guavapay shall have one and the same domain name.

 

2.              Procedure for Agreeing on the Virtual Storefront of the Merchant Website

 

2.1.      Before Guavapay provides the Services under this Agreement, the Merchant is obliged to ensure compliance with the Requirements imposed on the virtual storefront of the Merchant Website and specified in section 1 of this Schedule 3. The Merchant shall send Guavapay for consent purposes the design of the payment page of the Merchant Website, including electronic versions of stickers that contain the Cards Schemes logos.

 

2.2.        Within three (3) Business Days after the day of receiving the model payment page from the Merchant or as soon as reasonably practicable thereafter, Guavapay shall either agree with it or send a written notice of reasons for disagreeing with the design of the payment page of the Merchant Website.

 

3.              Guavapay’s recommendations for the Merchant

 

3.1.       It is recommended that details of the entity that holds the domain name of the Merchant Website and those of the Merchant’s entity that entered into this Agreement fully coincide with each other. The holder of the domain name will be identified by using the respective internet databases.

 

3.2.       It is recommended that the domain of the Merchant Website be a second-level domain.

 

SCHEDULE 4

 

POS SERVICE TERMS AND CONDITIONS

These POS Service Terms and Conditions (“POS Terms”) supplement the Agreement and govern your use of the Point of Sale Terminals (“POS Services”) provided by Guavapay. By using the POS Services to receive payments, you agree to be bound by these POS Terms, as well as any additional terms and conditions outlined in the Agreement.

 

These POS Terms are integral to and in addition to the Agreement and they only apply where a Merchant opts for the POS Services. All provisions outlined in the Agreement are fully applicable to the POS Services, unless explicitly stated otherwise. In the event of any conflict or discrepancy between these POS Terms and the Agreement, the provisions of the Agreement shall prevail.

 

1.    DEFINITIONS AND INTERPRETATION

1.1.   The following terms (whether used in singular or plural form and in addition to any terms already defined in the Agreement) shall have the following meanings:

Administration Charge	means the charge payable where Guavapay agrees to make any Requested Changes;
Delivery Date	means: (a) the date of delivery of the Equipment by Guavapay; or (b) where delivery of the Equipment does not occur because a duly authorised representative of the Merchant is not available to take delivery or because the Merchant refuses to accept delivery of the Equipment for any reason, the Effective Date of this Agreement;
Default Visit Charge	means the charge payable in the event that Guavapay deploys a representative to visit the Merchant Site following any breach of this Agreement by the Merchant;
Equipment or Terminal Devices	mean the card terminal/Point of Sale terminal and software within such equipment, that is used to process any Card Present Transaction;
Failed Delivery Charge	means the charge payable in the event that Guavapay is unable to deliver the Equipment;
Installation and Operating Instructions	means the instructions provided by or on behalf of Guavapay for setting up, installing and using the Equipment;
Installation Charge	means the charge payable in the event that Guavapay deploys a representative to install the Equipment at the Merchant Site;
Insurance Value	means the value of the insurance required to be maintained by the Merchant for the Equipment;
Merchant Site	means the Merchant’s address as specified in this Agreement;
Mobile Equipment	means any item of the Equipment which is configured for GPRS or CSD connectivity;
Payment Date	means the due date for payment of the Rental Charges and/or (as the case may be) the due date for payment of the Relevant Charges (where applicable);
Relevant Charges	means the charges in Guavapay’s standard price list and any other charges or amounts (including interest) which are due and payable under this Agreement from time to time (other than the Rental Charges);
Relevant Provider	means any third party which (whether pursuant to any contract with the Merchant or with Guavapay) provides the Equipment, the Solution, the Support and/or ancillary services;
Rental Charges	means the charges for the hire of the Equipment as specified in this Agreement;
Repair Charges	repair charges mean the prevailing charges for the relevant repair of the Equipment;
Requested Change	means any change to this Agreement (including, for the avoidance of doubt, any change to the Equipment, the Rental Charges, the Minimum Term, the Renewal Term, the Merchant Bank Account, the Merchant Site and any other change to this Agreement) which is agreed by Guavapay in writing following a request from the Merchant to make such change;
Site Visit Charge	means the prevailing charge for an aborted visit to the Merchant Site;
Software	means any software provided or otherwise made available (directly or indirectly) to the Merchant by or on behalf of a Relevant Provider in connection with any Support and/or the Merchant’s use of the Equipment;
Solution	means the Software and/or the Support (as the case may be) related to the Equipment;
Support	means any support (including telephone and online support), management information, reporting tools and/or services which are provided or otherwise made available (directly or indirectly) to the Merchant by or on behalf of a Relevant Provider in connection with this Agreement or the Merchant’s use of the Equipment.

