Terms & conditions
Version:
1.0
Effective from:
Nov 1, 2023
In the Terms & Conditions, the following definitions shall apply:
3D Secure: The “three-domain secure” protocol developed by Visa branded as “Verified by Visa” and MasterCard, including successive versions thereof and any amendments thereto or similar secure protocols as developed by other Scheme Owners.
Acquirer: A financial institution that acquires Card Transactions.
Affiliate: means any entity that directly or indirectly controls, is controlled by Fung Payments B.V.
Agreement: the agreement between Fung and the Merchant for the provision of services to the Merchant, including these Terms and Conditions, all Schedules and documents incorporated by reference.
API (Application Programming Interface): a set of routines, protocols and tools developed by Fung to provide the Payment Services to the Merchant via a secure internet connection between the Merchant’s system and Fung’s system.
Applicable Law: means all relevant and governing laws, regulations, and legal requirements at various levels (national, state, local, or international), and Scheme Rules that affect the rights, obligations, and performance of the parties under this agreement, including applicable data protection laws.
Capturing: The confirmation by (or on behalf of) the Merchant to the Acquirer that a Transaction for which Merchant received an authorisation has been completed and the Customer’s account is to be actually charged for the Transaction. “Captured” shall have the corresponding meaning.
Card: Any form of credit Card or Debit Card issued by the Issuer, which may be used by a Cardholder to carry out a Transaction on a Cardholder's account.
Cardholder: the person who is permitted by the Issuer to hold and use the Card.
Chargeback: A Transaction which is successfully charged back on request of the Customer or the Issuer pursuant to the relevant Scheme Rules resulting in a cancellation of a Transaction in respect of which a Merchant has been paid or was due to be paid. If a Chargeback occurs for a Transaction in respect of which Merchant already received Settlement of the related funds, this results in the unconditional obligation for the Merchant to immediately return the Settled funds to Fung, to enable Fung to return such funds to the Scheme Owner or Acquirer.
Customer: the Merchant’s Customers who wish to pay for products and/or services provided by the Merchant.
Data Processing Agreement: means the data processing agreement between Fung and the Merchant that is attached hereto as a Schedule.
Deposit Level: The minimum level of Deposit(s) set for the Merchant from time to time pursuant to these Terms and Conditions.
Deposit(s): An amount of funds held by Fung, withheld by Fung from funds to be Settled to the Merchant and/or separately deposited with Fung by the Merchant on Fung's request, as security for Chargebacks, Refunds, Fines and fees due to Fung.
Fine: Any fine, uplifted service fee or other additional payment as imposed by the Scheme Owners and/or Acquirers to the Merchant and/or Fung, as a result of situations such as, but not limited to, breach of Scheme Rules by the Merchant or caused by Merchant, excessive fraud levels or excessive Chargeback levels.
Fung: a company registered with the Dutch Chamber of Commerce under number 85548413, with address at Meeuwenlaan 100, 1021 JL Amsterdam, The Netherlands, for the purpose of the Agreement Fung may also refer to, as the case may be, to Stichting Custodian, or any Affiliate.
Issuer: an institution that issues Payment Methods to the Customer and whose name appears on the Card or bank account statement as the Issuer or who enters into a contractual relationship with the Customer with respect to the Payment Method.
Merchant Account: the internal record, not being a payment account, in Fung’s administration that evidences the amounts owed or to be received by Fung from the Merchant, including any Deposits.
Merchant Account Balance: the actual balance on the Merchant Account.
Merchant Bank Account: means the bank account as defined in Clause 6.
Multi-Currency Processing: Fung supports processing of Transactions in different foreign currencies, including the ability to have funds settled to a Merchant Bank Account in a currency different from the one in which the Merchant accepted payment from a Customer.
Payment Fees: the fees for processing and other Services as agreed upon between Merchant and Platform. Any fees and charges imposed on Fung by a third party (including Scheme Owners, Acquirers, and Issuers) in relation to the Payment Services, as offered to Merchant, are passed on by Fung to Platform and are included in the Payment Fees.
Payment Gateway: An electronic connection method provided by Fung to the Merchant for providing the payment details for individual Transactions allowing Fung to provide its Payment Services with respect thereto.
Payment Method: A method of enabling payments to merchants such as, amongst others, credit cards, iDEAL, SEPA and Google Pay.
Payment Services: all the services that Fung may provide to Merchant, including the Payment Services that enable Merchant to accept payments from its Customers or Sub-merchants’ Customers in exchange for the products and/or services delivered by Merchant or its Sub-merchants, is set out in Clause 2 hereof.
PCI DSS: The security standards for transmitting, processing or storing card data / payment details, known under the name PCI DSS, as required to be observed under the Scheme Rules of the Card Schemes and Applicable Law. (www.pcisecuritystandards.org).
Personal Data: has the meaning given to it in Applicable Law such as the GDPR.
Platform: the platform that enables, as technical service provider, the Merchant to integrate with Fung and which provides certain platform services to Merchant.
Processing of Personal Data: has the meaning given to it in the applicable data protection laws such as the GDPR.
Refund: A (partial) reversal of a particular Transaction, whereby the funds are reimbursed to the Customer.
Representative: means (i) any employee, officer or director of the Party and/or of the Merchant’s Entity and of Fung for us, and appointed lawyer(s), and statutory auditors; and (ii) an advisor (e.g. accountant, financial adviser and consultant) with respect to whom a prior written consent of the disclosing party was obtained from the Recipient for sharing of the Confidential Information.
Scheme Owner: The party offering and/or regulating the relevant Payment Method, such as VISA and MasterCard for credit card schemes and Currence for iDEAL.
Scheme Rule: The collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time.
