terms-conditions-v2
Version:
Effective from:
Oct 3, 2024
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: 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 consisting of 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: 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.
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: The data processing agreement between Fung and the Merchant as referred to in Clause 14.2 and incorporated herein by reference ..
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.
Force Majeure Event: Any act or event beyond the reasonable control of a party that materially affects a party’s ability to perform its obligations under the Agreement, including, but not limited to, fire, flooding, earthquake and other natural disasters; industrial actions; terrorism or vandalism (including computer viruses 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.
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 Bank Account: 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 and refers to any information relating to an identified or identifiable natural persons.
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.
Refund: A (partial) reversal of a particular Transaction, whereby the funds are reimbursed to the Customer.
Representative: (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 to Fung, such as for Refunds and 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+7 as Settlement Delay, whereby “T” is the transaction time and “7” 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 seven business days prior.
Settlement Schedule: 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 to receive 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 Custodian 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.
2. Description of the Payment Services
2.1 Platform
The Merchant will be using the Payment Services as a customer of the Platform, whereby Fung provides the Payment Services to the Merchant. 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 Fees
To enable Fung to provide the Payment Services to Merchant, Platform and Merchant must agree on the applicable Payment Fees, as outlined in Clause 8.1. Fung. Fung will deduct the applicable Payment Fees from any amounts Fung owes to Merchant, as per the Mandate as outlined in Clause 8.2.
2.3 Acceptance and Use Requirements
As part of the Payment Services, Merchant 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.
3. Merchant Onboarding
3.1 The Merchant must onboard with Fung before the Merchant can use the Payment 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 Fung’s first request, provide information on: 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, as required under Applicable Law, which the Merchant needs to provide promptly on Fung’s 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 3.1 or 3.2, without prejudice to Clause 20, Fung reserves the right to suspend the provision of itsPayment 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.