 

2.                DURATION OF HIRE 

2.1.         Guavapay shall hire the Equipment to the Merchant subject to these POS Terms. Guavapay shall not, other than in the exercise of its rights under this Agreement or Applicable Laws, interfere with the Merchant’s quiet possession of the Equipment.

2.2.        The hire of the Equipment shall commence on the Delivery Date.

2.3.         Without prejudice to any other provision of this Agreement, the Merchant shall inform Guavapay promptly (giving as much advance notice as is reasonably practicable, where appropriate) of any actual or proposed change in its ownership or trading name, address, telephone number or trading hours, or any closure of its business.

 

3.                DELIVERY AND SET-UP OF THE EQUIPMENT

 

3.1.          Guavapay shall deliver the Equipment to the Merchant Site as soon as reasonably practicable after the Effective Date of this Agreement. The Merchant shall ensure that (if necessary or if requested by Guavapay) a duly authorised representative of the Merchant is available at the Merchant Site during normal business hours to take delivery of the Equipment. The Merchant shall not refuse to accept delivery of the Equipment for any reason. In the event that Guavapay is unable to effect delivery because a duly authorised representative of the Merchant is not available or the Merchant refuses to accept delivery of the Equipment for any reason, the Merchant shall pay the Failed Delivery Charge on demand.

3.2.           As soon as reasonably practicable after receipt of the Equipment, the Merchant shall:

3.2.1.      install the Equipment in accordance with the Installation and Operating Instructions; and

3.2.2.      complete all applicable requirements for PCI/DSS compliance including those advised to the Merchant by the Card Acceptance Provider. The Merchant acknowledges and agrees that it is its sole responsibility to become PCI/DSS compliant and that fees, fines or other charges may be levied by the Card Acceptance Provider in the event of failure to do so.

3.3.           In the event that the Merchant does not, for any reason, install the Equipment pursuant to clause 3.2 above within fourteen (14) days of the Delivery Date then (without prejudice to any other rights or remedies of Guavapay) Guavapay shall be entitled to deploy a representative of Guavapay to install the Equipment at the Merchant Site. Where Guavapay so deploys a representative:

3.3.1.      such representative shall be entitled to access the Merchant Site without prior notice to install the Equipment;

3.3.2.      the Merchant shall provide full co-operation to enable such representative to install the Equipment at the Merchant Site (including providing reasonable assistance and facilities where requested by the representative for such purposes); and

3.3.3.      regardless of whether or not such representative effects installation of the Equipment, the Merchant shall pay the Installation Charge on demand.

3.4.           Installation of the Equipment by the Merchant shall constitute conclusive evidence that the Merchant has examined the Equipment and has found it to be complete and in good condition.

3.5.           The Merchant shall be solely responsible for the provision of all utilities and facilities necessary to enable use of the Equipment at all relevant times.

 

4.                MERCHANT'S GENERAL OBLIGATIONS 

 

4.1.           The Merchant shall:

4.1.1.      operate the Equipment only in accordance with the Installation and Operating Instructions (and ensure that all its staff who use the Equipment do so);

4.1.2.      where appropriate, use only suitable paper rolls and other consumables in the Equipment (stocks of which are available from Guavapay on request, at such cost as shall be advised by Guavapay);

4.1.3.      permit Guavapay or its duly authorised representatives to enter the Merchant Site at all reasonable times in order to inspect the Equipment and, where applicable, to collect it, and for the purpose of verifying the Merchant’s compliance with this Agreement; and

4.1.4.      be solely responsible for the cost of any charges incurred in using the Equipment (including the installation, rental, call and any other charges associated with the Equipment’s telephone connection).