Settlement: The payment of amounts by Fung to the Merchant, owed with respect to settlements received by Fung, from Acquirers, Scheme Owners or Customers for Transactions validly processed for the Merchant, minus any amounts payable, such as for Refunds, Chargebacks, Transaction fees and the amounts needed to keep the Deposit on the then current Deposit Level.
Settlement Delay: this is how quickly funds from a Transaction become available to be Settled to the Merchant Bank Account. Fung applies T+4 as Settlement Delay, whereby “T” is the transaction time and “4” is the additional time it takes for those funds to be available for Settlement. Settlement on any given day will therefore comprise funds from Transactions that occurred at least four business days prior.
Settlement Schedule: means the frequency of Settlements that Fung initiates towards the Merchant Bank Account, as further described in Clause 8.4.
Software: the collective set of programs and data developed and/or operated by Fung and provided to the Merchant so that it can receive our Payment Services.
Stichting Custodian: Stichting Custodian Fung Payments, with offices at Meeuwenlaan 100, 1021 JL Amsterdam, registered at the Dutch Chamber of Commerce under nr. 86572679. Stichting receives and manages the funds received on behalf of Merchant and acts as a safeguarding foundation. Stichting Custodian is affiliated with Fung Payments B.V., and is therefore involved by De Nederlandsche Bank in its supervision.
Transaction: financial transaction following the authorised payment from the Customer to the Merchants, submitted by the Merchant to Fung
2. Description of the Payment Services
2.1 Platform
The Merchant will be using the Payment Services as a customer of the Platform. Platform is representing Merchant towards Fung with respect to Merchant’s use of the Payment Services and, where relevant, Fung may assume that Platform is authorised and mandated by Merchant to act on behalf of the Merchant and in accordance with the Merchant’ permissions and instructions which Platform has obtained from the Merchant.
2.2 Payment Terms
Platform will enter into a specific agreement with the Merchant stipulating the terms and conditions pursuant to which the Platform enables Merchant to integrate with Fung’s Payment Services (the “Payment Terms”). These Payment Terms are herein incorporated by reference. Fung may rely on the Payment Terms.
2.3 Acceptance and Use Requirements
As part of the Payment Services, you may accept payments from Customers using various Payment Methods by submitting Transactions to Fung through the Payment Gateway. Payment Methods may have specific requirements for their acceptance and use. These requirements may be incorporated into the API and the Payment Gateway, and may be described in these Terms and Conditions, or in other applicable documents. The Merchant must comply with all of these acceptance and use requirements.
2.4 Scheme Rules and Payment Method Terms
Merchant’s acceptance and use of a Payment Method may be subject to Scheme Rules. Using the Payment Services to accept a Payment Method or submit a Transaction constitutes Merchant’s acceptance of the applicable Scheme Rules. In the event of any inconsistency between any provision of these Terms and Conditions and the Scheme Rules, the applicable Scheme Rules will prevail to the extent of the inconsistency. The Scheme Rules may be amended from time to time. Merchant’s continued use of the Payment Services constitutes Merchant’s agreement to those amended terms.
2.5 Select Payment Methods
Each Payment Method has its own characteristics, risks and conditions, including cost structure, payment term, the manner in which payment is made, and the possibilities offered to Customers to dispute the payments or claim Refunds or Chargebacks, where applicable. When a Merchant enables a Payment Method through the Platform, the Merchant must ensure that it understands and accepts the conditions of that Payment Method. Fung may add Payment Methods in the future, which must in general be activated before they can be used. Fung reserves the right to delete Payment Methods and may deny the Merchant use of a specific Payment Method.
2.6 Google Pay
As part of the Payment Services, Merchant may also enable Google Pay as a Payment Method. Merchant acknowledges that the Google Pay Terms of Service may apply in that case.
2.7 Discontinuation Payment Methods
The Merchant understands that Acquirers and/or Scheme Owners might terminate certain Payment Methods, change the characteristics thereof or change the acceptance criteria under which they make them available. As a consequence, Fung may be forced to block or suspend the Merchant from further use of one or more Payment Methods or impose additional restrictions or conditions on its continued use as a consequence of such decisions of the relevant Acquirer and/or Scheme Owner. Fung is not liable for any damages caused by the termination, changes, blockage or suspension of Payment Methods. Where possible Fung will use its reasonable efforts to give the Merchant prior notice of any such change or termination with respect to the Payment Methods agreed to be offered under the Agreement.
2.8 Third Parties
The processes for authentication, authorisation, third party Acquiring, clearing and settling of Transactions to Fung, are controlled by and are the responsibility of the third-party Acquirers, Scheme Owners and Issuing Banks and are subject to the Scheme Rules set by the Scheme Owner(s). Fung does not have primary responsibility for services provided by these third parties and does not control the services provided by third party Acquirers, Issuers and Scheme Owners. Therefore, Fung is not liable for any caused damages in relation to these third-party services.
3. Merchant onboarding
3.1
The Merchant must onboard with Fung before the Merchant can use our services. In order to enable Fung to perform the checks related to, amongst others, anti-money laundering, counter-terrorism financing, anti-tax evasion, sanctions screening and other Applicable Law, the Merchant must, before entering into the Agreement, and thereafter on our first request, provide information: about Merchant, its activities, its shareholders, its ultimate beneficial shareholders, its registered office address, as well as any other information that might be requested by Fung during onboarding and/or thereafter, which the Merchant needs to provide promptly on our first request (the “Onboarding Information”).
3.2
The Merchant represents, warrants and undertakes that all Onboarding Information provided is accurate, complete and truthful, and that the Merchant will update Onboarding Information at least 3 (three) Business Days prior to or at least immediately upon any material change so that it is at all times complete, accurate and up to date, including, but not limited to any change of its directors, shareholders and/or ultimate beneficial owners.
3.3
If the Merchant fails to provide the data requested in accordance with Clause 3.2 or 3.3, without prejudice to Clause 20, Fung reserves the right to suspend the provision of our Payment Services until such data has been provided or terminate the Agreement if such data is not provided within reasonable time.