4.2.           The Merchant shall not without the prior written consent of Guavapay:

4.2.1.      sell or sub-let the Equipment or part with possession or control of the Equipment;

4.2.2.      move the Equipment from the Merchant Site (save that the Merchant may take any applicable Mobile Equipment away from the Merchant Site on a temporary basis from time to time to the extent reasonably required for proper purposes associated with the Merchant’s business and provided always that the Equipment is not taken outside of the United Kingdom);

4.2.3.      permit any third party (other than relevant staff of the Merchant) to have use of the Equipment;

4.2.4.      remove, deface, obstruct, alter or add to any peripheral supplied with or forming part of the Equipment and/or any proprietary notices affixed to the Equipment (including any of Guavapay’s trade marks and trade names);

4.2.5.      do (or permit to be done) any act or thing which will or may jeopardise the right, title and/or interest of Guavapay in the Equipment;

4.2.6.      use the Equipment for processing any transactions other than those permitted the Agreement and shall not use the Equipment for any unlawful purpose;

4.2.7.      remove any SIM card supplied with or forming part of the Equipment (unless specifically instructed to do so by Guavapay), or use or attempt to use any such SIM card for any purpose other than as part of the Equipment for the proper processing of Card Transactions in accordance with the terms of this Agreement;

4.2.8.      create or allow the creation of any mortgage, charge, lien or other security interest in respect of the Equipment;

4.2.9.      suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process;

4.2.10.   add or combine the Equipment with any other equipment or software (except if and to the extent required by any other terms of this Agreement); or

4.2.11.   where Guavapay has specified that a Certificate of Integration from a Relevant Provider is necessary for use of the Equipment or the Solution in connection with the Merchant’s technology and infrastructure, use the Equipment or the Solution until it has received such a Certificate of Integration.

4.3.           If and to the extent that the Equipment is used by the Merchant for processing any Transactions in ‘offline mode’, the Merchant shall be solely responsible for:

4.3.1.      reconciling all such Transactions on a regular basis; and

4.3.2.      reconciling all such Transactions prior to such Equipment being returned to or collected by Guavapay.

4.4.           Where Guavapay has authorised the Merchant to accept Card not Present Transactions, Merchant must keep the additional service conditions and any operating manuals when sending to Guavapay transaction data for these Transactions.

4.5.           Without prejudice to any other provision of this Agreement, the Merchant acknowledges and agrees that Guavapay is not responsible for (or otherwise liable in relation to) any loss or corruption of any Transactions which are processed by the Equipment when used by the Merchant in ‘offline mode’.

4.6.           If the Merchant breaches any of its obligations under this Agreement (including failure to pay any of the Rental Charges or the Relevant Charges on the Payment Date) then Guavapay shall be entitled (at its option) to deploy a representative to visit the Merchant Site with a view to investigating and discussing the breach with the Merchant. Where Guavapay so deploys a representative then, regardless of whether or not such representative meets the Merchant on such visit (and even if the relevant breach is subsequently remedied by the Merchant), the Merchant shall pay the Default Visit Charge. For the avoidance of doubt, Guavapay shall be entitled to deploy a representative to visit the Merchant Site under this clause on each occasion that the Merchant is in breach of this Agreement (including each occasion that any payment of the Rental Charges or the Relevant Charges was not paid on the Payment Date) and the Default Visit Charge shall be payable for each such visit.

4.7.           Guavapay’ rights under clause 4.6 shall be without prejudice to any other rights and remedies of Guavapay, including its rights to terminate this Agreement. 

 

5.                TITLE, RISK AND INSURANCE 

5.1.           The Equipment (including any peripherals and any SIM card supplied with or forming part of the Equipment) shall remain the sole and exclusive property of Guavapay at all times and the Merchant shall have no right to or interest in the Equipment, except for the right to possession and use of it in accordance with and subject to the provisions of this Agreement.

5.2.           The risk of loss, theft, damage to or destruction of the Equipment shall pass to the Merchant on delivery of it to the Merchant. The Equipment shall remain at the sole risk of the Merchant until such time as it is re-delivered to Guavapay.

5.3.           The Merchant shall keep the Equipment insured under an all-risks policy for the benefit of Guavapay for not less than £500 for each individual item of Equipment. The Merchant shall, within seven (7) days of a request by Guavapay produce such insurance together with evidence of payment of the applicable premiums. In the event of a claim under such insurance, the full amount of the Insurance Value shall be payable to Guavapay and any excess payable under such insurance shall be the Merchant’s sole responsibility. If the Merchant fails to comply with its obligations under this clause, Guavapay shall be entitled to effect and maintain insurance in respect of the Equipment, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Merchant.