3.4
The Merchant acknowledges that Fung may run further checks on Merchant’s identity, creditworthiness and background by contracting and consulting relevant third-parties sources. The Merchant hereby authorises Fung to use and share any data collected with third-parties as deemed necessary, including but not limited to the Onboarding Information, for any ongoing checks or monitoring related controls.
3.5
Support for each Payment Method, as the case may be, is subject to acceptance by the relevant Scheme Owner or Acquirer used by the Scheme Owner, which such Acquirer or Scheme Owner may withhold or withdraw in its discretion at any time, in which case Fung is not liable for any damages of the Merchant or Customers. Some Scheme Owners or Acquirers may require the Merchant to enter into a direct agreement with the Acquirer or Scheme Owner before the Merchant may use the relevant Payment Scheme. Some Scheme Owners may request information directly from Merchant, others indirectly through Fung. The Merchant hereby authorises Fung to submit Onboarding Information received from the Merchant to the relevant Scheme Owners and Acquirers to obtain permission for providing access to their Payment Methods for Merchant. Fung may at its discretion select Acquirers for the Payment Methods used. The Merchant hereby agrees and consents to cooperate with the Scheme Owners upon request. Failure to do so could be a reason to (partially) suspend or terminate the provision of Payment Services, for which Fung cannot be held liable by Merchant.
4. Acceptance
Merchant must become duly onboarded and accepted by Fung as per Clause 3, including all the relevant checks as per Applicable Law. Absent acceptance, this Agreement will not become effective as per Clause 20, unless Parties agree otherwise. Fung’s acceptance of Merchant is strictly personal to Merchant and limited to the use by Merchant of the Payment Services.
5. Obligations related to the Payment Services
The Merchant agrees to the following obligations and restrictions:
5.1
The Merchant must immediately inform Fung in writing of material changes to its business model and/or product or service offering and must request prior written approval for any change or addition to the Payment Services prior to submitting payments to Fung for processing therefore. Fung’s acceptance of the Merchant should not be interpreted as an advice or opinion of Fung as to the legality of Merchant’s products and services and/or of Merchant’s intended use of the Payment Services therefore.
5.2
The Merchant may not resell any of the Payment Services to any third parties whether in its entirety or partially.
5.3
The Merchant is and remains solely responsible to ensure that its offering and sale are compliant with all Applicable Law in its country of residence and the countries its Customers are based in. Fung reserves the right to refuse to provide the Payment Services.
5.4
The Merchant shall not use the Payment Services in respect of its products and/or services where it is illegal to offer or provide these to or from the relevant country and/or which are stated in Fung’s Prohibited and Restricted Products and Services List which is available on our website. This list may be updated at Fung’s discretion. The Merchant will be informed of updates of this list by Fung publishing an updated list on the Fung website.
5.5
The Merchant must prominently and clearly disclose its name, address, and country location to Customers before Customers are prompted to provide payment card information. For each Transaction, there will be a contractual relationship between Merchant and Customer, Fung is not a party to these contractual relationship(s).
5.6
A Scheme may (ask Fung to) initiate audits and forensic investigations in accordance with its Scheme Rules. The Merchant must fully cooperate with these audits and forensic investigations.
5.7
The Merchant agrees that if it accepts a Customer’s Card or other Payment Method and the Transaction is authorised, the Customer has thereby satisfied its related obligation to pay for its supply of goods and/or services, and that Merchant shall then deliver the purchased goods and/or service to such Customer. Merchant further acknowledges and agrees that Fung is not a party to the agreement between Merchant and its Customers and that Fung shall bear no liability in regard to that relation.
5.8
The Merchant agrees to allow us, subject to a thirty (30) days written notice, to conduct an inspection at its offices to confirm compliance with the terms of these Terms and Conditions, and whether the Merchant is maintaining the proper facilities, equipment, inventory, records, licences and permits where necessary to conduct its business. Our representatives, or a third party auditor, as the case may be, may, during normal working hours, inspect, audit and make copies of its books, accounts, records, and files pertaining to any transaction processed under the Agreement. In the event that breaches of the Agreement are identified, the Merchant agrees to take corrective actions as specified by Fung to resolve the breaches. Failure to take corrective actions may result in the termination or suspension of the Agreement. The Merchant is charged with all reasonable costs associated with the inspection, including the fees of the third-party investigators.
5.9
The Merchant agrees that where it mentions the Payment Method(s) available to its Customers, that it must include all Payment Methods offered by it, and Merchant must display the brand(s) belonging to the Payment Method as prescribed by the specific Scheme (such as iDEAL, VISA or MasterCard). The Merchant must not criticise or deliberately misrepresent any of the Payment Methods or the services linked to them, nor is Merchant allowed to engage in any activities that damage the interests or brands of Fung or the Payment Method(s). In such a case, Fung may suspend the Payment Services immediately.
5.10
The Merchant agrees and acknowledges that it shall not impose surcharges on certain Payment Methods if the surcharge might result in a violation of any Applicable Law. Failure to comply with this prohibition may result in penalties, for which the Merchant is solely responsible. The Merchant will indemnify Fung and agree that Fung is not liable for any damages due to non-compliance with this section.
5.11
Without prejudice to Section 19 (Termination), the Merchant hereby agrees to inform Fung of any situation/information that could materially impact the Merchant immediately upon becoming aware of such situation/information.
6. Merchant Bank Account
The Merchant must designate at least one bank account with an EEA credit institution in connection with the Payment Services (“Merchant Bank Account”). The Merchant hereby agrees that Fung may, and hereby authorises Fung to, debit and credit a Merchant Bank Account as described in these Terms and Conditions, based on a SEPA Direct Debit mandate and will execute any form required thereto. The Merchant must not grant or assign to any third party any lien on or interest in funds that may be owed to the Merchant under these Terms and Conditions until the funds are deposited into a Merchant Bank Account.
7. Processing Transactions
7.1 Safeguarding Merchants’ Funds
As a regulated payment service provider Fung must safeguard the funds received on its behalf. For this purpose, Fung uses a separate entity, Stichting Custodian. The Merchant acknowledges and agrees to the fact that Stichting Custodian receives funds on its behalf and safeguards them in the manner as instructed by Fung. Any obligation of Fung to settle funds to Merchant will be complied with once Stichting Custodian sent the funds, net of Payment Fees, Refunds and other amounts owed to Fung, to Merchant Bank Account. The Merchant expressly acknowledges and agrees that the Merchant is not entitled to any interest for funds received on its behalf. The Merchant hereby waive its rights to pursue legal claims against Stichting Custodian regarding the safeguarding of funds and address any claims directly to Fung. The Merchant expressly agrees to this third-party clause in favour of Stichting Custodian.
7.2 Cardholder authentication methods
As an additional security layer, 3D Secure authentication may be offered to the Merchant. When 3D Secure is applied, the liability for fraudulent Chargebacks shifts from the Merchant to the Card Issuer, unless otherwise agreed. Should Merchant not activate 3D Secure for Transactions where such option is available, the Merchant agrees that a higher Interchange Fee may be applied by the Scheme Rules or Acquirers, and the Merchant agrees to bear full liability for Chargebacks and (other) damages caused by unauthorised Transactions.Other restrictions may be applied by the Scheme Rules or Acquirers. Fung might determine, in its sole discretion, to mandate the use of 3D Secure authentication due to underlying risk profiles. The Merchant understands and agrees that certain fees may be imposed by Fung as a result hereof.
7.3 Fraud control
When applicable, Fung may subject Transactions to its fraud tool, which conducts various checks on them and assigns a total score indicating the likelihood of fraud. This tool can include processes or systems developed by Fung or by third parties. The fraud tool does not guarantee the prevention of fraudulent Transactions, nor against resulting Chargebacks or Fines, where Fung will not be liable for. When there is an unacceptable risk of fraudulent Transactions or an increase in Chargebacks, Fung has the right to modify the scoring values and checks within the fraud tool without prior notice.
7.4 Multi-Currency Processing & Settlement
Fung may offer the Merchant the possibility of Multi-currency Processing as follows:
Receive payments from Customers in different (foreign) currencies. When Merchant uses this option, Fung will arrange for the payments to be collected in the specified currency, unless otherwise agreed between Merchant and Fung. To use this functionality, Merchant may be required to provide Fung with a valid bank account for each currency for which it requests settlement, based on our list of available settlement currencies. Fung may add or remove currencies from the list of available settlement currencies at any time taking into account a notice period of one (1) month; and/or
Have funds settled to Merchant in a currency different from the one in which Merchant accepted payment from a Customer as per the conversion rates as agreed upon between Platform and Merchant. For any conversion of currency foreign exchange fees may be due as agreed upon between Platform and Merchant.
8. Pricing and Collateral
8.1 Fees
Merchant agrees to pay the Payment Fees for processing and other Services as agreed upon between Merchant and Platform. In principle these Payment Fees will also encompass any fees that the Platform is due to Fung. Merchant authorises and gives an unconditional mandate to Fung to deduct the Payment Fees from any amount Fung owes to Merchant.
8.2 Settlement
By default, Fung applies the principle of net settlement to the Merchant, unless agreed otherwise. This means that payouts are made for the net amount of the processed payments, after applying the Payments Fees. Fung will settle received funds directly to the Merchant Bank Account. Fung is only obliged to provide Settlement of Transactions for which it has received settlement(s) by the Acquirer or the Scheme Owner. It is the Merchant's responsibility to evaluate if the conditions imposed by the Payment Methods for settlement (as communicated from time to time via the Platform and/or by the Scheme Owners themselves via their websites and other communication channels to you) are acceptable to Merchant. The Merchant understands and agrees that Fung will not compensate the Merchant for late or non-performance, insolvency or bankruptcy of the Acquirer or Scheme Owner as a result of which the Merchant receives late Settlement or no Settlement at all for processed Transactions.
8.3
Fung reserves the right to withhold Settlement of Transactions, if Fung reasonably suspects the Transaction to (i) be related to fraud or other illegal activities or (ii) become subject to potential Chargeback by Fung, the Acquirer, or Scheme Owner. Settlement may occur after an investigation by Fung, the Acquirer, Scheme Owner, or their nominated third-party. The Merchant will cooperate with any such investigation.
8.4
Notwithstanding Clause 8.2 and 8.3 and subject to the Settlement Delay, by default initial Settlement to the Merchant Bank Account will occur after 7 days, following which the Settlement Schedule will be set at weekly intervals, unless agreed otherwise. As part of the acceptance as per clause 4, Fung may at its sole discretion determine that a different Settlement Schedule is warranted based on the associated risk. Fung is entitled to change the Settlement Schedule during the term of the Agreement.
8.5 Invoicing
Fung will provide invoices to the Merchant for the Payment Services rendered. Invoices provide an overview of (i) the Payment Fees and other applicable costs and fees due for the processing period, calculated on the basis of the Transaction volume, (ii) an overview of the Payment Fees and other fees already withheld from the Settlements and (iii) where relevant the remaining amount due or credited to the Merchant. Amounts due or credited are subsequently added to or subtracted from the next Settlement to the Merchant. If the Settlement amounts are not sufficient to cover amounts due to Fung, the amounts remain due as per the due date as stated on the invoice and shall be paid separately by the Merchant within 14 days as of a request from Fung. Absent payment thereof in a timely fashion, the Merchant will be in default by operation of law, without any prior notice of default being required. From the moment the Merchant is in default, it will owe the commercial interest rate according to Applicable law' on the outstanding amount.