 

6.                LOSS OF OR DAMAGE TO THE EQUIPMENT 

6.1.           The Merchant shall immediately report to:

6.1.1.      Guavapay any theft, loss, damage and/or failure of the Equipment; and

6.1.2.      the police and to the Merchant’s insurer any theft of the Equipment or any damage to the Equipment caused by third parties.

6.2.           The Merchant shall not tamper with or undertake any repairs to the Equipment without the prior written consent of Guavapay.

6.3.           Without prejudice to any other provisions in this Agreement, the Merchant shall pay to Guavapay on demand an amount equal to the Insurance Value in the event of any theft or loss of the Equipment.

6.4.           Guavapay shall, as soon as reasonably practicable, attempt to repair any faults in the Equipment that have been reported to Guavapay, using remote diagnostics. In the event that the Equipment cannot be repaired using remote diagnostics then Guavapay shall replace the Equipment as soon as reasonably practicable after receipt of the faulty Equipment. The faulty Equipment shall be returned by the Merchant at the Merchant’s risk and cost, except that Guavapay shall reimburse the reasonable cost of returning the faulty Equipment where there is a breach by Guavapay of a Guavapay warranty in respect of such Equipment.

6.5.           Guavapay shall only arrange for an engineer to visit the Merchant Site to repair any faulty Equipment if Guavapay (in its absolute discretion) deems it necessary. Such visit shall take place at times agreed by the Merchant and Guavapay. If the Merchant does not permit access to the Equipment and/or the Merchant Site at the time agreed then the Merchant shall pay the Site Visit Charge on demand.

6.6.           The Merchant shall pay to Guavapay on demand:

6.6.1.      the applicable repair charge where Guavapay determines, in its absolute discretion, that the relevant repair of Equipment is necessary due to any act or omission of the Merchant; or

6.6.2.      an amount equal to the Insurance Value if the relevant Equipment cannot be repaired for any reason (other than where the damage has been caused by any default of Guavapay).

Guavapay shall not be obliged to repair or replace the relevant Equipment unless and until the relevant amount due under this clause (where applicable) has been paid.

6.7.           For the avoidance of doubt, the Merchant shall be solely responsible for any damage caused to the Equipment through use of unsuitable consumables including unsuitable paper rolls (unless supplied by or on behalf of Guavapay).

6.8.           The Merchant shall remain liable to pay all Rental Charges and all Relevant Charges in respect of any period during which the Equipment is lost or damaged (except if and to the extent any such loss or damage is caused by any default of Guavapay).

6.9.           Where Guavapay replaces any Equipment pursuant to the provisions of this Agreement:

6.9.1.      the replacement equipment shall be of equal or greater specification to the Equipment but may not be new; and

6.9.2.      with effect from the date of replacement, the replacement equipment shall constitute the Equipment to the extent relevant for the purposes of this Agreement (and references in this Agreement to the Equipment shall be construed accordingly).

 

7.                INVOICING, PAYMENT OF RENTAL CHARGES AND PAYMENT OF RELEVANT CHARGES 

7.1.           Guavapay may, at its discretion, either:

7.1.1.      issue an invoice for the Rental Charges on a monthly basis during the term of this Agreement; or

7.1.2.      at any time, issue a single annual invoice for all of the Rental Charges due to the expiry of the Minimum Term or due to the expiry of the relevant Renewal Term (as the case may be).

7.2.           In addition to invoices for the Rental Charges, Guavapay may also issue an invoice for the Relevant Charges (where applicable) at any time following such Relevant Charges being incurred. Unless otherwise specified, Rental Charges shall be payable with effect from the Delivery Date and shall be due in advance of each month.

7.3.           Where applicable, the first payment of the Rental Charges shall include (in addition to the Rental Charges payable in advance for the following month) an amount equal to the pro-rata amount of monthly Rental Charges in respect of the period between the Delivery Date and the end of the month in which the Delivery Date occurred.

7.4.           Payment of the Rental Charges and the Relevant Charges (where applicable) shall be due on the date for payment specified in the relevant invoice issued by Guavapay, which shall be no earlier than three (3) days after the date of the invoice.

7.5.           Guavapay will collect Rental Charges and the Relevant Charges (as applicable) via direct debit on the Merchant Bank Account. Merchant shall ensure that there are sufficient funds in the Merchant Bank Account to meet each correct direct debit request for the Rental Charges (and the Relevant Charges if and where applicable).