8.6 Deposit level calculation
Fung has the right to set a Deposit Level to be applied by Fung as security for Chargebacks, Refunds, Fines, fees or other liabilities Fung might incur. Fung has the right to adjust the Deposit Level in its discretion from time-to-time to bring it in line with its then current estimates. The Merchant expressly acknowledges and agrees that the Merchant is not entitled to any interest on the Deposit.
8.7 Deposit reservation
The initial Deposit Level, if any, will be set by Fung on the basis of the information provided by the Merchant regarding anticipated initial use of the Payment Services when entering into the Agreement. Fung may require the Merchant to transfer an initial Deposit to Fung before it may start using the Payment Services.
Fung shall subsequently keep the Deposit at the Deposit Level by deducting funds from or adding funds to each Settlement. If at any point in time the Deposit drops below the then current Deposit level, Fung may require the Merchant to immediately transfer such funds to Fung as is necessary to bring the Deposit in line with the then current Deposit Level.
After termination of the Agreement or after processing of Transactions is stopped, where applicable, the Deposit shall be released by Fung in monthly steps to the Merchant to account for the decrease in the uncompleted order exposure, fraud exposure and/or Fine exposure until the full Deposit is released to the Merchant or where applicable, in part or in whole applied by Fung to pay for Chargebacks, cover Fines or fraud claims or pay for unpaid Fung fees due by Merchant. The Deposit will as standard be fully released to the Merchant 6 months after processing of Transactions for the Merchant has stopped, unless specifically identified potential liabilities still exist at that point in time.
8.8 Additional Collateral
In addition to the Deposit Level and at Fung’s first request the Merchant is obliged to provide additional forms of collateral, or grant a lien for the benefit of Fung, as a security to guarantee payment of any and all debt or liability from the Merchant to Fung, the Payment Schemes such as, without limitation, unpaid Payment Fees, Chargebacks, Refunds, or other potential debt or liability, including those arising out of or in connection with any Payment Services. The Merchant hereby agrees to create a first-ranking right of pledge in favour of Fung over all claims Merchant has against Fung under the Agreement. The Merchant creates this right of pledge as security for all claims Fung has now or may acquire against Merchant in the future. The Merchant confirms that it is authorised to grant and create this pledge. The Merchant also confirms that its claims are not encumbered by any other pledges. Fung declares that it is aware of this pledge and hereby accepts the pledge.
8.9 Set-off
The Merchant authorises Fung to set-off, the whole or any part of Merchant’s liabilities to Fung under the Agreement (or any other contract with us) against any funds credited or owing to the Merchant under the Agreement (or any other contract with Fung). Fung may exercise this right of set-off at any time, without notice to Merchant, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Agreement.
9. Chargebacks and Refunds
9.1 Chargebacks
Scheme Owners may allow Customers to Chargeback authorised and settled Transactions by requesting a Chargeback from the Scheme Owner or the Issuing Bank. Please check the relevant Scheme Rules to see which Payment Methods allow Chargebacks and what procedures apply. Fung credits the Merchant’s Bank Account with Settlement amounts on the condition that no Chargeback shall occur. If there is a Chargeback, Fung is authorised to deduct the amount of the Chargeback and all related costs from Settlements, to debit the credit that was made to the Merchant Bank Account, or debit the Deposit, plus any applicable fees as per the particular Scheme and pricing agreed between Platform and Merchant.
If Chargeback levels of the Transactions are above levels acceptable for Fung and/or the relevant Scheme Owner or are expected to become above unacceptable levels, Fung reserves the right to suspend the availability of said Payment Method in its discretion.
A Chargeback level of more than 0.5% of the total volume of Transactions may be considered unacceptable for Fung and most Scheme Owners and may lead to suspension of Transaction processing and/or Fines being applied (for which the Merchant will be responsible). For some Payment Methods higher or lower tolerances for Chargeback levels may apply, please check the relevant then current version of the relevant Scheme Rules for this. Excessive Chargeback levels may also result in Fung increasing the Deposit Level to obtain additional guarantees to limit our risk or to suspend or terminate the Agreement.
For every Chargeback, a non-refundable Chargeback Fee will be charged to the Merchant as agreed upon between Platform and Merchant, regardless of the outcome of the dispute procedure as set out in section 9.6 below.
9.2 Refunds
The Merchant may not provide Refunds to a Customer for a previously processed Transaction using a different Payment Method than the method used for the original Transaction. The original Transaction can in such case still be subject to Chargeback by the Customer or Issuer, causing the Merchant having to refund the received funds twice, for which cases Fung is not held liable. Fung may not process a Refund in case the funds for this cannot be subtracted from the next Settlement, meaning the relevant sum will not be returned by Fung to the relevant Customer, directly or via the relevant Acquirer / Scheme Owner.
9.3 Chargeback payment
Without prejudice to Fung’s right to set-off under Clause 8.8 (set-off), for every Chargeback where Fung is obliged to pay the Chargeback amount, the Merchant gives Fung authority to deduct the same amount from the Settlements or where the Settlement amount is too low, from the Deposit.
9.4 Chargeback period
As Chargebacks may arise a considerable period after the date of the relevant Transaction, the Merchant acknowledges and agrees that, notwithstanding the termination of the Agreement for any reason, Fung shall remain entitled to recover Chargebacks and Chargeback fees and related Fines from the Merchant in respect of all Chargebacks that occur in relation to Transactions effected during the term of the Agreement and also if the Agreement is terminated.
9.5 No refund of fees
Payment Fees charged for executing a Transaction will not be refunded in part or in whole to the Merchant if the Transaction is Refunded or made subject to a Chargeback.
9.6 Disputes
The Merchant may dispute Chargebacks. Fung or the Platform can assist Merchant through notifications and software. Merchant agrees that Fung nor the Platform has any liability for their role in disputing the Chargeback. The Merchant agrees to provide necessary information for investigation to Fung or Platform promptly at its own expense, within three (3) business days, unless specified otherwise. The Merchant gives Fung or Platform permission to share relevant information with the relevant parties to help resolve a dispute. Failure to provide complete and accurate information promptly may lead to an irreversible Chargeback. Fung reserves the right to charge fees for its investigation and mediation in Chargeback matters.
9.7 Fines scheme owners
For violations of certain key requirements under the Scheme Rules, some Scheme Owners can levy (significant) Fines to Fung or other acquirers for which Fung will be liable. Where Fung becomes aware of and/or receives any notice of a potential exposure to a Fine related to the Merchant, the Merchant will on first request provide all required cooperation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of Fung in such a situation. Where possible Fung will share relevant feedback received from the Merchant with the Acquirer/Scheme Owner handling the potential Fine so it can be taken into consideration by the Acquirer or Scheme Owner Fung is not liable for any violation of the Scheme Rules or exposure to a Fine related to the Merchant and the Merchant will indemnify Fung on this matter.
9.8 PCI Standards Compliance
Where applicable, the Merchant must at all times fully comply with the then current PCI-DSS rules and on our first request demonstrate such compliance and provide a valid certification of compliance. If the Merchant cannot prove the compliance to the PCI-DSS rules or its certification/compliance becomes invalid, the Merchant must notify Fung immediately. Fung has the right to immediately suspend, or terminate Transaction processing in case Fung has any indication that the Merchant is not compliant with the PCI-DSS standards.
The Merchant represents and warrants during the Term, that Merchant and its third-party service providers that store, access or transmit Payment Account Details comply with the PCI Standards, as applicable.
10. Merchant Communications
All first line communications with the Merchant regarding the use of the Payment Services will run through the Platform. Via the same communication channel, Fung will also inform Merchant of relevant changes in applicable Scheme Rules, financial laws and regulations.
11. Payment Methods
Fung will support the Payment Methods as specified in the Agreement and/or as set out through the Platform, as long as Fung continues to support these in its general product portfolio. In case of: (i) materially different terms imposed by the relevant Scheme Owner or Acquirer; (ii) material malperformance by the relevant Scheme Owner or Acquirer (or reasonable grounds for Fung to suspect such malperformance); (iii) reasonable grounds to doubt the credit worthiness of the Scheme Owner or Acquirer; or (iv) increased costs for Fung to offer the Payment Method due to new circumstances. In these cases, Fung may decide in its reasonable discretion to stop supporting a particular Payment Method or make future support conditional on the acceptance by the Merchant of additional conditions or fees. Fung is not liable for any damages of the Merchant due to the discontinuation or modification in the support of Payment Methods. Fung will give at least 1 month written notice of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision.
12. Customer complaints
The Merchant is solely responsible for supporting its Customers. The Merchant must be clear and proactive in communicating its terms and conditions, shipping policy and any delay in delivery or the cancellation of an order, as well as its Customer complaints procedure. If Fung receives complaints about Merchant, these will in principle be forwarded to Merchant. Fung will not be responsible for any complaint of Customers and will not be liable for any damages relating to the relationship between the Merchant and the Customers or between the Platform and the Customers. Furthermore, Fung may at its own discretion decide whether or not to put forward defences against a claim submitted by a Customer against Fung. Fung may also at its own discretion decide to settle with the Customer and hold the Merchant liable for costs and damages.
13. Disputes Merchant and Platform
In the event of a dispute between Merchant and Platform such dispute should be resolved between Merchant and Platform, Fung is no party to that.
14. Privacy
14.1 General
The Merchant undertakes to comply with the Applicable Law in the Merchant’s country of origin and in those countries in which the Merchant offers its goods and/or services, in particular when processing and sending Personal Data to Fung in the context of using the Payment Services and submitting transactions. In our privacy policy Fung explains in more detail how and for what purposes Fung collects, uses, retains, discloses and how it safeguards the Personal Data it processes.
14.2 Data Processing Agreement
Where Fung processes Personal Data while performing the Payment Services, Fung will act as a data processor under the direction and responsibility of the Merchant, as data controller, in accordance with Applicable Law. The Data Processing Agreement applies and each party will comply with the terms hereof.
15. Confidentiality
15.1 Confidentiality Obligations
All information relating to the Merchant or to Fung and designated as being confidential, including but not limited to these Terms and Conditions, and all information not expressly designated as confidential but which should reasonably be deemed confidential due to its nature or content, is considered “Confidential Information”. Each party remains the owner of all data made available to the other party in the context thereof. The Merchant acknowledges that the terms of these Terms and Conditions and any information provided by Fung on its Payment Services (including communications from Fung’s support functions) are Confidential Information.
Each party undertakes to take all necessary steps to protect the confidential nature of all Confidential Information of the other party, agreeing, in particular:
to share Confidential Information solely with personnel and representatives of the Parties which have a need to have access to such information in order to exercise rights and obligations under these Terms and Conditions;
to refrain from making any Confidential Information available to any third party without the prior written consent of the other Party except for Fung where necessary to perform the Payment Services;
only make such copies of the Confidential Information as is necessary for the purpose of these Terms and Conditions;
promptly inform the other Party, to the extent permitted by law, of any breach or suspected breach of any of the obligations hereunder; and
upon request in writing from the other Party and at their cost, immediately deliver to such Party all copies of all or part of the Confidential Information (regardless of the form in which, or the medium on which, it is stored) or shall destroy such information and confirm in writing (which includes email) that all copies of such information have been so delivered or destroyed as requested. However, the other Party and its Representatives may, subject to the terms of these Terms and Conditions, retain copies of the Confidential Information to comply with Applicable Law, and/or bona fide document retention and disaster recovery policies and procedures.