7.6.           All payments to be made by the Merchant under this Agreement shall be made without withholding or set-off on account of disputes, counterclaims or for any other reason whatsoever.

 

8.                WARANTIES 

8.1.           Guavapay warrants that the Equipment shall be of satisfactory quality and fit for any purpose held out by Guavapay.

8.2.           As the Equipment is not manufactured or produced by Guavapay, Guavapay does not give:

8.2.1.      any warranties beyond those contained in clause 8.1 (above). In particular, but without prejudice to the foregoing, Guavapay does not warrant that the Equipment:

8.2.1.1.            will be error-free or be free of defects;

8.2.1.2.            will achieve any particular performance criteria; or

8.2.1.3.            will be suitable for the Merchant’s use or purposes or, in relation to any Mobile Equipment, that it will receive sufficient signal or achieve any connectivity at the Merchant Site or elsewhere to enable it to work without interference (or at all),

and it is the Merchant’s sole responsibility to ensure that the Equipment is suitable for its use and suitable for the purposes of (including any standards required under) this Agreement.

9.                Intellectual Property Rights

9.1.           All Intellectual Property Rights provided or made available to the Merchant in connection with the supply of Equipment and support of such Equipment shall remain with Guavapay (or, where applicable the third-party owner of such Intellectual Property Rights) and shall not be transferred to the Merchant in any way. The Merchant shall only use Guavapay’s trade marks and/or trade names with the prior written consent of Guavapay and provided that they are only used in accordance with Guavapay’s guidelines prevailing at the relevant time and any applicable terms of this Agreement.

9.2.           Without prejudice to the above, the Merchant acknowledges and agrees that:

9.2.1.      these POS Terms do not convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Equipment or the Solution to the Merchant;

9.2.2.      the Merchant’s licence to use the Software is non-exclusive and revocable and is strictly limited to a licence to use the Software in the format in which it is provided;

9.2.3.      the Software cannot be used by the Merchant on behalf of any third parties and the Merchant shall not grant (or purport to grant) to any third parties any licence to use the Software; and

9.2.4.      it shall notify Guavapay on becoming aware of any claim by any third party that any part of the Equipment or the Solution infringes any Intellectual Property Rights of any third party.

9.3.           The Merchant shall not:

9.3.1.      translate, adapt, vary, modify, disassemble, decompile or reverse-engineer all or any part of the Equipment or the Solution or create derivative works of the same for any purpose;

9.3.2.      tamper, obscure or deface any markings or logos which appear on any part of the Equipment or the Solution; or

9.3.3.      cause or permit anything to happen which may damage or endanger the Intellectual Property Rights of a Relevant Provider.

 

10.             TERMINATION

10.1.        These POS Terms will terminate automatically should this Agreement end for whatever reason.

10.2.        Either Party has a right to terminate these POS Terms on 30 days written notice to the other given at any time.

10.3.        Upon termination of these POS Terms howsoever arising:

10.3.1.   Merchant will immediately return the Equipment to Guavapay at such place within the United Kingdom as Guavapay reasonably requires, in good order, repair and condition (fair wear and tear only excepted) or to a person authorised by Guavapay or allow us or a Guavapay authorised person to enter the Merchant Site (and where relevant Merchant shall obtain permission for Guavapay and any Guavapay authorised person to enter the premises where the Equipment is or where Guavapay believes it to be) to remove the Equipment; and

10.3.2.   Merchant will immediately pay Guavapay all amounts owed by it under these terms. Where these terms have terminated (for whatever reason) prior to the expiry of the Minimum Term or any subsequent Renewal Term (as the case may be), then Merchant will pay to Guavapay:

10.3.2.1.         all arrears of Rental Charges outstanding at the date of termination; a sum equal to the aggregate of all Rental Charges which would, but for the termination of these POS Terms, have become due and payable under these POS Terms from the date of termination to the expiry of the Minimum Term (or to the expiry of the applicable Renewal Term as the case may be) less a discount of 5% of each Rental Charge.  Merchant agrees that its liability under this paragraph shall accrue prior to termination of these POS Terms; and

10.3.2.2.         damages for any breach of these POS Terms and all costs, expenses and fees incurred by us in recovering possession of the Equipment and/or enforcing our rights under these POS Terms.

 

11.           GENERAL MATTERS

11.1.        Value Added Tax. The Rental Charges and the Relevant Charges are exclusive of any applicable value added tax and any other applicable taxes and duties or similar charges, which shall be payable by the Merchant in addition at the prevailing rate from time to time in force.