15.2 Confidentiality Exceptions
Clause 15.1 shall not apply to information which:
was already in the possession of or known to one of the Parties at the time of disclosure;
is or becomes publicly known, other than as a result of a breach of the terms of these Terms and Conditions by one of the Parties;
the Recipient obtains from a third party, and the third party was not under any obligation of confidentiality with respect to the Confidential Information;
is required to be disclosed by order of a court, or other competent public body or authority, or under the Applicable Law.
15.3 Time Limit
The rights and obligations under this Clause will survive the expiration or termination of the Agreement, regardless of the grounds for termination.
16. Software
Fung provides the Fung APIs and Software (and, where applicable, any other relevant software) to enable the Merchant to use the Payment Services. Fung reserves the right to change or amend these and the interface at any time, to provide the Merchant with a new version thereof, and/or to change the functionalities and characteristics, and to require the Merchant to install or update any and all software to continue using the Payment Services.
17. Property Rights
The property rights in the APIs, the Software and other materials, and all other intellectual property rights related to our Payment Services are owned solely by Fung and our licensors. The Agreement does not transfer any intellectual property rights with respect thereto and only provides the Merchant with a limited, non-exclusive and non-transferable licence (without the right to sub-licence) to use the Software and all other materials made available by Fung solely for the purpose of using the Payment Services in accordance with these Terms and Conditions and the applicable usage instructions communicated to the Merchant by email or through another means of communication as agreed upon jointly.The Merchant shall not prepare any derivative work based on Fung’s intellectual property, nor shall the Merchant translate, reverse engineer, decompile or disassemble Fung’s intellectual property.
18. Warranties
The Merchant represents and warrants to Fung that:
18.1
it shall not use the Payment Services in connection with any illegal or fraudulent business activities, including tax evasion, or in any way it is not intended;
18.2
it has the power to execute, deliver and perform under the Agreement, and its performance under the Agreement is duly authorised, and will not violate any provisions of law, or conflict with any other agreement to which such party is subject;
18.3
it has obtained and shall maintain any and all licences, permits and registrations required under Applicable Law to conduct the Merchant business in all jurisdictions where the Merchant sell goods, and shall inform Fung immediately should this change;
18.4
all information it provided to Fung is accurate and complete.
19. Indemnity and Limitation of Liability
19.1 Indemnity
19.1.1
In any case where damages, costs and expenses are asserted against Merchant by third parties who claim that they are the owner of any intellectual property (IP) rights regarding our Software and/or systems Fung shall indemnify the Merchant without delay for these third-party claims, including reasonable costs of Merchant’s legal defence, and offer the Merchant the necessary assistance in its legal defence.
19.1.2
The Merchant shall indemnify for and hold each of Fung harmless from any losses related to third party IP right infringements, and any other losses, claims, actions, injuries, liabilities, fines, penalties or expenses (including reasonable legal costs) arising out of or in connection with the Agreement.
19.1.3
The Merchant shall fully indemnify and hold Fung harmless from any claim, penalty, Fine and fees brought against Fung by any third party, including Payment Method Providers, Payment Method Acquirers, and Scheme Owners, Customers, to the extent arising out of or relating to Merchant's use of the Payment Services because of Merchant’s non-compliance with any applicable Scheme Rules, Applicable Law or this Agreement.
19.2 Limitation of Liability
The total liability of Fung due to attributable shortcomings in the fulfilment of the Agreement is limited to compensation of damages only up to the amount of the charged Payment Fees for the four (4) months preceding the incident causing the damages, with a maximum of EUR 25,000 (in words: twenty-five thousand euros) for each damage incident. A series of incidents counts as one (1) incident. Under no circumstances will the total compensation for damages amount to more than EUR 75,000 (in words: seventy-five thousand euros).
Fung shall not be liable for indirect damages, consequential loss, lost profit, missed savings, reduced goodwill, damages due to business stagnation and/or loss of data.
Nothing in the Agreement shall exclude or limit any liability of any Party for fraud, death, personal injury or gross negligence.
19.3 Third-Party Delays or Errors
Fung shall only be liable for its own acts or omissions and not for acts or omissions of third parties. This exclusion expressly applies to acts or omissions of Scheme Owners and Acquirers or for events or activities originating outside the systems of Fung (such as internet disturbances or malfunctions in third party systems), except in case such events were caused by the intent or gross negligence of Fung.
20. Term & Termination
20.1
Except where explicitly agreed otherwise, the Agreement is effective upon the date Fung accepted the Merchant as per Clause 4 hereof, and is entered into for an indefinite period until it is terminated (in whole or in part) by either party by giving at least three (3) months’ written notice to the other party.
20.2
Fung has the right to terminate the Agreement and/or to suspend the provision of any Payment Services, including Settlement, to the Merchant, immediately, in part or in whole, if:
20.2.1.1
The Merchant is reasonably suspected by Fung to be in breach of Applicable Law (including but not limited to anti-money laundering and terrorist financing legislations); or
20.2.1.2
The Merchant refuses to cooperate with the (ongoing) CDD/KYC-investigation from Fung or the Platform, or the outcome of this investigation is not to their satisfaction; or
20.2.1.3
The Merchant or any of the parties related to the Merchant, such as a shareholder, has been listed on any of the sanctions lists; or
20.2.1.4
The Merchant infringed or is suspected of infringing intellectual property rights, copyrightable works, patented inventions, trademarks and trade secrets, or are suspected of selling counterfeit and/or knockoff items/goods; or
20.2.1.5
The Merchant breach(ed) any of the terms set forth in the Agreement or Applicable Law in the context of using the Payment Services provided; or
20.2.1.6
At the request of a government authority, Scheme Owner or Acquirer; or
20.2.1.7
The risk profile of the Merchant has changed substantially; or
20.2.1.8
Merchant is the subject of any voluntary or involuntary bankruptcy, insolvency petition or proceeding or otherwise ceases its activities; or
20.2.1.9
The Merchant’s assets held by Fung or the the Foundation are seized through pre-judgment attachment or attachment in execution; or
20.2.1.10
The Merchant substantially changed its activities without informing Fung or without Fung approving such activities; or
20.2.1.11
The Merchant undertakes or has undertaken activities (such as scams or other fraudulent activities) which in Fung’s reasonable opinion are detrimental to our brand, image or reputation; or acts in a manner that, in our reasonable opinion, may or does give rise to increased risk of losses or liabilities to any of us.
20.3
Termination of the Agreement will cause the Payment Terms to automatically terminate without notice.
20.4
This Agreement governs your use of the Payment Services, therefore the termination of the Payment Terms will not automatically trigger termination of this Agreement, but may provide grounds for Fung to terminate the Agreement.
21. General Provisions
21.1 Severability
If any provision of these Terms and Conditions, either in whole or in part, is held to be illegal, invalid, void as against public policy, or unenforceable for any reason under present or future law, such provision shall be fully severable without effect on the remaining provisions, which shall continue in full force and effect and remain legal, valid, effective, and enforceable as if the illegal, invalid, void, or unenforceable provision(s) had never comprised a part of such provision or these Terms and Conditions, as applicable. In lieu of the illegal, invalid, void, or unenforceable provision, there shall be added a provision as similar in terms and legal effect to the illegal, invalid, void, or unenforceable provision as may be possible and which may be legal, valid, effective and enforceable.
21.2 Use of name of the parties
The Merchant agrees that its name and standard logo (as published by the Merchant) may be included by Fung on its website where it lists its clients and in its sales materials. Fung shall be entitled to use said list freely in its commercial efforts and to reach out to Merchant in relation to commercial efforts. Any other use of Merchant’s name, logo or information shall only occur with Merchant’s prior written approval which Merchant may withhold in its discretion.
The Merchant may on its website refer to Fung as its payment service provider, explaining that this is the reason why the name Fung may appear on bank statements of the customer. Merchant may also include an internet link to the website of Fung in such a context. Merchant must in each case also clearly state that customers of Merchant should not contact Fung for support or questions regarding payments processed by Fung for Merchant. Merchant may not use the logo of Fung anywhere on its website without the prior express written approval of Fung.
21.3 Changes to the Agreement
21.3.1
Fung may revise the Terms and Conditions from time to time by giving one (1) month written notice to the Merchant via email or by posting such changes on our website (“Change”). If the Merchant does not notify Fung of its objections to the Change within one (1) month of our written notice of the Change, the Merchant will be deemed to have accepted the Change. If the Merchant notify Fung of its objection to the Change within a period of one (1) months of our written notice of the Change, and Fung still does not withdraw the Change, the Merchant may terminate the Agreement immediately by giving Fung a written notice after the entry into force of the Change. However, if the Merchant does not object to the Change by terminating the Agreement within five (5) Business Days of the entry into force of the Change, the Merchant will be deemed to have accepted it. Merchant’s use of the Payment Services after Fung provides any such notice, constitutes its acceptance of the modified Terms and Conditions.
21.3.2
The one (1) month notice period will not apply where: (i) (i) the Change, in our reasonable opinion, is more favourable to Merchant, or (ii) relates to the addition of a new service or extra functionality to the existing Service. In such instances, the Change will be made and shall be effective immediately upon giving the Merchant notice of it.
21.3.3
The Merchant is not entitled to object to and shall not have the rights set out in this Clause for any change, which Fung implements in order to comply with Applicable Law or third-party requirements. For such imposed changes shorter notice periods may be imposed.
21.4 Governing Law & Jurisdiction
21.4.1
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Netherlands.
21.4.2
Title 7B of Book 7 of the Dutch Civil Code and all other laws and regulations implementing Directive 2007/64/EC of the European Parliament, the Council of 13 November 2007 and Directive 2015/2366 of the European Parliament and the Council dated 25 November 2015 are not applicable insofar as it is permitted by law to depart from these provisions in agreements concluded with non-consumers.
21.4.3
The parties undertake to take all steps to reach an amicable agreement to any dispute arising in relation to the validity, interpretation or fulfilment of the Agreement. This Clause is without prejudice to a party's right to seek interim relief against any other party (such as an injunction) through the competent courts to protect its rights and interests, or to enforce the obligations of any of the other parties.
21.4.4
In the absence of an amicable agreement, any dispute relating to these Terms and Conditions shall be submitted to the exclusive jurisdiction of the competent courts of Amsterdam, the Netherlands.
21.5 Force Majeure
Parties shall be relieved from its obligations under the Agreement, with the exception of Merchant’s obligations in terms of fees that are due to Fung, insofar as Parties are prevented from undertaking its obligations under the Agreement by reason of force majeure. For this Clause to apply, circumstances such as the following shall be considered as reasons of force majeure: fire, flooding, earthquake and other natural disasters; industrial actions; terrorism or vandalism (including computer virus and hacking); mobilisation; war; riots; civil unrest; requisition; sanctions, currency exchange restrictions; any law or any action taken by a government or public authority including without limitation failing to grant a necessary licence or consent; revolt; interruption or failure of utility service; and more generally circumstances beyond our control and preventing Fung to meet our obligations. This Clause does not have geographical limitation.
21.6 Third Party Beneficiaries
The provisions of the Agreement are solely for the benefit of the Merchant, Fung and Stichting Custodian, and, except as specifically provided herein, no third party (including creditors of any party) may seek to enforce, or benefit from, these provisions, or seek redress for any breach or other damage, alleged or proved, under the Agreement.