11.2.        Changes to these POS Terms. Guavapay shall be entitled to change any terms (including any fees and charges in Guavapay’s standard price list) without reference to any other person by giving the Merchant at least 30 days’ notice.

11.3.        Special requests. In the event that Guavapay agrees to make any Requested Change then the Merchant shall be liable to pay the Administration Charge on demand (for each occasion that any Requested Change is so agreed).

 

 

SCHEDULE 5

 

PAYMENT BY LINK TERMS AND CONDITIONS

These Payment by Link Terms and Conditions (“Payment by Link Terms”) supplement the Agreement and govern your use of the Payment by Link Services provided by Guavapay where you have opted to use them. By using or opting to use the Payment by Link Services, you agree to be bound by these Payment by Link Terms, as well as any additional terms and conditions outlined in the Agreement.

 

These Payment by Link Terms are integral to and in addition to the Agreement and they only apply where a Merchant opts for the Payment by Link Services. All provisions outlined in the Agreement are fully applicable to the Payment by Link Services, unless explicitly stated otherwise. In the event of any conflict or discrepancy between these Payment by Link Terms and the Agreement, the provisions of the Agreement shall prevail.

 

1.    DEFINITIONS 

1.1.       The following terms (whether used in singular or plural form and in addition to any terms already defined in the Agreement) shall have the following meanings:

 

1.1.1. Customer means a person or entity that makes a payment to a Merchant using a Payment Link; and

1.1.2. Payment Links means a service that allows Merchants to create and share a unique URL to receive one-off payments from their Customers using various payment methods.

 

2.     ELIGIBILITY AND AGREEMENT 

2.1.       You must have accepted the Agreement to use Payment Links.

 

3.      GENERAL OBLIGATIONS

3.1.           You agree that:

3.1.1.      Payment Links only facilitate Transactions between you and your Customer; we are not a party to these Transactions;

3.1.2.      we are not responsible for the products or services you sell, and makes no warranties regarding them. We are not liable for product liability claims, regulatory compliance, consumer protection claims, or inaccurate information provided by you;

3.1.3.      we are not responsible for Customers' actions, including incomplete Transactions;

3.1.4.      we are not responsible for third-party platforms that offer Payment Links as a payment method;

3.1.5.      you are solely responsible for resolving disputes with Customers. We will not mediate disputes for Transactions processed using Payment Links;

3.1.6.      you agree to share necessary Customer information with us to enable Payment Links, governed by our Privacy Notice.

 

4.     CREATING AND SHARING PAYMENT LINKS

3.1.       A Payment Link allows you to receive payments by sharing a unique URL with your Customers.

3.2.       You can create a Payment Link by specifying the payment amount and adding a description in our app. Once created, the Payment Link can be shared with anyone who has a valid means of payment.

3.3.       Payment will only be received if the Customer completes the payment process using the Payment Link.

3.4.       There may be limits on the payment amount you can request via a Payment Link, which will be displayed in the app or portal where you commence the payment request process.

 

5.     Customising Payment Links

4.1.       You may customise your Payment Link by uploading your logo or a cover image.

 

4.2.       All logos and images are subject to our approval and must meet the following requirements:

 

-         no discriminatory or hateful content;

 

-         no violent, sexually explicit, or objectifying content;

 

-         no criminal or antisocial content;

 

-         no trade marks or logos not associated with the account owner;

 

-         no direct or indirect references to companies or persons other than the account owner;

 

-         no content that breaches any other terms and conditions you have agreed to with us; and

 

-         no content that could reasonably be considered inappropriate.

 

4.3.       We reserve the right to decline approval or revoke previous approval of any logo or image at our sole discretion.

4.4.       We are not liable for any images or logos you upload. You are responsible for ensuring that any content you upload does not infringe third-party intellectual property rights. You must indemnify us for any third-party claims, losses, damages, costs, expenses, demands, or fines incurred due to your failure to meet these responsibilities.

4.5.       Any trademarks, logos, or other intellectual property you share with us remain your property, and we do not acquire any rights, title, or interest in them.

6.       Fees for Payment Links

5.1.       We charge a fee for payments received through Payment Links. These fees are detailed on our Fees section of our Website.

5.2.       There are no fees associated with customising a Payment Link.